Quote of the Day - I don't want to wrap myself in the flag, because I'm afraid I'll get burned.
Coast To Coast Internet Radio Program On Judge Samuel Alito's Supreme Court Nomination
Coast to Coast, with my co-host Robert Ambrogi takes up the controversial discussion of the President's latest nominee to the Supreme Court, Judge Samuel Alito, with special guests with special insights. Join us along with our three guests:
Matt Margolis, the founder/editor of Blogs for Bush. In the summer of 2003, Matt conceived the idea of Blogs For Bush, and the site launched on November 3, 2003. In a short period of time, Blogs For Bush became the largest blog community dedicated to a political candidate. Matt was one of the first bloggers to receive credentials for the Republican National Convention. He also runs GOP Bloggers, a grassroots website uniting bloggers who support the Republican Party.
Law Professor Carl W. Tobias from the University of Richmond School of Law, the Williams (no relation) Professor of Law at University of Richmond School of Law. Professor Tobias is also the author of numerous tributes and shorter book reviews in various law journals. He has also written many commentaries and op-ed pieces for news publications including the National Law Journal, Christian Science Monitor, Washington Times, Legal Times, Chicago Tribune, San Francisco Examiner, and Baltimore Sun.
Drucilla Ramey, Executive Director of the National Association of Women Judges. She is a civil rights attorney and formerly Executive Director of the Bar Association of San Francisco.
Tune in here, it's a must-listen.
Powerline Oil Powers Through Umbrella Insurance Policies To Provide Pollution Coverage
The case has been winding through our appellate system for some time. In 2002, our Court of Appeal told us that umbrella policies were broader than comprehensive general liability policies, and in particular provided coverage for pollution claims that were not the result of a lawsuit and didn't necessarily include a damages claim.
In the subset of the legal industry that deals with pollution insurance coverage, that was big news, especially in light of the decision in Foster-Gardner, the case where our Supreme Court had earlier said a "lawsuit" was required to trigger coverage under a CGL policy - and appeared to make the same determination in Powerline I, an earlier proceeding in the same case dealing with CGL policies (not umbrella policies). With its decision, however, the Court of Appeal created a dichotomy that left us scratching our collective heads: was a lawsuit required or wasn't it?
Now, we have our answer, and this time the insured wins.
The Supreme Court ruled in Powerline Oil not only is a lawsuit unnecessary, but it also gave the insured the bonus round answer that damages were likewise unnecessary, a two-for-one win. In a unanimous ruling, Justice Baxter wrote, " the express wording of the central insuring agreement .... goes well beyond mere coverage for court-ordered money 'damages,' and is broad enough to include coverage for the liability of environmental cleanup and response costs ordered by an administrative agency."
Since 1983, pollution coverage in California has been limited by the absolute pollution exclusion in CGL policies and there's been a cloud over coverage provided by umbrella policies. Umbrella policies generally are excess over CGL policies, and frequently provide more coverage than CGL policies. Now, we know for sure they do, and insureds are rejoicing across California.
Instead Of Paying Taxes, Then Again, You Could Be Broke
It's getting to be that time of year again when business owners and others try to finalize tax planning strategies. It's commonly known as trying to avoid or delay paying taxes. On the other hand, my accountant tells me it's great to pay taxes. A lot of taxes. He says I should be glad when I'm paying taxes because it means I'm making money.
Well, that's not how I look at it, and I doubt you do either.
Even so, here's twenty-one ways you should not be using to try to avoid/delay paying taxes. It's the list put out by the IRS as part of this year's amnesty program. If you used one of these shelters and come clean, then the IRS will give you a break on the fines and penalties. That's assuming, of course, you first pay the back taxes due, plus interest. According to the New York Times, last year's amnesty program netted some $3.7 billion in extra taxes. The IRS figures taxpayers would rather pay than go through an audit, and they're right . I won't tell you how my accountant describes audit, but it has something to do with getting your pants pulled down.
There are a lot of options when it comes to paying taxes. Usually, not paying taxes is an unwise option, but it's typically as a consequence of making money, so it's not necessarily a bad thing, it's just sometimes a little painful. According to Rush Limbaugh, the top fifty percent of wage earners pay 96% of all taxes.
On the other hand, if the government spent less money, then we'd supposedly pay less taxes. That's about as likely as the IRS sending you back all the taxes you paid last year.
Whatever you decide to pay (or not pay), just remember resolving your differences is typically better than the tax court, where lawyers like me argue with the IRS in front of judges who don't like to pay taxes either, but then again typically don't have the kind of income that generates taxes at that level.
Who Cares About The AMLaw 200?
American Lawyer Media, Inc., the parent of the Law.com blog network (of which this blog is a member) conducts numerous annual and other surveys of the United States' largest law firms. There is, of course, the quintessential AMLaw 100, and a host of other "looks" at the big firms. The latest survey took a look at the AMLaw 200's changing use of technology over the last ten years.
Because it misses the mark. Presumably, ALM conducts these surveys of the big firms based on the general theory that what's good for GM is good for the country, or something like that. As MIPTC has pointed out before, the big firms are only a small part of the entire population of lawyers. By conducting and publicizing these types of surveys, ALM misses out on how the mid- to small-size firms use technology.
Take, for example, ALM's survey result that ten years ago, 77 percent of these big firms were using Word Perfect, and the rather startling fact that now only one out of 146 responding firms still uses Word Perfect, the rest abandoning it for Word. That tidbit would make you think that Word Perfect is a dinosaur.
Far from it. Based only on an anecdotal, unscientific survey, I called ten small firms. Guess what? They all use Word Perfect, and not a one Word. My friends at the BIG law firms complain about the switch, a fact missing from the AMLaw survey.
Now I'm not here to tell you that the giant monolithic, megalomaniac Word hasn't taken over the legal profession just like every other aspect of Microsoft. To some degree, it has - but not to the extent that AMLaw would have you believe. And I'm not trying to tell you it's a bad thing. Realistically, Word is used by more people, and by making lawyers learn to use it, more people will be able to work with the documents their lawyers write.
My point is that the facts presented by ALM are skewed, and they would make you believe that the entire world has abandoned Word Perfect, while I don't think that's true. I use the Word / Word Perfect scenario here only as representative of the faults with AMLaw 200 technology survey results. It's likely that the same misperceptions exist in the rest of the survey, too, but I just chose to pick on this one.
Just for the sake of continuing full disclosure, I used to work at a big firm that is in the AMLaw 100, and I hold no grudge against the firm or any other big firm. In fact, I like big firms. I think they have their place (I'm just teasing with that last link). My only observation is that by focusing on the big firms to the exclusion, you're missing how the rest of the world lives, and how changes in legal technology affects small firms. No, I'm not looking for someone from ALM to call me up and ask me what I think, or what software we use (we in fact use both Word and Word Perfect).
It would be nice, however, if there were AMLaw surveys of small and medium firms. Then, we'd have a truer picture of the state of the union. And yes, I'm betting the vendors would still choose to sponsor the magazines where the surveys are published. Think about it. Together the small- and mid-size firms hold much more power than the AMLaw firms.
It's just not as sexy to talk about the one- to five-lawyer firms.
Just Blame It On Your Mother
Mothers get blamed for a lot of things, but this time, she got a bad rap. After leading police on a high-speed chase trying to escape after robbing a bank, leaning out the window taking shots at the police and then smashing his (stolen?) Corvette into a levee, Terrence Lee Mackey, 63, blamed the whole thing on his Mom.
He wanted to see her. Or so he said. Just missed her.
He had been in prison (now there's a surprise), and located outside of driving distance so his mother was unable to visit him regularly. When asked for a defense, he replied, "I wouldn't be standing here today if I'd been sent to Florida like I asked," claiming instead that officials refused to jail him near his mother in Florida after he violated parole in 1982. Another shocker - a parole violation.
What about the bank robbery? I'm guessing he wanted to give the money to his Mother. And firing at police? "The police were shooting at me," he said.
A classic case of self-defense. Just in case you're wondering, Mr. Mackey will be spending the next 29 years in jail. Likely not near his Mother, either.
Coast To Coast Internet Radio Program Takes On Lawyers, Guns & Money
The new Coast to Coast podcast with my co-host Robert Ambrogi is up and today's topic on guns sparks a rapid-fire discussion about the new law that shields gunmakers from crime-victim lawsuits, called The Protection of Lawful Commerce in Arms. Our three special guests are Josh Horowitz, the Executive Director of the Coalition to Stop Gun Violence, David Kopel, Research Director of the Independence Institute and Editor-in-Chief of the Journal on Firearms & Public Policy and the inimitable Professor Eugene Volokh from the UCLA School of Law whose blog is The Volokh Conspiracy.
Mr. Horowitz's Educational Fund to Stop Gun Violence and the Coalition to Stop Gun Violence are organizations at the forefront of the gun violence prevention movement. Josh focused his organizationís efforts on closing illegal firearms markets by eliminating unregulated transfers of firearms and pursuing litigation against the gun industry. He is also a lawyer with a background in torts and civil rights, and recognized as an expert on firearm litigation and has developed a unique database of cases and court documents that assist efforts to reform the firearms industry. One of his cases was dismissed as a result of this new federal statute.
Attorney David Kopel is also an Associate Policy Analyst at the Cato Institute and a contributing editor to several other publications, including Liberty Magazine, Gun Week and The Firearms & Outdoor Trade. David is a Former Assistant Attorney General for the State of Colorado and an expert on firearms policy, juvenile crime, drug policy and criminal sentencing.
Although he needs no introduction in the blogosphere, Professor Volokh teaches Constitutional Law II (Free Speech), Copyright, Firearms Regulation, and the law of government and religion at the UCLA School of Law. He is a nationally recognized expert on the First Amendment, cyberspace law, harassment law, and gun control.
It's a hot topic, and the panelists themselves point out some important considerations. Click on the podcast icon below, or download it from MIPTC's podcast RSS feed.
Local Rules Once Again Come Under Fire; When Will Judges Learn?
Once again, an appellate court has admonished a local court for establishing local-local rules (known among attorneys as loco-loco rules) that violate the Rules of Court. These aren't the rules of the entire court. They're the rules set in a particular judge's courtroom. It seems that no matter how many times appellate courts put it in writing or attorneys politely point it out to a superior court judge, the "enforcement" of the local-local rules slip through.
We need a better system.
It's hard for an attorney to cross a judge when that attorney will have to appear in front of again and again. Superior Court judges also don't like being taken up on a writ and getting slammed by an appellate court. Some judges tend to remember the attorney, and there are only so many times you can challenge a judge to avoid appearing in front of that judge.
Perhaps the best way to deal with it is to just abolish local-local rules. But they already tried that (see Rule No. 1), didn't they?
Where, Oh Where Has Our Privacy Gone?
How has technology affected your privacy? Can you tell? The Electronic Frontier Foundation can. They've cracked a code of practically invisible yellow dots applied to paper printed on color printers. The code was created by government and printer manufacturers and designed to thwart counterfeiters. But it does much more. Those that know the code can identify the very printer used to print each piece of paper and where and when you printed the page. While it may have application only to counterfeiters, it also has many other uses.
Cell phones, likewise, now broadcast your location if you dial 911, and those with the sophisticated equipment necessary can also track your whereabouts. It's quite similar to the technology applied to monitor trucks as they move (or don't move) across the country.
Laptops, too. Connect one to the internet, and the owner can find out exactly where it's located if it's been stolen. Or used by one of your employees. It's called LoJack laptop. In-office computers can be monitored, with screen snapshots taken practically every second and recorded for viewing later.
What about your television habits? Yes, those too, especially since your laptop/PVP can connect with your TIVO to allow you to watch TV wherever you may be. We've all watched enough crime shows to know that tracking telephone calls is passe' to the point we don't give it any thought. Software is serialized and it identifies itself (along with the number of times that you've installed it) directly to the manufacturer over the internet.
Is nothing sacred? What laws protect the use of this information? According to the EFF, none so far. Do we need any, or are there just too many numbers to worry about?