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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.

The Least Intimidating Courtroom

This is not a mock courtroom. It's a real courtroom in a real courthouse, albeit at a converted school building. Courts are supposed to be made of good building materials, with the judge's bench sitting up high, so that everyone must look up at the judge. In this one, if you are standing, you look down at the judge. I don't like it at all. The jurors are probably so uncomfortable in those chairs, they'll make any decision just to get out of there.

Charles Whitebread Champagne Memorial

My two favorite law professors are no longer at USC. Erwin Chemerinsky left for Duke, and then the dean's position at UCI's new law school. Charles Whitebread has succumbed to lung cancer. Charlie was an outstanding scholar, and an even better instructor. He made the law seem a lot easier than the other professors made it seem, and he did it with a sense of humor unmatched by any professor I encountered in my seven years of college. He was nothing short of brilliant. I am very saddened to learn of his passing.
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A champagne memorial in his honor will take place tomorrow at noon at Town & Gown on the USC campus. To attend, you should have RSVP'd already, but they probably won't turn people away.

L.A. Judge Candidates Rated

The Los Angeles County Bar Association has issued its ratings for the candidates running in each L.A. County judicial race. A few were not rated. Most earned a "well qualified", but a select few were "exceptionally well qualified." You probably shouldn't vote for anyone who rates a "not qualified."

29,000 Reasons To Keep Your F-Bombs in Your Own F-Ing Mouth

Deposition sanctions, baby!

Legislative Intent Is No Longer Relevant?

"It is not our job to speculate upon congressional motives." -- Antonin Scalia, Riegel v. Medtronic, Inc. (2008) __ U.S. __ (Feb. 20, 2008), majority opinion.

Barely Legal Lawyers

Kathleen Holtz, an 18 year old law graduate from UCLA passed the bar on her first try. In a few days, if she isn't already sworn in, she'll be California's youngest lawyer and one of the youngest, if not the youngest, in the country. She started college at Cal State L.A. at the age of 10, and entered UCLA law school at 15. She undoubtedly found out last Friday night at 6:00 p.m., when results were available to exam takers only.

Back in the day, we used to all have to wait for the mailman on the day after Thanksgiving to get our bar results by mail. The new system is so much better.

Another Bruin Barpasser

Mike Tran, he of the UCLA undergraduate background and USC sweatshirt, has passed the California bar exam, and he'll be a litigator possible as early as November 27, when a case he is set to second chair will be starting trial. Congratulations, Mike!

On a side note, when I googled Mike to find the image in that link, I came across this website: "How Should Mike Tran Die This Week?" I didn't vote because (a) it's probably a different Mike Tran; and (b) there was no option called "from anticipation over pending bar results."

Affirmative Action: We Don't Want To Know Whether It Works.

According to an article published this week in the Recorder, UCLA School of Law professor Richard Sander wants access to data to study whether affirmative action increases or decreases black students' access to becoming a lawyer. Specifically, he wants to study whether affirmative action sets up black students for failure by placing them in schools for which they are unqualified, and is possibly the cause of black students' high failure rates on bar exams around the country. To find out if this was true, he asked the California State Bar's Committee of Bar Examiners for access to historic data on past bar exam scores, including the race and academic credentials for each applicant, not including, however, individual names. The Bar said no.

Sander previously published an article in The Stanford Law Review, using bar exam failure and passage rates obtained for a national study by the nonprofit Law School Admissions Council to assert that race-based preferences had opened the doors of elite law schools to minority students who were academically unprepared. As a result of that mismatch, the article asserted, there were about 8 percent fewer black attorneys in 2004 than there would have been if law schools had employed color-blind admissions practices. For those who question his motives, Sander points out that his has always been a civil rights activist and that he has an African-American son.

Gayle Murphy, the State Bar's senior executive for admissions, says "We're not against people doing research," she said. "And nothing prohibits [Sander] from contacting the law schools directly or even the students themselves." But the reality is that this data would be incomplete, and its findings dismissed, if access to State Bar records are kept private.

Many civil rights leaders, who ostensibly want to advance the interests of black students, are opposed to the study. Michael Yaki, a member of the U.S. Commission on Civil Rights opposed the release, saying "we might as well hang a sign saying 'blacks and other minorities need not apply' on the doorways of Yale, Harvard and other elite schools."

John Steele, a lawyer and law professor, told the State Bar "that the problem in understanding and combating exclusion is the absence of careful statistical studies, not the existence of them. "In the absence of well-constructed studies based on sound data," he added, "ignorance reigns."

The data can only do one of two things: it can reinforce the validity of affirmative action, or it can suggest that changes should be made, for the benefit of blacks and other disadvantaged minorities. The preliminary findings suggest that changes would benefit blacks. If so, why do minority advocates oppose knowing this?

UC Irvine Comes To Its Senses

They've rehired Erwin Chemerinsky as dean of their soon-to-be opened law school.

Irvine Blows It!

I'm a somewhat conservative fellow -- a registered Republican who thinks that Erwin Chemerinsky's politics are sometimes downright wacky left. But I was excited to hear last week that UC Irvine had lured my old Con Law and Civil Procedure professor to the OC to serve as the founding dean of UC Irvine's new law school. Sadly, my excitement was short-lived. The school has already fired him. According to the Los Angeles Times:

Just days after he signed a contract to become the first dean of UC Irvine's new law school, Erwin Chemerinsky was told this week that the deal was off because he was too "politically controversial."

Chemerinsky said in an interview today that UC Irvine Chancellor Michael V. Drake had flown to North Carolina on Tuesday and told him at a hotel near the airport that that he did not realize the extent to which there were "conservatives out to get me."

Chemerinsky, one of the nation's best known constitutional scholars and a liberal professor at Duke University in Durham, N.C., said he signed a contract last week after being offered the job Aug. 16. He said he had lined up a board of advisors for the new school, including the deans of the UC Berkeley and University of Virginia law schools and three federal judges, including Andrew Guilford, a Bush appointee from Orange County.

Chemerinsky said he was saddened by the decision. "It would have been an exciting opportunity to start a new law school. We live in strange times."

Chemerinsky said that Drake told him during a meeting at the Sheraton Hotel near the Raleigh-Durham airport that the decision "had been difficult for him."

He said that "concerns" had emerged from the UC regents, which would have had to approve the appointment, Chemerinsky said. The professor said Drake told him that he thought there would have been a "bloody battle" among the regents over the appointment.

Chemerinsky (whom I spoofed in our third year law school comedy show) is the most brilliant lawyer I ever met, and even when I disagree with his political positions, I am awed by his intellect and, even more so, his ability to communicate even the most complicated issues simply.

2007 was a great year for UCI athletics, which won its first Division I men's championship (volleyball) in school history and sent its baseball team to the College World Series for the first time, too. By hiring Erwin as the dean of its new law school, they would have achieved the same sort of prominence in the field of law. Now? Not so likely. The precedent has been set. If you don't have the right sort of OC politics, you are not welcome. That will narrow the field quite a bit, and the perception (and probably the reality) will be that the faculty will lack the talent that it takes to attract top students. In short, they just completely blew it, and I can't imagine how they can fix it. Even I, a horribly unqualified but conservative candidate, would be embarrassed to take a position teaching there.

They exposed themselves as fools, too. It's not like they found out that he had a drug problem or a dogfighting conviction in his past. They fired him after a week for being too liberal. You didn't really need to be a lawyer, much less a law school academic, to know Erwin is liberal. He's famous for his advocacy of liberal legal causes. If you didn't like that, you shouldn't have offered him in the first place. If you didn't know that, you shouldn't be in charge of picking a dean for your law school. To borrow a line from one of my favorite bits of legal fiction, UC Irvine,

You must be stupid, stupid, stupid.

The Real Cause of High Malpractice Rates

Should we cap medical malpractice lawsuits across the nation? A study published earlier this year says that the malpractice insurance crisis that hit doctors between 2001 and 2004 was not caused by claims, payouts or legal system excesses as the insurance industry claimed. Rather, according to the industry’s own data:

• Inflation-adjusted payouts per doctor not only failed to increase between 2001 and 2004, a time when doctors’ premiums skyrocketed, but they have been stable or falling throughout this entire decade.
• Medical malpractice insurance premiums rose much faster in the early years of this decade than was justified by insurance payouts.
• At no time were recent increases in premiums connected to actual payouts.  Rather, they reflected the well-known cyclical phenomenon called a “hard” market.  Property/casualty insurance industry “hard” markets have occurred three times in the past 30 years.
• During this same period, medical malpractice insurers vastly (and unnecessarily) increased reserves (used for future claims) despite no increase in payouts or any trend suggesting large future payouts.  The reserve increases in the years 2001 to 2004 could have accounted for 60 percent of the price increases witnessed by doctors during the period.

Source: Americans for Insurance Reform

The Most Honest Motion A Lawyer Ever Filed

I'm late to the party, chuckling over this motion, but in case you haven't seen it before, either, check out this motion for relief from a blown deadline, which the world's most honest lawyer admitted to have been caused by her suspending her work

"in order to take a friend out to dinner for his birthday. When she came back, she was unable to finish it, due to the wine :-) ... WHEREFORE, inebriation constituting excusable neglect ... the court should grant the present extension." (emoticon in original).

The blog post that broke the story five months ago redacted the lawyer's name until she got huffy about it. Then the entire motion became available online. It's great reading.

There Is No Constitutional Right Of Privacy

Why do you have the right to use contraception, have non-commercial consensual sex of whatever kind you want with any consenting adult, obtain an abortion and the like? According to the federal courts, it is the "penumbra of privacy rights" one can infer from the other provisions in the Bill of Rights. In other words, you have the right to not have government poke its nose in your business as it pertains to your body.

I've always thought that this was a good policy, but completely intellectually dishonest from a Constitutional standpoint. The court wanted to give people complete sexual and reproductive freedom, so it made up this non-existent Constitutional right to make up for the contrary decisions, or lack of action, by the legislative branch of government. Deep down, however, the courts know there is no such right, and when sex and abortion are not factors in the analysis, privacy disappears from the Constitution.

Case in point: Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach. The opinion is 65 pages long, but this AP quote sums it up nicely:

Quote:

Terminally ill patients do not have a constitutional right to be treated with experimental drugs, even if they likely will be dead before the medicine is approved, a federal appeals court said Tuesday. The ruling by the U.S. Court of Appeals for the District of Columbia Circuit overturned last year's decision by a smaller panel of the same court, which held that terminally ill patients may not be denied access to potentially lifesaving drugs. The full court disagreed, saying in an 8-2 ruling that it would not create a constitutional right for patients to assume "any level of risk" without regard to medical testing. "Terminally ill patients desperately need curative treatments," Judge Thomas B. Griffith wrote for the majority. But "their deaths can certainly be hastened by the use of a potentially toxic drug with no proven therapeutic benefit."

To paraphrase, you have a constitutional right to privacy over your body when it comes to sexual conduct or aborting an unborn child in your womb. You have no constitutional right to privacy when it comes to ingesting substances that you believe might cure your terminal illness. No, if the government hasn't approved that substance and regulated its sale, you need to just sit there and die. No privacy for you.

The two dissenting justices (who had cast the majority votes in the original 2-1 decision in Abigail Alliance for Better Access to Developmental Drugs v. Von Eschenbach before the ruling was reviewed en banc) nailed the issue: Judge Judith W. Rogers called the ruling "startling" and observed that courts have established the right "to marry, to fornicate, to have children, to control the education and upbringing of children, to perform varied sexual acts in private, and to control one's own body even if it results in one's own death or the death of a fetus." However, in the majority's opinion, "the right to try to save one's life is left out in the cold despite its textual anchor in the right to life."

Outrageous!

Boston Lawyer and UCLA Legal Noob Share The Exact Same Accomplishments

Meet attorney Bob B. Khakshooy, who calls himself an "employment lawyer with a proven record of success." He has degrees from UCLA (B.A.) and Whittier Law School (J.D.). His website describes a pretty impressive record of success, although not really much in the employment law area. Specifically, Mr. Khakshooy boasts the following case results:

Recent Employee Rights Settlements & Verdicts
$1.35 million Motor Vehicle Malfunction
$1.02 million Motor Vehicle Negligence
$850,000 Wrongful Death 
$660,000 Broken Ankle
$575,015 Motor Vehicle Negligence
$550,000 Botched Circumcision
$500,000 Botched Circumcision
$390,000 Fall on Defective Stairway
$320,000 Defective Manufacturing Machine
$270,000 Fractured Leg
$250.000 Motor Vehicle Negligence
$225,000 Over-Service of Alcohol
$220,000 Dog Bite Injury
$180,000 Product Liabiity 

Impressive results, but, like I said, none of those particular results say anything about his record of success as an employment lawyer, and they certainly are not "employee rights settlements & verdicts." In fact, they read more like the proven track record of a personal injury lawyer. And not just any personal injury lawyer, either. Specifically, they sound like the proven track record of Boston attorney Eric J. Parker.

Check out Mr. Parker's website. The case results are astoundingly similar. In fact, they almost appear to be copied, word for word, from Parker's website into Khakshooy's website. Or it could be vice-versa. I can't say definitively.

I do know, however, that Parker has a pretty good reputation and a well known track record in Boston, where he's been named a "Super-Lawyer" and achieved other honors. And although it could be possible that they had worked on all these cases together, I looked at the Massachusetts bar website, and it had no record of a Khakshooy, and California had no record of Parker. They almost certainly have not worked together on all these case. And it would be extremely unlikely to be a coincidence that each has achieved the same results. Few lawyers have more than one botched circumcision settlement over half a million dollars, and among those guys, the likelihood of two or more of them having a motor vehicle case settle for precisely $575,015 and a stairway fall settlement of precisely $390,000 has to be something like a hundred trillion to one. No, it looks like somebody achieved these results, and the other guy simply copied them and claimed them for himself.

If I had to give one of them the benefit of the doubt ... well, you decide.

Well, That Was a Pleasant Surprise

We spent all day and all night mediating one of our oldest and hardest-fought cases. It's been dismissed once. Been up to the Court of Appeal three times. To the Supreme Court twice. All good outcomes, but as I mentioned earlier, I didn't expect them to negotiate in good faith. I misjudged them. We agreed to a smoking good settlement late in the day, to the tune of $3 million. My legal team will be splitting a seven figure fee by the time it is all done. The sleep will be sound tonight.

As I Prepare to Get Jerked Around

I spent the day preparing for another mediation of another huge case. We've won some pretty amazing battles in this case so far, but I don't think the case is going to settle just yet. My last three mediations in similar cases went nowhere, although we turned down an aggregate settlement offer of about $8.5 million in the three cases, and we eventually settled one of the three. Tomorrow, we will be mediating a case against an opposing lawyer whom I have caught in several major lies, and to say that there is no trust between us would be one of history's great understatements. If the case settles, I'll be shocked. To be honest, I'm debating whether to just show up, let them make their bullshit offer, and leave half an hour into the session. It's a shame there is no market for pessimism. If there was, and I could bottle up and sell just half of mine, I'd never have to work another day in my life.

And On Her 14th Try....

How does the saying go? "If at first you don't succeed, try, try again." And that is good advice for bar exam takers. I know a lot of good lawyers who passed the bar on their first attempt. I know quite a few good lawyers who passed the bar on their second attempt. I even know a decent lawyer who passed the bar on his third attempt. I don't know any good lawyers who passed the bar after failing more than twice. I believe that if you can't pass the thing within two years, you probably should find a line of work better suited to your aptitude.

But for some people, the saying is "If at first you don't succeed, try, try, try, try, try, try, try, try, try, try, try, try, try, try again." This story first broke here, in the Orange County Register, but it broke on July 4, when I was off partying at the beach all day and night with my friends for whom I do not want to name-drop, and I missed it. It's now all over the blogosphere. A lawyer I know who went to school with this woman showed me the article, and I dropped my jaw at least four times reading it. Some remarkable quotes:

Paulina Bandy couldn't fail the state bar exam again.
Not after she failed 13 times before.

How's that for an eye-grabbing intro?

She and [husband Jon] Gomez, who married in 1992 after an 11-year courtship, lived in a three-bedroom home with a garage and yard in a Fullerton cul-de-sac. The couple traveled and shared a passion for sports. They loved to entertain guests at their home.

Passing the bar isn't the only thing that took her longer than average. An 11-year courtship before tying the knot?

"There was a secret out there to passing, and I wasn't in on it," she said.
Gomez kicked off a tradition of bringing flowers to his wife after she finished her exam in February 1999. But Bandy found out later that she failed. She was disheartened but vowed to do better the next year [and] studied 14 to 15 hours a day to prepare for a second stab at the state bar exam.

I wasn't in on it, either. Nobody told me any secrets. I just paid attention to the materials, studied as if it was a full-time job for about two months, and took the test.

By 2003, five years after she took her first exam, Bandy hadn't passed. On July 1 of that year, at age 39, Bandy gave birth to daughter Roxanne.

If you are counting, that's 22 years into the relationship when they had their first kid. She clearly rushes into nothing.

The fight continued for years. She tried twice in 2004, the year the family left Fullerton to move into a 365-square-foot home in the back yard of Bandy's mother's house in Orange. They sold the majority of their possessions – furniture, sporting equipment, wedding champagne glasses – at garage sales and squeezed what they could into their one-bedroom home.

It's better than living in a van down by the river, but not much better.

The exam in February of this year was Bandy's 14th. A few months before, her father-in-law yelled at her for being a "pretend lawyer" and ruining his son's life. She also got into a bad accident in January and totaled her car.

That's a pretty cold shot, although I think I feel the man's pain.

On May 25, the day the results of the exam were to be posted online, Bandy came home to a message on the answering machine.
"I screamed," Bandy said. "I'll never forget it. I was doubled over like being punched in the stomach. In a good way."
She had passed the exam, said the voice in the message.

I've never felt like I'd been punched in the stomach "in a good way," but then again, I never felt the pain of 13 ding notices from the bar.

After all that ordeal, Bandy might not even become a lawyer.

With good reason. Few firms or clients would hire someone who graduated in 1998, but didn't pass the bar until 2007. Now, I probably wouldn't have posted anything about this but for the last part of the article. Most of what I've seen about Ms. Bandy has been negative, and there isn't necessarily a lot of good to come from crapping all over someone who is celebrating a long-sought achievement like this. But, damn, this story really starts to feel like a Matt Foley skit toward the end. You see, this isn't just a story about someone who overcame adversity, it's an advertisement for her new barpassing advice business.

She's decided to devote her time to helping them full time. She launched a Web site, www.cabarexamrepeatersresource.com, and got a business license to help others find a formula to find pass the bar exam.

I've been to the website. Here's some of what she has to say:

I was forced to figure out how to pass the California Bar Exam on my own. Although excelling in bar reviews, my high pratice [sic] exam scores did not translate into a passing bar exam score. I desperately threw fistfuls of thousand dollar bills at bar reviews, tutors and ex-bar graders, in an attempt to find the elusive secret to passing. Much to my surprise, just as Dorothy discovered in the Wizard of Oz, I had the ability the whole time. I did not need the Wizard after all.
...
My Self-Hypnosis/Visualization CD helped me get the mind set of a successful candidate. ... I credit this CD as the finishing touch on my journey to passing.
...
I am not a bar "review". I teach individuals that [sic] do not have the test taking skills and technique of the Ivy Leaguers and Legal Pedigrees.

Amazing. She passes it once and suddenly she's an expert. She takes 11 years to marry her sweetheart, four years to complete law school, eight years to pass the bar, 12 years to start a family, and about a month to start a business giving bar exam advice. Thirteen failures, and then, suddenly, after discovering a CD (that she sells for $39.95) the secret reveals itself. She goes on to suggest having other "repeaters" send her their exams so she can critique them. Personally, if I had failed the exam, I would rather had my exams critiqued by someone batting a little bit higher than .071, and I sure as hell wouldn't pay someone with that sort of track record to give me advice. Her home page ends with a disclaimer that says she can not guarantee that what worked for her will work for everyone. Her disclaimer should be a lot more forceful than that. Finally, she closes with a blurb about "confidentiality and copyright" and asks that you

"do not duplicate my work, for ethical reasons as much as for legal. I want to keep this website available to those that need it and if all my work is given away, I will not be able to continue this mission."

Somehow, I don't think she has anything to worry about. Nobody is going to want to duplicate her work. But maybe I'm wrong, and people will beat a path to her door. Not that this would be terrible. California already has plenty of lawyers. One less bar passer is one less lawyer.

Summaries of Legal Opinions

During law school, I had a professor once ask the class a question, which he finished by asking "What's the short answer?" The student he called on responded with a single word: "Yes." The professor replied: "Can you think of a shorter answer." The student replied, with no confidence whatsoever, "No?" The professor then declared the shorter answer correct, and while some of us scratched our heads wondering if "No" meant that there is no shorter answer, or whether the answer should have been "No" in the first place, it occurred to me that lawyers always like to think that they can be brief and to the point. That's why we call our papers "briefs," right?

Whenever a new court case is published, the pundits write a short case summary and it gets published in the Daily Journal and other legal rags within a day or two. Today, the Supreme Court issued an opinion in an automatic death penalty appeal in the case entitled People v. Abilez. The opinion can be summarized, quite literally, in five words: "The motherf*cker deserves to die." The actual opinion, however, is 81 pages long.

Relaxation

After the most stressful two weeks ever that didn't involve at least one trial, I finally get a chance to relax. I'm doing a little gardening to unwind. I like gardening. I find it relaxing. I'm sure gardeners do not. Farmers and gardeners do this sort of thing for a living. They probably do not find it relaxing. Maybe they get their relaxation by filing motions to tax, oppositions to objections and preparing trial exhibits and witness examinations for bullshit trials. But I doubt it.

Tomorrow, back to the grind. My next trial starts Tuesday in Placer County.

Pound Wise and Penny Foolish

Today, my brother and I went along with two other lawyers with whom we do a lot of work and blew about $325 each on a seminar. Our first reaction when we get these seminar mailers is to look at the price and gasp a little. But today, about half way through the thing, one of the speakers suggested a tactic that had never occurred to us. We think it could add half a million dollars to one of our cases. That's a potential return of more than 100 times our original investment. Wow. Maybe we should just start going to seminars every day....

Classic Video Deposition Moments

This has been a classic for many years, the good ol' Texas boys threaten to start kicking each other's asses during a deposition taken by Joe Jamail (off camera to your right) and defended by Edward Carstarphen (off camera to the left):

Another great one:

Q: "Was that a yes or a no?"
A: "It was a Fuck You!"

This might be the weirdest one I've seen. From what I hear, the witness was a person with a personal injury claim, and the deposition is being "defended" by her obnoxious non-lawyer mother, and her brother sits there with pantyhose on his face for what could not possibly be a perfectly innocent reason. At the end, karma gets 'em, and they retaliate by destroying the video camera:

Three great moments in deposition history.

How Not To Bury an Embarrassing Story

Meet attorney Monica Zent. Back in college, she dated a guy who turned out to be a pretty bad fellow. In fact, he murdered his parents and a sibling so he could take over the family fortune. The boyfriend, Dana Ewell, and his college buddy, Joel Radovcich, were accused of murdering Ewell's mother, State Bar Board of Governors member Glee Ewell, her husband Dale, and their daughter Tiffany, on Easter Sunday in 1992. Zent was investigated, but no one could prove any involvement on her part, other than her apparent lack of desire to cooperate in the investigation that led to her boyfriend's murder convictions, and the fact that he used some of the money to pay for part of her law school tuition.

Eventually, Ewell was convicted, and Zent went on to dump him, complete law school and build a successful law practice (and legal blog). For the most part, people forgot all about Monica Zent's connection to the story. Then, in 2004, some fellow named David Loya found about about the story, Zent, and her new successful life, and decided to send an email to her colleagues. On July, 2, 2004, Loya sent an e-mail to attorneys affiliated with the Zent Law Group. The subject line of the e-mail was “Monica Zent and murder for profit.” The entire text of the message read as follows:

“Monica Zent’s college boyfriend Dana Ewell was convicted of murdering his parents and sister. Read about it by typing in an internet keyword search using Zent’s and Dana Ewell’s name.”

This made Zent quite angry. Naturally, being a lawyer, she sued. Loya filed an unsuccessful "Anti-SLAPP" (Strategic Litigation Against Public Participation) motion, asking the court to find that his email was protected speech on a matter of public interest. The court denied his motion, and Loya appealed. Now, because of that appeal, there is a Court of Appeal opinion that reminds not only Zent's colleagues of her scandalous relationship with a murderer, but tunes in people like me, with tantalizing facts like this, straight out of the opinion:

“Catch Me If You Can—A California Saga of Murder, Greed, and Two Heroic Detectives” ... was an account of the 1992 murders of Dale and Glee Ewell, and their 24-year old daughter Tiffany Ewell.  It detailed the homicide investigation that led to the 1995 arrest of Dana Ewell, who was Dale and Glee Ewell’s son and Tiffany Ewell’s younger brother. The book also recounted Dana Ewell’s jury trial in 1998 with codefendant Joel Radovcich, and the ultimate convictions of both defendants on three counts of first degree murder.  Zent was Dana Ewell’s girlfriend when he and Radovcich committed the murders and she continued to be involved with him for several years thereafter while investigators gathered evidence proving that Ewell was behind the crimes.

Zent and Dana Ewell met while they were both undergraduates at Santa Clara University and they began dating several months before the murders occurred. Their two families met during Easter weekend in 1992 at the Ewell family beach house at Pajaro Dunes. On the afternoon of Easter Sunday, April 19, 1992, Dana Ewell’s mother, father and sister set out to return to their home in Fresno. Later that afternoon Dana Ewell joined Zent and her family at their home in Morgan Hill. Dana Ewell spent the evening with the Zent family, including Zent’s father John Zent, an FBI agent. Zent and Dana Ewell returned to Santa Clara later that night. While Dana Ewell was spending time with Zent and her family that Sunday evening, his college friend Joel Radovcich was waiting inside the Ewell home in Fresno for the Ewell family to return home from the coast.  He had a gun he had equipped with a home-made silencer. When they arrived home, some time between 5:00 and 6:00 pm, he shot all three of them, waited for night to fall and then made his way back to his home in southern California.

After the bodies were discovered several days later, Zent, her father John Zent, and Dana Ewell traveled together to Fresno. Police interviewed them and Zent and her father established that Dana Ewell was having dinner with them in Morgan Hill at the time his family was murdered. With the exception of this brief interview, Zent refused to talk to homicide detectives throughout the investigation. Over the next three years, during which the investigators set up extensive surveillance of Dana Ewell and Joel Radovcich, Zent continued to be involved with Dana Ewell.  According to Souza’s declaration, the investigators located approximately 17 bank accounts jointly held by Ewell and Zent, in Fresno and in various locations in southern California.

Zent was with Ewell when investigators visited him in his dorm room at Santa Clara University in May of 1993, to talk to him about the investigation and its focus on his friend Joel Radovcich as a prime suspect. Ewell refused to discuss the case with them.  Shortly after the detectives left, Ewell and Zent left the dorm together in Ewell’s Mercedes and eluded police by suddenly crossing several lanes of traffic on the freeway. Shortly thereafter they were seen at a pay phone where Ewell was making a call that police believed was to Radovcich’s pager, and Zent was waiting in the car.

Due to the deaths of Dana Ewell’s mother, father and sister, he took over management of the trust for his grandmother Glee Mitchell, who was in a nursing home. Some time between 1992 and 1995, Zent was granted power of attorney over the health care of Mitchell. Funds from Mitchell’s trust were rapidly depleted, spent by Ewell on himself, Radovcich and Zent. Investigation of financial records revealed, among other things, that a payment in the amount of $17,014 was made on April 18, 1994, from the Glee Mitchell trust to the University of San Diego, where Zent was then attending law school.  Records showed an additional $39,701 was paid to Zent from the Glee Mitchell trust, including checks for $5,000 on March 7, 1994 and $9,950 on January 13, 1995.  Investigators also found a handgun among Dana Ewell’s belongings, which had been purchased with a credit card bearing Zent’s name.

Ewell and Radovcich were arrested in March of 1995 for the murders of Dale Ewell, Glee Ewell, and Tiffany Ewell. Zent was not arrested or charged with any crime. She did not testify at the trial in 1998; however her father testified for the defense and during his testimony made favorable statements about Dana Ewell. A jury found both defendants guilty of three counts of first degree murder, with special circumstances of financial gain, multiple murder, and lying-in-wait. On appeal, the judgments were affirmed by the Fifth District Court of Appeal, in an opinion filed on May 4, 2004. A petition for review was filed in the California Supreme Court on June 14, 2004 and the petition was still pending on July 2, 2004, when Loya sent his e-mail to attorneys at ZLG.  The petition for review was later denied on August 25, 2004.

These facts were discussed in a number of newspaper and periodical articles, as well as a popular true-crime book and a television segment. Yet Zent thought it was an invasion of her privacy to have someone tell people about in ten years later. Instead of letting a sleeping story lie, Zent made a case out of it, and now a new generation of people, including her current and future colleagues, have a Court of Appeal opinion to refamiliarize themselves with the story. Sometimes, when you think your privacy is being invaded, filing a lawsuit is maybe not the best way to restore and preserve that privacy.

Judge Kline Heads to PMITA Prison

Now a convicted felon and new member of the sex offender registration list, former Orange County Superior Court judge Ronald C. Kline of Irvine, who pleaded guilty to four counts of possessing child pornography (photos of young boys) in December 2005, finally faced sentencing yesterday. To his apparent surprise, Judge Consuelo B. Marshall sentenced him to 27 months in federal prison. And he swooned like a nancyboy.

He collapsed into the arms of his attorney just before lunch, and paramedics were summoned to provide emergency care and carted him off to the hospital. Kline's attorney said that he expects to recover. Kline was arrested in November 2001 after a Canadian hacker named Bradley Willman trick Kline into giving him access to Kline's computer, where he found hundreds of pictures of little boys having sexy time. He forwarded the details to Pedowatch, an Internet watchdog group, which informed Irvine police. A search of his home revealed the photos and a journal detailing his former relationship with an underage boy. After a series of motions and appeals, Kline pled to four felony counts and a sentence of up to 33 months in prison. Obviously, Kline was expecting something more lenient.

After several years of home confinement, which is only slightly more severe than a teenager getting grounded, this douchebag will be out of Irvine, and straight into PMITA prison, where he will undoubtedly find the potential pool of sex partners to be too large, hairy and strong for his liking.

As an added bonus, he'll never be a judge again, which pleases me because this guy was a piss poor judge, with a lousy judicial temperament and horrendous rulings. Even before I knew he was a lover of young boys, I could not stand him. Between this guy and the pair of suicides of other unpopular judges in Los Angeles County within the past year or two, I've formed a generalization about judges who are jerks: they probably have personal demons affecting their abilities to act as good judges. Show me a dozen judges who treat lawyers, litigants and (worse) jurors like crap, and I'll show you at least ten judges whose offices, homes and/or personal computers contain evidence of serious sins or serious crimes. It never seems to fail.

When 'tis Better to Not Have To Ask For Forgiveness

We were in trial today, and it's a bench trial. That means no jury. As is my custom, I asked permission every time I wanted to walk over to the witness and give him something. The judge kept reminding me that he is not so formal when there is no jury present. But we're in a courtroom normally used for arraignments and criminal trials, and it has one of those metal cages for the defendant to stand in during his arraignment, and for some reason, I keep wanting to ask permission before I do anything....

And I'm No Longer Feeling Lucky

So the client comes in and we talk about his potential case. It might be worth pursuing. In fact, it might be worth a lot of money. As is my usual practice, I do a quick background check on google. For fun, I often start by typing in their names, and if the name is common, maybe their city or some other narrowing term, then clicking the "I'm Feeling Lucky" button. Usually, it takes me to something completely irrelevant. Not this time.

This time, the name was not so common, so I only put the name in. Then the lucky button took me straight to a page with a color photo of my client, stark ass nekked. I took a closer look at his face. Yup, that's the guy. So from now on, if I do any of those memes with funny questions, and one of the funny questions is "Have you ever seen one of your clients' schlongs?" I will have to answer yes.

Great Opening Line

I loved this opening line from an otherwise boring Lemon Law case handed down today by the Fourth District Court of Appeals in California: "The limousine in this case, while perhaps not up to the standards of Stephen King’s Christine, certainly did seem to be possessed."

Easy Billables

Tomorrow, I have court appearances in two places, about 6 hours and 340 miles apart, and I can't do a telephone appearance for either of them. The bad news is that it is slightly more efficient to drive than to fly, because the airport nearest to my destination is more than an hour's drive away. Factor in early check-in, renting a car, and inconvenient flight times, and I spent easily 1-2 hours more if I fly. So I'm driving. The good news is that I get to bill for travel time between appearances, and driving is much less stressful than my usual set of tasks.

How Not To Send a Demand Letter

The California Supreme Court recently issued an opinion concerning California's anti-SLAPP (strategic litigation against public participation) statute. Most of it is interesting only to lawyers. Some of it, however, might be amusing to non-lawyers, as it details the bumbling incompetence of an Illinois attorney whose slutty client (one Tyna Marie Robertson) slept with that Irish dancer, Michael Flatley, and then tried to extort him with a false rape claim. The quotes from the demand letter are hilarious. The most frequently used word in the quoted portions was "[sic]". At our office, we laughed in attorney Dean Mauro's general direction. It's difficult to choose a favorite part of the opinion, but this is a good candidate:

The first paragraph of the third page of Mauro’s letter refers Flatley to a “settlement of $100,000,000” awarded as punitive damages in an unidentified case. The second full paragraph then states that an investigation into Flatley’s assets for purposes of determining an appropriate award of punitive damages, will require “an in-depth investigation” and that any information would then “BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT, as it will be part of the bases of several of our expert’s [sic] testimony.” The third paragraph states in its entirety: “Any and all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find.”

When I do defense work, I generally only laugh at demand letters in which the plaintiff's lawyer uses ALLCAPS repeatedly or cites his outstanding results in prior cases which he cannot does not identify. This sort of attempt to frighten or intimidate one's adversary is usually a clear indication -- straight out of The Art of War -- that one's case is weak. Sadly, it usually also means that the plaintiff's lawyer spent a long time -- hours, maybe days -- working on a letter which could have conveyed then same message in just two or three sentences like this:

Dear prospective defendant:

I am a weak lawyer with a weaker case, but I was hoping that you might throw me a bone if I annoy you enough and make you spend money. It probably won't work, and I'll be dismissing my case before trial, because I know that I'll get my ass kicked in front of any jury that doesn't have 12 of my relatives on it. Just thought I'd ask, though.

Best regards,
one of the really bad lawyers.

We had a guy write a letter like that to one of our clients last year. We sent him a four word response: "Go ahead and file." After we got $4,000 in sanctions against him, he dismissed the case.

Pity The Poor Lawyers

I just happened across this interesting article, which attempts to debunk the myth that all lawyers make zillions of dollars.

It's time those of us inside the profession did a better job of telling others outside the profession that most of us don't earn $160,000 a year, that we can't afford expensive suits, flashy cars, sexy apartments. We don't lunch with rock stars or produce movies. Every year I'm surprised by the number of my students who think a J.D. degree is a ticket to fame, fortune and the envy of one's peers--a sure ticket to the upper middle class. Even for the select few for whom it is, not many last long enough at their law firms to really enjoy it.

Yes. Many lawyers make less than a good construction worker or a firefighter. Some of them are downright broke. Luckily, I'm not that kind of lawyer.

Ten Years Of Not Answering To The Man

Ten years ago today, I dragged my butt out of bed popped out of bed, drove to a law office, and used my key to open the door. But for the first time in my legal career, I didn't have to walk past my boss's office to get to my desk. Because my desk was in my boss's office. Because I was my own boss.

In ten years of self-employment, I have learned that I do not miss answering to The Man.

As Our Little Suite Becomes Like a TV Drama

I need to become more of a people person. A better businessman would make it a point to meet and remember the faces of everyone in his office. Not me. I usually follow this pattern. I make it a point to meet the likeable attorneys first. The ones that bury themselves in their offices, doors closed, might be there 4 months before I learn their names and associate the name with the face. Then I try to keep track of which staff workers belong where. And finally, I try to figure out their names.

So far, in the almost 2 years we've been where we are, I've seen 4 lawyers come and go without so much as a handshake and a name, We have two of those type guys right now. And I just learned something about one of those guys that makes it a lot less likely that I'll introduce myself. I'll probably meet an FBI agent in the office before I meet him. Unfortunately, I can't share the detail in this forum. It might cause drama. And I don't need drama. Especially not in the office. But if you want to know the juicy secret, let me know and I'll share it off the blog.

Another Seven Figures

Today, I captured another big settlement. After a long day of mediation in a case that I was just brought in to help at the last minute because the first mediation had only achieved a $55,000 offer, we managed to persuade the mediator and the defendant that the case was worth a million dollars. After that, we dickered and talked over some alternative terms that would help one side or another, and came to a final stop at $1,150,000. Not bad for a day. That leaves the total of seven figure scores at 8:

$1.15 million settlement against a restaurant chain.
$1.3 million settlement against bounce house maker.
$2.0 million settlement against a defense manufacturer.
$3.0 million judgment for fraud against a ponzi scheme mastermind.
$3.5 million settlement against a specialty retail chain.
$5.0 million settlement against a restaurant chain.
$5.5 million settlement against a restaurant chain.
$7.05 million judgment against a sex offender.

The total we've secured for our clients on these eight cases is $28.3 million.

We also have a defense verdict in $3 million patent/trademark case.

When I got my first seven figure win, I celebrated with a fancy dinner and an expensive bottle of champagne. Tonight, I might have one drink with my co-counsel, but I'm quickly headed off to the local college to watch my little girl perform a ballet recital.

[and if there is no convenient hotspot, this will get posted tomorrow]

What Kind of Lawyer Is This?

Fark had a link today to a story about a lawyer who sued a restaurant in small claims court because the restaurant kept violating anti-fax-spam laws. The tag for the story was "dumbass," apparently because the submitter thought that the lawyer was a jerk for turning a simple inconvenience into a lawsuit to line his pockets.

The comments have been decidely in favor of the lawyer.

I'm not that kind of lawyer, but one day, I might just get mad enough and become that kind of lawyer. And if I get rich providing society the valuable service of putting fax spammers out of business, good for me.

Who Says Lawyers Are Humorless?

So I'm standing at the urinal in a large bathroom inside the courthouse. There are two occupied stalls and two or three urinals, and about three or four sinks. There are probably eight lawyers in there. One of the guys sitting on the toilet has a cell phone that starts to ring. And he answers it.

I've never read any etiquette books that mention how to respond to a cell phone call while you're dropping a deuce, but my guess is that they would say to ignore the call. But not this guy. He starts chatting away.

The rest of us look at each other in amazement. Suddenly, from behind the adjacent stall door, a monstrous fart breaks the silence. Then one of the guys at the urinal lets loose with his best. The cell phone chatting comes to an awkward pause as I zip up and walk over to the sink.

A guy next to me at the sink then squeezes out a couple more. At this point, the guy in the stall pipes up with "You guys mind?" or something like that, clearly wanting to avoid being blamed for the noises by the person on the other end of the line. There was dead silence outside, but strangely boyish grins on everyone's faces.

Wanting to participate, but having nothing flatulent to contribute, I broke the silence by knocking on the door from the inside, opening it, and asking loudly, "Hey, is anybody using this bathroom? Oh, oops, sorry." And then closing the door again as I walk out before the smells reach me.

I'm not sure how the call ended.

I'm Not That 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. This time, he is targeting Mother's Day giveaways at major league baseball games. Nava is the same character who made it harder for guys to get lucky by ending Ladies' Night discounts in San Diego area bars three years ago.

The thing I hate about stories like this are that people use them to bolster their belief that all lawyers suck. Nobody reads a story about a butcher cutting a romantic rival into pieces and says "Those butchers are dangerous. We should put them out of business." But when a story about some jerk suing over Mother's Day giveaways hits the press, you hear lots of people say things like "Attorneys are all assholes. Just look at this Alfred Nava guy." It really isn't fair. There's only one guy out there doing this. Most of us are perfectly okay fellas.

"Dumbass!" Cried the Court of Appeal

The Court of Appeals published its opinion in Jonkey v. Carignan Construction, a case involving an accident at a construction site. It began like this:

A construction site can be a dangerous place. There are some people who are keenly aware of this danger -- construction workers. Seasoned and mature construction workers who have risen to the top of this industry and who are supervisors, managers, and owners are not only keenly aware of the dangers; they also teach and are responsible for construction safety. They may also suffer financially for injuries occurring at a construction site. This, of course, provides an extra incentive to be safety-conscious. Here, it is ironic that Eric Jonkey (appellant), a seasoned and mature construction worker who had risen in the industry to a position of management and ownership, could be injured in the way we shall describe. Of all people at a construction site, appellant was and is chargeable with caring for his own safety. That he was walking near scaffolding which was being disassembled at a construction site looking down absorbed in a cell-phone conversation is tantamount to strolling on a battlefield wearing "horse blinders" and ear-plugs. While we regret that he was injured, he should be grateful that he wasn't killed.

I'm surprised they didn't make fun of the guy's name. ("What do you get when you cross a litigious jackass with an injured donkey? Plaintiff Jonkey.") You can probably guess how they decided, but if you want to read it to yourself, open this link.

Why We Bother To Get $7 Million Judgments Against Dirt Poor People

To date, I have four seven-figure settlements and two seven-figure judgments under my belt. The largest single judgment I've ever obtained for any client was a judgment of slightly more than $7 million. It was awarded against a young man who is basically penniless.

Before you start feeling sorry for him, let me share a few sanitized facts about the case. He was a sick bastard. He came from a very wealthy and prominent Southern California family. He dropped out of school, couldn't hold down a good job, and alienated himself from his relatives. He moved into an apartment in a dirt poor part of town, with a roommate, where they each paid about $200 a month in rent. His only apparent hobby was collecting porn and sex toys. He didn't have a girlfriend.

One night, he stayed up until 3 am and walked around behind the apartment complex to my client's bedroom window. As a freight train passed the apartments, he jimmyed the window open, jumped in and pounded upon my client. As her toddler slept beside them in the bed, he put a knife to her throat and tried to rape her. Luckily, he did not succeed.

He was captured, tried and convicted of three felonies. When I took his deposition (the only time I've ever been inside a prison), he cried like a tiny tot. He can't be doing well in the can.

He now has literally no assets, several more years in prison, no education, and extremely poor earning potential when he gets out. We filed suit against the So why did we bother with the lawsuit? Well, to be honest, the first reason was because the landlord bore some responsibility, and that made it worth our while to pursue, but even after we settled with the landlord, we pressed on against the perpetrator. Why?

There were two reasons: first, it gave our client some satisfaction, knowing that he would have this judgment hanging over him forever, even if we never collected a dime. But also, there is always the chance that this guy could inherit a bunch of money or win the lottery, and if he does, we want that money.

And does this sort of thing ever happen? As a matter of fact, it does. In England, one Iorworth Hoare was convicted of assault and attempted rape after a 1988 attack on a 59-year-old teacher. He was sentenced to life imprisonment in 1989. In 2004, Hoare won more than £7m in a lottery. At least one of his victims decided to sue, claiming that she didn't sue within the limitations period because the defendant was broke. This month, a British High Court ruled against the attempted rape victim because her claim was bought more than six years after the assault happened.

It won't ever happen like that to my client. If her attacker ever wins the lottery, she wins the lottery and I win the lottery. I wish the guy the best of luck there.

Technically, I'm Here

Officially, I'm on vacation this week. Unofficially, I am sitting in my office shuffling papers with the "Do Not Disturb" light on my phone. Don't tell my clients. My status might change at any moment.

Wish Me Luck?

I can't reveal any details, but tomorrow, I fly to San Francisco to mediate a case that could bring me a year's worth of income or more. The weather will suck, and the travel schedule is brutal, plus I'll miss the NCAA championship game (unless the mediation ends tragically early), and I'm actually rooting for UCLA. But it will all be worth in if we haul in a fair settlement.

So, Anyhow, We Won

We trailed, of course, but we finally got a courtroom. Now that it's over, I can talk a bit more about the case. It was a pretty small case. Some people think that smaller cases are easier cases. I think the opposite is true. Small cases are harder to try. You can't afford to turn over every stone and gather every fact in small cases, because you'd spend more than the case is worth. But small cases are fun because they help you sharpen your legal skills by forcing you to try a case by the seat of your pants.

The case involved a verbal contract to split the cost of a boundary wall between two commercial buildings. My client built the wall. The bad guy agreed to pay for half, but reneged. There was a bit more than $18,000 at issue. Neither side was going to recover attorney's fees.

Before trial, the only discovery we conducted was a two-hour deposition with document demands. We also visited the site and took a bunch of photos of the wall. The defense took no discovery, and I doubt that the lawyer ever actually looked at the wall.

As we were waiting for our trial assignment, I ran into one of my friends from college, who is now a prosecutor. He asked what I was in court for, and I told him it was a "limited civil" case involving a verbal contract. "It's a 'he said, she said' sort of thing," I told him.

"Oh, God!" He replied. "What a nightmare. Well, good luck with that." My client heard him. A nightmare? How could that be? We were telling the truth. How can we lose?

Borrowing a phrase from "A Few Good Men" (no, not that phrase) I reminded my client that trials are not about what we know. They are about what we can prove. And although verbal contracts are every bit as enforceable as written contracts, they are much harder to prove. Over lunch, we talked more about the difference between the truth and what can be proven. Frustrated, my client said, as politely as possible, that he really needed me to "work some magic" or something, and expose the other guy as a liar.

To make a long story short less long, the trial evidence consisted of my client telling his story about the conversations in which they discussed what kind of wall to put up, what it would cost, and how they would split that cost; my client explaining what was shown in all the photos; his wife testifying that the deadbeat had offered to pay $2,500 as a "down payment" that never was paid; and the deadbeat denying that any of it happened, even though some of the documents didn't seem to match all of the details in his long, grand explanation for how the wall came to be built at my client's sole expense.

The corroborating evidence supported my client's version of events. Among other things, there were several expensive features in the wall that cost my client a bunch of extra money, and which suited only the needs of the neighbor; there were a few site plans submitted to the city, in which the neighbor set forth that the wall would be going in as part of his overall construction plan; and there was the neighbor's vehement denial that he had offered to share in the cost of construction, because the wall's expense "was not in his budget. Period." But then, afterwards, he extended parts of the wall across his front facade and even built a matching masonry garbage enclosure.

When I pointed some of these apparent inconsistencies and odd coincidences to the bad guy on cross-examination, he bristled, argued, avoided answering about a third of the questions and tried to play some oneupmanship games with me. The guy contradicted his deposition testimony three times, each on relatively unimportant facts, but they were the sort of details that a liar can get mixed up, but a truthful man either gets right or can't remember. He volunteered some information that afforded me the chance to read an arrogant quote from his deposition in which the bad guy said that when he got my client's written demand for half of the cost of the wall, he didn't respond to it at all, except that he "snickered at it." That seemed to annoy the judge a bit. Then, about three quarters of the way through my cross-examination, the witness flatly refused to answer my question, and instead posed a sneering question to me:

"Don't you think it's a much better practice for people to put their agreements in writing?"

As badly as I wanted to say "Had he known how dishonorable you were, I'm sure he would have in this case," I resisted the temptation, and instead told him that I wasn't under oath, and it wasn't my turn to answer questions. As soon as I finished that remark, the judge exploded.

He told the witness that he was tired of his attitude. It was disrespectful to the lawyers and disrespectful to the court. And, to paraphrase, the judge went on to say same something along the lines of this:

You've avoided answering the questions all afternoon. Your answers have been evasive or non-responsive. You've been smug and obnoxious from the moment you took the witness stand, and now you seem to think you have the right to cross-examine the lawyers. You don't. Keep in mind, sir, that part of my job in evaluating the credibility of the witnesses is to consider their demeanor while testifying. And your demeanor has been awful. You had better change your attitude if you have any hope of rehabilitating yourself with this court.

The guy was shocked. He thought he had been scoring points by being a schlickmeister. It had never occurred to him that judges prefer sincere witnesses who testify with straightforward honesty. He then apologized with all the sincerity of a schoolboy busted for fighting with his hated rival. The judge accepted his apology, then looked back toward me and said "[Lex], you may continue."

I looked down at my notes and briefly pondered how truly critical my last 5 or 6 questions were. It was some good stuff. But I've seen lawyers snatch defeat from the jaws of victory by continuing to talk even after they had won. I don't ever want to be one of those guys. It was clear that I had won the case. And it was equally clear that those questions, as powerful as they may have been, weren't going to score any more victories than I already had. So I decided to shut the hell up.

Though I didn't mean to, I smiled (as discreetly as possible), and then I spread my hands apart and said "Your honor, that was actually my last question."

The judge seemed pleased. He asked the other lawyer if he had anything else to ask, and remarkably, he did not, so I told the judge we were ready to rest our case just as soon as we moved our exhibits into evidence. The judge ordered all of the exhibits we used into evidence, and we made our closing arguments immediately, without even taking a break. The judge told us he would give us a decision in five minutes.

As we waited outside, my client asked me what I thought our chances were. "We won." I told him. "The judge is just figuring out how much to give you." Five minutes later, the judge gave us every dime we had asked for, plus interest.

You know the expression "Money doesn't buy happiness?" It's true. I've made money, and don't get me wrong, it's great. But winning that trial, a "he said, she said," by the seat of my pants, on a budget of next-to-nothing, was just as satisfying as my last seven-figure settlement. Maybe even more.

Now, on to the next case.

Trailing

I will spend today "trailing." Trailing is the single most annoying thing about being a civil litigator. I means you have to report for trial, with no idea whether you actually will start trial, but unable to do anything else while you wait to find out.

I will show up in court at 9:00 a.m. and tell the judge that we are ready to start. My adversary will do the same. He will tell me to cool my heels while we wait for a courtroom to become available. If I am lucky, a courtroom will become available immediately. I am rarely so lucky, at least not in Orange County.

Instead, I will be told to wait. I will not be able to leave the building. I will be virtually unable to work on anything else. My client will have to pay premium dollars to have me sit on my ass and do nothing except stress out. It's a rotten deal for him, and its a rotten deal for me. And he will have to sit there with me, or at least stay within 15 minutes of the courthouse.

We might trail for as long as three full days, because every courtroom that opens up has to first take any waiting criminal trials. And there are always plenty of those (it is for this reason that my last Riverside trial appearance resulted in the judge telling us we wouldn't start for at least three months). I get to go home at 4:00 if no spots have opened up, but I have to be back the next morning. At the end of the three days, if trial hasn't started, we pick a new day to come back and start over. Probably next week or the week after.

I hate trailing.

I'm Still Getting Used to This Organization Thing

For years, I have organized my work using the pile system, where you put stuff in a big pile and carry it with you everywhere so that whatever you need to work on, you have it. Recently, I have worked hard on actually organizing myself, to the point where I try never to unnecessarily touch a piece of paper more than once. It is working, but I'm not yet used to it.

Three times last week, I spent 20 minutes or longer looking for something, only to find that I had filed it exactly where it belonged, and it was readily accessible. "Looking where it belongs" is a concept that apparently takes some getting used to.

How I Became The Vice President

I've never shot another man, but I have been a vice president. It was in law school.

Back then, almost every Thursday, some group or another had a spot on steps in front of the law school where they would host what we lovingly called "Keg on the Steps." And every Thursday, I hung out there, enjoying the free beer with many of my fellow students. One Thursday, after spending a bit too much time there, we all went downstairs to the snack bar to fill our stomachs with something less alcoholic. Something with bread to soak up all that beer. And as we walked past the bulletin boards, we paused to see who was running for student government for the following year.

Most slots on the nomination sheets were still empty. At the time, it seemed very funny (though looking back it was just plain immature), but we decided to fill some of the rest of the spots with each other's names, knowing that none of us had any intent of running. Naturally, as soon as you saw someone writing your name for an office, you scratched it off and immediately wrote his name below it. There were only three or four or five of us doing this, though, and there were about ten spots for would-be office seekers to nominate themselves.

After two bustling minutes of writing and scratching, someone -- other than me -- came up with the clever idea of adding fictitious names, so as not to leave any empty lines. In a brief moment of semi-rational thought, we chose to do this only for the third year offices and "lesser" offices. Student body president and such we left alone. I'm not really sure whether we did this out of a modicum of respect for the process or because we figured that enough people cared about the major offices to notice our antics.

I like to think it was the former, because we fully expected to fool no one. The fake names were pretty obvious -- names like Peter Mouse, Mickey Rabbit, Cindy Brady and Mr. Edward Ed, but, as we learned later, people didn't really pay attention, and the long list of apparent candidates actually dissuaded most other office seekers from adding their names. As a result, the candidates were mostly limited to the eager few who had nominated themselves before we happened along.

To make the prank a bit more mean-spirited, someone also added the name of one real student -- the only guy in our class who had been disciplined for academic dishonesty. I won't mention his name, of course, because he is currently a licensed attorney. But then he was, to say the least, not well respected. I can't remember whose idea it was to plug his name into some of the lists, but I found it wickedly funny. Before leaving, I double checked every list. My name was still on two lists. I scratched my name off the list for treasurer. Then I got to the vice president spot. The list at that moment included a couple of cartoon characters, and couple of sitcom characters, about three thoroughly scratched off names of my friends, a known cheater who didn't want any attention, and me.

That got me thinking. I was in student government in high school, but when I got to college, I was too busy, and the burden of running and serving appeared to outweigh the benefits. In law school, however, being on student government your last year earned you the pleasant bonus of having your photo on the top line of the graduating class composite photo. That was a pretty sweet perk. And vice president didn't actually have to do anything except attend meetings. And usually there was pizza at those meetings. I decided not to scratch that one off just yet. I'd wait until I was sober.

A few nights later, after I had forgotten all about the post-kegger office nomination, I got a frantic phone call from the person running the election. "This may sound strange, or, well, maybe not, but your name was listed on the candidate signup sheet for third year vice president, and we think it may have been a joke."

I thought about it for a moment and decided to come clean. Sort of. "Yes, that was a joke. I didn't write my name down. In fact, I scratched my name off of about six lists."

"Oh, no! That's what we thought. The only other student listed on that sheet was [Mr. Cheater Guy], and we just spoke to [Mr. Cheater Guy] and he said the same thing. And all of the other names were actually non-students. So, you're not interested, then?"

I gave a short, dramatic pause. "You mean," I asked, "if I tell you to leave my name on the list, I'd be running unopposed?"

"Yes."

"What the heck," I replied. "Leave my name there."

Needless to say, I won the election. The rumors of free pizza at every meeting turned out to be highly exaggerated, but I did get my picture on the top row of the class composite.

My Largest Judgment Ever

This morning, I obtained a judgment worth $7.08 million dollars for one of my clients. The entry of this judgment ends the longest-lasting case in my case inventory -- almost six years old. We settled with some defendants, appealed and won when another defendant was let out on summary judgment, and ultimately, won this huge judgment. We have it on a one-third contingency fee, and the judgment includes a substantial punitive damage award which is non-dischargeable in bankruptcy court. However, we aren't exactly going to go spend our $2.3 million dollar fee just yet. The defendant is broke. We will probably never collect even one percent of the judgment. But that dirty rotten bastard will be broke for the rest of his life now.

Maybe he'll win the lottery. If he wins the lottery, I win the lottery.

They're Coming To Get Me

I heard that a process server is looking for me. He has a subpoena, not a summons, which means that someone wants me to testify. They aren't suing me. It has to do with the first lawsuit I won after leaving large firm life. The lawyer for the defendants didn't bother to tell two of his clients about the trial. He was really only worrying about the one defendant who was paying his bills. It was a pretty messed up situation, and if I was one of the guys who never knew about the trial (or the settlement offer that could have resulted in their dismissal from the lawsuit), I would have been furious. The malpractice case is now pending. I'm supposed to testify at 1:30 p.m.

It'll be my first turn on the witness stand ever. I wonder what they are going to ask.

I Didn't Say It (II)

This happened a long time ago, almost 15 years ago. It still cracks me up. In the hall outside a courtroom at the United States District Court in Los Angeles, a new associate at our firm was among a large crowd loitering in the hall as we waited for the courtroom doors to open. The calendar is supposed to start at 2:00, but 45 minutes after that, there was still no sign of life inside the door.

Finally, a sweaty guy walks up the hall and into a private door just a few steps away from the courtroom. The new associate was leaning near that door, and when he realized that the sweaty guy had a key to areas where we were not permitted, the associate thought he be able to gain some insight as to when this rude judge was going to stop making us wait.

"Dude, do you have any idea when the judge is going to get here?" he asks.

The sweaty guy doesn't break stride, but responds:

"I think he just got back from lunch about a minute ago."

"Cool," says the associate. And he turns around to see a few people chuckling. The courtroom doors open moments later and the attorneys check in with the clerk and take seats. The the judge takes the bench, and sure as shit, that robe is now adorning the sweaty guy.

The new associate tried and failed to slink completely under his chair in the peanut gallery.

I Didn't Say It

So the judge comes out and prepares to call his first case of the calendar. No trials today, just case management conferences and some law and motion matters. So the peanut gallery is full of lawyers as the judge takes the bench.

"Good morning, ladies and gentlemen," says the judge.

"Good morning, your honor," we reply, in unison, like schoolchildren addressing their teacher.

The judge calls calendar item number one. The judge announces the case, and the lawyers file up to counsel's table. One by one, they speak their names and state whom they represent.

One of the lawyers has an odd name, which I can't remember, but wouldn't list here even if I could. And the judge utters a lame pun referring to the lawyer's last name.

The room is dead silent. The joke was in poor taste, and wasn't funny even if you like such jokes. The judge is a bit embarrassed, and apologizes, saying "I'm sorry, sir. I was just trying to make a very bad joke."

The offended lawyer responded: "And you certainly succeeded at that, your honor."

This time, the room laughed.