Litigation and Trial - Max Kennerly

Third Circuit to Employee-Shareholders: No Breach of Fiduciary Duty Under ERISA Unless The Company Goes Down for the Count

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Tue, 18 Nov 2008 04:47:24 -0500

Breach of fiduciary duty class actions under the Employee Retirement and Income Securities Act ("ERISA") are as common as the day is long. If an employee pension plan loses a lot of value, odds are good there will be a lawsuit.

Unsurprisingly, the federal courts have clamped down on these lawsuits over the years. As the United States Court of Appeals for the Third Circuit (Pennsylvania, New Jersey and Delaware) just reaffirmed,

in the context of an ERISA plan that offers employees the option of investing in a fund consisting solely of the employer's own securities, there is a "presumption that a fiduciary acted prudently in investing in employer securities" and that, to rebut the presumption, "a 'plaintiff must show that the ERISA fiduciary could not have believed reasonably that continued adherence to the [Plan's] direction was in keeping with the settlor's expectations of how a prudent trustee would operate.'"

Ward v. Avaya Inc., (3d Cir. 2008, November 13, 2008, Jordan, J.)(on appeal from the District of New Jersey). The Third Circuit again rejected that "a company to be on the brink of bankruptcy before a fiduciary is required to divest a plan of employer securities," but held, in essence, that if the plaintiffs cannot show the stock plummeting and staying in the gutter, then they cannot win as a matter of law. In holding the plaintiffs cannot overcome the presumption as a matter of law, the Court describes:

At the outset of the class period immediately following the spin-off on September 30, 2000, Avaya's stock traded at $ 22.18 a share. As Ward takes pains to point out, it initially lost much of that value, and by August 2, 2002, after fluctuating significantly for some time, it reached a low of $ 1.15 a share. By April 25, 2003, the day after Ward's Count II class period ended, Avaya stock was trading at $ 3.24 per share. Following the end of the class period, however, Avaya's stock continued to rise and, by August 2003, was trading at around $ 10.00 a share. Between October and December 2003, the stock was trading between $ 12.00 and $ 14.00 a share. During 2004, Avaya stock usually closed at between $ 12.00 and $ 16.00 a share. Commensurate with its rising stock price, Avaya reported significant positive net income in 2003 and 2004. Further, like the plaintiff in Edgar and unlike the plaintiff in Moench, Ward's complaint fails to point to anything other than Avaya's financial struggles to support his breach of fiduciary duty claim.

The frustrating part here is that of course the plaintiff had no direct evidence, their case was dismissed under Fed.R.Civ.P. 12(b)(6) before they could conduct discovery. The message from the Third Circuit is thus loud and clear: if the company's stock has regained a substantial portion of its value, don't bother filing suit.

I have plenty of sympathy for the defendants here, directors who almost certainly did, in fact, believe they were simultaneously acting in the best interests of the company and the retirement plan beneficiaries. No could blame them for believing in the eventual success of their own company, and the company did, in fact, regain at least two-thirds of its prior market value, more than 10 times its lowest value just two years prior to that.

But that's precisely the problem -- of course the directors will believe in the eventual success of their own company. Indeed, aside from company officers, who could possibly be less objective about their own company? They're supposed to believe in the company's success, even against the odds.

The core problem, as the Third Circuit noted, is that "as the financial state of the company deteriorates … fiduciaries who double as directors of the corporation often begin to serve two masters. And the more uncertain the loyalties of the fiduciary, the less discretion it has to act." At what point should we expect that a "prudent" director will recognize their own lack of objectivity and step aside? The answer from the Third Circuit appears to be "never," at least not if the stock has regained substantial value.

Maybe, on balance, that makes the most sense, a "no serious harm, no foul" rule. The stock market is inherently unpredictable; if, for example, the directors had moved assets out of Avaya in the spring of 2003, the retirement fund likely would have missed out on Avaya's dramatic rise in the fall and winter of 2003. You don't invest your money in a 100% company fund to go willy-nilly at the first sign of trouble.

Nonetheless, though there are many plausible legitimate explanations, it's troubling to see issues like that decided on a motion to dismiss, denying plaintiffs the chance to see what the explanation actually was. The directors here could have completely breached their fiduciary duties and, after getting 'lucky,' still have cost beneficiaries one-third of their pension's value, potentially even more when compared to the fund's hypothetical value if it had been managed properly. Yet, the case was over before it started, merely because the fund lost 'only' one-third of its value as compared to value on the plaintiff's class certification date.

Finally, just how common are ERISA breach of fiduciary suits? So common that the Third Circuit held plaintiffs claims were also barred by a prior class action settlement in Reinhart v. Lucent Technologies, Inc., 327 F. Supp. 2d 426 (D. N.J.).

Monday Morning Cup of Coffee

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Mon, 17 Nov 2008 04:53:50 -0500

Some links to get your neurons going over the next week:

A former producer reveals the secrets of talk radio.
I Can Has Cheezburger... and pathos? : Salon writer Jay Dixit discusses the link between LOLCats and the human condition.
A particularly crazy dog vs. cat "fight"
Woman reaches US army's top rank -- "And you know what they say, behind every successful woman there's an astonished man."
New Scientist kicks off it's science fiction special by asking "Is science fiction dying?"

And finally, in 1936 Buckminster Fuller explained Einstein's theory of relativity in a telegram:

EINSTEIN'S FORMULA DETERMINATION INDIVIDUAL SPECIFICS RELATIVITY READS QUOTE ENERGY EQUALS MASS TIMES THE SPEED OF LIGHT SQUARED UNQUOTE SPEED OF LIGHT IDENTICAL SPEED ALL RADIATION COSMIC GAMMA X ULTRA VIOLET INFRA RED RAYS ETCETERA ONE HUNDRED EIGHTY SIX THOUSAND MILES PER SECOND WHICH SQUARED IS TOP OR PERFECT SPEED GIVING SCIENCE A FINITE VALUE FOR BASIC FACTOR IN MOTION UNIVERSE STOP SPEED OF RADIANT ENERGY BEING DIRECTIONAL OUTWARD ALL DIRECTIONS EXPANDING WAVE SURFACE DIAMETRIC POLAR SPEED AWAY FROM SELF IS TWICE SPEED IN ONE DIRECTION AND SPEED OF VOLUME INCREASE IS SQUARE OF SPEED IN ONE DIRECTION APPROXIMATELY THIRTY FIVE BILLION VOLUMETRIC MILES PER SECOND STOP FORMULA IS WRITTEN QUOTE LETTER E FOLLOWED CLOSELY BY EQUATION MARK FOLLOWED BY LETTER M FOLLOWED BY LETTER C FOLLOWED CLOSELY BY ELEVATED SMALL FIGURE TWO SYMBOL OF SQUARING UNQUOTE ONLY VARIABLE IN FORMULA IS SPECIFIC MASS SPEED IS A UNIT OF RATE WHICH IS AN INTEGRATED RATIO OF BOTH TIME AND SPACE AND NO GREATER RATE OF SPEED THAN THAT PROVIDED BY ITS CAUSE WHICH IS PURE ENERGY LATENT OR RADIANT IS ATTAINABLE STOP THE FORMULA THEREFORE PROVIDES A UNIT AND A RATE OF PERFECTION TO WHICH THE RELATIVE IMPERFECTION OF INEFFICIENCY OF ENERGY RELEASE IN RADIANT OR CONFINED DIRECTION OF ALL TEMPORAL SPACE PHENOMENA MAY BE COMPARED BY ACTUAL CALCULATION STOP SIGNIFICANCE STOP SPECIFIC QUALITY OF ANIMATES IS CONTROL WILLFUL OR OTHERWISE OF RATE AND DIRECTION ENERGY RELEASE AND APPLICATION NOT ONLY OF SELF MECHANISM BUT OF FROM SELF MACHINE DIVIDED MECHANISMS AND RELATIVITY OF ALL ANIMATES AND INANIMATES IS POTENTIAL OF ESTABLISHMENT THROUGH EINSTEIN FORMULA

"Supreme Court Upholds Bill Of Rights In 5-4 Decision"

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Sun, 16 Nov 2008 09:15:45 -0500

From America's Finest News Source:

WASHINGTON—In a landmark decision Monday, the U.S. Supreme Court narrowly ruled to uphold the Bill of Rights, the very tenets upon which American society is based. "After carefully considering the relevance of the 10 inviolable rights that comprise the ideological foundation on which our nation is built, the court finds that these basic freedoms remain important for the time being, and should not be overturned," read the majority opinion authored by Justice Anthony Kennedy, who cast the tie-breaking vote. "Until such time as it can be definitively proven that citizens no longer require the protections provided by the Bill of Rights, it shall remain the principal legal guidance for the United States of America." The Supreme Court's latest decision comes on the heels of last month's 6-3 ruling to abolish the pursuit of happiness from the three inalienable rights guaranteed by the Declaration of Independence.

Fumo Trial Part 3: The Secret of Comedy and the Art of Cross Examination

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Thu, 13 Nov 2008 03:01:16 -0500

Cross examination is expected to be the most dramatic part of any trial; it's where Perry Mason extracted confessions from the main witness, where Jack McCoy pummels the defendant's alibi, and, indeed, it's where most real life criminal trials are won or lost.

For a civil or criminal case to go to trial, there must be at least one witness who will stand up and say they saw or know that the defendant did something wrong. It's thus no accident that criminal defense attorneys are cross-examiners, as they rarely have the same opportunity as civil defense attorneys to raise doubt by arguing that, even if the facts as alleged are true, their client either did nothing wrong or was not the cause of the harm suffered by the plaintiff. Even in the Fumo trial, where his attorney has argued that the misuse of Senate resources was not a crime, Fumo cannot take the chance the jury will believe the facts alleged by those staffers.

For criminal defense lawyers, if they cannot cast doubt on the testimony by the prosecution's witnesses, then they will lose, pure and simple. They have no choice but to attack everyone who testifies against their client.

So it has been in the Fumo trial. As I wrote before, it is a bit of a mystery why the United States Attorneys began their case with the testimony of Christopher Marrone, given how, as Fumo's estranged son-in-law, he transparently hated Fumo and had strong reasons to exaggerate -- possibly even fabricate -- his testimony. As expected, Fumo and Arnao's lawyers, who spent several hours on Marrone's relationship with Fumo and his unseemly decision to retain hundreds of incriminating e-mails for the apparent purpose of later retaliating against Fumo. As prosecution witnesses go, he was an easy target.

Now the US Attorneys have turned to witnesses who remained loyal to Fumo until the criminal indictment, witnesses with far less obvious reasons to be untruthful. Witnesses like Howard Cain, a long-time political consultant to Fumo who has just testified to doing extensive political work on behalf of Fumo while on the Senate's payroll.

Cain, however, walks into the courtroom as tainted goods: Cain spent the better part of a decade failing to file taxes, has pled guilty to tax evasion, and cooperated with the government here in exchange for favorable consideration in his own sentencing. To Dennis Cogan and Ed Jacobs, Cain is a rat, a tax cheat trying to save his own skin by selling Fumo down the river. Their job is to make the jury see Cain the same way.

How do they do that?

The basic tool in the trial lawyer's cross-examination box is impeachment by prior inconsistent statement. In the Fumo trial, those prior inconsistent statements have come largely from FBI interviews with the witnesses before trial, which Fumo and Arnao's lawyers have reviewed carefully, organizing and memorizing every detail just in case the witness's testimony at trial differs from those statements and interview notes. The defense lawyers can use those prior inconsistent statements in three ways.

First, they could get lucky. Perry Mason could get a prosecution witness to implode on the stand, break down, and confess everything. Mere mortals like Dennis Cogan and Ed Jacobs cannot, not unless they're lucky. Rarely does the actual culprit take the stand in a criminal trial as a witness and then, against all reason and sense, confess on the spot.

Second, they could find a smoking gun. If a trial lawyer catches a major inconsistency -- like a witness testifying about an event they could not possibly have seen -- then the task becomes comparatively easy, and the trial lawyer can slowly hand the witness enough rope to hang themselves with, calling into question their entire testimony. You can often see these moments coming: look for a cross examining attorney to fixate on a handful of banal details, so much so that the court may intervene to instruct the attorney to move on, after which the attorney reveals that the banal details, which have now been burned into the jurors' brains, could not possibly be true.

Third, and most commonly, they can fight it out. The two "rules" for cross examination are well-known and taught at every law school. Use leading questions only (i.e., questions with a yes or no answer), so that the witness will not have a chance to tell their story again. Do not ask any questions for which you do not already know the answer.

That is the safe option. Do that as a trial lawyer and you will not be sued for malpractice. No one will blame you when your client loses.

Do that in a difficult case -- Fumo has a very difficult case -- and you will lose.

Jurors want drama. They want a fight. Some lawyers and commentators blame television shows and movies for the jury's expectation that the criminal defense lawyer will assault the prosecution's main witnesses, but I believe the situation inherently demands drama. If the witness is calling your client a criminal, you have no choice but to call them a liar and to prove it.

How do you prove it?

Timing.

If you can understand the difference between Humpty Dumpty and Socrates, you can understand the difference between direct and cross-examination. Cross examination leads, direct examination builds.*

We will come back to this subject in future posts. For now, let's focus on Cogan's initial cross-examination of Cain. Cogan did not rise, say good afternoon, and call Cain a rat. First came the challenge to Cain's credibility and truthfulness: the plea agreement and his tax evasion. Then came a prior inconsist statement: Cain's testimony about a Verizon meeting differed from what he told FBI investigations. Then came a challenge to the substance of Cain's allegations: Cogan walked Cain through multiple invoices Cain had submitted showing extensive work for the Senate, work that would have been entirely appropriate under the rules.

Only then, after Cain's credibility had been attacked, and after the jury had seen a clear inconsistency, and after the substance of his testimony had been called into question, came the accusation: "are you making all of this up?" At that, Cain became combative and evasive.

From there, it was all downhill, and he's been pummeled on the stand ever since. The question will be if Cogan and Jacobs can maintain this intensity as the US Attorneys move forward into witnesses with stronger allegations and fewer weaknesses.

* I paraphrased this great example and description from a story about Chicago legend Oliver Frank told by Thomas Anthony Durkin in the exceptional cross-examination book "Your Witness" by Steven Molo and James Figliulo.

Another Day, Another Upheld Production of "Personal" Materials Found on Employer's Computers

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Wed, 12 Nov 2008 03:51:59 -0500

This time in New Jersey, as described at Electronic Discovery Law:

State v. M.A., 954 A.2d 503 (N.J. Super. Ct. App. Div. 2008)

In this case of first impression in New Jersey, defendant argued that personal information found on his work computers should be suppressed because his employer had no authority to consent to the search. ...

Rejecting his arguments as “implausible”, the court found ownership properly resided with the employer in light of several facts, including, among other things, the employer’s payment for the computers, the placing of the laptop on the depreciation schedule of the employer’s corporate tax returns and the specific instruction to defendant that all computers were company property. Accordingly, the court upheld the validity of the warrantless search and denied the defendant’s motion to suppress.

Not the first such holding and certainly not the last.

It bears repeating again and again: if you keep non-work materials on your computer, or send/receive "personal" e-mail on your work servers, you are taking a risk of either waving attorney-client privilege or consenting to a warrantless search.

Re-learning From My Mistakes: A Lesson from Poker and Politics About Analyzing Your Opponent's Intentions

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Tue, 11 Nov 2008 09:41:06 -0500

It's no surprise that trial lawyers are often drawn to politics -- politics and trials both hinge on facts, credibility and persuasion, and both are swayed by similar strategies, tactics, persistence, diligence, insight and, unfortunately, fabrications and passions.

That is part of why, this blog, unlike most practicing attorney blogs, often jumps into politics. I believe politicians and political strategists have a lot to teach trial lawyers, or at least do a lot from which trial lawyers can learn.

Or re-learn.

Two months ago I made a prediction that I did not see made anywhere else: that Sarah Palin was announced as John McCain's vice presidential running mate as part of a bait-and-switch strategy designed to disrupt the election narrative (in which John McCain was slowly losing the election), shore up social conservative support for McCain, and change expectations for his running mate.

I had many reasons to reach that conclusion, some of which you can read at the link, but chief among them in my mind was how the selection didn't make any sense.

Sure, a number of pundits identified plausible reasons for the selection, including discontent among former Hillary Clinton supporters, but, long before the election, polls have consistently shown that most voters are both very concerned about electing a president over the age of 65 and uncomfortable with the idea of a female president. Add to those existing preconditions the fact that the McCain team had apparently done no vetting or other investigation of Palin, who had minimal experience, was under investigation for ethical violations, and had not shown any understanding of national politics, and you had, at least in my interpretation, a preponderance of evidence suggesting all was not as it appeared to be.

Put another way, had the vaunted Karl Rove political machine really chosen, without any detailed investigation, an unqualified candidate the voters were predisposed not to like? And had they done so while also conceding their strongest argument, that McCain's experience trumped Obama's vision?

Apparently so. I was wrong.

Here's how Newsweek's embedded reporters described it after the election:

Pawlenty, the popular governor of a swing state the Republicans badly needed to win in November, was the safe choice. Salter especially liked Pawlenty's salt-of-the-earth qualities.

But McCain didn't want the safe choice. A top adviser would later recall that telling McCain that Pawlenty was "safe" was "like guaranteeing" that McCain would not pick him. Prodded by Schmidt and Rick Davis, McCain began asking about Palin, a first-term governor who had shaken up the Alaska political establishment by taking on her own party elders, who was fearless and defiant, who was … a little bit like McCain.

There was no strategy: McCain, Schmidt and Davis were thinking, as Stephen Colbert would say, with their guts.

In one sense, there is no need for self-reflection, as the end result was the one I wanted, so does it really matter how we got there? Yet, every trial lawyer has had a trial end successfully but not in the way they imagined. After they fought hard, trapped the opposing party in their own contradictions, marshalled their strongest evidence and highlighted their opponent's weakest evidence, the trial lawyers interviewed the jury afterwards and discovered the case the jurors decided bore little resemblance to the case the lawyers argued.

Sure, all the facts were the same, but in the end the jurors took the issues the lawyers thought were, respectively, dispositive and tangential, and flipped them. That's as much as reason to re-evaluate how you tried the case than if you had lost it.

So it's time to re-learn a lesson taught best to me by my brother, the theoretical physicist and poker player, who a while back related to me this strategic mental exercise:

Q: It's early in a no-limit Texas Hold 'Em tournament. The last cards you've played to showdown were pocket kings for a flopped set that turned a boat. Since then you've folded every single hand for the last 45 minutes. From early position, you open-raise to 4 times the big blind with about 45 blinds behind. What is your opponent thinking?

A: Nothing.

Sometimes, your complicated feigns are irrelevant and your opponent isn't feigning anything at all.

Sometimes, they're just thinking from the gut.

Next time you ask yourself, "what are they thinking?", consider that the answer could be "nothing."

A Friendly Reminder About Summary Judgment: When In Doubt, Use Affidavits To Sustain Your Prima Facie Case

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Tue, 11 Nov 2008 04:19:28 -0500

The United States District Court for the Eastern District of Pennsylvania punts an easy one:

Counts I and II of the complaint arise under the Truth in Lending Act ("TILA"), 15 U.S.C. §§ 1601, et seq., Home Ownership and Equity Protection Act of 1994 ("HOEPA"), 15 U.S.C. § 1639 and Regulation Z of the Federal Reserve Board ("Regulation Z"), 12 C.F.R. §§ 226.1 et seq. Plaintiff seeks rescission of the loan transaction and actual and statutory damages. ...

Under TILA, a borrower has the right to rescind certain consumer credit transactions [either until midnight of the third business day or, if the consumer was not provided the rescission forms, within 3 years or delivery of those forms] ...

Regulation Z requires the creditor to deliver two copies of the notice of right to rescind to each consumer entitled to rescind and specifies the information that the creditor must include in the notice.

...

Defendants believe plaintiff's rescission claim is untimely because the three-day limitations period under 15 U.S.C. § 1635 (a) applies and plaintiff failed to notify them of her intention to rescind until January 9, 2007. Defendants claim to have complied with 12 C.F.R. § 226.23 (b) (1) by delivering to plaintiff two copies of the required rescission form on January 22, 2004. ...

Defendants support their motion for partial summary judgment with evidence that plaintiff received two copies of the required rescission form. Exhibit C, attached to Defendants' memorandum of law, is a rescission form dated January 22, 2004 and titled "Notice of Right to Cancel." ... Ms. Gonzales' signature appears below the following sentence: "The undersigned each acknowledge receipt of two completed copies of this Notice of Right to Cancel." Plaintiff does not deny it is her signature.

Counsel for plaintiff contends that, contrary to the written acknowledgment, only one copy of the Notice of Right to Cancel "wound up in the hands of Plaintiff, the borrower." (Plaintiff's Memorandum at 13.) TILA addresses the effect of written acknowledgments of receipt, such as the Notice of Right to Cancel [*7] produced by Defendants:

Notwithstanding any rule of evidence, written acknowledgment of receipt of any disclosures required under this title ... does no more than create a rebuttable presumption of delivery thereof.

15 U.S.C. § 1635 (c). Plaintiff's written acknowledgment of the Notice of Right to Cancel creates the presumption that plaintiff received two copies of the document. ...

On a motion for summary judgment, the nonmoving party must come forward with evidence setting forth specific facts showing that there is a genuine issue for trial. The nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). Plaintiff has failed present evidence sufficient to rebut the presumption of delivery. Absent from the record is any sworn statement from Ms. Gonzales or other witness that plaintiff received one copy rather than two. Plaintiff relies entirely on the assertions of counsel and the Closing Checklist. No reasonable jury could conclude, on the basis of the Closing Checklist alone, that plaintiff received one copy rather than two. The three-day limitations period under 15 U.S.C. § 1635 (a) applies and commenced on January 22, 2004, the date plaintiff received the Notice of Right to Cancel. Plaintiff is not entitled to rescission because her letter demanding rescission on January 9, 2007 was untimely.

Gonzales v. CIT Group/Consumer Fin., Inc. (E.D.PA, October 30, 2008, Shapiro, J.).

And just like that, the Truth In Lending rescission claim and all the other pendant federal claims are dismissed, with the state law claims remanded back to state court.

The plaintiff's counsel apparently made a complicated argument relying upon words in the agreement itself that arguably reflected their position that the plaintiff had only received one copy.

But there was no need to go down that road: all they needed was an affidavit from the plaintiff saying that she had only received one copy. That's all. At that point, it would've been a fact issue for the jury and would have survived summary judgment.

Federal Rule of Civil Procedure 56(e) provides for exactly this situation:

(e) Affidavits; Further Testimony.

(1) In General.

A supporting or opposing affidavit must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on the matters stated. If a paper or part of a paper is referred to in an affidavit, a sworn or certified copy must be attached to or served with the affidavit. The court may permit an affidavit to be supplemented or opposed by depositions, answers to interrogatories, or additional affidavits.

(2) Opposing Party's Obligation to Respond.

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

Keep that in mind the next time you get a motion for summary judgment saying the evidence revealed in discovery failed to meet an essential element of your claim: odds are your client or another witness can fill that gap based on their own recollection.

"Philly lawyer's mural of justice draws objection"

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Mon, 10 Nov 2008 12:24:14 -0500

The Associated Press has picked up the dispute between Paul Rosen, who wants to paint a mural on a parking lot near Rittenhouse Square, and his neighbors, who apparently believe public art is beneath them. The dispute was covered in depth last month by Philadelphia Magazine (the same issue with a feature on Jim Beasley, Jr.).

The mural has been designed by Michael Webb, who also did the lovely mural facing our own parking lot, a part of which you can see here at night. (Unsurprisingly, Slade McLaughlin's lights are still on.)

Both articles lay the elitism thick on the opponents; I'd like to give them the benefit of the doubt, but they haven't made that easy, and haven't made clear why they're actually opposed. If you're not going to voice the specifics of your opposition to something as presumably unobjectionable as a privately-paid public arts project then people are going to assume the worst, an assumption reinforced by anonymous ad hominem attacks like this one:

Elitism aside, a few people thought that Paul Rosen’s allegorical tribute to Justice was actually a thinly disguised advertisement for his law firm. “I can’t imagine that [Paul] would not put his name on it,” says one person who was at the Ethical Society meeting. “That’s a form of advertising and opens the door to other things. The next thing you know, they’ll put up something showing a little boy run over by an automobile or a doctor removing the wrong leg or something like that, and the phone number of some law firm.”

Please. If there's some reference to the Spector, Gadon & Rosen Foundation down by the artist's signature, then so be it. The same is true for virtually every privately-funded public arts project in the country, and, if I recall correctly, most of the benches in Rittenhouse Square.

While we're at it, is that anonymous commentator in favor of negligently running over children or amputating healthy limbs? Is there something wrong with either of those parties recovering compensation for their devastating losses?

"Exact Numbers in Personal Injury Cases"

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Mon, 10 Nov 2008 04:12:52 -0500

Ronald V. Miller, Jr., at the Maryland Injury Lawyer Blog, on the ball as always:

David Davis, a Massachusetts based jury consultant, offers five thoughts in The Jury Expert on the psychology of how jurors process requests for damage awards that I think is of interest to accident and malpractice lawyers.

I found of particular interest his theory that consumers – and by implication jurors – have a propensity to judge precise amounts of money to be lower in magnitude than similar round prices. The reason is that we tend to use precise numbers for small amounts and round numbers for larger amounts. The example Dr. Davis provides is that a precise number like $325,425 is seen as lower that $325,000 even though obviously the former number is a higher amount.

The implication for personal injury lawyers is obvious: make a request for damages that is a specific amount and back up that amount with some logical foundation. ...

This advice corresponds with the general principle of negotiation that you should start with the highest number that you can reasonably and fairly demand. Of course, when you define "reasonable" and "fair" in such situations, you do so in a way most beneficial to you and your client — the core point is to have a rational basis for your numbers, a basis others will at least consider and not reject out of hand.

There are very few situations in which $500,000 is the "rational" number, even in the context of pain and suffering, which obviously does not have a specific dollar amount. Even if the jury, at the end of the day, will likely compromise on some round number, their decision will be much easier to make if they can build a number from rational, reasonable and fair components.

Those components include, as Ronald Miller writes, per diem amounts. I am fond of including interest and attorneys fees and the like.

Of course, the Maryland injury lawyer is in a completely different situation from me, a Pennsylvania injury lawyer, as Pennsylvania does not allow lawyers to suggest exact numbers to the jury. They can, however, present evidence that includes exact numbers, such as expert analyses of lost wages and fringe benefits, and medical bills. Further, you can of course use whatever numbers you want into settlement demands; there's no reason to keep your persuasive tools on lockdown until trial.

Keep that in mind the next time you write $X,000,000 or $X00,000 as your demand.

"What does an Obama win mean for the U.S. food supply?"

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Sun, 09 Nov 2008 08:47:08 -0500

Since politics are about more than just tax cuts and foreign policy:

There’s no way around it: the Obama administration will need to address food issues head-on.

Last month, Michael Pollan published a sweeping letter to the next president, Farmer in Chief, in the New York Times. After Pollan’s article was published, the American Farmland Trust noted that “there is no topic of greater importance than the issues [Pollan] raises…it is time to elevate these issues to their rightful place on our national agenda.”

Turns out Obama might agree; Obama read Pollan’s article and even worked it into discussions of energy policy.

So what might we expect from an Obama administration when it comes to food policy? Maybe quite a bit. In his plan for rural America, he lays out a number of policy positions that are a departure from the status quo. Obama:

Supports subsidies as a safety net, but calls for a $250,000 payment limitation and closing of loopholes, so that the program supports family farmers, not corporate agribusiness.

Supports regulation of CAFOs (factory livestock operations).

Wants to enforce anti-trust laws that so that smaller farmers can compete against large-scale meatpackers.

Wants to cap the size of agricultural businesses that can receive government funds for environmental cleanup so that taxpayers don’t subsidize cleanup for large, polluting corporations.

Supports Country of Origin Labeling (COOL) for meat, a critical issue as we learn how widespread melamine contamination of animal feed is in countries like China.

Wants to increase support for organic agriculture and local food systems by helping farmers with organic certification/compliance costs.

Wants to provide incentives to encourage and support new farmers, land conservation, renewable energy on the farm, and microenterprise for farmers and other rural Americans.

Calls for greater food safety surveillance and communications.

Plans to encourage local foods in schools.

Supports providing farmers with incentives that will prevent agricultural runoff.

Another Day, Another Limitation on the "Covenant of Good Faith and Fair Dealing" in Pennsylvania

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Sat, 08 Nov 2008 04:55:14 -0500

In theory, Pennsylvania recognizes a duty in every contract for both parties to act with the utmost good faith and to engage only in fair dealing with one another.

In practice, these claims rarely succeed, like a week ago in the United States District Court for the Eastern District of Pennsylvania:

Pennsylvania law recognizes an independent cause of action for breach of the duty of good faith and fair dealing only in "very limited circumstances," such as insureds' dealings with insurers and franchisees' dealings with franchisees. Northview Motors, Inc. v. Chrysler Motors Corp., 227 F.3d 78, 91 (3d Cir. 2000) (citing Creeger Brick and Building Supply, Inc. v. Mid-State Bank and Trust Co., 560 A.2d 151, 153-53 (Pa. Super. Ct. 1989). In Northview Motors, the United States Court of Appeals for the Third Circuit predicted that Pennsylvania courts would limit the application of claims for breach of the covenant to situations where they were "essential" and would not recognize an independent cause of action for breach of the covenant where the parties had entered into a detailed contract setting forth their obligations and rights. Id.; see also McHale v. NuEnergy Group, 2002 WL 321797 at *8 (E.D. Pa. February 27, 2002) (finding that "Pennsylvania law would not recognize a claim for breach of [the] covenant of good faith and fair dealing as an independent cause of action" where the allegations underlying the breach of covenant claims are "essentially the same" as those underlying the plaintiff's claim for breach of contract).

The Court similarly finds that Pennsylvania would not recognize an independent claim for breach of the covenant of good faith and fair dealing in this case. As in Northview Motors, the parties here entered into a detailed contract setting forth their rights and obligations with respect to the purchase of the property at issue. The facts that Sentry Paint alleges give rise to its claim for breach of the implied duty of good faith and fair dealing are the same as those that form the basis for its breach of contract claims. Under these circumstances, Sentry Paint's breach of covenant claims are subsumed in its breach of contract claims and cannot be maintained as a separate cause of action. Fn 20:

Fn 20: In support of its separate cause of action for breach of the covenant of good faith and fair dealing, Sentry Paint cites to the Pennsylvania Supreme Court's decision in Birth Center v. St. Paul Co., 787 A.2d 376 (Pa. 2001) and the decision of the Lawrence County Court of Common Pleas in Harlan v. Erie Ins. Group, 2006 WL 1374502 (Lawrence Co. CCP February 16, 2006). Both Birth Center and Harlan involved contractual bad faith claims by an insured against an insurer, one of the "limited circumstances" in which Pennsylvania recognizes an independent cause of action for breach of the covenant of good faith and fair dealing. Neither case supports recognizing an independent cause of action here in an action involving an arms-length purchase of property.

Sentry Paint Techs. v. Topth (EDPa, October 31, 2008, McLaughlin, J.).

C'est la vie. Hard to know what their damages would be anyway in this case, if not damages arising out of a breach of the explicit terms of the contract. To me, outside of those quasi-fiduciary situations described above, the "good faith and fair dealing" seemed like a catch-all where it was hard to prove exactly what the breach was, except for a bad faith failure to perform.

But don't despair, business plaintiff trial lawyers — this case was at summary judgment, so you can even use it in support of alleging the claim in your complaint when they file a motion to dismiss or motion for judgment on the pleadings.

Need Ideas for a Portable Office? Here's What a USCG Master Mariner of Unlimited Tonnage Uses

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Fri, 07 Nov 2008 04:45:28 -0500

Over at the wonderful gCaptain blog:

While traveling to destinations around the world my setup is a black macbook (however, due to an unfortunate incident involving wine it is now the new macbook) and my iPhone. I tend towards lengthy email replies when using the Macbook so I much prefer the iPhone to make them short and quick.

On the ship my primary computer is a windows box which I need for my day job. Because of restricted permissions I rely heavily on a Portable Application Suite I launch from my waterproof USB drive and VNC to access my office computer.

...

I work a schedule of 3 weeks at work and 3 weeks home so I get 6 months vacation per year. To facilitate this each position on the ship is filled by two people, the person on and the person off. This is nice because while at home my relief answers all emails, phone calls, ect., leaving me 100% disconnected from work. But regardless of where in the world my ship is located on the globe I must fly to it every 3 weeks. Staying connected on the road is important. To accomplish this I have set-up a custom SSH tunnel solution that I use with Apple Remote Desktop to connect back to my office network. I also have setup automatic back-ups with the Amazon S3 based app JungleDisk and use Transmit to retrieve my files. Storage is important while traveling so I cloned my MacBook‚ hard drive using SuperDuper and replaced it with a 250gb laptop hard drive.

More at the site, including his favorite apps -- a list very similar to my own. E.g., TrueCrypt is the way to secure files.

In fact, his Mac-travel, PC-work, dual-monitor & setup is quite familiar to me, though I use 37signal's Backpack for GTD / task management, plus digital dictation and voice recognition given the volume of paperwork I create. I'm also content with FreeMind over Mind Manager for mind mapping.

California Dives Into the Murky Waters of Repealing Constitutional Rights and Interpreting Ballot Referenda

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Thu, 06 Nov 2008 04:56:38 -0500

California, intent on proving it has too much democracy, has bought itself some tricky legal questions.

First, did the voters just revise or amend their constitution (and does that matter)? LATimes reports:

Lawyers for same-sex couples argued that the anti-gay-marriage measure was an illegal constitutional revision -- not a more limited amendment, as backers maintained -- because it fundamentally altered the guarantee of equal protection. A constitutional revision, unlike an amendment, must be approved by the Legislature before going to voters.

The state high court has twice before struck down ballot measures as illegal constitutional revisions, but those initiatives involved "a broader scope of changes," said former California Supreme Court Justice Joseph Grodin, who publicly opposed Proposition 8 and was part of an earlier legal challenge to it. The court has suggested that a revision may be distinguished from an amendment by the breadth and the nature of the change, Grodin said

Still, Grodin said, he believes that the challenge has legal merit, though he declined to make any predictions. Santa Clara University law professor Gerald Uelmen called the case "a stretch."

Second, was it (and could it) be retroactive? As WSJ Law Blog reports:

Voters in California seem to have spoken clearly: under the state’s constitution, marriage shall exist only between a man and a woman. One result that’s far from clear, however: what happens to all those same-sex couples who rushed to wed prior to the election?

It’s hard to say, reports the LA Times — but a “legal chaos” could follow. Seven legal scholars recently interviewed by the Times were largely divided over which side the law favors. “There is no clear answer,” said Erwin Chemerinsky, dean of UC Irvine Law School. “This is ultimately going to have to be litigated by the courts.”

“Until it is litigated, every same-sex couple with a marriage license is going to be hanging in limbo,” added Glen Lavy, senior counsel to the Alliance Defense Fund, which opposes gay marriage.
...
Still, other scholars cite a long tradition of courts making constitutional amendments retroactive only if the authors clearly intended them to be so. “I would think both under federal and state constitutional principles you can’t have a retroactive application that would result in a removal of what had been recognized and protected as a fundamental right,” said UC Berkeley family law professor Joan Holloway.

Maybe. Fact is, there's no consensus at all about how to interpret these referenda. Here's an example discussion from "Taking State Constitutions Seriously," by Marvin Krislov and Daniel M. Katz, published in the Spring 2008 Cornell Journal of Law and Public Policy (17 Cornell J. L. & Pub. Pol'y 295):

What role should the courts play in interpreting ballot measures? Legal scholars have debated the question of differential treatment - whether courts should take a "hard look" at direct democratic initiatives that they would not employ for legislation passed by a deliberative body. The late Professor Julian Eule argued that courts should look more closely when the voters enact a law without a complementary legislative action, particularly where minority interests are implicated. His famous "hard judicial look theory" suggests a more aggressive approach to judicial review for this set of direct democratic measures. Professor Eule asserts that it is unlikely that state courts will rule that popular enactments, either statutory or amendatory, violate existing state constitutions. Professor Eule finds it especially unlikely that searching review will occur in the sixteen states that are the focus of this article - where constitutions can be amended directly without legislative review or veto. According to Eule, in these sixteen states, "sovereignty truly vests in an electoral majority." Since state courts, particularly in those sixteen states, will likely defer to the voters, federal courts step into the role of actively arbitrating democratically-enacted laws.

Other scholars have attempted to create rules for interpreting democratically enacted measures. In her study of state court decisions from 1984 and 1994 concerning the interpretation of legislative initiatives, Professor Schacter focuses on the difficulty of courts determining popular "intent." Ultimately, she argues for a different method - a set of "metademocratic" rules. These rules guard against two distinct problems of popular democracy - lack of information by the voters, and inequity or lack of clarity in the initiative process. To address the information gap, she proposes liberal rules for amicus participation and intervention. When the process appears biased or the language confusing, she proposes construing the language narrowly.

Professor Frickey contends that one should combine Professor Eule's focus on federal constitutionality and Professor Schacter's focus on statutory interpretation by relying on a quasi-constitutional interpretive approach. In balancing both popular sovereignty and constitutional values, Professor Frickey imports interpretive canons - 1) avoiding constitutional invalidation, 2) narrowly construing propositions when there is a conflict with existing law, and 3) paying more attention to established canons of law (such as the rule of lenity) where direct democracy is involved.

By contrast, Professor Tushnet rejects the notion of "differential standards of review." He argues that the three reasons proffered for reviewing direct democracy differently than legislative action - lack of deliberation, the bifurcated decision (and lack of logrolling), and structural or political concerns - do not support more aggressive judicial review.

Simple, huh? Of course, keep in mind there's no legislative history upon which the courts can rely, as they would for a normal legislative statute or constitutional convention. At best, the courts can dive right into the politics and campaigning to ascertain the meaning, which is the very last thing any court wants to do.

The great irony: the question of interpretation falls to the California Supreme Court, which issued the ruling later apparently rejected by the voters.

If I may be so bold, perhaps "constitutional rights" should not be left up to simple majority ballot referenda. Can you imagine if Loving v. Virginia had been on the ballot in 1968 when Nixon was swept in by the South?

Fumo Trial Part 2: Starting with a Bang Versus Building a House

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Wed, 05 Nov 2008 04:39:44 -0500

While you were making up your mind or worrying about the election, the United States Attorneys in Senator Fumo's public corruption trial were building a house.

To many reporters, the first week of the Fumo trial appeared the most interesting, as the prosecution called Christopher Marrone, the former staffer and current estranged son-in-law of Fumo. Moreover, he was reportedly the most important source in the entire investigation, retaining years worth of e-mails, which he voluntarily provided to the FBI and the US Attorneys' office. As such, he has a salacious story that was not only the genesis of the whole trial but is also directly relevant to many of the charged crimes.

The US attorneys decision to call him first, however, raised two big questions:

Why pad your already months-long, 139-count case with testimony that, though embarrassing, may not have been criminal even if proven true?

and

Why begin your case with a clearly unobjective witness with an easily-proven bias against the defendant?

Fact is, of all the charges in Fumo's indictment, the charges supported by Marrone's testimony are the weakest, and Marrone himself may be the least credible witness (or at least the witness most open to attacks on credibility) to testify in the entire trial. So why start with him?

The answer comes down to a timeless debate in the annals of trial advocacy, going back to ancient Athens and before. Most every advocate believes you should end strong, whether you are trying a case, giving a speech, or hanging up the phone ("have a nice day!").

But how should you should start? Do you start with a bang, putting on some of your best evidence to make a good first impression and quickly align the jurors with your theory of the case? Or do move slowly, putting on weaker evidence to lay a foundation upon which you can enhance the impact of the stronger evidence?

The above are but two of the innumerable concerns that go into a trial lawyer's decision to set the order in which evidence will be presented, to decide the level of detail for a given part of the case and to assess whether certain claims or evidence should be presented to the jury at all. There is no right answer. On the one hand, many trial lawyers believe that juries in the era of television and movies have come to expect a lot of drama at trial and will be disappointed if you do not deliver it early on, while on the other hand you never want to reveal a smoking gun if the jury does not have enough context to understand its full meaning and importance.

Here, it is not in initially clear why the prosecutors would threaten the credibility of their entire case by spending a week on potentially legal conduct supported by a biased witness. Indeed, one experienced white collar criminal defense attorney who has been following the case told me that, in his opinion, the US attorneys should not have even raised most of the Senate staff misuse allegations at all. In his analysis, there were simply too many risks, such as opening Christopher Marrone to extensive attacks on his credibility (attacks which both defense lawyers were happy to launch), or ending up making the trial about whether it was criminal at all to use staffers this way given Fumo's 24-hour workaholic habits.

Wrong? Sure. Criminal? That requires a different mindset from merely "wrong." Worse, it can distract from other issues in the case. One wonders if the testimony of Frank Wallace, the Senate-paid investigator who allegedly spent most of his time doing personal and political dirty work for Fumo, had the same impact given how it immediately followed Marrone's cross-examination.

That said, the white collar criminal defense attorney continued, it appeared the US attorneys intended "to build a house brick, by brick, by brick, and when it's done there will be no mistaking what it looks like."

I agree. I believe the US Attorneys realized that, despite the weight of the evidence here on the whole, there were few smoking guns -- no explicit bribes, no fraud on innocent parties, and no clear embezzlement -- so they eschewed dramatic effect, instead attempting to prove that Fumo lived in a house of corruption. That is, the work on his house may not have been paid for by taxpayers, but the oversight was. He may have been working hard 24 hours a day to promote the Citizens Alliance for Better Neighborhoods, but he did so at an office they renovated at their expense. All of which, when put together, enhances the impact of the worst evidence by creating a contrast with the ordinary corruption the US Attorneys allege surrounded Fumo day and night.

Viewed that way, we can see that perhaps the prosecutors called Christopher Marrone not to prove his time was abused on personal errands, but to shed light on the ordinary corruption in the Fumo's day-to-daily activities, which they will later contrast to more explicit corruption.

Sometimes, Jurors Are Just Crazy: Sen. Stevens' Juror Lied About Father's Death, Is Delusional

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Mon, 03 Nov 2008 16:10:09 -0500

Yikes:

WASHINGTON -- Juror No. 4 in Sen. Ted Stevens' federal corruption trial, otherwise known as Marian Hinnant, did not leave to attend her father's funeral in California, as she told the judge.

Instead, Hinnant had a plane ticket to see the Breeder's Cup at the Santa Anita race track and didn't want to miss it, she told the judge this morning, in what sounded like completely irrational and perhaps even delusional remarks.

...

Her lawyer, federal public defender A.J. Kramer, tried to keep her from saying much in court, telling the judge only that "her state of mind was such that she had to go to California."

"She apologizes to the court. In fact, her father did not die," Kramer said. "The story about her father was just one that popped into her head."

But Hinnant cut in, and in a thick Kentucky drawl, gave a rambling, incoherent and baffling monologue about her former employers in the horseracing industry in Kentucky. She mentioned drugs, wiretaps and horseracing, but made little sense.

"I'm not the one who was selling the drugs, I'm not the one who was doing the drugs," she said.

(Via TalkLeft)

What is there to say?

First, how did this woman get onto the jury in the first place? I have never seen a panel of more than 20 potential jurors that did not include at least one person who did not seem to be in the right mindset to serve. That is not to say that they were crazy or should have been institutionalized, but that they did not appear to be in a place where they could effectively apply their reason and intellect to the circumstances.

Some people are very candid about that -- some have just started medication, some are going through very tough times, and some freely admit they do not believe themselves competent to sit in the judgment of others. For others, though, usually lawyers on both sides are on the lookout for these types of jurors and will agree to strike them without much fanfare.

How this woman managed to get on the jury and serve all the way through, after examination by both sets of lawyers and the judge, is beyond me. It usually only takes a few minutes before some sort of "baffling monologue" reveals the situation.

Second, although the reports are not, to me, entirely clear, she was likely the cause of the initial acrimony during deliberations. Perhaps she was encouraged by the other jurors to leave.

Frankly, though it's disturbing to see another's fate in the hands of a "delusional" juror whose mind was at the horsetrack, I find the thought that she was pushed out of the jury comforting. One of the reasons we have jury trials is the hope that the combined reasoning of the group will exceed that of any individual or even the sum of the individuals, and it would not surprise me at all if the rest of the jury -- even before agreeing on a verdict -- had agreed that this juror was going to be a problem and needed to be removed from the deliberations. Indeed, maybe they were able to prevail upon her to remove herself.

Perhaps we will know more in time.

[ed: grammer]

"The Physics of Extraterrestrial Civilizations"

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Mon, 03 Nov 2008 06:39:17 -0500

How would you think about something if you had minimal data and a handful of rules?

The late Carl Sagan once asked this question, “What does it mean for a civilization to be a million years old? We have had radio telescopes and spaceships for a few decades; our technical civilization is a few hundred years old… an advanced civilization millions of years old is as much beyond us as we are beyond a bush baby or a macaque.”

Although any conjecture about such advanced civilizations is a matter of sheer speculation, one can still use the laws of physics to place upper and lower limits on these civilizations. In particular, now that the laws of quantum field theory, general relativity, thermodynamics, etc. are fairly well-established, physics can impose broad physical bounds which constrain the parameters of these civilizations.

This question is no longer a matter of idle speculation. Soon, humanity may face an existential shock as the current list of a dozen Jupiter-sized extra-solar planets swells to hundreds of earth-sized planets, almost identical twins of our celestial homeland. This may usher in a new era in our relationship with the universe: we will never see the night sky in the same way ever again, realizing that scientists may eventually compile an encyclopedia identifying the precise co-ordinates of perhaps hundreds of earth-like planets.

Interesting conclusions follow. My favorite part:

Because distances between stars are so vast, and the number of unsuitable, lifeless solar systems so large, a Type III civilization would be faced with the next question: what is the mathematically most efficient way of exploring the hundreds of billions of stars in the galaxy?

In science fiction, the search for inhabitable worlds has been immortalized on TV by heroic captains boldly commanding a lone star ship, or as the murderous Borg, a Type III civilization which absorbs lower Type II civilization (such as the Federation). However, the most mathematically efficient method to explore space is far less glamorous: to send fleets of “Von Neumann probes” throughout the galaxy (named after John Von Neumann, who established the mathematical laws of self-replicating systems).

A Von Neumann probe is a robot designed to reach distant star systems and create factories which will reproduce copies themselves by the thousands. A dead moon rather than a planet makes the ideal destination for Von Neumann probes, since they can easily land and take off from these moons, and also because these moons have no erosion. These probes would live off the land, using naturally occurring deposits of iron, nickel, etc. to create the raw ingredients to build a robot factory. They would create thousands of copies of themselves, which would then scatter and search for other star systems.

Similar to a virus colonizing a body many times its size, eventually there would be a sphere of trillions of Von Neumann probes expanding in all directions, increasing at a fraction of the speed of light. In this fashion, even a galaxy 100,000 light years across may be completely analyzed within, say, a half million years.

If a Von Neumann probe only finds evidence of primitive life (such as an unstable, savage Type 0 civilization) they might simply lie dormant on the moon, silently waiting for the Type 0 civilization to evolve into a stable Type I civilization. After waiting quietly for several millennia, they may be activated when the emerging Type I civilization is advanced enough to set up a lunar colony. Physicist Paul Davies of the University of Adelaide has even raised the possibility of a Von Neumann probe resting on our own moon, left over from a previous visitation in our system aeons ago.

(If this sounds a bit familiar, that’s because it was the basis of the film, 2001. Originally, Stanley Kubrick began the film with a series of scientists explaining how probes like these would be the most efficient method of exploring outer space. Unfortunately, at the last minute, Kubrick cut the opening segment from his film, and these monoliths became almost mystical entities)

Don't Switch Counsel Immediately Before Trial

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Fri, 31 Oct 2008 14:50:25 -0500

Quite unfair:

Like a parent telling two children to go work things out for themselves, the justices declined to resolve the The Great High Court Showdown of 2008 — Olson v. Larisa.

The Court’s refusal to resolve the spat left Rhode Island, its governor and the town council of Charlestown to choose who — Supreme Court novice Joseph Larisa, or veteran Ted Olson — will appear before the justices on Monday to argue Carcieri v. Kempthorne, an Indian land case.

Their decision? Olson, according to a report on Scotus blog. Larisa, who’s never argued before the High Court, will be left to watch as Olson takes the reins on a case that Larisa has reportedly spent the better part of a decade working on

It may make sense before a Supreme Court, particularly the Supreme Court, given the limited scope of the short argument and how they generally care not one whit about the facts or details of the case, but instead focus on more general legal and policy questions. Olson knows the Court, the Court knows him, so it may make sense to bring in a big name on the eve of the argument.

But don't ever do that on a trial. Not ever. Trials are different. Trials are unpredictable. Trials can turn on "minor" details and quick-thinking during direct or cross examination.

Maybe you'll get lucky. Maybe the case really is so simple that it comes down to a lawyer's experience in a particular field or in connecting with juries.

That, however, is the exception, not the rule. Trial preparation requires not just work but time. It cannot simply be crammed into the space of a week, a few days, or the first couple nights at trial. It's not enough to read and re-read all the depositions and pleadings and motions: you need to think about them.

This point is so important it's worth mixing metaphors: the facts need to marinate in your head, and your ideas need to germinate and flower so that they can percolate at the right time during the trial.

That cannot be done in a week. It reminds me of advice I read from a preacher (to fellow preachers) many years ago: the Lord reveals far more in a month than He does in a day.

Combine that with Sun Tzu's Art of War: every battle is won or lost before it's ever fought.

And we have our motto: every trial is either won in the months, or lost in the days, before it's ever tried.

"The Deterioration of Legal Writing" and How To Fix It

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Thu, 30 Oct 2008 09:41:13 -0500

Carolyn Elefant kicks off a discussion on "The Deterioration of Legal Writing," beginning with a Financial Week story, concluding:

While I believe that both factors -- the informality of e-mail and lack of quality teaching -- have contributed to the decline of legal writing skills today, I think the main problem is the easy availability of low-cost, computerized legal research tools. These days, both students and lawyers can gorge on a glut of cheap reference sources, from today's less expensive LexisNexis and Westlaw, to tools like Casemaker or Versuslaw, to Google and other Internet search engines. Consequently, legal research has devolved into an exercise in "piling on", with lawyers adding cases and quotes merely to show strength through quantity of cases rather than quality. At the end of the day, with so many resources available, legal analysis is suffering, and as a result, so too is the quality of legal writing, which relies on the quality of the underlying analysis for its impact and effectiveness.

Evan Schaeffer chimes in with links to many of his great legal writing posts.

I had two "legal writing" classes in law school. Both were terrible; I encountered one teacher later who said she was glad to have moved back to consulting because it was "more funner" than teaching.

I'm not kidding.

Two points.

First, I challenge the notion that today's law students write any worse than their predecessors. It may be true, but I have seen no objective evidence of that. Complaints about writing ability are common for all employers, and complaints about the upcoming generation are as old as written history. Take this complaint:

On the matter of overwork they are particularly stern. They want to work hard, but not too hard; the good, equable life is paramount and they see no conflict between enjoying it and getting ahead. The usual top executive, they believe, works much too hard, and there are few subjects upon which they will discourse more emphatically than the folly of elders who have a single-minded devotion to work. Is it, they ask, really necessary any more? Or, for that matter, moral?

....Out of necessity, then, as well as natural desire, the wise young man is going to enjoy himself — plenty of time with the kids, some good hobbies, and later on he'll certainly go for more reading and music and stuff like that. He will, in sum, be the apotheosis of the well-rounded man: obtrusive in no particular, excessive in no zeal.

That's from 1956; Kevin Drum dug it up in response to an article just posted that was virtually identical.

Second, while great legal writing requires a career-long dedication to excellence, not-bad legal writing just requires keeping in mind a couple points:

There may be rules for the formatting of legal arguments, but there are no rules for the content — do not force the content of your writing into an artificial form.
Remember and use the twenty-odd years of writing education that preceded law school. Write sentences in which nouns perform specific actions upon direct objects. Use topic headings and thesis sentences and appropriate paragraph divisions. Present information in a logical form. Read what you wrote aloud; does it sound confusing? If so, then it's confusing to read, too.
The very worst examples of legal writing are the edits of cases in law school textbooks. Judges usually do not write opinions with frequent leaps in logic, sentence fragments, and the generous use of the ellipsis.
The second worst examples of legal writing are Supreme Court opinions, which are the product of a delicate compromise amongst multiple Justices and which are deliberately limited in scope so as not to exceed the actual holding.
The third worst examples of legal writing are law review articles, which must conform to multiple literary conventions that have nothing to do with ease-of-reading or persuasion.
The best examples of legal writing that are easily accessible are trial court and intermediate appellate court opinions. These opinion state facts and then apply them to law, with little interference (at least apparent on the face of the opinion) from politics or compromise or convention.

In short, writing not-bad requires reading a few short books on writing, like Strunk & White's Elements of Style and Joseph M. Williams' Style, then reviewing some basic court opinions, and then applying the same principles to your own work.

Finally, never be afraid to disregard your writing instructor's advice; odds are they're looking to move on to something "more funner" anyway.

Google and Author's Guild Settle Copyright Infringement Case Over Book Search

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Wed, 29 Oct 2008 10:52:25 -0500

Good news for everyone:

The agreement also resolves lawsuits that were brought against Google in 2005 by a group of authors and publishers, along with the Authors Guild and Association of American Publishers (AAP). While Google, the Authors Guild and the AAP have disagreed on copyright law, we have always agreed about the importance of creating new ways for users to find books and for authors and publishers to get paid for their works.

...

With this agreement, in-copyright, out-of-print books will now be available for readers in the U.S. to search, preview and buy online -- something that was simply unavailable to date. Most of these books are difficult, if not impossible, to find. They are not sold through bookstores or held on most library shelves, yet they make up the vast majority of books in existence. Today, Google only shows snippets of text from the books where we don't have copyright holder permission. This agreement enables people to preview up to 20% of the book.

What makes this settlement so powerful is that in addition to being able to find and preview books more easily, users will also be able to read them. And when people read them, authors and publishers of in-copyright works will be compensated. If a reader in the U.S. finds an in-copyright book through Google Book Search, he or she will be able to pay to see the entire book online. Also, academic, library, corporate and government organizations will be able to purchase institutional subscriptions to make these books available to their members. For out-of-print books that in most cases do not have a commercial market, this opens a new revenue opportunity that didn't exist before.

...

As part of the agreement, Google is also funding the establishment of a Book Rights Registry, managed by authors and publishers, that will work to locate and represent copyright holders. We think the Registry will help address the "orphan" works problem for books in the U.S., making it easier for people who want to use older books. Since the Book Rights Registry will also be responsible for distributing the money Google collects to authors and publishers, there will be a strong incentive for rightsholders to come forward and claim their works.

In addition to expanding the commercial market for these books, Google, the authors and the publishers have worked hard with our library partners at Stanford, the University of Michigan, the University of California and the University of Wisconsin-Madison to ensure this agreement advances libraries' efforts to preserve, maintain and provide access to books for students, researchers and readers. The agreement gives public and university libraries across the U.S. free, full-text viewing of books at a designated computer in each of their facilities. That means local libraries across the U.S. will be able to offer their patrons access to the incredible collections of our library partners -- a huge benefit to the public.

The agreement also authorizes Google and the libraries to create new services that will help people with disabilities such as visual impairment better experience these books. We are grateful to our library partners for investing so much painstaking effort over so many years to maintain their book collections, and we are excited at the prospect of their participation in this landmark project.

You can read the 300+ page settlement agreement here.

Fumo Trial Part 1: The Use of Details to Enhance Credibility

max.kennerly@beasleyfirm.com (Maxwell Kennerly) — Mon, 27 Oct 2008 17:00:25 -0500

White-collar trials (whether criminal or civil) are often like baseball: five minutes of glory for every two hours of boredom.

Today was no different at the Fumo trial this morning, as the jury slogged through each and every problem Christian Marrone faced as he managed the renovation of Fumo's 33-room mansion and dealt with Fumo’s neighbors. Marrone made call after call, keeping Fumo apprised via detailed “punch lists” and emails as plumbers missed deadlines, the elevator kept getting stuck, and one contractor failed to finish a wall that was adjoining a neighbor’s property. I’d estimate the jury saw a new email or memo every two or three minutes, all morning, all of which made essentially the same point: Marrone was in charge and it took him a lot of time.

Why? Because that whole time Marrone was on the Pennsylvania Senate payroll, as described in paragraph 52 of the indictment:

For the first 18 months of his employment by the Senate, Person No. 19 spent approximately 80% of his time on this job, coordinating and supervising the numerous construction contractors. He received no payment other than his Senate salary.

As a basic rule, the jury will likely believe the case is "about" the issues upon which the lawyers spend the most time. Trial lawyers thus always face a dilemma whenever they have a witness who knows a whole lot of details that are, on the surface, completely irrelevant (e.g., no one cares how many showers there are or who designed the custom cabinets) but which support a major theme of the case (that Fumo was using Senate-paid staffers for personal work).

Trial lawyers routinely overestimate the level of detail needed to “prove” a given fact and routinely underestimate the time it will take them to do so. As such, my personal preference is to give the jury the basic information and summary it needs, plus some supporting examples to bring the testimony to life, and then get it over with. I have never heard of any case in which the jury later complained that they just did not hear enough details about accounting irregularities or improperly stored emails or misappropriations of resources. After the first several dozen examples, they get the point, and put the burden on the other side to rebut it.

The difference here, which is why I believe the prosecution chose to spend several hours on these mundane details so early in the case (potentially costing them valuable momentum), is the relationship Marrone has to Fumo. Marrone is Fumo’s estranged son-in-law, and thus already exposed to multiple attacks on his credibility during cross-examination. As such, the prosecutors needed to bolster his credibility, which can be done through excessive detail.

Even if Dennis Cogan can score some hits here and there (maybe Marrone stretched his role in one or two of the incidents, and there’s ample evidence in the public record that Marrone hates Fumo and was the key witness in the investigation), it will be very hard to argue that Marrone’s testimony is not by and large the truth. There were simply too many details and too many emails for that. The afternoon session carried on the same as the morning, except that it moved from the house into more personal services and work on political campaigns (both of which are forbidden).

The big question then is where Cogan will go. My hunch is that, in addition to the normal attacks on credibility (which, even if not enough to rebut the core substance of his testimony, will at least divert attention away from the prosecution's case) he’ll turn the relationship around on Marrone, arguing that Marrone, who time has shown to have political ambition, volunteered to do all this work to please Fumo, who had just given him his first job out of college, and that Marrone also completed all of his Senate duties, which were minimal given his inexperience.

The relationship may then look exploitative, even when considering Marrone was “paying his dues” at the start of his career, but not like an illegal scheme to defraud the taxpayers. That would open the door to reasonable doubt, which is all the defense needs.