May It Please The Court
Quote of the Day - The latest refinements of science are linked with the cruelties of the Stone Age.
Just Pave Over Paradise: Trees Are The Reason We Have Global Warming
Yep, you read that right. At least one scientist in Germany believes tress are really the reason we have a greenhouse effect. According to Frank Keppler of the Max Planck Institute for Chemistry, trees emit methane.
You know. The stuff that comes out of the backsides of cows - methane gas.
At least they're consistent. Last year, the Max Planck Institute announced in a different study: "Reductions in airborne particle pollution, or aerosols, as air quality is improved, will amplify climate change by reducing the cooling effect due to aerosols and also by increasing the amount of carbon dioxide that remains in the atmosphere." In other words, global warming will accelerate.
It must be the new math.
Graduation Weekend Gathers Generations Of Graduates
Going home to the University of Iowa has a double meaning this time. For the last 20 years, it's been a homecoming with my law school classmates, professors and friends in Iowa City. Steve and "Steve Army," Deb the Registrar, Jerry, Linda, Rick, Kyndra, and Robert - along with "the gang" - have been regulars for the most part at the annual homecoming each Fall when watch the Hawkeyes play and occasionally win at football and we all sing (yell) the Iowa Fight Song at The Game. "Steve Army" got his nickname from my kids, who were trying to distinguish my two roommates, both named Steve, and the nicknamed Steve was the clean-shaven, square-jawed jarhead on an ROTC scholarship.
You know the group. They're your buds. The ones who went through the train wreck of law school with you, quizzing each other on jargon-laden Latin phrases, reading 100+ pages for each class every night, suffering through endless hours of bleary-eyed studying, outlining 80 pages to summarize property, torts, contracts, criminal law and something called civil procedure that's far from civil, filling up four blue books for each of the five finals at the end of the semester, tolerating overbearing professors because you have to, rules and regulations about what classes had to be taken when and where and occasionally went to the Airliner on Wednesday after class to lose ourselves in the oblivion otherwise known as pitchers of the cheapest beer we could order, talking over music turned down to allow spirited legal arguments between budding scholars of law.
Not to paint a rosy picture, but while you may have thought Scott Turow gave you the real insight in his book named One L, if you rely on that whitewashed view, then you may want to get the real story first. Call me, take to me to lunch and I'll warn you off, or at least give you a reality check before you check in to Fall registration at your torture chamber of choice, er , I mean the law school that admitted you.
It didn't work for my son, Michel Ayer, who despite my best advice to the contrary enrolled in my alma mater and graduated this past weekend. OK, you're right. I didn't wave him off, I offered the advice that only someone who had gone through the same train wreck could. I let him in on all the inside secrets of which professors to take and which to steer clear of, which classes to take, what groups to join, how to study, what not to study and generally everything I wish someone had told me, but didn't.
But don't let me fool you here. I wasn't the one who went to law school all over again. It was Michel who went and achieved what I didn't: Captain of the Moot Court team, winner of the Best Brief and Best Oral Advocate awards in the Jessup International Moot Court competition, Administrative Editor of the Journal of Corporate Law, a Summer Clerkship at Quarles & Brady in Phoenix and a separate Masters in Urban & Regional Planning, all while managing to maintain his marriage to Stacy, a very beautiful, charming and intelligent bookkeeper for a large insurance company.
Can you tell my vest buttons are popping?
Yep, this weekend is Michel's graduation from the University of Iowa College of Law along with a U&RP Masters degree. Then on Tuesday, he's off to Phoenix for several months of studying for the Arizona Bar and in September an Associate position at Quarles & Brady.
Twenty years ago today, I graduated from the same law school, looking forward to the challenge of a bright new practice in California. While I was proud to have survived law school and landed a job, the pride I feel today has no comparison.
It's everything you hope for your children, and more I can't even begin to explain. If you're a parent, then you already understand. If you're a graduate, just give yourself some time.
Your buttons will pop, too, and although your eyes will water when you watch the Dean hand him his diploma, you'll just say that something got in your eye.
Then you'll realize.
Stealing A Website And Ignoring The Court Lands Former Doctor In Default
If ever there was a horror story about stealing a website, then this case is it: Del Junco v. Hufnagel. Dr. Tirso Del Junco, Jr. is a highly qualified surgeon who assists women with alternative surgeries instead of hysterectomies. For reasons not stated in the opinion, another individual, V. Georges Hufnagel, who had her medical license revoked in California and New York and disciplinary proceedings pending against her in the state of Hawaii, tried to steal Dr. Del Junco's website.
Dr. Del Junco had a website entitled drdeljuncojr.com. Hufnagel started a mimic-style website without the "jr" part of Dr. Del Junco's URL. On her mimic website, she defamed Dr. Del Junco and claimed he was not a vascular surgeon (he is) and he had no specialized training (he does). Unfortunately for Dr. Del Junco, his business started to fall off and he suffered financially as a result of the traffic directed away from his website by the mimic website.
He consequently brought a lawsuit against Ms. Hufnagel and obtained an injunction to prevent her from maintaining the mimic website and continuing to defame him.
That's when the trouble doubled (in the first link above, skip down to page 5). A prior court had found Hufnagel was a "vexatious litigant," and this case proved to be more of the same. She filed a 140-page response to the motion for injunction (you're allowed only 15 pages). When the court granted Dr. Del Junco's injunction, she ignored it. She failed to show up for hearings. She filed papers that didn't comply with court rules. To top it off, she filed and withdrew pleadings at will and without the court's permission.
Then she hired an attorney, but things didn't get better. The attorney and Hufnagel succeeded in delaying the proceedings further. Finally, the trial court stepped in and struck her answer and entered her default. Not surprisingly, she appealed.
The court of appeal had no problem sustaining the trial court's primary orders.
As the justices observed about Hufnagel, "from the start of the case to the time the trial court struck Hufnagel's answer and entered default, Hufnagel showed no interest in taking part in the case or in following orders of the court. All of her actions were those of an obstructionist, not a participant in the process. She filed documents in propria persona that did not follow proper form, were lengthy, contained irrelevant information, and violated court rules. She filed documents without serving them. She failed to comply with the injunction and continued to operate the counterfeit web site. She did not pay sanctions when ordered. When she had counsel, things did not improve. Misrepresentations were made to the court, documents were not filed when promised, responses to interrogatories were never delivered, and phone calls were not returned. The actions of Hufnagel and her counsel were willful and deliberate, caused unnecessary delay, and wasted the trial court's resources. The actions caused Dr. Del Junco to incur unnecessary expense."
His final award? $358,724.90, after the court of appeal struck the trial court's award of punitive damages due to a lack of proof of Hufnagel's financial worth.
I'll bet she refused to produce documents detailing her financial worth during the underlying lawsuit.
Here's the good doctor's new website, Alternative Surgery.
Los Angeles Press Club Names MIPTC As Finalist In Three Award Categories
As regular readers know, MITPC is a card-carrying journalist; a member of the Los Angeles Press Club. Last year, as you can see over there on the left navigation bar, MIPTC was lucky enough to win the LA Press Club's award for Best Individual Weblog. They're doing it all over again, and as one of my close friends says, "wieux hieux!" MIPTC is honored to be named as a finalist for the 49th Annual Southern California Journalism Awards in three categories: Design & Layout, Individual Weblog and Online-only Website. There's some stiff competition, but in a little bit more than a month on Saturday, June 16, 2007, we'll know the winners and report back to you.
Here are the other finalists from the LA Press Club's announcement:
Design & Layout
Best of luck to everyone! According to the Press Club's website, "The 49th Journalism Awards Gala will bestow Judy Woodruff of PBS with the Joseph M. Quinn Award. Slain Russian journalist Anna Politkovskaya of Novaya Gazeta will posthumously be honored with the Daniel Pearl Award and syndicated columnist Gustavo "Ask a Mexican" Arellano will receive the President's Award. This year's Award Gala will be dedicated to the late Cathy Seipp, a longtime member of and contributor to Los Angeles Press Club, who lost her battle to cancer in March of 2007."
Lawyer 2 Lawyer Internet Radio Looks To Legal Wikis: Boom Or Bust?
On this week's Lawyer 2 Lawyer, we will explore the world of "Legal Wikis." Are they helping or hurting the law? What does the future hold for Wikis? Are we reshaping years and years of facts through the click of a button?
Join me and my co-host and fellow Law.com blogger Bob Ambrogi as we hear from the experts: Martin Farley, an Intellectual Property Law Librarian at Freshfields Bruckhaus Deringer in London, England, returning guest Tom Mighell, Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas, Texas and Daniel N. Lewis, entrepreneur and Vice President of Business Development and General Counsel of St. Petersburg, Florida's Wikia, Inc. Don't miss this show!
Should Courts Look Forward To Determine Insurance Coverage Or Back In Time?
Indiana's Supreme Court issued a ruling favoring insurance companies and against power companies over what it characterizes as "future contamination." The case, Cinergy Corp., et al. v. Associated Electric & Gas Insurance Services Ltd. and St. Paul Surplus Lines Insurance (plus several other power companies and some 21 other insurance companies) casts a backward look at insurance policies, both from a coverage and perhaps a shortsighted viewpoint.
In short, here's the Court's summary of its ruling from the first paragraph of the decision: "Incurring enormous defense costs in the course of a federal environmental lawsuit, several power companies desire payment of these defense costs, as they are incurred, under the terms of certain liability insurance policies. The insurance companies, denying liability for such defense costs, initiated this action for declaratory judgment. The power companies sought partial summary judgment to compel payment of all past and future defense costs incurred in responding to the federal lawsuit. We affirm the trial court's denial of the motion because it seeks relief more extensive than that to which the power companies are entitled."
First, the power companies were sued by the federal government, three states and several environmental groups for alleged violations of the Clean Air Act. In response to those suits, the power companies incurred nearly $4 million in defense costs and agreed to install certain emissions equipment to prevent future violations. Next, they asked their insurance companies to provide coverage. But the insurance companies declined and said, essentially, "we don't cover future damage."
That's what sidetracked the court, helped along by the insurance companies.
Framing the issue that way may not have been the right way to look at the problem. The court characterized the lawsuit against the power companies as: "alleging failure to obtain permits and discharge of excess emissions from power plants resulting in wide-spread harm to public health and the environment."
That language does not sound like future harm. Sure, the remedy does, but not the allegations, which should have made all the difference in the world. Insurance policies like the ones that cover these power companies provide coverage for harm to people and the environment that occurred in the past. They don't mention anything one way or the other about remedies.
Unfortunately, the court doesn't provide all of the language from the insurance policies at issue, so we may not ever know the answer to this question: does the policy provide coverage for lawsuits arising out of pollution? Most pollution policies do, and from the language tossed around in this opinion, it would seem these policies do, too.
The power companies appear to have been unable to get the court to focus on the underlying lawsuit and its allegations of past harm. If the court had focused on these factors, then it likely would have found coverage under typical insurance law.
The court, however, admits its own failings: "Synthesizing the policies' insuring agreements with their respective definitions of capitalized words and phrases is a daunting task, replete with often confusing, redundant, and some-times circular concepts."
Too bad they didn't look to the underlying litigation. Had they been applying California law, they likely would have found coverage.
Maybe in Indiana insurance policies look ahead, not back - I don't know; I'm not admitted there.
But it is tough to insure the future, no matter what state you're in. Most insurance policies I've seen cover past acts, which is what the court told us this lawsuit alleged.
Free Speech Not Free When You Defame Others
You have a First Amendment right to say whatever you want, even if it's critical, right?
There are limits. The typical example prohibits you from yelling "Fire" in a crowded theater. That limit exists because to do so is dangerous. But what happens if you just want to be critical?
And critical and critical and critical. Almost like a protest.
Anne Lemen, a self-described Christian evangelist, found out the hard way. She was apparently upset with a neighboring restaurant, the Balboa Island Village Inn, a small bar and grill just down the way from MIPTC in Newport Beach. Lemen lives next to the restaurant, which she defamed as part of her campaign to shut the bar down, telling anyone that the bar made sex videos, dabbled in child pornography, distributed illegal drugs, encouraged lesbian activities, had mafia links, was a whorehouse and sold tainted food. The trial court ruled all were false statements, and banned her from making them.
That's not all Lemen said, according to the California Supreme Court: She called customers "drunks" and "whores." She told customers entering the Inn, "I don't know why you would be going in there. The food is shitty." She approached potential customers outside the Inn more than 100 times, causing many to turn away. Lemen had several encounters with employees of the Village Inn. She told bartender Ewa Cook that Cook "worked for Satan," was "Satan's wife," and was "going to have Satan's children." She asked musician Arturo Perez if he had a "green card" and asked whether he knew there were illegal aliens working at the Inn. Lemen referred to Theresa Toll, the owner's wife, as "Madam Whore" and said, in the presence of her tenant, Larry Wilson: "Everyone on the island knows you're a whore."
Aric Toll, who bought the business in 2000, perhaps not too surprisingly, saw his sales drop by 20%.
Despite these defamatory remarks, the Court of Appeals reversed the trial court's injunction, leaving only minor restrictions in place (preventing her from videotaping patrons on their way in or out of the bar).
Last week, however, the California Supreme Court reversed the reasoning in the Court of Appeal's decision, and ruled that a Court can stop Lemen's defamatory statements and activities. In the Court's words (despite two separate dissents and one concurring opinion), ". . . a properly limited injunction prohibiting [Lemen] from repeating statements about [the Village Inn] that were determined at trial to be defamatory would not violate [Lemen]'s right to free speech."
There is a line, and Lemen crossed it. Now the case goes back to the lower court to redo the injunction and hold a trial on the damages Lemen caused the bar. That will be an expensive lesson in "free speech."
The Professors Are Lecturing Over At Blawg ReviewProfessor Kingsfield has returned to the Blawg Review this week because Professor Bainbridge returned to Washington, DC to offer some guidance to the SEC. This week's Blawg Review is a good one - don't miss it!