May It Please The Court
Defining the Essence of Spin DoctoringOur Law.com blog maven Lisa Stone has been providing some wonderful reading over at NYU's PressThink. She blogged about "Spin Alley" - the practice of politicians spin doctoring (be careful with this link - it's career advice) presidential debates.
Her piece traced the development of spinning in recent journalism.
She had this to say about spin, "In other words, 'superstars' who performed at peak level in spin situations were admired for their skills. They could 'win' the spin, and winning was admired. Spinning for the press pack was a designated, accepted part of the debate ritual. Those who worked the system well—Messrs. Atwater and Baker—were considered worthy adversaries by journalists. Note: The better the spinner, the better the reporter (listener) you have to be to 'catch' the master."
The current perception of spinning is that it is a technique by political handlers to cast their candidate in the best possible light. The career link above makes the case that Moses, Machiavelli and Rasputin were the original spin doctors. OK, maybe Adam was, as Lisa notes in her post.
Even so, I'd add to that list Cardozo, Patrick Henry, Lord Melbourne, Blackstone and perhaps Daniel Webster.
My list is all lawyers. In fact, after I read Lisa's piece, my theory was that the spin doctors she identified were also lawyers. Indeed, many lawyers are politicians. You see, I thought that lawyers were the essence of the art of spin.
But, I was wrong. Only Jim Baker was a lawyer. Turns out that the other spinners, Lyn Nofziger and Lee Atwater were not.
Now that's not to say that lawyers aren't spin doctors; I dare say as a group, we're certainly some of the most practiced. Even lawyer bloggers claim to be spin doctors. Whether lawyers actually qualify as spin doctors or adversarial advocates is a matter of degree, I think.
At some point, Lisa's post notes that "Spinning is lying." Well, certainly lawyers have been accused of that, so perhaps we qualify by default. But really, we take the factual situation where we find our clients and take those facts and analogize them to the existing law, or reframe either or both the facts and the law to a legal or equitable result - the desired result - needed by our clients, all the time spinning our side and "de"-spinning the opponent.
Advocacy has an element of spin to it, but more important, it frames the issues first. A famous legal writer once commented that all he had to do was put this line at the beginning of his brief, and he'd win: "Defendant should not be approved as a foster parent because he is a convicted child molester."
Correctly framing the issue often not only defeats your opponent, but also dictates the outcome.
Isn't that the essence of spin doctoring?
Ch- Ch- Ch- Changes and Co- Co- Co-BloggersChanges. They're always happening.
MIPTC is trying to help out readers who use RSS feeds to read this blog. As you can see from the link (and on this page, look over to the left, in the black under MIPTC), we've added a new page that will allow you to easily add (don't you love split infinitives) MIPTC to your favorite aggregator. If you use one we didn't list, let me know and we'll take care of it.
Be on the lookout for a new graphic. It's coming soon....
Remember, on Fridays, we'll be going to the movies with the MWGblog's Reel Reviews.
And thanks to a suggestion from a faithful podcast listener (please vote for MIPTC), I'll be changing the way the podcasts are named so that it will be easier to determine when they were recorded.
Co-bloggers. Finally, the call is out. MIPTC is considering applications for co-bloggers. I've been inspired by the Volokh Conspiracy model, and am thinking about adding some new voices.
"Applications," such as they are, should be sent to me at the email address below. See the primer page if you can't figure out the email address, but if that's the case, you probably shouldn't be submitting an app. "Applications" should include a brief bio and a short (250 words or less) sample post. Violators won't be considered. If you need to know what to write about, scroll down and visit MIPTC's archives.
My only advice: be creative.
Oh yes, at the end of yesterday's post, I said I'd give you my ruling on Case No. 4. If you haven't already figured it out, it was Judgment for the Plaintiff in the full amount of the damages she requested.
Finally, a thank-you to you. MIPTC has topped the 10,000 page hits per day mark, and is closing in on hitting 13,000. We used to average just under 3,300 hits a day. So, thanks to you, that's an annualized growth from 1,200,000 hits to nearly 4,700,000 hits.
As Bartyles and Jaymes used to say, "We thank you for your support."
Small Claims Get Resolved (Almost)Just like the big courts do, I'm going to post some decisions. Without the names, though.
This morning, I sat as a pro tem judge in a local court and heard four small claims cases. These types of cases never get any notoriety or any publicity, but they are some of the thorniest cases.
So, without further ado, here are the decisions.
Case No. 1. An easy one. Plaintiff failed to appear for trial. Case dismissed, without prejudice.
Case No. 2. Action for rent, cross-action for return of rent due to alleged uninhabitability of leased residential premises. Plaintiff leased a small cottage to Defendant in return for D's promise to provide P with 30 hours of flying lessons, which both parties agreed were worth two months rent, and thereafter an agreed-upon $625/month. D never provided the flying lessons, but paid four months of rent thereafter. P seeks repayment of the first two months of rent. D claims the premises was uninhabitable, but in addition to paying the four following months' rent, was not able to produce sufficient evidence of uninhabitability. When pressed to determine whether he demanded repairs from the landlord, he admitted that he had not, nor had he undertaken to make any repairs himself. D claimed the premises had been condemned, but at most was able to submit evidence that the City had required the premises to be demolished due to setback violations, which did not affect habitability. Further, the City had not ordered D to vacate the premises at all or due to any code violations. Held: Judgment for P for $1,250.00.
Case No. 3. Appeal of decision denying motion to vacate. D had failed to appear for his trial, previously set for September 21, 2004. Judgment of $5,000 was entered for P at that time for damages to P's driveway that D (contractor) had installed that allegedly was cracked, thin in some places and too thick in others, and a damaged lightpost that no longer worked. D appealed, and filed a motion to vacate the judgment, which was denied by the trial court. In this court, sitting as an appeals court from the original judgment and denial, D presented the court with a Notice of Trial that showed a date of September 29, 2004, apparently in the clerk's original handwriting. Upon examination of the court's file, the court discovered a subpoena to attend trial on September 21, 2004, issued by P to D, and signed under penalty of perjury by a licensed process server. The Court accepted the subpoena into evidence and reasoned that since D had received the subpoena, and even in light of a conflicting trial date on the original notice, he improperly failed to appear for trial pursuant to the subpoena, and at a minimum, should have called the court to resolve the conflicting dates. The court did not need to address whether the notice of trial had been altered by D. Held: On appeal, the court affirmed the judgment and denial of the motion to vacate.
Case No. 4. Action for rent and damages in excess of $2,900 after tenant moved out. Cross-claim for D's $2,000 security deposit. P and D attempted to mediate the case during Cases 1-3, but were unsuccessful. The Court heard the case and received into evidence photographs of the damage to the apartment from five years of D's two dogs in the apartment, including urination on the carpet, numerous plumbing leaks and abandoned property left in the apartment that has to be removed before being relet. The damage estimates were in excess of the amount prayed for. D alleged the damage was no more than normal wear and tear. The court disagreed, noting significant damage to the apartment, well in excess of the court's jurisdictional limit. The court gave the parties one last chance to reach a mediated agreement, and if they were unable, then the court would render judgment tomorrow.
Stay tuned for the ruling on Case No. 4.
Don't you almost feel like you're watching Judge Wapner?
Beds Takes You Laughing Through 2005Well, Beds' end-of-the-year A Criminal Waste Of Space column is up, and I haven't stopped laughing yet.
You'll be laughing, too, at his hilarious post, The Year In Preview.
Ho, Ho, Ho!
MIPTC Goes To The MoviesHold on to your computer chairs. MIPTC is going to make a few (more) changes.
On Fridays, you'll be able to hear Reel Reviews from the MWGblog. My friend, Michael Geoghegan, publishes his movie reviews, and they've taken off like wildfire. Actually, he podcasts his reviews, which is why you'll be able to listen.
Never fear, you don't need an iPod. You don't need to have a Mac.
All you need you already have (presumably):
Windows Media Player (or equivalent)? Check.
That's it. Simple.
Rest assured that Michael is not going to just review any movie. He's going to review movies for MIPTC, and that means ... surprise ... lawyer movies, and movies about the law. But, so that you and I don't get bored, we're going to take Matthew Homan's advice, and expand your horizons.
Sure, we're planning on Atticus Finch and some other famous (ahem) lawyers, but also movies above and beyond the law.
Movies you "need" to see, and hopefully broaden yours and my horizons.
So, grab your popcorn, sit back and relax, on Friday, we're going to the movies!
Supreme Court Turns CERCLA Litigation On Its HeadWell, rock my world.
The United States Supreme Court today issued its decision in Cooper Industries, Inc. v. Aviall Services, Inc. The Court held that private parties who voluntarily incur response costs to clean up hazardous substances are not entitled to seek contribution from other potentially responsible parties under section 113(f)(1) of CERCLA.
Virtually all courts had previously held that such parties did have the right to bring contribution claims under this provision. Not anymore, unfortunately.
The Court left unresolved, however, the important question of whether parties could recover their costs from other potentially responsible parties under CERCLA section 107. Since it's one of the only provisions left, the decision will certainly generate more litigation under section 107.
Now the Polanco Act will become tremendously more useful in California, since PRPs can recover not only their costs, but also their attorneys fees.
The UCL Practitioner Gets Cited In Supreme Court BriefThe UCL Practitioner just got cited in a petition for review here.
A number of bloggers are excited about the development, and we've exchanged emails about it. Here are their thoughts:
According to Denise Howell, "The petitioners make the point that the issue is receiving widespread attention and analysis (i.e., that it's important, controversial, and potentially subject to conflicting interpretation). That's a dandy point to make in support of a petition for review. I suppose bloggers are doing this kind of favor (aggregating potentially relevant materials) for brief drafters all the time, if only they are savvy enough to recognize it." Cites to blogs, though, are not new.
The SoCalLawBlog offered up its congratulations to the UCL Practitioner and pointed out the 2003 Daily Journal article discussing the prior Ninth Circuit brief mentioning blogs and the California recall effort.
We've all read that blogs have stepped into the mainstream, and that in limited instances, they've stepped into the legal books. Now, they're showing up in appellate briefs.
What's next? Will lawyers have to check blogs before making arguments in court?
The Court Says Parents Are Running AmuckIt's got to stop. At least that's what this Mom tried to do. She tried to stop her daughter's boyfriend from becoming a career criminal, and when she found out that the boyfriend had been involved with a purse-snatching, she turned him in. And testified against him.
The kicker here is that Mom listened in on her daughter's conversation with the boyfriend on an extension phone in the house. Mom used the information she gained from that conversation in her testimony that convicted the boyfriend.
But the state of Washington's Supreme Court threw out his conviction.
OK. Disclaimers here. I'm a parent. I disciplined my kids. I would have done the same thing, and a couple of times, I came pretty close.
So, I have some sympathy for Mrs. Dixon, the Mom in our story.
The Court ruled that: "[b]ased on the subjective
intentions and reasonable expectations of [the boyfriend] and [the daughter], their
conversation was a private one." And Mrs. Dixon violated Washington's privacy act when she listened in.
Privacy advocates favor the decision. According to the LA Times, "I don't think the state should be in the position of encouraging parents to act surreptitiously and eavesdrop on their children," agreed attorney Douglas Klunder, who filed [an amicus curiae] brief supporting [the boyfriend] on behalf of the American Civil Liberties Union. "
I disagree with both the ACLU and the Court.
The federal wiretapping act has been interpreted to except communications where a parent acts to protect the welfare of the child. Unfortunately, the Washington Supreme Court declined to pick up that interpretation. Parents are expected to act to protect their children. They need the government's support to do that. Without it, what are we left with?
Whining about the lack of parental discipline?