Quote of the Day - The minute you settle for less than you deserve, you get even less than you settled for.
Sanctions For Not Settling? Not Any More
Settlement can occur in a case at any time - from the time before the complaint is filed, during a deposition, in the middle of trial, after the judgment, even after the appeal. Most typically, settlements occur during a formal process known as the Mandatory Settlement Conference. For many reasons, judges like it when cases settle..
When a case settles, there's no appeal and no jury. The judge doesn't have to spend time handling the trial, which leaves room for other cases that won't settle and moves the process along. One more case off the docket. Judges usually set MSCs before trial and after all the discovery in the case has been completed. That way, everybody's got all the facts developed and understands the pros and cons of each side.
The parties arrive at court for the MSC and a temporary judge (usually not the judge who will hear the case) listens to both sides and tries to bring the respective offers closer together. Sometimes, however, cases don't settle.
When they don't, that failure means exactly the opposite of the benefits I described above. More time on cases, more cases on the docket and more juries to listen to cases. And sometimes a cranky judge.
So cranky, in fact, that one judge sanctioned one of the parties in this case. The judge relied on a Rule of Court and several other rules as the authority to sanction the party that he believed did not participate in good faith.
The case here involved a dispute over an auto accident, with $15,000 in possible damages. The parties negotiated, but Mercury Insurance refused to offer more than $1,000 in settlement. Here's how the appellate court described the judge's reaction to the MSC: "the court was harshly critical of the conduct of Hernandez's representatives at the settlement conference itself and, in particular, the refusal to offer more money than the section 998 offer of $1,000 for each plaintiff: 'The point is that there was no negotiations. They just came in with the firm opinion we're paying a thousand dollars . . . . [A]t least some movement under the circumstances, and some discussion was in order. That is the reason why [sanctions are being imposed].'"
Then, the appellate court pointed out: "The [trial] court also characterized the lack of "communication back" to the court as "uncivil" and "impolite." So, the trial court held a hearing and afterward ordered Mercury Insurance to pay over $1,800 in sanctions.
The appellate court, however, wasn't buying the sanctions the trial court imposed and overruled the trial court's order. The appellate court said a court could impose monetary sanctions for failure to comply with " any rule of court relating to general civil cases..." absent showing of good cause. Previously,however, Rule 2.30 included language that made the "failure to participate in good faith in any conference" sanctionable conduct. Noting that particular language was removed in 2001, the appellate court said no go on the sanctions.
Whether the parties negotiated in good faith is a difficult call to make in any case, especially since you may believe you can win at trial.
That's a chance you have to weigh. At least you know that you can't get sanctioned.00000
April 15 Tea Party Tax Protest Under Full Swing
What Would The Founding Fathers Do?
Just in case you're wondering, May It Please The Court is a member of the Decline To State party, voting for the best candidate instead of the best party. It's nice to be able to choose that way, even if you can't vote in the primaries. If you've read the recently republished Oliver Wendell Holmes, Jr.'s The Path of the Law (with a Foreword by yours truly), then you know that the right to swing your arm ends where the other person's nose begins. That's vintage Holmes, and vintage America.
But it's not just this side of the pond that thinks that way. As Margaret Thatcher said, "The trouble with socialism is that pretty soon, you run out of other people's money." Back more than 200 years ago, the Brits tried to tax the daylights out of the colonists, who promptly rebelled by throwing tea into Boston Harbor. Read about it here, if you've forgotten your high school history lesson.
So is it time to organize another tea party-style protest? The members of the New American Tea Party seem to think so. They're not asking the question, "Where's my bailout?" They're asking the question, "Why take my money?" Actually, if you think about the size of the bailout, they're taking not only yours and my money, but my granchildren's money, too. It's going to take a long time to pay back - how much is it now? Have they invented a word for that much money.
With apologies to Senator Dirksen, "a trillon here and a trillion there and pretty soon you're talking about real money."
What's your recipe for a tea party?
What Witnesses See: Credible Or Inexperienced?
Melissa files an Zivko Edge 540 stunt plane, and she's 25 years old, having logged more than 1,500 hours in the air from when she started at 18 to when she got into a bit of trouble at 22. She got her new plane to her family at the Butler County airport in Pennsylvania, climbed into the cockpit and took off. Once in the air, she made a turn and then landed the plane.
Melissa is a stunt pilot, and a very good one at that. Aerial acrobatic maneuvers are prohibited below 1,500 feet for obvious reasons: they're somewhat dangerous and we don't like planes to fall out of the sky. The rationale is that a stunt pilot can probably recover from failed maneuver within that 1,500 safety window.
When Melissa took off, two others watched her in addition to her family. According to the Ninth Circuit's opinion, "Andrew Pierce, an aviation safety inspector for the Allegheny Flight Standards Office, and Christopher Hayden, the chief pilot for AirQuest Aviation, were at the Butler County Airport that day and witnessed Andrzejewski's flight. Neither Pierce nor Hayden had experience with Edge aircraft."
What they saw was a steep takeoff, followed by a wing wag and a steep incline landing. They turned her into the FAA, which without any hearing suspended her license. She appealed to an Administrative Law Judg, who saw the dispute this way: "I'm not saying that the [FAA's] witnesses didn't see what they say, but perhaps they misunderstood what they saw."
In other words, they might not have known what they were talking about. On the other hand, one of Melissa's witnesses saw it this way: "Her three expert witnesses testified that Andrzejewski's flight was within the normal operating procedures for the Edge aircraft, which procedures include steep takeoffs, high speeds, and clearing turns. Robert Holland, an aerobatic pilot and flight instructor, specifically noted that a witness unfamiliar with the Edge might think that Andrzejewski's flight was abnormal, while in fact, for an Edge, the flight was actually 'very normal.'"
Not surprisingly, the ALJ restored Melissa's license. Unhappy with that outcome, the FAA appealed to the National Transportation Safety Bureau and got her license revoked again. Melissa appealed, and somehow the case ended up out here in the Ninth Circuit.
The court first wrote this observation: " This is precisely what triers-of fact should do when confronted with expert witnesses whose testimony conflicts on such basic issues as whether the pilot operated the particular plane in an "aerobatic flight" or in a "careless or reckless" manner. After all, what may look like derring-do to a Sunday driver may be a routine cut to a NASCAR driver." For some unknown reason, the court took that language out of its opinion, but sent the matter back to the NTSB with instructions to defer to the ALJ's observations about the credibility of the witnesses.
Melissa still has a chance to climb back in the cockpit, but it appears that she's been grounded for more than three years. Although I'm not a pilot and I doubt any of the judges who heard this case on the Ninth Circuit are pilots either, at least they saw what's going on.
Hopefully, she'll get her wings back.
Lawyer 2 Lawyer Internet Radio Gets SaaS-y
If you've been hearing a lot about legal software as a service or SaaS lately, you'll want to listen to this Lawyer2Lawyer program. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we welcome Jack Newton, Co-founder and President of Clio, who holds an M.Sc. in Computer Science and Erik Mazzone, the Director of the Center for Practice Management for the North Carolina Bar Association to take an in-depth look at the advantages, disadvantages, risks and even ethical issues when it comes to legal SaaS.
Blawg Review #206: Tartan Week - All Things Scottish
Robert Burns, Scotland's favourite son, turned 250 this year, and as with all things Scottish, the celebration will last for 26 fortnights (you figure it out), so you might as well book your tickets now. On this side of the pond, we're having a few celebrations of our own.
This, stolen directly from Wikipedia (links not in original): "In Canada, the idea of a 'Scots Day', immediately renamed 'Tartan Day', to visibly promote recognition of Scottish heritage originated with the Federation of Scottish Clans in Nova Scotia in 1986. Petitioned by Jean Watson, President of Clan Lamont, first the legislature of Nova Scotia, in 1987, then consequently the legislatures of each of the other nine Canadian Provinces proclaimed April 6 as Tartan Day. Currently a private member's bill is moving through the Canadian Parliament for national recognition of the day in Canada as well as a bill to declare the Maple Leaf Tartan the official tartan of Canada. An annual 'Gathering of the Clans' will take place each April 6 on Parliament Hill in Ottawa at 12 noon with pipes, drums, and dancing hosted by the Sons of Scotland Pipe Band, Canada's oldest civilian pipe band. Don't think we've missed out South of the border, though."
By the way, that last link is one you should click on - you'll get to see your author in his official kilt, side-by-side with his lassie. Before we get on with this week's Blawg Review, you might want to look at this travelogue I wrote when I visited: the Edinburgh Edition, the Hero Edition, the Highlands Edition, the Scotch Whisky Edition, and the Inverness Editions: Part I, Part II, Part III and Part IV.
Inventors and Inventions
Scots are proud folks. We've invented just about every useful thing on the planet, or so my grandfather told me. Although he isn't credited with the invention of the steam locomotive, inventive Scotsman James Watt did develop the steam engine that made later developments possible. Modern-day successors to the pioneers who developed the steam trains would be wise to heed the advice offered by Train Law blogger Charlie Goetsch -- refusing to cooperate with OSHA investigations of allegations under the Federal Railroad Safety Act will result in adverse inferences being drawn and in the imposition of punitive damages.
More Things Scottish
And before we get started, you'll need your dose of Braveheart. Stop here and watch. Then as you read, just let this link play and listen to get into the mood. Or just rent the movie. You could always go to Renaissance Faire and really get into it. Then there's the military tattoo at Edinburgh Castle, or one of my favorites, Stirling Castle.
But if you're looking for pageantry, pomp and circumstance, nothing beats the Top Secret Drum Corps, from Switzerland. This show is simply one you have to watch - even if you're French. Doesn't everyone want to be a Scot?
And let's not forget Scotland Yard. Norm Pattis recounts an infamous English country house murder investigated by Scotland Yard which, even after a confession was obtained, still fascinates people nearly a century-and-a-half later. Can't wait for the new Sherlock Holmes movie. Yes, of course he's a Scot, too. Things have changed a bit since Sherlock solved crimes. Richard Bales notes that the Scottish Police have instructed their male officers not to use terms such as "love", "pet", and "dear" when dealing with the public.
Scots are know for their love of golf. David Dawsey describes a patent which covers a rather complex method for determining the proper length of a golf club. What accounts for the complexity? Possibly the fact that the inventor was a German rather than a Scot. Diane Marie Amann notes that Dr. Louise Richardson's appointment as head of the University of St. Andrews has caused a bit of discomfort -- she is an Irish-born woman who is also a Catholic and a naturalized U.S. citizen. As a woman, she's unable to receive the customary honorary membership at the legendary St. Andrews golf club and, perhaps most troubling to her new neighbors, she doesn't much care. I'd be remiss if I left out golf, and Robin Williams's (he's a cousin, too) foul-mouthed description of how the game got invented.
Talk, Talk, Talk, Just Like A Scot
And here's your preview of what's to come, from Mike Semple Piggot, author of Charon QC, who interviewed me about this week's post. Listen up here. Fellow Scotsman Charon QC covered the G20 (even though there's only 19 member countries) protests in London, surveying the people and issues involved from the turret of a Tiger Tank he purchased on eBay.
Now that you're sufficiently oriented, let's get on to the issue at hand: Blawg Review.
We start with that original Scot, Bruce McEwan and his Scottish alter ego, Adam Smith, Esq. A Scottish student's ramblings. If he were alive today, would Scotsman Adam Smith be able to explain the origins of the current world financial crisis? Nate Oman calls instead on Friedrich Hayek to illuminate risk-taking and its role in creating the instruments which have brought us to this point. Are the Scots frugal, as the stereotype would suggest? If so, they might appreciate Rick Georges' "Frugal Lawyer" post about reducing, reusing, and recycling old gadgets.
Next, there's Andre or Redbeard or Maz. Marketer to law firms and accounting firms. Web 2.0 Advocate. Social Media Traveler. Outdoorsman. Scottish Highland Heavy Games Athlete. Starbucks Junky. Cape Bretoner. Torontonian.
Scots apparently get divorced, too, if they don't kill each other first. You would be well advised to take a stop at the Wellmeadow Café and figure out the mace. A fuller dose of Scots law can be found here and here.
Scotland's history has often been a story of the little guys' struggle against the big guys. In the legal world, the small guys (solo and small firm practitioners) now have many tools at their disposal which levels the playing field with the big guys (BigLaw firms). Grant Griffiths explains something which many Blawg Reviewed bloggers have found -- that blogging can give solos a marketing advantage over firms which treat online sites as extensions of their traditional marketing collateral.
Irish or Scottish, I don't know, but Kevin O'Keefe goes a step further, suggesting that lawyers who properly leverage social media don't necessarily need a "traditional" web site. Mary Abraham considers whether social media-based (rather than real world-based) relationships can be "real": "What I've discovered is that my social media Third Place is increasingly important to me and the relationships I've formed online are just as "real" as some of the relationships I've formed the old-fashioned, face to face way." Sometimes, the virtual and real worlds can meet-up.
Then there are the get-togethers, just like a clan. Eric Goldman hosted his fourth meet-up of legal bloggers in the San Francisco Bay Area and posted a recap of the (sometimes challenging) topics discussed.
Like Scots who won't stop talking, several other bloggers discussed whether microblogged "tweets" of 140 characters or fewer can be copyrighted. Venkat Balasubramani was emphatic that an individual tweet could not be copyrighted, but suggested that a collection of tweets might be. Evan Brown discussed whether Twitter's terms of service disclaim the legal rights it needs to display its users' tweets, concluding that a number of defenses cover their situation. Jonathan Bailey posted what's probably the most complete analysis of the issues involved.
Finally, Some Foreigners?
Some bloggers just wish they were Scottish - or maybe they are (is a string cite Scottish, too?): the Downtown Lawyer, Adams Drafting, HealthBlawg, Jim Beck and Mark Hermann's Drug and Device Law, Max Kennerly's Litigation and Trial, Miranda rights at SCOTUSBlog, The Passover Story and the Parable of the Four Sons at My Shingle, Does Michelle Obama need a "core message"? at Legal Satyricon, A luminous wealth ponzi scheme in California reported at BizOp, The State as stick up artist at Public Defender, Cyber-bullying at Slaw, Orange alert for bloggers at Simple Justice, The unbearable lightness of lawyers: risk aversion at What about clients?, An ear in the ivy at Legal Juice , The death rattle of the big firm billable hour model? Cash on the barrelhead to high billing associates at the Legal Times, SoCal 2L raises the bar on public service, Leaving the evergreen forest at Software Licensing Blog, Robots inventions and patent rights at Patent Baristas, How to describe a catch-22 at Likelihood of Confusion, Interviews with ADR giants at the Mediation Channel, Making a decision? How is your adversary doing the same thing? Look into the crystal ball of meta-cognition at Brains on Purpose, Money has been called frozen desire and Peter Madoff's just melted at $10K/month at the WSJ Law Blog, the midwest hands gay men and women their right to marry while California continues to consider breaking up the gay marriage party at Concurring Opinions, Family Fairness and, Are you a social media chew toy? Check it out in All Media is Social Media at BlawgIT.
Two Final Thoughts
Lastly, remember where the desire for freedom was announced and why this blawg review was able to be written without censorship.
Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.
Tartan Week Coming To Blawg Review
Both sides of the pond have come together to offer a preview to this week's upcoming Blawg Review, hosted by MIPTC, with the theme of Tartan Week, which starts next Monday. Give a listen to the podcast recorded by Mike Semple Piggot in London, who hosts the inestimable blog, Charon, QC.
College Senior Seeks Input From Lawyers For Specialization Guide Wiki
Here's your chance to help a struggling college senior. Read his email below, republished here with permission, and comment away below. Tim needs all the help he can get.
I am currently a Senior at Elon University, and slated to enter law school in 2009. Before that happens, however, my project in senior seminar is to create a wiki that will act as a guide to other law students attempting to choose a specialization in law. I have found your blog to be extremely helpful and approachable, and I would like to ask you to share your experience. To gather some more specific information, I have constructed four interview questions that I would greatly appreciate your time in answering.
-This wiki is intended to help law students choose a specialization. What do you wish you knew when making this choice? Do you have any advice for law students making this decision?
-In your experience, when a potential employer looks at a lawyer's resume, what level of importance do they ascribe to the job applicant's pecialization? Where do they rate it compared to other factors such as law school, work experience, etc?
-Obviously some types of lawyers are more desirable to employers than others. What are some specializations that are notoriously difficult to land a job in? What tracks offer more and more desirable options? What do you feel about your own specialization in terms of options, experiences, etc?
-Most lawyers work 50 hours a week or more. Are some specializations more work-intensive, highly competitive or stressful than others? How so? And vice-versa?
Again, I thank you for your time and apologize for the verbose e-mail.
If comments are closed, send your email directly to Tim: tyahner at elon.edu.
Thanks for your help.
Lawyer2Lawyer Internet Radio Discusses the Employee Free Choice Act
There has been much debate as of late on the proposed Employee Free Choice Act (EFCA) of 2009. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi, as we welcome Professor Richard A. Epstein, Professor of Law at the University of Chicago Law School and Attorney Nancy Schiffer, Associate General Counsel with the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), to explore both sides of the Employee Free Choice Act debate and what the outcome would mean for the future of unions and employers and the lawyers who represent them.