May It Please The Court
Quote of the Day - Babies believe that their mothers have no right to be in bed if they are up.
And Then There Were ThreeDenise Howell, blogger extrordinaire, now has a new, as-yet unnamed baby. I'm still voting for Textie, though.
Handwritten Note may Force $16.5 Million PurchaseBe careful what you sign.
Although this case isn't over yet, it certainly took a turn for the worse for Lawrence Taylor, a general partner of the Santa Monica Collection (SMC). Who?
Well, apparently, Taylor asked Donald Sterling about purchasing real estate properties. Sterling agreed to purchase the properties. Sterling then prepared a handwritten document that listed three street addresses in Santa Monicaand a sales price of $16.75 million.
Got that? Handwritten.
Taylor never bought the properties. As expected, Sterling sued Taylor to enforce the agreement. A trial court decided that the handwritten document contained terms that were too uncertain to be enforceable under the statute of frauds.
In short, the statute of frauds requires that some contracts, including those for the sale of real property, be in writing and signed by the party that agrees to perform (here, Taylor).
To qualify, the handwritten note must at least include a description of the property and the price to be paid.
The California Court of Appeal, Second District held that the handwritten document met those qualifications, and sent the case back to the trial court for the judge to decide if the agreement was actually enforceable under the remaining requirements of the statute of frauds.
Taylor may have to buy the three properties yet. With his luck, though, the value will have dropped, too.
Next time he wants to buy property, I bet he uses a lawyer to draft up the purchase agreement.
A Bright Star in HeavenThe legal community mourns the untimely death of one of its bright stars the day before Thanksgiving. Paralegal Susan Wheeler died earlier this week after a long battle with breast cancer. She brought a brighter day to those who knew her, especially in her final days. Susan worked for Palmieri, Tyler, Wiener, Wilhelm & Waldron before her illness. She is survived by her son Derek. Many will miss her.
From CNN to ENN - Around the Environmental WorldFirst we had CNN, and now we have ENN - Environmental News Network. It appears to be largely a "mother earth" oriented site, with news about recycling and polls on gas mileage and salmon (don't ask me why they go together).
ENN claims to have 25,000 weekly subscribers, and up on the internet since 1995. Where have I been? ENN's site is very slick, informative and they even have a radio show.
Not here. Although I used to be a DJ when I was in college, but then again, don't a lot of us make that claim? Oh well. I wonder if Matt Drudge has a radio show?
On ENN, you can get in-depth coverage of various environmental topics, such as water, and of course includes a Hydropower Quiz. I didn't do too well, though, and didn't know that Canada had the most hydroelectric dams.
It's a great educational site, but it presents a one-sided look at environmental issues. Still, it's a good way to become informed. Well worth a visit.
Perish the Thought - Citing Unpublished OpinionsIn California, we’re used to it. You can't cite an unpublished opinion to either a state or federal court. So is the law in 38 other states. But if you’re in Delaware, you may cite such an opinion, as you can in 9 other states.
Why is this a big deal? Right now, the federal courts are considering changing their rules to allow lawyers to cite unpublished opinions. It’s a scary prospect. The body of unpublished opinions is large, almost incomprehensible when compared to published opinions. In 1999, the Ninth Circuit issued 700 published opinions, and 3800 unpublished opinions. That’s just one year, and only one of 12 circuits. You do the math, I can’t.
The distinction is important. Published opinions go through as many as 80 drafts and can take weeks or months of preparation time, but unpublished opinions are drafted in as little as a day, and summarily sent to the parties with little revision. So, we have this whole body of unpublished opinions that do not rise to the same quality level as published opinions.
We can all rely on published opinions as precedential law. Unpublished opinions obviously do not have the same value. Unpublished opinions are simply the appellate court’s responses to the individual parties in cases where the judges do not feel that the opinion qualifies to be published as a clarification or change in the law, and it allows the courts to decide many more cases than they would be able to do otherwise.
There are those who are in favor of allowing citation to unpublished opinions. To quote one jurist, “Lawyers sometimes darkly suggest that unpublished dispositions make up a secret body of law wholly at odds with our published decisions – that unpublished dispositions mark out a zone where no law prevails, but only the predilections and preferences of the judges.”
But, that is not the case. According to the same jurist, “We ... [are] baffled by the claim because none of us perceives that this is what we are doing. These claims are always made with reference to some unnamed earlier case; lawyers seldom, if ever, present concrete evidence of lawlessness in unpublished dispositions to back up their claims. This is surprising because if the practice were happening with any frequency, the losing lawyers would have every incentive to make a fuss about it.”
Obviously, that doesn’t happen.
All of these unpublished opinions are available for research on Lexis and Westlaw, but are not citable to the Courts because of their obvious deficiencies compared to published opinions. Often, if I find a particularly persuasive unpublished opinion, I don’t cite it, I just use the applicable arguments.
I think this method is much more in line with the rules of the court, and still allows me to have the best of both worlds. I have been on the receiving end of unpublished opinions before, and I know that my clients preferred at least getting that much compared to a simple rebuff entitled “Affirmed” or “Denied,” which is the likely result if this rule goes through.
There’s two positions in opposition to this idea. First, leave the existing rules intact. Otherwise, if the courts are going to legislate a national rule, prohibit citation to unpublished opinions.
If you’d like to be heard on these points, and want your voice to make a difference, Ninth Circuit Court of Appeals Judge Alex Kozinski is interested in this issue and you can get more information if you contact him. You can email him at: firstname.lastname@example.org.
Speak out or you’ll have no one to blame but yourself. Rock the Vote!
Pumping Water Turns into FireIce Mountain Spring Water, a bottled water company, was ordered to stop drawing water from wells in Michigan. The Judge in the case ruled that the operation has damaged the environment.
Ice Mountain is owned by Nestle Waters of North America. Nestle produces other water products including Poland Spring, Arrowhead (a local California company) and Deer Park.
Environmentalists sued Ice Mountain, and claimed that the pumping operation drained nearby lakes, streams and wetlands.
The dispute involves four wells in Mecosta County, in western Michigan. The Michigan Department of Environmental Quality's water division had granted a permit allowing Ice Mountain's water-bottling plant to withdraw up to 400 gallons per minute, or 576,000 gallons per day.
Since production started, the plant's average pumping rate has been around 200 to 250 gallons per minute, company spokeswoman Deborah Wudyka said.
Now, nothing is being pumped.
Ice Mountain Spring Water spokeswoman Deborah Muchmore said the ruling was unwarranted and "quite extreme." She said the company will appeal.
Terry Swier, a founder of Michigan Citizens for Water Conservation, said the judge's decision "sets the stage for another big piece of the puzzle and that is getting water legislation in Michigan - some strong water legislation."
The debate over the water pumping nearly turned violent in September. Ice Mountain workers discovered a broken glass-block window and found unexploded, homemade firebombs while making a routine check at one of the company's stations. The Earth Liberation Front was blamed for the incident. The FBI is investigating.
I don't know why. The ELF claimed responsibility for the firebombs. Maybe the Fibbies missed that part.
WLF is Growing, and Adding New LawyersI'm pleased to announce that we've added two lawyers to our letterhead: Craig E. Lindberg and Charles J. Bennett.
Both lawyers practice litigation, and you can pass along your congratulations to them at these email addresses: Charles J. Bennett and Craig E. Lindberg. I'm sure they'd appreciate hearing from you.
Insurers Held to Tight Deadlines
Much of my practice includes dealing with insurance companies, which is inevitably frustrated by untimely responses. You tender a claim, and the carrier gets back to you sometime in six months. California has a Fair Claims act that requires a coverage determination within 40 days.