May It Please The Court: Weblog of legal news and observations, including a quote of the day and daily updates
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Quote of the Day - Pro is to con as progress is to Congress.
And With Tax, Your Total Comes To...Lawyers in New Jersey may soon utter those words to their clients , and likely a few others to the state legislature if a plan put forward by that state's Democrats to make up a $4.8 billion shortfall in the budget succeeds. That's right, your neighborhood legislator is thinking about taxing fees charged by lawyers, accountants, consultants and other professionals. Lawyers there are none too happy (subscription required) about it, even though it would also affect about 55 legislators who hold professional licenses. The plan was first tried in Florida, but was repealed there because professional work flew out of town faster than a speeding bullet and resulted in low revenues. The idea hasn't been well received anywhere. The cost of consulting a professional is already high, and may become just a bit higher in New Jersey. The legislators there have until the June 30 deadline to figure out how to make up the shortfall. Here's another way: cut the budget. Headlines And Unfortunate Photographs: Are You My Sperm Donor?Your last case before you retire from the bench is a joke. Literally. Seems that Marilyn Drake didn't like Jay Leno's jabs about a headline and photograph in the New York Times that discussed fertility clinics and sperm and ovum donors. The headline, "Are You My Sperm Donor? Few Clinics Will Say" led into a story about fertility clinics' unwillingness to share information about sperm and ovum donors with recipients. In what was an unfortunate segue, a photograph underneath that headline featured Ms. Drake seated on a couch next to her dog. Ms. Drake was an ovum donor. Leno joked about the headline and photograph, using an imagined dialog between Ms. Drake and her dog, "Are you my sperm donor?" No! I have fake testicles! How could I be your sperm donor?" Ms. Drake was not pleased and sued, as detailed in her Complaint. The case landed in the lap of Judge James Warren, who hears the "odd numbered cases" for writs and receivers in San Francisco County Superior Court, and is slated to retire. This was his last case. He denied her claims and dismissed her Complaint, granting the defense's anti-SLAPP motion, designed to insulate protected First Amendment speech from lawsuits. Stanley Goumas Hilton was the Plaintiff's attorney. As far as more puns or jokes go, you're on your own on this one. MIPTC doesn't want to have to file another anti-SLAPP motion, and I'm sticking to just the facts, ma'am. Coast to Coast Internet Radio Looks Into Patent Law's Invasion of Attorney-client PrivilegeThis edition of Coast to Coast explores what happened when in-house counsel became the focal point during the TiVo vs. EchoStar patent infringement case with regard to attorney-client privilege. Join me and my co-host Bob Ambrogi, fellow attorneys and Law.com blogger, as we peek inside the TiVo V. EchoStar case with the experts - Attorney Blair Jacobs, partner at Sutherland Asbill & Brennan LLP and Attorney Christine Byrd, a litigation partner with Irell & Manella LLP and a member of the legal team for TiVo at trial. You'll hear how 'advice of counsel' played a role. Give a listen!
Supreme Court Announces 'No Knock But OK to Pounce' RuleThe US Supreme Court has changed the "Knock and Announce Rule" to "No Knock, but OK to Pounce." MIPTC is still reviewing the opinion, and will provide updates later today or tomorrow. You can read about the opinion, and see the actual opinion here. 6/16 Yes, I changed the headline and the intro after reading the case. That's one of the dangers of headline writing before you actually do the work. Oops. When the police executed a warrant, they were required under the Fourth Amendment to knock first and then announce their presence. You've seen the process innumerable times on television (if you thankfully haven't been on the receiving end of a battering ram and gun barrels). The police bang on the door, yell "Police, open up" and then they break the door down. There's no set time that they're required to wait between the knock and announce, but we do know a very short time isn't enough. Emily Post it's not, however. The court cited many reasons why they rejected this rule: social costs in excluding otherwise incriminating evidence if the rule is violated, releasing dangerous criminals, restraint by police officers that risk injury to them, destruction of evidence and deterrence. Conservatives on the court won over the liberal wing on this one, 5-4, with Alito apparently providing the swing vote. The case was reargued after O'Connor left, who likely would have tipped the scales 5-4 against given the style of her questions in the oral arguments. One wonders whether it's a case of bad facts making law, and whether the decision would have been the same had the police raided the wrong home. Here, the raid found drugs and guns, and large rocks of cocaine in the defendants pockets. The old "knock and announce" law was described by the court as an "ancient' law, extending back to English jurisprudence, and although a short opinion, it drew a much longer dissent from Justice Breyer. His perspective on the case knocks the majority for exercising judicial instinct rather than respecting precedent and honoring Constitutional requirements. The majority, on the other hand, believe that the police are well-trained and use adequate discretion when exercising search warrants. The Court believes that there is no need to deter the police from violating the Constitution because they're not doing it now. What's your read on it? Career Manager Helps Celebrity Avoid Million-dollar Judgment In HollywierdIn the first-year of law school, law students learn about service of process, which is the first step in informing the defendant that the plaintiff has filed a lawsuit. The concept takes in notions of due process, notice and the opportunity to be heard. Usually, a party is served when a copy of the Complaint (or if you're in another state, say like Pennsylvania, Illinois or Ohio, it can be called a Precipae) is physically handed to them. Like all areas of law, there are innumerable exceptions and other ways to accomplish the task. Here in California, Complaints are frequently served by the Marshall. Most of the exceptions to the general rule that service has to be effected personally relate to how you serve business entities, such as corporations. With an individual, there are several methods of subservice, but they're generally restricted to members of your household. When you know a party is represented by a lawyer, that lawyer (with permission) can accept service of process. But can service on a career manager (whatever that job title means) be effective? Since so many of us have career managers ;-), it's a question we're dying to know the answer to - at least for those of us who live in that quintessential area of LA-LA land known more affectionately as Hollywierd. Yes, once again, Hollywood has sparked new law, this time in the dry-as-a-bone area of law called civil procedure. With this new decision, Civ Pro law professors everywhere are wringing their hands with glee because they can now keep students from falling asleep by invoking celebrity names as part of their lectures. TV and stage celebrity Rue McClanahan got sued by her former partner, apparent former boyfriend and another celebrity, Dirk Summers, for $10,000,000 (plus punitive damages, of course) arising out of a failed business partnership. The lawyer who represented the Plaintiff in the suit elected to serve the Complaint on McClanahan's "career manager." The career manager testified that she forwarded the Complaint to others, including McClanahan's lawyer who was defending McClanahan in another suit involving the same Plaintiff and same lawyer. McClanahan's lawyer complained to the Plaintiff's lawyer that service was ineffective, but got no response. Plaintiff's counsel then served a Notice of Default on the career manager and proceeded to get a sizable $3.75 million judgment against McClanahan, who promptly moved to set the default aside, and when that effort failed, appealed. The appellate court saw it quite differently than the trial court. In an opinion worthy of inclusion in a law school Civ Pro casebook, it called foul, reversing the default and judgment. The Court ruled service on the "career manager" was ineffective, especially when the Plaintiff's lawyer knew that McClanahan was represented by counsel. Apparently, a large judgment against you isn't a good career choice. Today's Mensa Pop Quiz: How Do These Expenditures Relate?(And Other Government Fables)Here you go, Mensa-heads: figure this one out. How do following things relate?"An all-inclusive, one-week Caribbean vacation in the Punta Cana resort in the Dominican Republic. Five season tickets to New Orleans Saints professional football games. Adult erotica products in Houston and "Girls Gone Wild" videos in Santa Monica, Calif. Dom Perignon champagne and other alcoholic beverages in San Antonio," as related by this Associated Press article by Larray Maragask. (Don't click on that link just yet if you haven't solved the mystery.) Here are a few more teasers: A $1,000 payment to a Houston divorce lawyer. A sex change operation. Prison inmates allegedly residing in a cemetery. A damaged Alabama post office box. Are you stumped yet? Don't feel bad. The Federal Emergency Management Agency was, too. It paid about $1.4 billion dollars to "help" Hurricane Katrina victims, except that the money didn't actually go for hurricane relief, as a quick recap of FEMA's bogus expenditures listed above shows. The General Accounting Office, however, had no problem figuring out these abuses. Here are the highlights and the full, 30-page report (both .pdf files) released by the GAO at 2:00 p.m. this afternoon (PDT). Now where did I put that hurricane relief application I was working on? Modesto Contamination Punitive Verdict In: Big Numbers, But Not Likely To LastMIPTC predicted more lawsuits, and it turned out to be true. Now, a jury has given the City of Modesto a temporary receivable of $175 million in punitive damages for perchloroethlyene contamination in the City's groundwater. The original jury award was just over $3.1 million to clean up the contamination. They City had asked for $4 million against chemical manufacturers Dow and Vulcan. I say temporary because the punitive damages award is about 55 times higher than the compensatory damages. Relatively recent Supreme Court rulings established a 9:1 limit for punitive damages, so it's likely that the trial court will reduce the punitive damage award. If not there, then on appeal, which is sure to follow a verdict of this sort. This first-of-its-kind verdict is unusual in that it appears that the jury disregarded Dow and Vulcan's arguments asserting state-of-the-art defenses for the level of knowledge that existed when the chemicals were being used and warnings provided by the manufacturers. Predicting an appeal is a gimme, but MIPTC won't go out on a limb to predict the outcome. I'll keep you posted, however. Businesses Battle Over Southwest Airlines' Cattle CallHere’s one for the books: You come up with a great business idea to provide a service to customers and start up the business in your home. All you need is a computer, credit card machine and a website and you’re up and running. This business idea allows Southwest Airlines customers to get an “A” boarding pass, guaranteeing a good seat and coveted space in the overhead bins while avoiding the cattle call, all for $5.00. Although the idea is a good one, MIPTC chooses to fly other airlines that provide a guaranteed seat for the price of the ticket, at no extra charge thank you very much. The idea, however, has its benefits and turned into quite a business for Kate Bell, the creator of BoardFirst.com. At first, even the head executive from Southwest praised her idea. She started making money and many Southwest customers were more than willing to pay the fee in return for an “A” boarding card. Then, Southwest sued BoardFirst and tried to shut Kate Bell’s site down. It seems to me that an easier way for Southwest to prevent someone else from making money at its expense would be to offer the service itself, instead of instituting a lawsuit. But that’s just me. I don’t own an airline, so I’m not in much of a position to comment. Or am I?
P.S and update: you might be able to win a free Southwest Airlines ticket by registering (at no cost) for the giveaway at Startup Nation, a small business blog with advice for entrepreneurs.
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