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 - The rest of my life will be devoted to women and litigation.
Surprise! Economy Is Down, Litigation Is UpAccording to Portfolio Media Inc.'s Law 360 Litigation Almanacs, 2008 U.S. litigation filings increased over 2007 figures by 9% to 266,398, and class actions are up 8% to 7,661. I know you're shocked. Pick yourself up off the floor so you can continue with the next paragraph. Here's the rest of the figures: antitrust filings up 27% to 1,268 cases; product liability filings (other than asbestos cases) up by 20% to 19,709 cases; employment filings up by 6% to 31,990 cases; intellectual property filings down by 11% to 9,210 cases; and, securities litigation filings down by 8% to 1,459 cases. With layoffs due to the bad economy, employment litigation cases will likely increase even more despite the attempts of the business sector to postpone business-to-business litigation to conserve cash. Product liability cases rose likely due to the claims arising out of product claims from China. Intellectual property filings decreases because the music industry slowed down its copyright violation campaign. Securities filings decreased due to the economy as well - it's hard to blame decreased stock prices on management when every company is suffering from the same ills. Antitrust claims increased due to government prosecutions, which lawyers followed with civil lawsuits authorized by private attorney general statutes. The rest of the cases are standard, run-of-the-mill tort cases (civil wrongs) that occur every day and aren't generally affected by the economy. That's one litigation sector that will stay flat, with perhaps a slight increase. As cases pile up and statutes of limitations continue to run, we'll likely see more business litigation filings, too. The fun never ends. Sir John Mortimer, Creator of Rumpole of the Bailey, Dead At 89Britain has given us many lowbrow entertainers such as Monty Python, James Bond and Benny Hill, but perhaps none is enchanting to the legal profession as Rumpole of the Bailey, a long-running radio and television series penned by Sir John Mortimer, QC, CBE. His death leaves us remembering Rumpole, eminently played by Leo McKern, as the champion of the common criminal and the Timson family clan that kept him employed throughout his career. To Mortimer, nothing was sacred, which kept many wondering whether his first or second wife was the inspiration for "She Who Must Be Obeyed," the nickname given by the character Rumple to his wife, Hilda. If you haven't watched Rumpole, it's worth tuning in to the BBC or PBS's Mystery! and catching a few episodes or reading the series of books - you'll likely enjoy the entertainment. You can also watch a two-part interview of John Mortimer on here and here. Mortimer wrote prodigiously and remained on the cocktail circuit almost up to his death. Rumpole would have approved. What Does A Floating Plane Have To Do With The Economy?The economy is Supposedly in the tank (yes, the capitalization is intentional - more on that later). Supposed criminals are in the wing (no, the capitalization is not intentional, it's just the beginning of a sentence). Terrorists are at the door. Israel and Palestine are firing rockets at each other. Zimbabwe may not be the only country where they torture prisoners. Russia turned off the gas valve to Europe and the Ukraine. Things are so bad even Microsoft is thinking about laying off employees and Steve Jobs is taking time off. We may even lose the PC and Mac commercials. Heaven forbid. And yet, everyday men turn into heroes. Take, for example, Chesley Sullenberger, III, and his co-pilot Jeff Skiles. They landed a 75-ton mass of iron in a river and floated it long enough to allow everyone to exit the plane safely and allow the pilot to walk up and down the aisle - twice - to make sure everyone had been rescued. Is there a connection between the state of the economy and this event? Is there a connection between this event and the state of the world? Well, let's see. First, we have an Airbus A320 that has been flying high in the sky for some time now. Just like the economy. People paid to get on that plane. Then all of the sudden, it precipitously fell out of the sky and landed in cold, dark river with a rushing current. Kind of sounds like the economy, and for that matter, what's going on in the world, too. But is there a lesson here? Given our present mindset, we wouldn't have been at all surprised if the plane crash landed into the skyline of Manhattan and its 7,500 gallons of fuel engulfed everything in its path and news shows pattered on about the horrible memories of September 11th. Instead, two highly trained men landed that plane safely and saved 155 lives on the plane as well as untold lives on the ground and damage to a large chunk of NYC. We're told it was their years of training, practice, expertise, experience and education, starting all the way back at the Air Force Academy when they flew F-4 fighter jets and gliders (think about that contrast). While I certainly don't mean to belittle the pilots' actions, each of us has similar training and expertise in our own respective fields. We work hard in our jobs. We're the ones who made America great, as we were taught by our parents and grandparents. We don't think we've been called on to be heroes, but maybe we haven't been listening. Think about it for a minute. What was your house worth last year before the recession hit? Does it still have a solid foundation? Four walls? A roof? I bet most everything in it works just the same as it did before, perhaps with the exception of those items on that ever-growing honey-do list. But you get my point: nothing has really changed - with the notable exception of someone else's Supposed opinion. Yes, the capitalization of "supposed" is intentional to highlight the fact that "opinion" in contrast is not. You can draw your own conclusions whether the Supposed opinion is correct. If you think about it a bit further, the rest of the economy is like that too. It's all just someone else's Supposed opinion that the rest of us have chosen to accept because some expert in some other city told some journalist that printed it in a business newspaper, and then someone repeated it. So it must be true. I would invite you to hold a contrary opinion and not to Suppose. Sure, we spend too much and don't save enough. We buy more than we export. We owe money to just about everyone and can't seem to pay it quickly enough or in some cases, at all. But the sun's going to come up tomorrow. There will be air to breathe and water to drink. Food will be on your table and you won't go hungry. If we change our attitude, then ... Well now, wait a minute there. Let me offer a different thought. Those two pilots reacted as their training told them to act. They knew they could save their plane, the people in it and the people on the ground. Within seconds, they acted swiftly and surely, gliding their plane in for a bumpy, but safe landing and the crew then escorted everyone to safety. Our economy and the rest of the world are in the midst of a hard, bumpy landing. The government is offering to rescue us, but it's going to take more than that to jump start a recovery. It's going to take work. Someone's got to take the laboring oar, walk up and down the aisle and make sure we're all back to safety and able to go back to work tomorrow. I, for one, am more than happy to get back to work and drag this sorry economy from its apparently complacent gloom and push to help kick start it into forward motion. But that's just my opinion. If you agree, then put your shoulder to the grindstone with mine and let's get this country out of its funk and back on the road to recovery. Two heroes have already showed us how. Now it's our job to pick ourselves up, change our mindset, produce goods, provide services, save money, spend less, work hard and stop our complaining. Lawyer 2 Lawyer Internet Radio is Twitterpated, AgainThe stand-out, free social networking and micro-blogging service, Twitter, has been both praised and shunned by legal professionals. What do YOU think? Please join me and my fellow Law.com blogger and co-host, Robert Ambrogi, as we welcome Kevin O'Keefe, CEO of LexBlog and Owner of LexMonitor and Attorney Scott Greenfield who writes the blog, Simple Justice, to discuss the pros and cons of Twitter and discuss whether it is a phenomenon or a necessity for lawyers and law firms. 
A Legal Challenge To God At President Obama's InaugurationReverend Michael Newdow, an atheist and inexplicably a minister (isn't that an oxymoron?) of the church of First Atheist Church of True Science (FACTS), wants church and state separated. He's the one who sued over the Pledge of Allegiance but lost. So, to stop Supreme Court Chief Justice John Roberts from prompting President-elect Barack Obama with the words, "So help me God" at the end of his Oath of Office, Rev. Newdow sued. Here's a few paragraphs from his Complaint [footnotes omitted] so you can have the full context: 64. Yet despite all of the foregoing [a treatise on the separation of church and state and Supreme Court pronouncements], Defendant Roberts - who, as Chief Justice of the United States, embodies the rule of law and the devotion of our government to the United States Constitution more than any other individual - will (with no authority whatsoever) alter the text of that document to infuse the inaugural ceremony with purely religious dogma. 64. Furthermore, the remaining Defendants will bring to the inauguration of the President - the grandest ceremony in our national existence - two chaplains to extol the glory of God. This is the case even though the Supreme Court has specifically pronounced that 'the religious liberty protected by the Constitution is abridged when the State affirmatively sponsors the particular religious practice of prayer.' " The Complaint continues: "83. Under the Establishment Clause, Plaintiffs have a right to view their government in action without being forced to confront official endorsements of religious dogma with which they disagree. This is especially the case when that dogma stigmatizes them in the process. 84. Being forced to confront such religious dogma as the price to pay for observing a governmental ceremony is a substantial burden upon Plaintiffs' rights of Free Exercise as well. One cannot freely live as an adherent to a religious ideology when the government uses its 'power, prestige and financial support' to impose a contrary religious doctrine while such individuals are observing its ceremonies." So, Rev. Newdow wants Chief Justice Roberts to follow the Constitution: "101. The oath of office for the President of the United States is specified in the Constitution's Article II, Section 1. In its entirety, it reads: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.' 102. It is to be noted that the words, 'so help me God' are not included in this oath. 103. That 'so help me God' was added to the presidential oath by George Washington is a myth. There is no contemporaneous account supporting this claim, which was first made in 1854, apparently on the basis of a recollection of Washington Irving. Irving was six years old in 1789, when the first inaugural was held. A historical claim based upon nothing but the alleged recollection of a six year old, first made more than six decades later, is of highly questionable validity. Combined with the fact that Irving's report of where he was standing during the inauguration would have made it impossible for him to have heard the oath at all, that validity falls to zero." Well, there you have it. As a remedy, Rev. Newdow wants an injunction and a declaration preventing the use of these four offensive words: "Prayer for Relief [No, I am not kidding. That's what his Complaint says] III. To enjoin Defendant Roberts, in his official capacity and in his individual capacity, from altering the constitutionally-prescribed text of the presidential oath of office while administering that oath to the President-elect at the January 20, 2009 inauguration, as well as at any future presidential inauguration;" The case was filed in the District of Columbia late last year, and is progressing along. Justice Roberts has been served with a copy of the Complaint (since he is a party) and he was "quite the gentleman" when the process server arrived to serve the Summons and Complaint at his home. While the case is percolating along, the script is up in the air. If you want to see more on this topic, plus the appendices to Newdow's Complaint, click here. The President's Inaugural Committee filed Answers (along with others) and filed this Opposition to the Motion for an Injunction. Essentially, the Opposition and the Answers challenge the Motion on the basis that Newdow doesn't have standing. The matter is pending before the DC federal court. Newdow has lost these arguments before, and likely will again. The D.C. federal district court has not yet issued a ruling, but when they do, it will be posted here on their website. How do you vote? Apartment And Business Owners Beware Secondhand SmokeCountry's First Ruling That Outside Tobacco Smoke May Be A NuisanceCalifornia's penchant against secondhand smoke just took another step forward, but we don't have a definitive, final result just yet.. Our Court of Appeal in Los Angeles ruled that an apartment resident and her parents could sue the management and owners of an apartment complex for exposure to secondhand smoke. Melinda Birke, a seven-year old asthmatic girl, and her parents (John Birke, her dad, is a civil litigator) rented an apartment in the Oakwood Apartments in Woodland Hills and claimed they were exposed to secondhand smoke when they went outside to the common area around the complex's swimming pools, barbecue areas, children's playground or outdoor dining areas. They also alleged Oakwood Worldwide, the apartment complex manager, actually made the exposure worse by providing ashtrays for tenants, permitting its own employees to smoke, and refusing the Birkes's request to restrict smoking in the outdoor common areas. Melinda alleged a nuisance cause of action and an Americans with Disabilities Act claim, both of which the trial court dismissed. On appeal, however, the Court said that a public nuisance must injure the health, offend the senses, or be so obstructive to interfere with a "substantial number" of people's comfortable enjoyment of the property. The property seems like it's otherwise very enjoyable. According to the website in the link above, it is "[l]ocated next to Warner Center Business Park, Topanga Mall, and world-class dining, this 20 acre resort-style property fits both business and leisure needs." Posh. But back to the case. In Birke v. Oakwood Worldwide, The Court of Appeal rejected the trial court's questions whether Oakwood had a duty to ban smoking or whether the Birkes were affected only in a "manner of degree" compared to the other apartment complex residents. It then reframed the issue and told the trial to decide whether Oakwood failed to limit smoking in common areas that the Birkes had a right to enjoy. In other words, the trial court has to hear the nuisance case. The appellate court ruled the ADA claim was properly dismissed. By dismissing this second claim, the court took away the ability of the Birkes to recover their attorneys fees. This case is far from over, but California's ban on smoking in buildings is about to take a walk outside. Unlike the statutory prohibition against smoking in buildings or within a certain distance of the entrance of buildings, this case takes a different tack - it alleges a common law violation, so this one's going to be up to the courts - not the legislature - at least not yet. We'll keep you informed - surely this ruling isn't the last we're going to hear about this case. Meanwhile, if you're an apartment or even a business owner, you'd be wise to consider restrictions on outside smoking and actively take steps to restrict smoking to particular areas. Now where did I put that cigar? Oh, there it is, right next to the scotch. Thanks, Denny Crane. Dropping A Summons And Complaint Outside A Door Makes Good ServiceThe Server Must Know The Defendant Is InsideFirst-year law students grind through the Federal Rules of Civil Procedure, but perhaps nothing is more entertaining in that class than the ways you can serve a complaint on a defendant. Which is to say that the class is otherwise extremely boring, especially if students are entertained by an equally boring subject like service of process. For example, one process server was frustrated a woman would not answer her door, even though he knew she was home. He saw the woman sitting next to an open, first-floor window shredding lettuce and washing it in a colander. He practiced his best alley-oop, over-the-shoulder toss and landed the summons in the colander. The court noted this method of service was one of the most creative means of getting a summons in front of someone, and deemed the process server's toss as effective service. Anthony Paul Brenneke apparently defaulted on a nearly $300,000 judgment backed by a surety bond issued by Traveler's Insurance. Travelers paid the judgment, but the insurance company was none too happy the Brenneke also defaulted on paying the indemnity to Travelers on the surety bond. Not surprisingly, Travelers sued Brenneke. According to the Court's opinion, Brenneke, however, attempted to dodge service. The process server attempted to serve Brenneke four times, leaving notes and asking Brenneke to contact the process server. On the process server's fifth and last trip to Brenneke's house, Brenneke hid in his house, refusing to answer the door when the process server knocked. According the process server, who had served Brenneke before, Brenneke responded to the door intercom and acknowledged he was at home, and even looked out a front window at the process server. Still he failed to answer the door. Frustrated, the process server held up the summons and complaint to show Brenneke, and said, "You are served." The process server promptly dropped the summons and complaint at the front doorstep and left. The process server completed a proof of service and filed it with the court. Not surprisingly, Brenneke failed to file an appropriate answer to the complaint, but instead filed only an answer challenging jurisdiction based on lack of service. Brenneke did not challenge the other allegations in the complaint. As a side note here, if Brenneke wanted to effectively challenge service of process, the procedurally proper way to do so requires a Motion to Quash the Service of the Summons. Brenneke did not file this motion. The court rejected Brenneke's claim that he wasn't served properly, and when Traveler's filed a motion for summary judgment against Brenneke, the court granted the motion because Brenneke failed to oppose it. Brenneke filed an appeal, claiming the process server did not properly serve him with the summons and complaint. The Ninth Circuit Court of Appeals made short work of his argument, and upheld the district court's ruling that Brenneke had been properly served. The moral of the story? If a process server comes to your front door, then answer it and take the summons and complaint. Courts are not disposed to accept claims that you were never served properly. And hire a lawyer. Had Brenneke hired an attorney, he wouldn't have made the other mistakes he did, which led to a sizeable judgment against him and in favor of Travelers. Travelers took Brenneke's house in satisfaction of one of its judgments against him, and the Ninth Circuit upheld the district court's award of another $211,000 against Brenneke. A costly result. Lawyer 2 Lawyer Internet Radio Looks Back at 20082008 brought a lot of legal stories into the headlines, from the dismal economy affecting law firms to the always controversial Supreme Court rulings. Please join me and my fellow Law.com blogger and co-host, Robert Ambrogi, as we welcome the editors from two of the most prominent legal publications, Edward Adams, editor and publisher of the ABA Journal and Steven Fromm, Editor-in-Chief of the National Law Journal, to discuss the top legal stories of 2008, standout lawyers from the year gone by and look ahead to what may be on the horizon for 2009.
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