May It Please The Court
Quote of the Day - Everywhere is walking distance if you have the time.
Lawyer to Lawyer Internet Radio Visits The Stars Of LegalTech NYWant to know what's hot in technology from LegalTech NY 2009? Please join me and my fellow Law.com co-host Bob Ambrogi, as Bob reports from Legal Tech NY 2009. Bob walks the floors of LegalTech NY, check out the latest in technology and talks to he stand-out tech stars!
CAM Charges Cannot Include Landlord's LLC's Expenses
Tha't's it in a nutshell: common area maintenance charges in a lease that restricts the CAM charges to related to the repair, maintenance, and operation of the land prohibits the company from passing along the corporate costs to its tenants.
The court of appeal in the case Tin Tin Corporation v. Pacific Rim Park, LLC decided the landlord, PRP, could not charge the tenant, TTC, the fees and taxes PRP incurred from conducting business in the form of a limited liability company. The court reasoned that those costs were not related to the ownership and operation of the premises.
The LLC protected PRP by shielding it from liability. In contrast, the common area operational expenses benefitted the tenants and were chargeable to the tenants., but the cost PRP incurred to protect itself weren't.
Key lesson: don't overreach.
Lawyer to Lawyer Internet Radio Visits The Closing Of Guantanamo Bay Detention CampPresident Obama and his administration have quickly implemented changes in a lot of categories including the closing of Guantanamo. Please join me as I welcome Attorney Aziz Huq, Deputy Director from the Brennan Center for Justice at New York University School of Law, to discuss the legal implications surrounding the closing of Guantanamo, discuss the fear of critics and the future of the detainees.
Applying California's Maxims Of Jurisprudence To President Obama's Inauguration Speech
California has a series of Maxims of Jurisprudence that are used to interpret the actions of people toward one another. I thought it would be an interesting exercise to see if President Obama's inauguration speech could be rearranged and fit in the maxims in their sequential numerical order as listed in our Civil Code (highighted in bold below). Some had to be shoehorned in, but most fit pretty well. See for yourself:
3510. When the reason of a rule ceases, so should the rule itself.
This is the meaning of our liberty and our creed - why men and women and children of every race and every faith can join in celebration across this magnificent mall, and why a man whose father less than 60 years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.
3511. Where the reason is the same, the rule should be the same.
Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends - honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism - these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths.
3512. One must not change his purpose to the injury of another.
For us, they fought and died, in places like Concord and Gettysburg; Normandy and Khe Sahn.
3513. Any one may waive the advantage of a law intended solely for his benefit. But a law established for a public reason cannot be contravened by a private agreement.
What is required of us now is a new era of responsibility - a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.
3514. One must so use his own rights as not to infringe upon the rights of another.
To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West - know that your people will judge you on what you can build, not what you destroy. To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist.
3515. He who consents to an act is not wronged by it.
This is the price and the promise of citizenship.
3516. Acquiescence in error takes away the right of objecting to it.
My fellow citizens. [We are all in this together.]
3517. No one can take advantage of his own wrong.
At these moments, America has carried on not simply because of the skill or vision of those in high office, but because we, the people, have remained faithful to the ideals of our forbears, and true to our founding documents.
3518. He who has fraudulently dispossessed himself of a thing may be treated as if he still had possession.
For us, they packed up their few worldly possessions and travelled across oceans in search of a new life.
3519. He who can and does not forbid that which is done on his behalf, is deemed to have bidden it.
For us, they toiled in sweatshops and settled the West; endured the lash of the whip and ploughed the hard earth.
3520. No one should suffer by the act of another.
For as much as government can do and must do, it is ultimately the faith and determination of the American people upon which this nation relies. It is the kindness to take in a stranger when the levees break, the selflessness of workers who would rather cut their hours than see a friend lose their job which sees us through our darkest hours. It is the firefighter's courage to storm a stairway filled with smoke, but also a parent's willingness to nurture a child, that finally decides our fate.
3521. He who takes the benefit must bear the burden.
As we consider the road that unfolds before us, we remember with humble gratitude those brave Americans who, at this very hour, patrol far-off deserts and distant mountains. They have something to tell us, just as the fallen heroes who lie in Arlington whisper through the ages. We honor them not only because they are the guardians of our liberty, but because they embody the spirit of service; a willingness to find meaning in something greater than themselves. And yet, at this moment - a moment that will define a generation - it is precisely this spirit that must inhabit us all. What is required of us now is a new era of responsibility
3522. One who grants a thing is presumed to grant also whatever is essential to its use.
For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus - and non-believers. We are shaped by every language and culture, drawn from every end of this earth; and because we have tasted the bitter swill of civil war and segregation, and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.
3523. For every wrong there is a remedy.
Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with the sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.
3524. Between those who are equally in the right, or equally in the wrong, the law does not interpose.
We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort - even greater co-operation and understanding between nations. We will begin to responsibly leave Iraq to its people, and forge a hard-earned peace in Afghanistan. With old friends and former foes, we will work tirelessly to lessen the nuclear threat, and roll back the specter of a warming planet. We will not apologize for our way of life, nor will we waver in its defense, and for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that our spirit is stronger and cannot be broken; you cannot outlast us, and we will defeat you.
3525. Between rights otherwise equal, the earliest is preferred.
We remain a young nation, but in the words of scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness.
3526. No man is responsible for that which no man can control.
Thank you. God bless you. And God bless the United States of America.
3527. The law helps the vigilant, before those who sleep on their rights.
In reaffirming the greatness of our nation, we understand that greatness is never a given. It must be earned. Our journey has never been one of short-cuts or settling for less. It has not been the path for the faint-hearted - for those who prefer leisure over work, or seek only the pleasures of riches and fame. Rather, it has been the risk-takers, the doers, the makers of things - some celebrated but more often men and women obscure in their labor, who have carried us up the long, rugged path towards prosperity and freedom.
3528. The law respects form less than substance.
Today I say to you that the challenges we face are real. They are serious and they are many. They will not be met easily or in a short span of time. But know this, America - they will be met.
3529. That which ought to have been done is to be regarded as done, in favor of him to whom, and against him from whom, performance is due.
To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to the suffering outside our borders; nor can we consume the world's resources without regard to effect. For the world has changed, and we must change with it.
3530. That which does not appear to exist is to be regarded as if it did not exist.
This is the source of our confidence - the knowledge that God calls on us to shape an uncertain destiny.
3531. The law never requires impossibilities.
America. In the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children's children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.
3532. The law neither does nor requires idle acts.
Time and again these men and women struggled and sacrificed and worked till their hands were raw so that we might live a better life. They saw America as bigger than the sum of our individual ambitions; greater than all the differences of birth or wealth or faction. The state of the economy calls for action, bold and swift.
3533. The law disregards trifles.
This is the journey we continue today. We remain the most prosperous, powerful nation on Earth. Our workers are no less productive than when this crisis began. Our minds are no less inventive, our goods and services no less needed than they were last week or last month or last year. Our capacity remains undiminished. But our time of standing pat, of protecting narrow interests and putting off unpleasant decisions - that time has surely passed. Starting today, we must pick ourselves up, dust ourselves off, and begin again the work of remaking America.
3534. Particular expressions qualify those which are general.
So it has been. So it must be with this generation of Americans.
3535. Contemporaneous exposition is in general the best.
Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched, but this crisis has reminded us that without a watchful eye, the market can spin out of control - that a nation cannot prosper long when it favors only the prosperous. The success of our economy has always depended not just on the size of our gross domestic product, but on the reach of our prosperity; on the ability to extend opportunity to every willing heart - not out of charity, but because it is the surest route to our common good.
3536. The greater contains the less.
So let us mark this day with remembrance, of who we are and how far we have travelled. In the year of America's birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river. The capital was abandoned. The enemy was advancing. The snow was stained with blood. At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:
"Let it be told to the future world... that in the depth of winter, when nothing but hope and virtue could survive... that the city and the country, alarmed at one common danger, came forth to meet [it]."
3537. Superfluity does not vitiate.
I stand here today humbled by the task before us, grateful for the trust you have bestowed, mindful of the sacrifices borne by our ancestors. I thank President Bush for his service to our nation, as well as the generosity and co-operation he has shown throughout this transition.
3538. That is certain which can be made certain.
For everywhere we look, there is work to be done. The state of our economy calls for action, bold and swift, and we will act - not only to create new jobs, but to lay a new foundation for growth. We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place, and wield technology's wonders to raise healthcare's quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age. All this we can do. All this we will do.
3539. Time does not confirm a void act.
These are the indicators of crisis, subject to data and statistics. Less measurable but no less profound is a sapping of confidence across our land - a nagging fear that America's decline is inevitable, that the next generation must lower its sights.
3540. The incident follows the principal, and not the principal the incident.
What the cynics fail to understand is that the ground has shifted beneath them - that the stale political arguments that have consumed us for so long no longer apply.
3541. An interpretation which gives effect is preferred to one which makes void.
On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.
3542. Interpretation must be reasonable.
That we are in the midst of crisis is now well understood. Our nation is at war, against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age. Homes have been lost; jobs shed; businesses shuttered. Our healthcare is too costly; our schools fail too many; and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet. We have chosen hope over fear, unity of purpose over conflict and discord.
3543. Where one of two innocent persons must suffer by the act of a third, he, by whose negligence it happened, must be the sufferer.
On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn-out dogmas, that for far too long have strangled our politics.
3545. Private transactions are fair and regular.
The question we ask today is not whether our government is too big or too small, but whether it works - whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end. And those of us who manage the public's dollars will be held to account - to spend wisely, reform bad habits, and do our business in the light of day - because only then can we restore the vital trust between a people and their government.
3546. Things happen according to the ordinary course of nature and the ordinary habits of life.
Now, there are some who question the scale of our ambitions - who suggest that our system cannot tolerate too many big plans. Their memories are short. For they have forgotten what this country has already done; what free men and women can achieve when imagination is joined to common purpose, and necessity to courage. We reject as false the choice between our safety and our ideals.
3547. A thing continues to exist as long as is usual with things of that nature.
Forty-four Americans have now taken the presidential oath. The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms.
3548. The law has been obeyed.
As for our common defense, we reject as false the choice between our safety and our ideals. Our founding fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all the other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman, and child who seeks a future of peace and dignity, and we are ready to lead once more. We will not apologize for our way of life, nor will we waver in its defense.
Lawyer 2 Lawyer Internet Radio Discusses the TVA and the EnvironmentOn December 22, 2008, there was a major coal ash spill at the Tennessee Valley Authority's Kingston Fossil Plant, which poured 1.1 billion gallons of toxic material over 300 acres. Please join me and my fellow Law.com blogger and co-host, Robert Ambrogi, as we welcome Attorney Robin Greenwald, head of Weitz & Luxenberg's Environmental Toxic Tort practice and Attorney Lisa Evans from Earthjustice, as they discuss the aftermath of this disaster. They will take a look at the TVA disaster, environmental litigation and get a first-hand account of the damage and the effect on the surrounding residents.
Surprise! Economy Is Down, Litigation Is Up
According to Portfolio Media Inc.'s Law 360 Litigation Almanacs, 2008 U.S. litigation filings increased over 2007 figures by 9% to 266,398, and class actions are up 8% to 7,661.
I know you're shocked. Pick yourself up off the floor so you can continue with the next paragraph.
Here's the rest of the figures:
antitrust filings up 27% to 1,268 cases;
product liability filings (other than asbestos cases) up by 20% to 19,709 cases;
employment filings up by 6% to 31,990 cases;
intellectual property filings down by 11% to 9,210 cases; and,
securities litigation filings down by 8% to 1,459 cases.
With layoffs due to the bad economy, employment litigation cases will likely increase even more despite the attempts of the business sector to postpone business-to-business litigation to conserve cash. Product liability cases rose likely due to the claims arising out of product claims from China. Intellectual property filings decreases because the music industry slowed down its copyright violation campaign.
Securities filings decreased due to the economy as well - it's hard to blame decreased stock prices on management when every company is suffering from the same ills. Antitrust claims increased due to government prosecutions, which lawyers followed with civil lawsuits authorized by private attorney general statutes.
The rest of the cases are standard, run-of-the-mill tort cases (civil wrongs) that occur every day and aren't generally affected by the economy. That's one litigation sector that will stay flat, with perhaps a slight increase.
As cases pile up and statutes of limitations continue to run, we'll likely see more business litigation filings, too.
The fun never ends.
Sir John Mortimer, Creator of Rumpole of the Bailey, Dead At 89
Britain has given us many lowbrow entertainers such as Monty Python, James Bond and Benny Hill, but perhaps none is enchanting to the legal profession as Rumpole of the Bailey, a long-running radio and television series penned by Sir John Mortimer, QC, CBE. His death leaves us remembering Rumpole, eminently played by Leo McKern, as the champion of the common criminal and the Timson family clan that kept him employed throughout his career.
To Mortimer, nothing was sacred, which kept many wondering whether his first or second wife was the inspiration for "She Who Must Be Obeyed," the nickname given by the character Rumple to his wife, Hilda.
If you haven't watched Rumpole, it's worth tuning in to the BBC or PBS's Mystery! and catching a few episodes or reading the series of books - you'll likely enjoy the entertainment. You can also watch a two-part interview of John Mortimer on here and here. Mortimer wrote prodigiously and remained on the cocktail circuit almost up to his death.
Rumpole would have approved.
What Does A Floating Plane Have To Do With The Economy?
The economy is Supposedly in the tank (yes, the capitalization is intentional - more on that later). Supposed criminals are in the wing (no, the capitalization is not intentional, it's just the beginning of a sentence). Terrorists are at the door. Israel and Palestine are firing rockets at each other. Zimbabwe may not be the only country where they torture prisoners. Russia turned off the gas valve to Europe and the Ukraine.
And yet, everyday men turn into heroes. Take, for example, Chesley Sullenberger, III, and his co-pilot Jeff Skiles. They landed a 75-ton mass of iron in a river and floated it long enough to allow everyone to exit the plane safely and allow the pilot to walk up and down the aisle - twice - to make sure everyone had been rescued.
Is there a connection between the state of the economy and this event? Is there a connection between this event and the state of the world? Well, let's see.
First, we have an Airbus A320 that has been flying high in the sky for some time now. Just like the economy. People paid to get on that plane. Then all of the sudden, it precipitously fell out of the sky and landed in cold, dark river with a rushing current.
Kind of sounds like the economy, and for that matter, what's going on in the world, too. But is there a lesson here?
Given our present mindset, we wouldn't have been at all surprised if the plane crash landed into the skyline of Manhattan and its 7,500 gallons of fuel engulfed everything in its path and news shows pattered on about the horrible memories of September 11th.
Instead, two highly trained men landed that plane safely and saved 155 lives on the plane as well as untold lives on the ground and damage to a large chunk of NYC. We're told it was their years of training, practice, expertise, experience and education, starting all the way back at the Air Force Academy when they flew F-4 fighter jets and gliders (think about that contrast).
While I certainly don't mean to belittle the pilots' actions, each of us has similar training and expertise in our own respective fields. We work hard in our jobs. We're the ones who made America great, as we were taught by our parents and grandparents. We don't think we've been called on to be heroes, but maybe we haven't been listening.
Think about it for a minute.
What was your house worth last year before the recession hit? Does it still have a solid foundation? Four walls? A roof? I bet most everything in it works just the same as it did before, perhaps with the exception of those items on that ever-growing honey-do list. But you get my point: nothing has really changed - with the notable exception of someone else's Supposed opinion. Yes, the capitalization of "supposed" is intentional to highlight the fact that "opinion" in contrast is not. You can draw your own conclusions whether the Supposed opinion is correct.
If you think about it a bit further, the rest of the economy is like that too. It's all just someone else's Supposed opinion that the rest of us have chosen to accept because some expert in some other city told some journalist that printed it in a business newspaper, and then someone repeated it.
So it must be true.
I would invite you to hold a contrary opinion and not to Suppose. Sure, we spend too much and don't save enough. We buy more than we export. We owe money to just about everyone and can't seem to pay it quickly enough or in some cases, at all.
But the sun's going to come up tomorrow. There will be air to breathe and water to drink. Food will be on your table and you won't go hungry.
If we change our attitude, then ...
Well now, wait a minute there. Let me offer a different thought. Those two pilots reacted as their training told them to act. They knew they could save their plane, the people in it and the people on the ground. Within seconds, they acted swiftly and surely, gliding their plane in for a bumpy, but safe landing and the crew then escorted everyone to safety.
Our economy and the rest of the world are in the midst of a hard, bumpy landing. The government is offering to rescue us, but it's going to take more than that to jump start a recovery. It's going to take work. Someone's got to take the laboring oar, walk up and down the aisle and make sure we're all back to safety and able to go back to work tomorrow.
I, for one, am more than happy to get back to work and drag this sorry economy from its apparently complacent gloom and push to help kick start it into forward motion.
But that's just my opinion. If you agree, then put your shoulder to the grindstone with mine and let's get this country out of its funk and back on the road to recovery.
Two heroes have already showed us how. Now it's our job to pick ourselves up, change our mindset, produce goods, provide services, save money, spend less, work hard and stop our complaining.