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Doesn't Matter; He'll probably get Dahmered in Prison.

Holmes is going to live.

Seems like a terrible waste of prison food and toilet water to me.

I Would Have Expected All of This Tomorrow, but Not Today

What a bizarre day for the law.

First, a bunch of self-professed kidnappers are publicly expressly their dismay at their kidnapping being called a hoax.

Then the U.S. Supreme Court refuses to hear a case that says that, although you can't ban burning a U.S. flag just because it might infuriate others who might resort to violence, wearing a U.S. flag can be banned because it might infuriate others who might resort to violence.

And the governor of Connecticut is banning state travel to Indiana, because Indiana just passed a religious freedom bill that offends him. Of course, it's not quite as strong and offensive as the one that's been in place in Connecticut for the last 22 years, but nobody cares about that one.

What the Hell, Take the Credit

After poor ratings and a complaint letter from a lawyers group, NBC has canceled Bad Judge. Put another way, because of poor ratings, and entirely coincidental to a lawyers group hating the show, NBC has canceled Bad Judge.

In related news, after extremely low ratings, plus harsh criticism by me, Fox canceled its reality show Utopia.

What the Hobby Lobby Case Actually Says

There is a lot of hysteria about today's SCOTUS opinion on employer-provided health care. Some things the Supreme Court did not hold:

1. That your employer can decide what medical care you can and can't have
2. That every employer has the right to opt out of any legal requirement as long as it claims a religious objection
3. That employers can decide not to cover cancer by claiming a bogus anti-cancer treating religious view
4. That employers can dictate that insurance companies not cover things like vaccinations or blood transfusions
5. That employers have the right to discriminate on the basis of gender when deciding what medical benefits to offer their employees
6. That large corporations can use religion to restrict what their health care plans provide
7. That your employer is allowed to know what health care you are receiving
8. That policies purchased through ACA marketplaces might not include contraception
9. That employers can prohibit their workers from buying or using contraception
10. That the Affordable Care Act is dead

Here's the actual holding from Burwell v. Hobby Lobby Stores, Inc. (US 13–354 6/30/14):

The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the “Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicabil­ity” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling govern­mental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U. S. C. §§2000bb–1(a), (b). As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious be­lief.” §2000cc–5(7)(A).At issue here are regulations promulgated by the Department of Health and Human Services (HHS) under the Patient Protection and Affordable Care Act of 2010 (ACA), which, as relevant here, requires specified employers’ group health plans to furnish “preventive care and screenings” for women without “any cost sharing requirements,”42 U. S. C. §300gg–13(a)(4). Congress did not specify what types of preventive care must be covered; it authorized the Health Resources and Services Administration, a component of HHS, to decide. Ibid. Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Admin­istration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus. Religious employers, such as churches, are exempt from this contraceptive mandate. HHS has also effectively exempted religious nonprofit organizations with religious objections to providing coverage for contraceptive services. Under this accom­modation, the insurance issuer must exclude contraceptive coverage from the employer’s plan and provide plan participants with separate payments for contraceptive services without imposing any cost­ sharing requirements on the employer, its insurance plan, or its em­ployee beneficiaries.

In these cases, the owners of three closely held for-profit corpora­tions have sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point. In separate actions, they sued HHS and other federal officials and agencies (collectively HHS) under RFRA and the Free Exercise Clause, seeking to enjoin application of the contraceptive mandate insofar as it requires them to provide health coverage for the four objectionable contraceptives. In No. 13–356, the District Court denied the Hahns and their compa­ny—Conestoga Wood Specialties—a preliminary injunction. Affirm­ing, the Third Circuit held that a for-profit corporation could not “en­gage in religious exercise” under RFRA or the First Amendment, and that the mandate imposed no requirements on the Hahns in their personal capacity. In No. 13–354, the Greens, their children, and their companies—Hobby Lobby Stores and Mardel—were also denied a preliminary injunction, but the Tenth Circuit reversed. It held that the Greens’ businesses are “persons” under RFRA, and that the cor­porations had established a likelihood of success on their RFRA claim because the contraceptive mandate substantially burdened their ex­ercise of religion and HHS had not demonstrated a compelling inter­est in enforcing the mandate against them; in the alternative, the court held that HHS had not proved that the mandate was the “least restrictive means” of furthering a compelling governmental interest.

Held: As applied to closely held corporations, the HHS regulations im­posing the contraceptive mandate violate RFRA. Pp. 16–49.

(a) RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, Hobby Lobby, and Mar­del. Pp. 16–31.

(1) HHS argues that the companies cannot sue because they are for-profit corporations, and that the owners cannot sue because the regulations apply only to the companies, but that would leave mer­chants with a difficult choice: give up the right to seek judicial protec­tion of their religious liberty or forgo the benefits of operating as cor­porations. RFRA’s text shows that Congress designed the statute t provide very broad protection for religious liberty and did not intend to put merchants to such a choice. It employed the familiar legal fic­tion of including corporations within RFRA’s definition of “persons,” but the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including sharehold­ers, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them. Pp. 16–19.

(2) HHS and the dissent make several unpersuasive arguments. Pp. 19–31.

(i) Nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] cor­porations, . . . as well as individuals.” 1 U. S. C. §1. The Court has entertained RFRA and free-exercise claims brought by nonprofit cor­porations. See, e.g., Gonzales v. O Centro Espírita Beneficiente União do Vegetal, 546 U. S. 418. And HHS’s concession that a nonprofit corporation can be a “person” under RFRA effectively dispatches any argument that the term does not reach for-profit corporations; noconceivable definition of “person” includes natural persons and non­profit corporations, but not for-profit corporations. Pp. 19–20.

(ii) HHS and the dissent nonetheless argue that RFRA does not cover Conestoga, Hobby Lobby, and Mardel because they cannot “exercise . . . religion.” They offer no persuasive explanation for this conclusion. The corporate form alone cannot explain it because RFRA indisputably protects nonprofit corporations. And the profit­making objective of the corporations cannot explain it because the Court has entertained the free-exercise claims of individuals who were attempting to make a profit as retail merchants. Braunfeld v. Brown, 366 U. S. 599. Business practices compelled or limited by the tenets of a religious doctrine fall comfortably within the understand­ing of the “exercise of religion” that this Court set out in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, 877. Any suggestion that for-profit corporations are incapable of exercis­ing religion because their purpose is simply to make money flies in the face of modern corporate law. States, including those in which the plaintiff corporations were incorporated, authorize corporations to pursue any lawful purpose or business, including the pursuit of profit in conformity with the owners’ religious principles. Pp. 20–25.

(iii) Also flawed is the claim that RFRA offers no protection be­cause it only codified pre-Smith Free Exercise Clause precedents, none of which squarely recognized free-exercise rights for for-profit corporations. First, nothing in RFRA as originally enacted suggested that its definition of “exercise of religion” was meant to be tied to pre­-Smith interpretations of the First Amendment. Second, if RFRA’s original text were not clear enough, the RLUIPA amendment surely dispels any doubt that Congress intended to separate the definition ofthe phrase from that in First Amendment case law. Third, the pre-Smith case of Gallagher v. Crown Kosher Super Market of Mass., Inc., 366 U. S. 617, suggests, if anything, that for-profit corporations can exercise religion. Finally, the results would be absurd if RFRA, a law enacted to provide very broad protection for religious liberty, merely restored this Court’s pre-Smith decisions in ossified form and re­stricted RFRA claims to plaintiffs who fell within a category of plain­tiffs whose claims the Court had recognized before Smith. Pp. 25–28.

(3) Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because of the difficulty of ascertaining the “beliefs” of large, publicly traded corporations, but HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would like­ly prevent that from occurring. HHS has also provided no evidence that the purported problem of determining the sincerity of an assert­ed religious belief moved Congress to exclude for-profit corporations from RFRA’s protection. That disputes among the owners of corpora­tions might arise is not a problem unique to this context. State cor­porate law provides a ready means for resolving any conflicts by, for example, dictating how a corporation can establish its governing structure. Courts will turn to that structure and the underlying state law in resolving disputes. Pp. 29–31.

(b) HHS’s contraceptive mandate substantially burdens the exer­cise of religion. Pp. 31–38.

(1) It requires the Hahns and Greens to engage in conduct that seriously violates their sincere religious belief that life begins at con­ception. If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel. And if they drop coverage altogeth­er, they could face penalties of roughly $26 million for Hobby Lobby,$1.8 million for Conestoga, and $800,000 for Mardel. P. 32.

(2) Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substan­tial burden imposed by the mandate. HHS has never argued this and the Court does not know its position with respect to the argument. But even if the Court reached the argument, it would find it unper­suasive: It ignores the fact that the plaintiffs have religious reasons for providing health-insurance coverage for their employees, and it is far from clear that the net cost to the companies of providing insur­ance is more than the cost of dropping their insurance plans and pay­ing the ACA penalty. Pp. 32–35.

(3) HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs. The belief of the Hahns and Greens implicates a difficult and im­portant question of religion and moral philosophy, namely, the cir­cumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facili­tating the commission of an immoral act by another. It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable. In fact, this Court considered and rejected a nearly identical argument in Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707. The Court’s “narrow function . . . is to determine” whether the plaintiffs’ asserted religious belief  reflects “an honest conviction,” id., at 716, and there is no dispute here that it does. Tilton v. Richardson, 403 U. S. 672, 689; and Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 248–249, distin­guished. Pp. 35–38.

(c) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is a compelling governmental interest, but the Government has failed to show that the contraceptive mandate is the least restrictive means of furthering that interest. Pp. 38–49.

(1) The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA. Pp. 39–40.

(2) The Government has failed to satisfy RFRA’s least ­restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., as­sume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with re­ligious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing in­surance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests. Pp. 40–45.

(3) This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage man­dates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice. United States v. Lee, 455 U. S. 252, which up­held the payment of Social Security taxes despite an employer’s reli­gious objection, is not analogous. It turned primarily on the special problems associated with a national system of taxation; and if Lee were a RFRA case, the fundamental point would still be that there isno less restrictive alternative to the categorical requirement to pay taxes. Here, there is an alternative to the contraceptive mandate.  Pp. 45–49.

No. 13–354, 723 F. 3d 1114, affirmed; No. 13–356, 724 F. 3d 377, re­versed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. KENNEDY, J., filed a concurring opinion. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which BREYER and KAGAN, JJ., joined as to all but Part III–C–1. BREYER and KAGAN, JJ., filed a dissenting opin­ion.

 

You Can't Talk, But You Can Look at a Map on Your Phone as You Drive

Breaking news: Drivers in California can legally read a map on their cellphones while driving. So says the California court. Brilliant. So to sum up, talking on a cell phone, even while stopped in traffic, even while keeping your eye on the road, is illegal. Taking your eyes off the road to look at the little maps on that same device, however, is perfectly okay. Great job, legislators.

Do Punked Performers Own ther Copyright?

The 9th U.S. Circuit Court of Appeals in San Francisco says the YouTube posting of “Innocence of Muslims” infringed upon actress Cindy Lee Garcia's copyright to her role in the film. Google, which has removed the clip, said it will appeal the decision. “Had Ms. Garcia known the true nature of the propaganda film the producers were planning, she would never had agreed to appear in the movie,” said Cris Armenta, Garcia’s attorney.

There is an expression among lawyers that "bad facts make bad law." This is a perfect example. Everyone knows it's wrong that this woman was duped. And everyone knows it was wrong to make this video. But that doesn't mean that she owns the copyright. People like Ashton Kutcher, mJimmy Kimmel and Sacha Baron Cohen must be sweating bullets over this decision, but I'd be surprised to see it stand.

It Takes a Thief to Catch a Thief

And perhaps it takes a coke fiend to prosecute a coke fiend. Las Vegas Deputy D.A. David Schubert, who prosecuted Paris Hilton and Bruno Mars for cocaine possession, was arrested last weekend for cocaine possession.According to the arrest report, Schubert was seen in a neighborhood known as a drug haven, where he picked up a fellow named Raymond Streeter and drove to an apartment complex, where Streeter then (allegedly) bought $40 worth of cocaine for Schubert. Police then pulled over Schubert's BMW and found cocaine in the car.

He's been suspended and will almost certainly be fired. I've known some pretty good attorneys who abused cocaine. Some ended up ruining their careers, and others remained million dollar lawyers. I suspect Schubert will be one of the former.

Foreclosed Family Breaks Into Their Own House

A foreclosed family has taken the law into their own hands and broken into their former home. I thought this story was interesting, and the people in it were ballsy, and I felt a lot of sympathy for the family until I got to this part of the article:

The Earls paid $500,000 for the house in 2001 and then refinanced to pull out cash. They fell behind on their mortgage and at the time of their eviction they owed about $880,000 on a no-interest mortgage.

Wow. So they pulled $380,000 in cash out of their house, plus whatever they had put down to begin with. Then, when they got foreclosed and left, they waited until the new buyers dropped $40,000 on improvements before breaking the locks and seizing possession of the house. That's not ballsy. That's crooked. I understand fighting. I understandappealing. I understandprotesting. I do not understand letting someone else drop forty grand into your old place and then taking it back by force.

Their attorney appears to be somewhat of a loon. Michael T. Pines has led more than one client on such a mission. He recently got arrested for trespassing after telling the Newport Beach police that they were not welcome and his clients' former home that he had helped them break back into:

“I’m trying to teach homeowners what their rights are. In my opinion, they are the legal owners of the property. All of these foreclosures, all of these evictions are grossly unlawful,” he says. “All of the loans that are currently outstanding are grossly unlawful. Homeowners have a right to get their houses back because they were illegally stolen from them. I feel very confident in saying they have the legal right to do it.”

 
Again, wow. I wonder how long before the California State Bar relieves this fellow of his license. Good lawyers do not advise their clients to break the law and cause them to get arrested. If your strategy is to break in and squat, you don't need a lawyer (well, you might eventually need a criminal defense lawyer), you need a gangster.

To All Convicted Sex Offenders Working as Lawyers

if you got convicted of a sex offense or two, which of course, has to be reported to the State Bar, and you didn't bother reporting it to the State Bar, and you are trying to stretch your legal career as far as you can until they notice it, breaking out radio ads to become quasi-famous as a "loan modification attorney" and then pissing people off by preying on them when they are most vulnerable, and leaving large numbers of your clients dissatisfied is not the way to do it. Some of them are going to figure out that you are a sex offender, and some of them are going to report it, and then you are going to be in a world of shit.

Update on Angels Mother's Day Tote Case

In a case that I've followed for more than two years with some amusement, the California 4th District Court of Appeal has upheld a summary judgment against a disgruntled Angels fan who was pissed off that a Mother's Day promotion only gave free tote bags to adult women.

Michael Cohn appeals from summary judgment granted in favor of Corinthian Colleges, Inc. (Corinthian), and Angels Baseball LP (the Angels). He contends the Angels’ Mother’s Day tote bag giveaway violated the Unruh Civil Rights Act. (Civ. Code, §§ 51, 52; hereafter the Unruh Act.) We disagree and affirm the judgment.

As we will explain, the Unruh Act protects against intentional discrimination that is unreasonable, arbitrary, or invidious. This important piece of legislation provides a safeguard against the many real harms that so often accompany discrimination. For this reason, it is imperative we not denigrate its power and efficacy by applying it to manufactured injuries such as those alleged by the plaintiff in this case.

The only unfortunate thing about the opinion in Cohn v. Corinthian Colleges, Inc. (the sponsor of the giveaway), is that the opinion is unpublished. Maybe I'll file a request for publication.

Oh, and I'm still not that kind of lawyer.

The case has been ordered published. Thank, among others, the folks at Budweiser, who requested that this case be published to establish a precedent that this sort of crap isn't the kind of discrimination the law was intending to prohibit.

Angels Mother's Day Tote Giveaway Declared Lawful - Again

In a case that I've followed for more than two years with some amusement, the California 4th District Court of Appeal has unheld a summary judgment against a disgruntled Angels fan who was pissed off that a Mother's Day promotion only gave free tote bags to adult women.

Michael Cohn appeals from summary judgment granted in favor of Corinthian Colleges, Inc. (Corinthian), and Angels Baseball LP (the Angels). He contends the Angels’ Mother’s Day tote bag giveaway violated the Unruh Civil Rights Act. (Civ. Code, §§ 51, 52; hereafter the Unruh Act.) We disagree and affirm the judgment.

As we will explain, the Unruh Act protects against intentional discrimination that is unreasonable, arbitrary, or invidious. This important piece of legislation provides a safeguard against the many real harms that so often accompany discrimination. For this reason, it is imperative we not denigrate its power and efficacy by applying it to manufactured injuries such as those alleged by the plaintiff in this case.

The only unfortunate thing about the opinion in Cohn v. Corinthian Colleges, Inc. (the sponsor of the giveaway), is that the opinion is unpublished. Maybe I'll file a request for publication.

Oh, and I'm still not that kind of lawyer.

It's Idiots Like This Who Make Our Laws

A judge threw out a Nebraska legislator's lawsuit against God, on the ground that the defendant cannot be served. The plaintiff, State Senator Ernie Chambers, sought a permanent injunction against God for causing "widespread death, destruction and terrorization of millions upon millions of the Earth's inhabitants." He claims the suit was intended to demonstrate that anyone can sued anyone for anything.

In the dismissal order, Douglas County District Court Judge Marlon Polk wrote that "Given that this court finds that there can never be service effectuated on the named defendant this action will be dismissed with prejudice." Weird, right? It gets weirder.

Chambers, who graduated from law school but never took the bar exam, believes he found a basis for appeal in that order.

"The court itself acknowledges the existence of God. A consequence of that acknowledgment is a recognition of God's omniscience. Since God knows everything, God has notice of this lawsuit."

Sorry, Ernie. Acknowledging the existence of God is not the same as acknowledging that omniscience of God. You can acknowledge the existence of God without believing that God pays attention to the goings on of Earthlings, much less believing that God knows all and sees all. In other words, "God exists, therefore God knows about my lawsuit" is a great big logical failure.

Methinks I know why Chambers never took the bar exam. A man has to know his limits.

Apes given human rights

"Spain's parliament voiced its support on Wednesday for the rights of great apes to life and freedom in what will apparently be the first time any national legislature has called for such rights for non-humans."

This raises so many questions: will an ape now have the right to shag any human she can persuade to bed her? What is the age of consent is going to be? Bonobos reach maturity at 6-8 years. Will chimpophiles be able to raise as a defense that the chick looked like she was over 8? Are apes who work over 8 hours a day going to be entitled to overtime? When we let them vote, what language are we going to have to add to the ballot to accommodate them? Can gay chimps marry?

But with rights come responsbilities. Will poop-flinging monkeys finally be brought to justice? What punishment should they be given? Is the death penalty going to be cruel and unusual punishment for a chimp? What if a chimp rapes a child? Can we tax them now? I already asked the gorilla on the left, and he communicated a clear and concise response that was not what I was looking for.

On In re Marriage Cases

If you haven't already heard that the California Supreme Court found it unconstitutional under California law to deny the right of marriage to same-gendered persons, you must be living in a cave or out in the middle of the ocean. If you want to read the entire California Supreme Court case of In re Marriage Cases, you can find it here:

(pdf) (Word)

And if you want to watch the oral argument, you can watch it, all 215 minutes of it, here:

http://www.calchannel.com/MEDIA/0304A.asx

I was surprised by the decision. I thought it could be 5-2 the other way, but definitely thought it would be at least 4-3 the other way, primarily because I thought Kathryn Werdegar was leaning toward upholding existing law.

Aside from wishing that gay marriage would be known by some other name, so that I'll never have to worry about being called a bigot for assuming that a man has a wife when he tells me he's happily married, I'm not that troubled by the decision. It doesn't harm anyone I know. It will probably make some people I know very happy. If, in ten years, we find that it truly has harmed the very fabric of society, like many people are claiming it will, we can make it unlawful again. And although many people think that the marriage of gays is an affront to God, we don't need to concern ourselves with that. If it is, then God will have his vengeance on their souls. It's none of my business.

What worries me the most about this decision (and I know this is myopic) is not how it affects marriage, or gay rights, or language, or taxes. It's about those four votes. Ronald George, Kathryn Werdegar, Joyce Kennard and Carlos Moreno are, in my opinion, the best Supreme Court justices in California. Three of the four were GOP appointees, but they always author intellectually honest decisions that do not ever toe the party line. Several cases that were very important to me came down to 4-3 votes, with those four lining up in favor of individual rights, consumer rights and employee rights, rather than corporate, insurance or government rights.

Now there is a movement afoot to recall these justices. So far, it isn't catching on, and I think California is "blue" enough that it won't succeed, but we have recalled justices before. Three members of the Rose Bird court, which also was pro-individual, pro-consumer, pro-worker, were recalled a few decades ago over their consistent death penalty reversals. Outwardly, the election was about the death penalty, but the recall was funded heavily by insurance companies and business interests.

The same thing could happen again. If there is a recall, you will see right-wing interest groups leading the charge, but a lot of the money will come from insurance interests, the chamber of commerce and other business interests. Because they know that, although the governor agrees with the decision of In re Marriage Cases, if he replaces those four justices, he will replace them based primarily on just one single factor - whether they are pro-business. Now that would affect me. I hope it doesn't happen.

The REAL Tort Crisis

is that people with really good cases, like this poor fellow who was given a completely unconsented rectal exam over his objection, through the means of a forced restraint and sedation, can't win a jury trial. If you can't win an award after getting digitally raped by hospital staff in the emergency room when you go in for treatment of a head injury, then the doctors terrorists have already won. Bummer.

Here are some of the reported facts:

Persaud ended up being sedated and handcuffed after he flew into a rage when doctors tried to administer a rectal exam. Brian Persaud, 38, was taken to the hospital in May 2003 after being smacked in the forehead by a 40-pound plank that fell off scaffolding being erected at a Manhattan job site. Emergency room workers hoped the rectal exam could determine if there were spinal cord injuries. Doctors claim they weren't even able to administer the "full" rectal exam before Persaud snapped. According to Persaud, when he resisted, staffers held him down while he begged, "Please don't do that." According to doctors, he began flailing about, hitting a doctor in the head and screaming, "Where I came from, you don't put anything in someone's a--." When Persaud woke up he was handcuffed to a bed and had an oxygen tube down his throat and lubricant in his rectum.

Whether or not it is "routine" to get a UFIA as part of treatment for a cut above your eye, I agree 100% with the patient's lawyer: "Routine or not, when you say no, you say no. Once he said no, that he didn't want a rectal exam, everything should have stopped."

There has to be more to this story. The jury must have hated this guy for some reason. Maybe they thought he was a malingerer, or that his claims that he is out of work and afraid of doctors because of the UFIA were perceived as an attempt to cheat the system out of a buck. It makes no sense to me whatsoever, even if the jury found that the doctors were completely correct in their assertion that the finger up the arse was medically appropriate.

NYC Hooker's Lawyer Claims She's a Private Figure

Since it is beginning to look like no blogger in this nation can be taken seriously unless he or she posts at least twice about John Eliot and Kristen, and all I've done is pass along a joke, I'll throw my take into the mix. My take is this: her lawyer is full of crap.

Don D. Buchwald, the lawyer for the hooker who was shagging New York john and soon-to-be ex-governor Eliot Spitzer, is screaming bloody murder at the media for exposing the 22-year-old harlot to the "public glare" without her consent by printing or posting her photos. Buchwald says his client, Ashley Rae Maika DiPietro, aka Ashley Alexandra Dupre fka Ashley Youmans, alias "Kristen", did not consent to the use of her photos by newspapers and magazines and websites, and that the use of those photos may be a violation of federal copyright laws. He also claimed that she is not a public figure and threatened to take steps "to protect Ms. Dupre from any unwarranted exploitation of her name, picture, voice or likeness for purposes of profit."

He's wrong, and unless he's an idiot, he knows he's wrong. His client is Monica Lewinsky, Deborah Harry and Tila Tequila all rolled into one persona, and her business ventures as a rented piece of ass brought down arguably the most powerful governor in the United States. She's also a key witness in an ongoing criminal proceeding against the former governor and who-knows-who-else. That makes her a very public figure, and pretty much any picture with her likeness is newsworthy. The more salacious, the more newsworthy. He's got no case. There's my take.

My favorite take on the subject comes from gawker, which reproduced the New York Post's cover from Friday and noted:

From moral outrage to "here is a picture of a topless hooker" in three days. Kudos, New York Post. A grateful nation salutes you.

That's funny stuff. If your curiosity about the governor's call girl is still unsatiated, here's a link to some raw video footage of her playing a bit part in some rap video. It amused me because (i) Depeche Mode has been sampled for a rap song; and (ii) the governor's call girl walks like a dude.

DA Drops Charges Over Profanity at Airport

It didn't take long for the Orange County District Attorney to realize how unconstitutional its prosecution of Elizabeth Venable was. It was announced yesterday that all charges have been dropped over Venable's use of the F-word at John Wayne Airport.

Prosecutors dropped criminal charges Wednesday against a graduate student who filed a free-speech lawsuit after being cited for using expletives at John Wayne Airport. Elizabeth L. Venable, who attends UC Riverside, was charged with two misdemeanors after a deputy cited her for using expletives near small children at the airport last August.

Venable's attorney, Carol Sobel, correctly cited the 1971 U.S. Supreme Court decision, Cohen vs. California, that I discussed earlier this week. "You can't have a law that criminalizes indecent speech," Sobel said. Figuring that bad publicity is better than no publicity, John Eastman, that constitutional law professor at Chapman University School of Law who doesn't understand the First Amendment, publicly disagreed. In Cohen's case, he was wearing a shirt, not saying expletives around children. An airport, he also explained, is considered a "nonpublic forum." Free speech is not as protected at nonpublic forums compared with public forums such as parks, he said. And in this case, the deputies had a reason to enforce the law – to protect children, he added. "You can't shout obscenities in front of kids," he said. "That's why we have rules on television limiting free speech … to keep airwaves clean."

Wrong, professor. The TV analogy is inapposite. Over public airwaves, there are limited and very specific governmental rights to regulate indecent speech. But this was not such a forum. The right to regulate speech at a place like an airport is extremely limited. Speech that creates a clear and present danger can be banned (i.e., bomb references), speech that merely offends the virgin ears of a sheltered young life does not create a clear and present danger. Aside from such "clear and present danger" limitations, you can utter offensive speech damn near anywhere you want. If you are not in a public forum, you can be asked told to leave. You cannot, however, be arrested for the offensive utterance. That's basic Constitutional Law, day one instruction. Except at Chapman, I guess.

Yes, Virginia, in the OC, It Is Against the F*cking Law To Say F*ck

Here's an interesting article from the OC, where you can get arrested for uttering "obscenities" at the airport.

A Riverside woman who faces a criminal charge of swearing at John Wayne Airport is suing the county, Orange County Sheriff Mike Carona and two sheriff's deputies, alleging infringement of her free-speech rights.

The federal lawsuit of Elizabeth Venable asks a judge to nullify an "unconstitutional" county law that holds that Venable "unlawfully commit(ed) a disorderly, obnoxious and indecent act."

Deputies told Venable, a 26-year-old graduate student at the University of California, Riverside, to be quiet after she used profanity in a conversation with a friend while she was near children at John Wayne Airport on Aug. 14, 2006, according to Venable's lawsuit. The case was filed in Orange County this month.

According to the lawsuit, one deputy wrote in his report that Venable responded, "Is it against the (expletive) law to say (expletive)?"

She was criminally charged, and now faces a misdemeanor count of disorderly conduct. Her arraignment is scheduled for March 22.

The article comes complete with a quote from a law professor who sounds like he's never read Cohen v. California:

John Eastman, a constitutional law professor at Chapman University in Orange, said Venable's federal lawsuit may not hold muster.

"Freedom of speech does not cover obscenities," he said.

In Cohen, the U.S. Supreme Court held that the First Amendment protects a person's right to wear a shirt, in a courthouse, that contains offensive speech such as, in that case, "Fuck the Draft." The vote was 5-4, but three of the four dissenters disagreed with the decision only because they thought the wearing of the shirt was conduct, rather than speech. Ms. Venable's utterance was pure speech.

Professor Eastman fails to mention that the F-word is not actually "obscene" under the Supreme Court's definition of obscenity. Under long-standing precedent like Roth v. U.S. and Miller v. California, unprotected, obscene speech is material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." Only material meeting this test can be banned as "obscene." Thus, dropping a couple of F-bombs in the middle of ordinary, coarse conversation in a public place is free speech protected by the First Amendment. It doesn't, as a whole, make the conversation one that appeals to the prurient interest. Moreover, being in California, where every school playground is a breeding ground for little F-bomb droppers, contemporary community standards do not consider F-bombs to be obscene.

I wouldn't like it if my 8-year-old was sitting there having to hear it, but it isn't illegal. It really isn't a close case. I'm amazed that some cop thought there was a case there, and I'm doubly amazed that a prosecutor agreed. I'm guessing that the prosecutor knows the case is bullshit, but thought, "F*ck it. We'll make an example of her anyway."

If any of you go to law school at Chapman University School of Law, find out for me whether your ConLaw professor was misquoted, or whether Chapman just doesn't teach Cohen, Roth or Miller. Inquiring minds want to know.

Angels Baseball Mother's Day Giveaway Declared Lawful

Breaking News: This'll be all over the country by tomorrow. The AP will have it in a few hours. Fark will probably dig it. Overlawyered will be gloating. But you can read it here first:

In Cohn v. Corinthian Colleges, Inc. (Orange County Superior Court case no. 06CC00090), the plaintiff sued the Angels Baseball Club and the promoter of a freebie deal whereby every woman over the age of 18 got a Mother's Day tote bag for coming to the Angels game on Mother's Day. The plaintiff claimed that this was unlawful discrimination under California's Unruh Act. I discussed the case last May, in my post entitled "I'm Not Kind of Lawyer" [Hoping to wipe out the same sort of discrimination that blacks once suffered in the South (his legal team's words, not mine), San Diego attorney Alfred Nava is at it again....] I've followed the case since then. It's quite easy to do, since the case is assigned to Judge Jonathan Cannon, one of my favorite judges here in the OC, and he posts his tentative rulings on the internet every week for his law and motion calendar. Last August, Judge Cannon refused to toss the case on demurrer, ruling that the complaint stated a potential valid claim on its face. On calendar today: a motion for summary judgment by the Angels. And the decision is....

Like the 2002 Giants, Michael Cohn loses to the Angels. Here is Judge Cannon's full tentative ruling, which was adopted without change after a hearing this afternoon. An identical motion by  Corinthian Colleges, Inc. was granted for the same reasons.

Both parties agree it is the objective of the Unruh Civil Rights Act to prohibit businesses from engaging in unreasonable, arbitrary or invidious discrimination.  Pizzaro v. Lamb’s Players Theater (2006) 135 CA4th 1171.  The parties also agree on the basic facts of this case.  Defendant distributed tote bags to women over age 18.  The totes were not distributed to men (with the exception of some booster club members, season ticket holders and media.)  Plaintiff claims the distribution was intended to discriminate against men.  Defendant claims the distribution was part of a plan to honor mothers on Mother’s Day.  Because the facts are not in dispute, it becomes a question of law as to whether or not defendants’ act of distributing the tote bag to women over 18 violated provisions of the Unruh Act.

The Unruh Act, as set forth in Civil Code §51, prohibits only arbitrary, invidious, or unreasonable discrimination.  In re Cox (1970) 3 C3d 205.  A policy or practice that involves arbitrary, class-based distinctions, including those based on gender, will fall within the scope of the act.  Koire v. Metro Car Wash (1985) 40 C3d 24.

If a strong public policy exists in favor of discriminatory treatment, courts have found the discriminatory treatment reasonable, and therefore, not arbitrary.  Such a finding supports the purpose of the act which is to eliminate antisocial discriminatory practices, not to eliminate socially beneficial ones.  Sargoy v. Resolution Trust Corp. (1992) 8 CA4th 1039.

Here, a strong public policy did exist in favor of defendants’ conduct.  The give away, along with many other activities planned for the May 8th game, were to celebrate Mother’s Day and honor mothers.  The President’s Mother’s Day proclamation encouraged all “Americans to express their love, appreciation, and admiration to mothers for making a difference in the lives of their children, families, and communities.”  Defendant’s May 8th game activities and give away did just that.

It is true defendant distributed the totes to women who may not have been mothers, but the evidence supports defendant’s decision to distribute the bag to all females over age 18.  There was no efficient way, under the circumstances, to quickly and efficiently determine whether the individual did or did not have children.

Plaintiff complains some men, but not all men did get the totes.  Defendant has produced evidence that the totes given to men were not necessarily for the purpose of celebrating Mother’s Day.  Totes were given to booster club members as payment for their volunteer services.  Totes were given to the media to promote the May 8th celebration.  Totes were sold to interested season ticket holders.

The Mother’s Day give away did not involve an arbitrary, class-based distinction.  Therefore, the remedies under the Unruh Act are not available to plaintiff.  The motion for summary judgment will be granted.

RULING: The motion for summary judgment is granted.

Thus, public policy says it's ok to give free stuff to the ladies on Mother's Day. It's not unlawful discrimination; it's a celebration of Mother's Day. In other words, the world is divided into two groups: normal people, and this one idiot plaintiff and his lawyer. Judge Cannon has shown himself to be in the larger of the two groups.

As a result, the case is over. Instead of a jury, the plaintiff will have to take his case to the Court of Appeal, where the plaintiff might get a published -- and highly publicized -- opinion ripping him and his motives to shreds.

California's Same-Sex Marriage Court Case

Have you even wondered what the actual arguments in big cases sound like? On Monday, the California Court of Appeal heard almost 4 hours of arguments in the related cases pertaining to same-sex marriage. Each entire argument can be heard on a special website the court has published. Check it out here. While I do not agree with their position, I thought the same-sex advocates did a much better job of arguing their case. I believe the Court of Appeal will hold that there is a California constitutional right to same-sex marriage, but that the Supreme Court will reverse that holding. But only time will tell.

Suing Anyone For Anything

One of the common phrases uttered by tort reformers is that anyone can sue anybody for anything. And that is almost true. We do not have a screening process in which one must first get permission to file a lawsuit under most circumstances. That screening is only applied to persons who have been adjudicated as "vexatious litigants," which only happens after you've filed and lost several frivolous lawsuits.

But the fact that anyone can sue anyone for anything doesn't mean that frivolous lawsuits actually get anywhere. Take for example, a recent case in Illinois.

A federal judge threw out a lawsuit by a woman who claimed she was attacked by a bird at a Lowe's store in Fairview Heights, Illinois. THe plaintiff, one Rhonda Nichols, of Centreville, claimed that Lowe's should have warned her of about birds in its outdoor garden area, and that they failed in their duty by not warning her to watch out for birds. As a result, she was attacked by a bird and incurred $20,000 in medical expenses and $75,000 in total damages, including head, brain and neck injuries, as well as lost neurological functions and cognitive skills. Sounds like a bullshit lawsuit, doesn't it?

Well, U.S. District Judge William Stiehl agreed with us, finding that a reasonable plaintiff would have noticed the birds or understood that contact with them was possible in an outdoor area with plants. Therefore, Illinois law does not hold a store liable for injuries caused by birds flying around an outdoor sales area. The lawsuit is gone. The plaintiff made nothing. Her lawyer made nothing.

Remember that the next time you hear tort reformers talking about greedy lawyers and plaintiffs getting rich off frivolous lawsuits.

Mark Geragos Took a Different Oath as an Attorney

So, I'm trying to rid my life of clutter, and one of the things I'm doing is roundfiling many damn near all of my old legal periodicals. And I came across this one article in a magazine that had a quote from Mark Geragos, explaining why he has no trouble representing a wife murderer and trying to confuse a jury into believing that there is a sliver of doubt about whether Scott Peterson slaughtered his wife and unborn child in cold blood so he could continue banging his mistress. Here is the explanation he offered:

However, there is an oath that every attorney in this state must take, and it says that you should never refuse to represent the reviled and the oppressed just because they are reviled and oppressed. I take that oath seriously.

By this state, he was, of course, referring to California. I have taken the oath that California administers. It says nothing about refusing to represent the vile or reviled. Here's what Business & Professions Code section 6067 it actually says about attorney oaths:

Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. A certificate of the oath shall be indorsed upon his license.

I can live with the latter. I would have refused to speak the former.

I'm not sure whether Geragos's problem is memory or perception, but either way, his view of the oath is as warped as his view (if you believe him) of Scott Peterson's guilt. In the same interview, Geragos offered this pathetic attempt to fall on his pencil for the wife killer:

I also fervently believed from the very beginning that Scott Peterson was innocent, and today, after seeing the evidence at trial, I believe it more than ever. Problem was, I couldn't convince twelve people, and for that I blame myself.

Don't blame yourself, Mark. If God Himself came down from the sky and proclaimed Scott Peterson's innocence, you couldn't persuade twelve people. They would look at the evidence and simply wonder why God was lying to them.

And speaking of lying people, the Peterson family has created their own Scott Peterson newsletter. It didn't mention that Scott failed in his attempt to keep Laci's life insurance proceeds for himself. There is a "scottisinnocent" website, too. The timeline part of it is "under construction." That is quite a metaphor for the whole Peterson defense. Constructed, not told.

The Lunch Bill Comes to $172 Million

A three month jury trial in Alameda County ended today with a $172 million jury verdict. The case, brought on behalf of thousands of Wal-Mart Stores Inc. workers who were illegally denied lunch breaks yielded a verdict of $57 million in compensatory damages and $115 million in punitive damages. Well over 100,000 current and former California employees who worked from 2001 to 2005 will share in the award. When the checks arrive in the mail (after Wal-Mart's appeal runs its course), it will mark the first ever instance of fair compensation to a Wal-Mart worker.

Lex cares a lot about this decision because he hates Wal-Mart's business practices, and because Lex has a bunch of similar cases right now, and their settlement value just went way up.

Trent Lott on Frivolous Lawsuits

Mississippi Senator Trent Lott has said over and over that frivolous lawsuits are destroying American business, and that most lawsuits against insurance companies should be limited, if not banned completely.

Some of his prior quotes on the issue of tort reform include these gems:

"The Democrats seem to think that the answer is a lawsuit. Sue everybody." July 20, 2001

"I'm among many Mississippi citizens who believe tort reform is needed." May 8, 2002

"If their answer to everything is more lawsuits, then yes, that's a problem, because I certainly don't support that." August 2, 2002

"It's sue, sue, sue... That's not the answer." August 4, 2001

So what would you expect him to do if his Katrina-damaged house wasn't fixed when and how he demands? I would expect him to set an example. Avoid litigation. Take what the insurance company gives him.

I would be wrong.

Last week, Senator Lott filed suit, hiring a [gasp] trial attorney to represent him. What does he have to say about lawsuits now?

"I'm interested in getting results that will help a lot of people, and I'm one of them. ... This was an important part of my life savings, and I just don't think that the response was one that I could accept."

The issue is whether a wind-driven storm surge is "flooding." Most English-speaking folks would say that "flooding" is a condition that occurs when your place fills up with water. The insurance companies contend they don't have to pay for water damage at homes of their policyholders who didn't shell out the extra bucks for flood insurance. The homeowners say that the fact that water is up to the roof doesn't necessarily make it a flood. Oh, it's something like a flood, but not actually a flood, per se.

Lott would certainly call that claim frivolous if he didn't need to win such an argument in order to get someone else to pay the cost of rebuilding his flattened beachfront house. I suspect that if Lott's house was on the Texas gulf coast, still standing, and insurance companies were complaining about these lawsuits, and how they were going to go so broke that they would barely have money left over to donate to Republican candidates for Senate, Lott would probably be leading the charge to pass new legislation against such wacky lawsuits.

I guess that goes to show you that the only consistent definition of what constitutes a frivolous lawsuit is "a lawsuit that some other guy filed."

You can read the complaint for yourself here: Lott et al v. State Farm Fire & Casualty Company et al, 1:05-cv-00671-LG-RHW, 12/15/2005.

New Lawyer Specialty: Representing Murderers' Girlfriends

One of the big stories in today's news was the arrest of the mother of Vitale murder suspect Scott Edgar Dyleski. CNN ran the headline with almost the same billing as the withdrawal of unqualified Supreme Court nominee Harriet Miers's nomination. But the remarkable thing to me was in an almost throwaway line way down in the story.

The tale pieced together by police is that Dyleski killed Pamela Vitale on October 15, then stayed with a friend for a few hours because his momalled to warn him that cops were all over his neighborhood. Then he left with his girlfriend to go to her house and have sex.

If you think like me, at this point, you are mockingly explaining to your friends that we've reached the point in the story -- we have a young murderer, he has a girlfriend, and the word sex has filtered into the post-murder timeline -- that the girlfriend needs to hire an attention-seeking lawyer, just in case there will be TV cameras and book publishers following this girl around. We need ... Gloria Allred.

Then we all laugh hysterically and say "wouldn't it be funny if Gloria Allred really did come in to be the girlfriend's lawyer?" And we briefly debate whether it would be funny or pathetic, hypothetically speaking, of course.

Or not. Late in the story comes the punchline.

"Gloria Allred is representing Dyleski's girlfriend."

Can you imagine how that decision came to pass? Maybe she called her dad and said, "Dad, you know that guy I've been sleeping with lately? Well, it turns out, he's a cold-blooded murderer. What should I do?" And her dad responds. "First, you stop doing sexual favors for this guy. Second, you hire a lawyer, of course. I know of one who might be good. I think she specializes in murderer girlfriends."

So maybe he calls Allred and asks if she can do the job. What would she say? Well, for starters, she probably boasted that she is the most experienced lawyer in California when it comes to milking media attention out of the fortuitous circumstance of having your boyfriend whack a lady.

"Do you have any references?" he might ask.

"Well," she could say, "start with Amber Frey. If she doesn't tell you that I'm the best lawyer a girlfriend of a murderer can hope for, hire someone else." And the client is hooked.

At least ambulance chasers now have someone they can look down upon. They may be ambulance chasers, but at least they don't chase murderers' girlfriends.

The Home Run Ball Worth Less Than Zero

Remember the fight over who owned the Barry Bonds 73rd home run ball that broke the record for most home runs in a season? Well, the guy who first caught and then dropped the ball, Alex Popov, filed a lawsuit against the other guy, Patrick Hayashi, who ended up with, and claimed ownership of, the ball.

Tradition says that he who ends up with the ball owns the ball. But Popov saw dollar signs, and pressed for a judicial declaration that the first man who possesses the ball, however briefly or tenuously, holds legal title ever after, even if the ball is knocked loose or bobbled.

Popov didn't want to hire one of those contingency fee lawyers, of course, who might take a third of the value of the ball just for winning the lawsuit. So instead, he went out and hired a lawyer, one Martin Triano, by the hour, at the going rate, and he and his adversary both told their lawyers the same general instruction: "win at all costs."

The court split the baby, ordering the ball sold at auction, with the proceeds split between the two men. Though estimated to be worth $1 million, the ball sold for a paltry $450,000. Popov's share, if my math is correct, is about $225,000.

In this case, "all costs" come to $473,530. So now, instead of piece of history, Popov is going to end up owing a quarter of a million dollars to Triano.

Is he giving up? Not a chance. He has hired a new lawyer to defend Triano's claim for fees, and to sue Triano for not winning 100% ownership of the ball.

I have some advice for Popov: either negotiate your fee in advance, or let your lawyer litigate the dispute reasonably. Scorched Earth is expensive.

I have some advice for the new lawyer, too: get your fee in advance and don't skip a malpractice premium payment.

Bullshit Defenses, The Real Hidden Tax

As I hear George Bush blame trial lawyers and their frivolous lawsuits yet again for the latest problem he's trying to solve, I can't help but wonder: Why does everyone worry so much about frivolous lawsuits, but no one ever complains about frivolous defenses?

I empathize with people who are forced to defend frivolous lawsuits. It sucks when people have to pay me a small fortune -- often several thousand dollars -- to defend against some garbage that a jury wouldn't spend thirty minutes deliberating. However, the cost of frivolous lawsuits is, believe it or not, not nearly as expensive as the cost of bullshit defenses.

Why are lawsuit defense costs so high? It's not the cost of the freaky verdict. Those are rare and usually reduced or set aside by the judge.

It's not the cost of defeating the bullshit case. They are out there, but they are a small percentage of the number of cases and they are usually dispatched relatively quickly.

No, the high costs come primarily from defendants spending whatever they can to see if they can force a cheaper settlement or force a plaintiff with modest means to abandon a good case.

In poker terms, we call that "chasing a bad hand." It sometimes works. But it usually just runs up the cost for everyone.

The defendants pay more because they pay the lawyer a pile of money and then still end up paying pretty close to what the liability is worth. The plaintiffs get less, because they have to wait to recover their money, and they have to pay a lawyer a pile of money just to get what they had coming in the first place.

Lawyers don't screw people. People screw people.

Think about it. If the good hands people offered you a fair settlement right after your accident, would you give a lawyer a third or more of your money? Not a chance. If insurance companies, banks and public entities and large corporations were fair to most people, fully a third or more of all lawyers would be out of business.

Brilliant Dissent to a Sad Decision by the New York City Court of Appeal of California

The City of Anaheim lost its fight to force the Angels to change their name back from "The Los Angeles Angels of Anaheim" to the "Anaheim Angels" while their lawsuit (set for trial in November) works its way through the courts. Though he joined the majority in the three justice panel with respect to their outcome (claiming that any change this late is the season is meaningless, since tickets have been printed already, billboards are all over SoCal, etc.), Justice Sills wrote a brilliant dissent as to the merits. My favorite part is quoted below:

That said, I must respectfully part company from the majority opinion. Clearly, the trial judge should have granted the requested injunction when the matter came to him before the season began. It is clearly an abuse of discretion to permit any other city name than Anaheim to be preeminent in the team name. The clause in question may, for sake of argument, permit use of a state or geographic "market" name in a subordinate relationship to Anaheim (e.g., the Anaheim Angels of Southern California, the Anaheim Angels of California or perhaps even the Budweiser Angels of Anaheim). In fact, I will go so far as to say that the extent to which other geographic or commercial names might be included in the team name is a matter which can await trial. However, whatever else the contract says, it does clearly preclude the use of another city's name preeminent in the team name to Anaheim. It cannot be the San Diego Angels of Anaheim, the Los Angeles Angels of Anaheim, or even the San Clemente Angels of Anaheim. The contract simply will not permit two city names where Anaheim is relegated to a clearly subordinate position to the other city. It does not permit what we have here: the Los Angeles Angels of Anaheim.

One doesn't need to attend law school to know that language requiring Anaheim be included as part of the "name" of a major league baseball team necessarily precludes subordination of Anaheim to that of another city in the team's name. Journalists know that, English teachers know that and Joe Sixpack knows that. The "Brooklyn Dodgers of Los Angeles" would not be a permitted name if Los Angeles were the beneficiary of a similar clause. The language of this contract is susceptible to no other reasonable interpretation. Anaheim bargained for something more than being a mere hiccup after the words "Los Angeles Angels." When preceded by "Los Angeles Angels," the words "of Anaheim" effectively drop from being included in the team name and become nothing more than an optional prepositional phrase. Only the sophistry of lawyers allows such a result.

Given these considerations, it is thus extremely important that the trial in this case, now scheduled for the Fall of 2005, go forward. Any delay that could impact the 2006 season certainly would require that an injunction be granted to prevent further harm to Anaheim's rights under the contract.

"Joe Sixpack knows that." How funny is that? But he's right. And Joe Sixpack isn't the only one who knows it. Lex Shot-of-Captain-Morgan's knows it, too. So do all those Los Angeles fans who are bent that the Angels are "stealing" their name.

They should stop griping, though. With the Kings skipping a season, the Lakers in the draft lottery, the Dodgers' best talent on the DL and their football teams  in Oakland and St. Louis, L.A.'s best shot at a professional sports championship for the foreseeable future might rest on the shoulders of the LAA.

Where You Stand Depends On Where You Sit

Today's U.S. Supreme Court decision in Gonzalez v. Raich, essentially striking down all state laws regarding the medical use of marijuana, was one of the most intriguing opinions the Supremes have rendered in years.

I haven't read Justice O'Conner's dissent carefully. In fact, I haven't read any of the opinions carefully, because I'm busy right now and they are just going to make me mad. I don't have the time to spend analyzing the opinions and I have even less time to waste getting mad. So this won't be a particularly thoughtful analysis. Just pretend I'm not a lawyer.

The 6-3 decision was authored by Justice John Paul Stevens, who, but for his furiously anti-drug votes in some prior cases, I would have pegged as a sure-fire supporter of seriously ill private citizens seeking medical relief in the privacy of their own homes from a substance that was prescribed by a physician. Instead, the only relief Stevens offered was the observation that Congress could change the law to allow medical use of marijuana.

Congress hasn't quite been asked, but I suspect that if Congress was asked to change the law, they'd do little more than tell us they'll get back to us on that later. Congress is currently quite busy legislating morality (except, of course, in corporate board rooms), and their take on marijuana is that it is plainly immoral. So, unless there is a new pro-marijuana passage in the New Testament that I've somehow overlooked, Congress is not about to do that. If God doesn't want it smoked, Congress doesn't want it smoked. And God does not want us to have dominion over the cannibis plant that God put on the Earth, even though He saw that it was good. (Genesis 1:13).

And it apparently is good. I say "apparently" because I do not smoke marijuana. I have never been a marijuana smoker. Not even in college. However, I'm starting to get old enough to have watched people who I once knew as healthy and vibrant, suffer and die of diseases such as AIDS, cancer, MS and other maladies for which marijuana might have eased their suffering and actually extended their lives. There is strong evidence that marijuana allows such people to maintain their appetites and reduce the physical suffering that destroys a terminally ill person's will to live.

I'm not quite 100% behind people who, like me, have chronic mild pain from something like a poorly healed ankle sprain, recurring lower back pain or periodic bouts of sleeplessness. But I do not understand how anyone but a sociopath could support denying medicine to a dying person just because other, healthier people, might want to use that medical recreationally.

Frankly, I don't understand how either side of the political spectrum can favor this. The right supports the right to live, at all costs. Certainly, letting a feeble and ill person suck in some THC or CBD is a small price to pay for preserving the right to live. And if you are a believer in states' rights, like the Republicans claim to be (and here, I give credit to Rehnquist and Thomas in particular, though the cancer-ridden Rehnquist may have voted less on principal and more on personal empathy for those sharing his plight), I just do not see how you justify the imposition of federal law -- under the interstate commerce clause -- to allow Congress to regulate small, individually grown natural plants, raised, distributed and used within a single state, distributed non-commercially to in-state residents, who have a documented medical reason to use this natural substance, and for whom there is not a modicum of evidence that their conduct affects interstate commerce, even indirectly.

And if you are on the left, how in the world can you use your mad passion for the Constitutional right to privacy to justify stabbing a half-delivered infant in the brain just because its mother has the private right to exercise control over her body until the child is entirely delivered, and not apply that same devotion to the Constitutional right to privacy for the purpose of allowing a person (who isn't bothering or adversely affecting any other person) to use a natural substance that a doctor has authorized to relieve a legitimate medical condition?

Thomas was right when he pointed out that, if Congress has the power to regulate this sort of conduct under the Commerce Clause, then there is no limit to what Congress has the power to regulate. The non-enumerated rights have gone from being "those not specifically granted to Congress in the Constitution" to being "those that Congress has not yet decided to regulate."

That frightens me. It might frighten me to death if I had to undergo chemotherapy.

Comparative Criminal Justice

Indonesia beaches are a much safer place to vacation if you are a Timothy McVeigh than if you are a Cheech Marin. As several bloggers have noted,

If you smuggle nine pounds of pot into Bali, and get caught, and you shouldn't expect to go home for 20 years. Which means, of course, that smuggling pot into Indonesia is just not worth the risk.

For the same price -- 20 years -- you can bomb a nightclub and kill 200 people every 30 months, eight times. Of course, if you only want to bomb the nightclub and kill 200 people four times, you can get away with just ten years in the can. That's quite the penal bargain.

Lenny Bruce is Not Afraid

Johnnie L. Cochran Jr. passed away yesterday from a brain tumor. I respected Cochran's abilities as a lawyer, but I didn't much care for his causes. In addition to his greater fame that arose from getting OJ and Geronimo Platt off the hook for their crimes, he had achieved some notoriety earlier in his career for prosecuting Lenny Bruce for obsenity in connection with his comedy routines that included cuss words. Cochran's firm currently represents the bad parents of that 13-year-old car thief who was shot and killed after trying to run over the police at 4 a.m.

Cochran was what we sometimes referred to as a "safe sidewalk." An old legal adage says that "a drunk man is as entitled to a safe sidewalk as a sober man, and is much more in need of one." Similarly, a guilty man is as entitled to a good lawyer as an innocent man, and is much more in need of one. Cochran was certainly that.

Is a Life Worthless, or Isn't It?

Can someone explain this to me? Why is it that the Bush posse thinks nothing of devoting the resources of the State of Florida, the Congress and the Supreme Court, and would issue not a whisper of criticism over the hundreds of thousands of dollars spent in legal fees to keep a single non-functioning person pumped with water and nutrients through a tube, and yet,
...
if a jury were to award the Schiavo or Schindler families $500,000 to compensate them for the loss of their beloved Terri, George Bush would cite that as an example of why the tort system is running amok, as if no life could possibly be worth $500,000**. As if greedy families and injured people were trying to suck the life out of doctors and companies whose carelessness and dangerous products are just part of the cost of doing business.

In fact, correct me if I'm wrong, but isn't he trying to make sure than no one can ever recover more than $250,000 for pain and suffering, loss of consortium and other "non-economic" damages in tort and medical liability cases?

Why are we spending so much to save this person's life when a life is only worth $250,000?

** In this case, a settlement valued her life at $300,000 in Michael Sciavo's loss of consortium claim.

Taking Tort Reform Into One's Own Hands

It looks like Illinois judge Joan Humphrey Lefkow, whose husband and mother were recently murdered late last month, was not the target of white supremacists after all.

Bart Ross, who shot himself to death during a routine traffic stop in West Allis, Wisconsin, admitted to the killings in a suicide note. Before shooting himself, Ross sent Chicago TV station WMAQ a signed, handwritten letter in which he described the killings. He said he waited for the judge all day after breaking into the basement on the morning of February 28. He shot the judge's husband after being discovered there, and then shot her mother because she was home and heard the shot. Shortly after 1:00 p.m., he decided not to wait for the judge to return, and he left.

Why did he do that? Judge Lefkow had ruled against Ross in a medical malpractice case. That ruling had recently been upheld by the U.S. Circuit Court, and Ross was facing eviction from his home. He blamed his doctor and the judge for costing him his house, job and family. His writings identified other judges and doctors he, apparently, had once planned to kill.

Agents are still investigating the white supremacists, saying that Ross had not yet been definitively determined to be the killer, and thinking that any excuse to investigate white supremacists should be taken advantage of, since they are probably breaking a few laws at any given time.

President Bush hasn't commented on these developments, but I'm sure he will blame greedy trial attorneys.

Though I never condone this sort of violence, I can understand Ross's rage. He probably heard all the politicians claiming that people were getting rich off frivolous lawsuits against doctors, and yet saw his lawsuit going nowhere. No one told him the truth about medical malpractice litigation, which is that most victims of physician neglect either can't get a lawyer to take their case, or can't convince a judge or jury to award damages. Even cases which are supported by expert testimony by other doctors result in plaintiffs winning less than 20% of all such trials. It must have been a rude awakening.

People sometimes ask me why I am proud to be a lawyer. Those people think that lawyers do nothing but suck resources out of an otherwise vigorous economy. I tell them that lawyers perform a great service to society. We keep people from killing each other to settle their disputes.

Sometimes, we fail.

My Favorite Former Professor

My favorite law professor, Erwin Chemerinsky, now of Duke University, spent the day today arguing to the U.S. Supreme Court against allowing any reference to prayer or God, including, notably, the Ten Commandments, in any public forum. I still like Erwin, but I hope he gets his ass kicked on this one.

More Truth on Tort Reform

As President Bush continues to blame trial lawyers for every scream and squawk by insurance company executives, consider this interesting tidbit:

The total profit of the ten largest American insurers in 2003 was $25,240,000,000. That is an average of more than $2.5 billion.

In the five years from 1999 to 2003, the total increase in medical malpractice payouts was 0.10%. (Source: National Practitioner Data Bank Annual Report). During that same time period, the total inflation was nearly twelve percent (12%), as the CPI All Urban Consumers Index rose from 163.4 to 184.0. (Source: U.S. Bureau of Labor Statistics).

In other words, the litigation "explosion" was about 1/120th as large as one would expect even if the only change was keeping pace with inflation. And it certainly isn't making insurance companies go broke.

The reality is that victims of medical negligence have trouble finding an attorney. If a doctor seriously neglects your seven-year-old daughter and lets her die of an easily treatable problem, you might expect all those "ambulance chasers" to beat a path to your door. In reality, you may have to search for a year to find a lawyer willing to take a chance on your case.

If that is a "crisis," it is only a crisis that only hurts the victims of medical negligence. If there is a crisis, they are the only people facing it. Check out this interesting article on Five Dangerous Myths About Medical Malpractice. You'll be surprised.

Lion Lawyers

It has been confirmed that the Johnny Cochran firm is going to be representing the family of that 13-year-old car thief who rammed an LAPD car and got shot to death. I heard one of the attorneys from the firm on the radio making all sorts of crazy comments. Some of the craziest were:

1. We think that the LAPD's change in policy regarding shooting at moving cars is going to be considered as evidence that the policy was negligent in the first place.

No, that would be a "subsequent remedial measure." If you never went to law school, you might not know that safety measures put in place after an accident or incident cannot be used against a defendant in a lawsuit as an admission that they would have been necessary at the time of the incident. The reason, of course, is because we don't want to discourage people from fixing dangerous conditions. Any first year law student knows this.  Perhaps not every lawyer representing Devin Brown's family does.

2. This isn't about money. It's about changing the practices of the LAPD.

Well, the policy has been changed. Are you happy now? Of course not. Because it is about money. If it's all about money, why don't you just come out and say it? The lawsuits I file are almost all about money. I admit it. The primary purpose of tort law is to protect life and property and prevent loss. But by the time a lawyer is involved, usually the law has already failed that goal, and the lawyer moves into the secondary goal -- compensating those who are harmed by the wrongs of another. If a lawyer denies that his case is about compensation, it usually means that he's afraid that people will think his client isn't worth compensating.

3. It's not about race. Nobody is playing the race card.

So, can someone answer this one for me? What would the community be saying right now if the driver of that cop-ramming stolen car turned out to be a 45-year-old drunken redneck who drove off, without being shot, and lost control of his car on MLK Blvd., spun out and plowed into a crowd of 20-year-old black men standing on the corner? Would they not be wondering why the police hadn't stopped that redneck back when they had a chance?

Or perhaps someone can also answer this? If race is not the issue, where was the outrage when a white robbery suspect was shot and killed a year or two ago when he slowly backed his car toward police in Santa Monica? How about the other 25 people killed in 30 such shooting incidents from 1985 to 2004? Where was the outrage then?

4. It was just a little kid.

It was a little kid who, from outside the car, looked no different than a fully grown drunken adult. Who would have figured that the driver of a stolen car at 4:00 a.m. would turn out to be a young teen?

5. The kid was just "joyriding." "At most, what we have heard is that he was driving a car that didn't belong to him ... We don't have the death penalty for that."

He must not be listening as closely as I am, because I have heard much more, including: that the car was reported stolen (that would be grand theft); that he ran red lights at 4:00 a.m. and his driving gave the appearance of insobriety; that he evaded the police in a chase that lasted several minutes; and after stopping, he put the card back into gear and ran into a police cruiser (assault with a deadly weapon). That would be a tad bit more than "driving a car that didn't belong to him."

And getting shot by the police is not "getting the death penalty." We don't have the death penalty for holding up a liquor store with a buck knife, either, but suspects have been shot and killed by police during the course of such incidents. Were there protests then?

I don't mind so much that they filed a lawsuit that I think has no merit. Reasonable minds may differ and the family is entitled to its day in court, even if it is to get rejected. What bothers me is how they stand up and lie about what they are doing, and why they are doing it. It insults our collective intelligence. I hate it when they do that.

Another Overreaching Godhater

Another God-hating atheist protector of the Constitution is fighting to eliminate not just references to God in public life, but even references to shapes that could have had used to make references to God in the past.

This week's God-hating atheist protector of the Constitution is Ryan Donlon, a brand new attorney in the 9th Circuit (so new that he doesn't even have a phone listing with the State Bar), who noticed, perhaps during his swearing-in, that the court's seal shows what looks like a sectioned tablet at the feet of lady justice. The tablet, he notes, looks suspiciously like the stone Moses brought down from the mountain. He disregards any similarity to Hammurabi's Code, or, for that matter, to a stack of gold bricks. In fact, the tablet is nothing but a two-dimensional shape, with a bunch of sections. It could be stone; it could be plastic; it could be stacks of blocks; it could be an "in box" with ten twelve mail slots.

But it makes Ryan think of God making laws that would brand him a blasphemer, so he wants them taken out of the court's seal.

I happen to disagree even with the position that the Ten Commandments violate the Establishment Clause. What do they establish? Catholicism? Orthodox Judaism? Lutheranism? Islam? But the courts have held that the Ten Commandments do violate the need for a church/state chasm because they begin with statements like "I am the Lord, thy God; don't make graven images of other gods; and don't curse by using my name." So, fine, I'll accept that the words of the Ten Commandments may not be endorsed by posting them in public places.

Nonetheless, to say that courts cannot display symbols of the earliest laws, simply because those symbols are also used to refer to displays of the earliest religious rules, is idiotic. That is especially so in this instance, in which the word "God" appears nowhere on the "tablet."

This trend is unnerving. What's next? A lawsuit to rename Los Angeles, because it says "angels," in which Ryan does not believe? Should we rename St. Louis, because it endorses the religion of Louis? Should every "Mission Road" in California be removed or renamed, since they impliedly sponsor the local mission? Should presidents who add "so help me God" at the end of their inauguration be immediately impeached?

"Oh, pulease," says the ACLU (which happens to be an anagram for UCLA, the educational institution that spawned Mr. Conlon), when questioned about these next steps.

"That has got to be one of the most ridiculous things I've ever heard," ACLU spokesman Tenoch Flores said. "Nobody is considering suing to change city names. If anybody were to bring such a suit, it would be laughed out of court and rightfully so. We don't go around looking for things, but we certainly don't back down in the face of criticism if it's determined that a constitutional issue is at stake."

Those sound like words I've heard before, when gay rights activists began the push for domestic partnership benefits. Opponents said that the next thing you know, men would be suing for the right to take a husband. ACLU types responded by laughing at them. "No one is talking about gay marriage. You people worry about the most ridiculous things. Ha ha ha, you silly right wing nutjobs." Now that gay marriage is becoming part of everyday American life, ACLU assurances about how far down the slippery slope they will not go do not reassure me.

But I'm looking at the bright side. Maybe those free Auto Club road maps in my travel drawer will be worth something when we start renaming half of the rivers, streets and cities in America.

Computer Monitor Fire

I have a client who had his house burned down by a flaming computer monitor. We're trying to find other examples of similar monitors that caught fire. It's a tedious task, and so far, we've found but one comparable incident. If you know of any computer monitors that have spit out flames or sparks, let me know. We're trying to find as many computer monitor fires as we can.

Mess Up This Survey

Someone is sending out email spam to "leading plaintiff's attorneys" seeking the inside scoop on some of their colleagues. I am guessing that some wicked defense firm is behind it. I don't know of anyone who is actually taking the survey and doing it seriously. But if you'd like to have some fun at the insurance industry's expense, give it a try.

http://thenetopinion.com/cgi-bin/r.cgi/forcharitysurvey.html

My Favorite Lawyer [Client] Joke

A man is flying in a hot air balloon when he realizes he is lost. He reduces his altitude and spots a man in a field below. He lowers the balloon toward the man and shouts to him, "Excuse me, can you help me? I am late to meet a friend, but I don't know where I am."

The man below says, "I'm happy to help. You are in a hot air balloon, hovering approximately 30 feet above this field. You are between 40 and 42 degrees N. latitude, and between 58 and 60 degrees W. longitude."

After a brief pause, the balloonist declares: "You must be a lawyer."

"I am" replies the man. "How did you know?"

"Well," says the balloonist, "everything you have told me is technically correct, but I have no idea what to make of your information, and the fact is I am still lost."

The man below responds, "Indeed. And you ... You must be a client."

"Why, yes, I am," replies the balloonist, "how in the world did you know?"

"Well," says the man, "you don't know where you are, or where you are going. You have made a promise which you have no idea how to keep, and you expect me to solve your problem. The fact is you are in the exact same position you were in before we met, but now it is somehow my fault."

[the joke is almost as funny if you substitute Lenny and George in place of the unnamed client]

Today was an interesting day with my clients.

I started the day driving to San Diego for a routine court appearance. On my way back, I got a call from another attorney on my floor, telling me that our mutual client was in the office to pick up her settlement check.

Clients are interesting characters. In general, clients are easy to get in for an initial meeting. They are harder to get in during the middle of a case when, say, I need them to verify discovery responses. Then, after I settle, not only are they easy to get to come in, they might show up unannounced at any time.

So it went with this client. We had a nice settlement that will pay her well over $100,000, tax-free. The check was deposited in my trust account a few days ago, with a hold that was to be lifted today. I told the client to call and make an appointment to come in after yesterday. She didn't. She just showed up today.

Now, the trust account has exactly two signors -- the two shareholders in the firm. One was on vacation this week. The other, me, was in San Diego, with an afternoon appointment to follow. "That's okay," says the client, "I can wait."

Ultimately, via cell phone, I arranged a meeting at a Starbucks near my home, since I was going to get back from San Diego too late to make it in to the office. We agreed upon 4:15 p.m.

I got to Starbacks plenty early. Unfortunately, there wasn't an empty seat in the place, so I pulled up a chair on the patio and waited. The client arrived a bit late. She didn't even look for me (though we've met many times, and she would have no trouble recognizing me), because she hadn't seen my BMW in the parking lot. It never occurred to her that I might have more than one car. So she sat in a corner and stared at the door for 20 minutes. She never saw me come in and she never saw a 540 pull up. So she assumed I wasn't there.

She was, of course, wrong. Eventually, I looked up from my computer and saw her. I walked over just in time to stop her from laying down one of those Caribbean black person curses on me (her words, not mine). We wrapped things up, and she left with her fat settlement check.

Now, answer this for me. If you were meeting someone at Starbucks, and you knew he had a tax-free check for $100,000 with your name on it, would you not at least turn your damned head to look around for him before assuming that you had been blown off? I would. Hell, I would walk up to every single male adult in the house and see if he had my money.

I guess I'm more logical than the average bear.

Off Calendar and On Holiday

Well, the trial against the WAIC did not proceed today. I'm back to the normal grind. We go back to court September 13. In fact, I now have no trials until after Labor Day.

The best part of this news is that I am now able to book my summer vacation. We're going back to Florida, again, so the kids can hit Disney World. Disney World actually becomes affordable this time of year. We're probably going to split time between the Port Orleans Resort French Quarter and the Animal Kingdom Lodge, which we seriously dug last year.

This time, we are going to have company. The kids' penpals are going to be there "on holiday" (as they say) from England. I also managed to coordinate the trip with another group of friends. We're going to be 12 strong. It's going to be fun, even if we melt.

The Phony Lawsuit Crisis

When I was about seven or eight years old, one of my friends told me about how Rod Stewart had gotten wasted and had to go to the hospital to have his stomach pumped. "When they pumped it," he told us, "they pulled out seven ounce sperm." "Wow," we all thought. "seven ounce sperm sounds pretty serious." He went on. "Five more ounces and he could have had a baby. He could!" And we believed him.

A couple of years later, I learned the truth about the birds and the bees. And although I still have no desire to have that dreaded "twelve ounce sperm" in my stomach, I no longer have to live in fear that some dude might rape me in the mouth and get me pregnant. I couldn't believe I was so gullible.

Every time I hear politicians and lawyer-haters talk about the tort crisis, or the "litigation lotto", I wonder if they also worry about twelve ounce sperm. What country do these people think they are talking about? As a lawyer who actually tries cases, I can tell you that, in the real world, juries are quite cautious and reasonable. The truth is that the median jury award in the nation's 75 largest counties decreased from $65,000 in 1992 to $37,000 in 2001. And it is heading farther south, in spite of inflation.

You know, it isn't really true that juries are made up of 12 people too stupid to get out of jury duty. Sure, some jurors are stupid, some are gullible, and some are overly generous with other people's money. But most jurors are normal people. And unless the defense attorney or one of the parties pisses them off, they really try hard to make sure that no one gets anything more than they deserve.

It's hard to pull the wool over the eyes of 12 normal people. Yet, everyone believes it when they get an email about the "Stella Awards", telling stories of outrageous plaintiffs suing for, and winning, obscene amounts of cash.

For example, take the supposed Kathleen Robertson of Austin, Texas. The Stella Awards hoax says she was awarded $780,000 by a jury after breaking her ankle tripping over a toddler who was running inside a furniture store. The toddler was her own son.

Think about, would you give this bitch a dime? Hell no. If you are smart enough to see past this, do you think you are smarter than 11 out of 12 people? Okay, perhaps a few of you are, but you'd have to be, to have 12 people award this person anything. If you think you are that smart, consider this. As smart as you are, do you think you could talk 12 of your friends into handing out this kind of award? Probably not. If you think you can, try it. You'll embarrass yourself.

Another great story in this hoax is the tale of Terrence Dickson of Bristol, Pennsylvania, who got stuck in the garage of a house he had just robbed. The garage door opener was defective, and so trapped him in the garage for eight days, leaving him to survive on Pepsi and dog food. "He sued the homeowner's insurance company claiming the situation caused him undue mental anguish," reads the hoax. "The jury agreed, to the tune of $500,000."

Burglary is a felony. The law does not permit someone to recover anything, ANYTHING, arising out of any misfortune which befalls them during the commission of that felony. Besides, does this make any fucking sense whatsoever? A week in a garage? He's a freaking burglar. You think he can't figure out how to pull the cord on the garage door and open it manually? Or break the lock or the door to the house? Given a whole week? Please. Plus, Pennsylvania law, I am told, does not allow negligent infliction of emotional distress in cases where there is no personal injury and no "special relationship" (burglar-homeowner does not qualify) between the parties. This guy, if he exists, cannot, would not and did not get half a million on these facts.

Then there is Merv Grazinski of Oklahoma City, Oklahoma. Mr. Grazinski, we are told, purchased a brand new 32-foot Winnebago motor home. On his first trip home, he set the cruise control at 70 mph and walked back to make himself a cup of coffee. Not surprisingly, the RV crashed. Mr. Grazinski sued Winnebago for not advising him in the owner's manual that he couldn't do this. "The jury awarded him $1,750,000 plus a new motor home."

Again, to whom does this story make sense? Juries do not award money and a new car. They award money. But there is no chance that a jury awarded a dime on these facts. And if one ever did, the judge would issue what is called a "judgment notwithstanding the verdict." Mr. Grazinski would go home with nothing. And if the judge did not grant a judgment notwithstanding the verdict, the court of appeals would reverse. But if the court of appeals did not reverse, you would have heard about this one on the news. Every channel. You wouldn't have to wait for the super top-secret email revelation from some perpilocutionist.

There is not one lawyer out there getting rich off frivolous lawsuits. The truth, if you can handle the truth, is that lawyers who chase frivolous claims go broke doing so. In fact, lawyers sometimes go broke chasing after good claims. I turn people with good claims away every week, because I know the jury isn't going to award enough money to make it worth my while, or worth my client's while.

But some people will continue to scream about frivolous lawsuits, pushing for unnecessary laws that will make it hard for people like you to get a fair deal when someone else hurts you or screws you over. You probably won't be able to convince them of the truth. But if you want to have a little but of fun, you might try warning them about the dangers of accumulating more than eleven ounces of sperm.

Lawyer Advertising

Every month, some new cloning story hits the press and makes the plot of Jurassic Park seem more and more plausible. But, if dinosaurs ever again walk the Earth, we will find ourselves living in a very different world.

Though few people consider this danger, one of the more disturbing changes I would expect to see would be the emergence of a new breed of lawyer, specializing in dinosaur liability cases, and running tacky dinosaur liability ads. "Have you or your loved ones been disemboweled by a velociraptor? Call me at 1-888-DIN-OLAW." It wouldn't be pretty.

Do you doubt me? Check out http://www.dinolaw.com/. It's "under construction."

Or call 1-800-DINERO. It exists. It's a lawyer, albeit not a dinosaur lawyer.

(For having even thought of this, my penance will be to appear at the top of any Google search for "dinosaur lawyer.")

Vendor Tamales

Apparently, they had some sort of disagreement leading up to this, but some hombre in Mexico says to his friend (albeit, probably in Spanish), "Hey, Carlos, make me a tamale." And Carlos says "Okay, my friend, you shall be a tamale." Then Carlos kills him and starts making tamales out of him.

I'm having a few disagreements myself right now. Last week, I had a problem with an attorney service that runs ads in the legal newspaper that say something like this (I'm paraphrasing so that nobody can use Google to figure out who I'm talking about):

"I'm in San Diego. I need it filed in San Francisco by 1:00 p.m. I want a conformed copy by 2:00 p.m. Then I want it served on five parties in four different counties. Then I want the proofs of service signed and filed by tomorrow. Oh, and I don't want to spend a fortune doing it."

"No problem. We're Uber-Great Attorney Service."

Well, we had a very simple task for Uber-Great: fax-file a paper in Napa County. If it's not on file by Tuesday, the client will be suing us for dropping the ball. We faxed it to them Friday at 1:45 p.m. This, apparently, is after their daily deadline, so we checked the box that says "After deadline, special delivery." And we waited.

We hear nothing on Friday. I call them just before 5:00 p.m. and get an answering machine. On Monday, I reach a live person by phone. "Is it filed?" I ask. No. "Well, it will certainly be filed today, right?" Uh, actually, no. "Why not?" It got here after our deadline on Friday. "And?" And so we cancelled the order. "I need this thing filed. Would you please un-cancel it right away?" Yes, but you'll have to re-fax it, because Uber-Great shredded the first fax.

Uber-Great is out. We have a new attorney service.

We need a new advertiser, too. The old one screwed up our ad with the wrong copy, the wrong telephone number, the wrong area code, and, when confronted with these and other errors, cancelled our ad, charged us for the six weeks left on our contract, and billed us for another nine months as a "penalty." Then they hired a collection agency from the east coast to impersonate attorneys and call my office, literally every five seconds, in an attempt to get me to talk to them a second time. One moron finally left me a voicemail saying that he would have my license to practice law taken away if I didn't pay for the erroneous ads.

Good luck. Wait. I take that back. I don't wish him luck. I hope he catches an embarrassing social disease and loses his reproductive organs. Absent that, he can use them on himself.

Bad as it was, I will never replace the old marketing company with LegalMatch, though. This company is totally sleazy. They market themselves with very misleading sales pitches that go like this:

"I'm calling for Lex Icon." [No mention that he is with LegalMatch]

"I am he."

"I have some clients in your area who need a wrongful death attorney immediately. Can I make an appointment to meet with you?"

Now, this might sound promising if I did that kind of work; but I don't. Anyhow, what he really means is that he works for a legal referral business, which -- for a fat fee -- hopes to have potential clients call with problems such as wrongful deaths and the like. I don't fall for it, but only because I admit to the caller that I am not interested in such cases. I plan to take on my next personal injury case when pigs fly. Even with genetic engineering, that will be well into the future.

"I could refer you to a very qualified personal injury attorney, though," I say.

"No thanks," the guy says. The ruse is then revealed. "What type of cases are you handling?" he asks. "We can put you in touch with clients in almost any practice area."

I pass. If they plan to market me as unethically as they market themselves, I want no part of it. Besides, I don't really need the business. I have plenty of clients, many of whom have much more frustrating problems than my little vendor issues. And no matter how annoyed I get, I can always come up with a list of at least a dozen clients who, at any given time, have a much bigger crisis than my biggest one. Plus, they pay me handsomely to solve those crises.

I guess I can put away my tamale recipes for a few more days.