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 - To escape jury duty in England, wear a bowler hat and carry a copy of the Daily telegraph.
Keep a Stiff Upper Lip, Old Chap, and Pay My FeeI don't know which is worse: contingency lawyers who want more money or insurance companies that won't pay. Across the big pond, solicitors and insurers got into a "wrangle" (that's British for fight, I guess) over no-win, no-fee cases.First introduced in England and Wales in 1995, the no-win, no-fee program was designed to replace legal aid funding for low-end tort cases, such as traffic accidents and the like. The idea was to encourage solicitors (another British term for lawyer) to take the case to earn a contingency fee. The argument between the lawyers and insurers centered on what else - money. In this case, it was how much the insurers had to pay the lawyers upon a win. Reporter (not actress) Maureen O'Hara of The Guardian informs us that laywers have now agreed to take 12.5 percent of a settlement as a fee, and the insurers have agreed to pay that rate. Insurers had been holding up payments to solicitors for the last two years because they believed the success fees taken before the agreement were too high. Too high? On this side of the big pond, contingency lawyers get anywhere between 20 to 50 percent of the deal, and no-win, no-fee has been part of the deal all along. Alaska has such a system, and two other states, Oregon and Oklahoma have a hybrid version. The Overlawyered blog has a thoughtful article on the whole subject. Of course, we don't have the English version of legal aid funding for tort cases. Yet. Heaven help us. Now someone over here will probably get that bright idea. In England, however, the rule is that the loser pays the winner's fees. Some here argue for application of the so-called "English Rule." Some have even argued that since American lawyers have such an upside, they ought to also have the downside of paying the winner when they lose. Talk about tort reform. With those rules in place, none would be needed. Elvis is Dead. Climate Change is Happening.With the recall looming, CalEPA announced that it will join several states' effort to sue the USEPA over greenhouse gases, according to Winston Hickox, Secretary of CalEPA.. The statement appeared in yesterday's Daily Journal. Last month, the USEPA announced that it would not regulate carbon dioxide and other greenhouse gases.So far, the USEPA has only created voluntary, token programs to address CO2, such as the relatively unknown Climate Leaders program and the more prevelant Energy Star label. In response to pressure from environmental groups, last month California said it might sue the USEPA, after the USEPA's statement that it did not have the authority from Congress to do more. California, however, will be last on the bandwagon given that Massachusetts, Connecticut and Maine have already filed suit. Six other states are considering joining in. The whole hulabuloo started with a a petition by the International Center for Technology Assessment, which wanted regulation of CO2. Others disagreed. The only worthwhile sound bite in this whole thing came from an environmental group, quoted in CBS' story. "Elvis is dead. Climate change is happening … It's time to stop the denial and move on with solutions," said Melissa Carey, of the Environmental Defense Fund. I guess the EDF's motto is "just accept it." More Hits from the Supremes?So, the Supreme Court starts drawing a paycheck again today, and the new season opens. What's this gig all about? Well, there are three cases this next week that should prove interesting.The session starts off today with a bang over campaign finance reform. It pits the First Amendment free speech rights against the ban on soft money and "issue ads." The second case involves a dispute between State and Federal rights over regulation of the Clean Air Act. The third case pits an employee discharged for drug abuse against his employer. The environmental case will be heard on Wednesday: Alaska v. USEPA. This case presents the question whether the Clean Air Act authorizes the USEPA to prevent construction of a major emitting facility where Alaska is prepared to grant the facility operator an air quality permit. The dispute arose after the USEPA attempted to block the construction of an electric generator for a zinc mine in Alaska. You can view the Opening brief, the Opposition and the Reply briefs for this case by clicking on the highlighted words. The third case, Rayethon v. Hernandez, will prove interesting to employers, and will also be heard on Wednesday. The question the Supreme Court will decide is whether employees lawfully terminated for alcohol or illegal drug use must be rehired under the Americans with Disabilities Act, which recognizes drug or alcohol addiction as a disability. Hernandez, a recovering alcoholic, was rejected as a job applicant under Rayethon's unwritten rule of not rehiring fired employees or those that quit in lieu of being fired. Again, you can view the Opening brief, the Opposition and the Reply. Last year we had gay rights and affirmative action. This year we can expect major rulings on redistricting and school vouchers. Sounds ho-hum, but you never can tell. We seem to get surprises every year. New! Improved! Changes!As you can see on the left, I've added some new features. For you Amphetaheads, I've got the pill.You'll also spot a chronological index, a topic index, and even a calendar that visually allows you to see what posts were made on what days. There's also a Google search feature. That way, if you can't find it in the indices or calendar, you can quickly search the MIPTC site. I've also added a blogroll, along with the current movie, book and music that I'm watching, reading and listening to. As always, the Quote of the Day will match that day's current posting, and the same daily news and commentary will continue. You can also expect some future improvements. I'll be adding a Rumpole-like judge as a new logo. And in true capitalistic fashion, the logo will be offered on some items for sale. There will be more tweaks here and there, and I expect to dramatically expand the External Links page, and I'm already off to a flying start. Stay tuned, we'll be right back with more. Don't Call Me, I'll Call YouI've not commented on the National Do Not Call Registry so far. Sure, it's seen its ups and downs. But it sounds like a great idea to me, as well as 50 million others.Plus 11 executives of the Direct Marketing Association. The DMA is the trade group of the telemarketers. Kind of ironic, isn't it? None of us want to get calls during dinner to learn that we have just won a three-day cruise as long as we attend a 90-minute, pressurized sales hustle, er, I mean seminar. In fact, there's a wide range of ideas out there to stop telemarketers. I'm all for it. I signed up for all the telephone numbers that I have (that's a whole 'nother blog entry). I even signed up on California's list. The free speech thing, though, has prompted some thoughful observations. I come down on the side of my free speech, however, in not being invaded in my home. I get to choose what TV stations I watch, why can't I choose who to talk to? Now, however, there's a new wrinkle in this whole twist. We can't even get two federal agencies and a judge to agree on who gets to see the list. Really, I don't care who sees it, as long as it's in the hands of the telemarketers and someone's going to enforce it when I get a call during dinner. Wormholes: Bring Money, Guns and LawyersA new suit filed Tuesday alleges that Microsoft is responsible for identity theft due to hacking.Filed by Newport Beach plaintiff's attorney Dana Taschner, he lawsuit claims: "Microsoft's eclipsing dominance in desktop software has created a global security risk. As a result of Microsoft's concerted effort to strengthen and expand its monopolies by tightly integrating applications with its operating system ... the world's computer networks are now susceptible to massive, cascading failure." Wow. So that's what my computer's problem is. The suit further alleges that Microsoft engaged in unfair business practices because it failed to secure its software against worms, viruses and cyber attacks. The suit is brought by a LA film editor whose identity was stolen. "If you live in the modern world, you must use Microsoft," said Taschner. "You can't on the other hand say, 'We're not responsible.' " On the other hand, Microsoft has a different perspective. This complaint misses the point," Microsoft spokesman Sean Sundwalll argued. "The problems caused by viruses and other security attacks are the result of criminal acts by the people who write viruses." An article entitled the Hacker Challenge supports the position taken in this lawsuit. At least the NB attorney found an expert to support his position. It's kind of like the defense adopted by the gun industry: we can't be responsible for how the guns are used by criminals. That defense may just shoot a hole in this new lawsuit. We've Been WarnedProposition 65 has now made its way into restaurants. You know Prop 65 - it's that wording on buildings and products in California that informs warning-weary consumers that chemicals that cause cancer are present. The actual warning language is more detailed, but you've seen the signs.Restaurants? That's what I said. The warning sign I saw last night was posted at the Olive Garden eatery in Irvine, California. Apparently, the warning sign was approved by the California Attorney General. Back in April. Sure, I've seen it before on buildings, below-ground garages, products - just about everywhere. Just not in a restaurant. It was a little unnerving, to say the least. I asked the manager what food had chemicals that caused cancer. Apparently, it's the seafood - tuna, swordfish and shark. I had a salad. With chicken. Casting Stones At Glass Legal OpinionsI love legal opinions. They’re so much fun to read. How about this summary, for example: “Caselaw prohibiting employers from requiring applicants to sign arbitration agreements is overruled.” That’s the Los Angeles Daily Journal's’s interpretation of a newly decided Ninth Circuit case.Wouldn’t it be easier to say: “Employers can require applicants to sign arbitration agreements?” Twelve words down to eight. I know you don’t know as much as you did with the twelve-word version, but you lose the double implied negative that makes the longer version hard to read. Wonderful wordsmithing is not limited to the Daily Journal. The Ninth Circuit gets into it, too. In the opinion itself, the Judges conclude the introduction with: “While we disagree with Luce Forward II's [a lower, U.S. District Court opinion out of the Southern District] conclusion that Circuit City [a U.S. Supreme Court opinion] implicitly overruled Duffield [a Ninth Circuit opinion] we need not explore that disagreement in detail. [Fn. omitted]. It suffices to note that the panel opinion has been with drawn. Id. [and sic]. We now conclude that, although Circuit City did not overrule Duffield, Duffield was wrongly decided; we therefore overrule it ourselves. “ You can't fire me, I quit. Or something like that. Actually, the Ninth Circuit was acknowledging that it was the only Circuit standing out in the cold with this opinion, and reversed itself before the U.S. Supreme Court did. Now, the world is clear once again. An employer can require a job applicant to sign a contract that includes an arbitration provision. Wasn't that easy? It’s tough to cast stones, though. I cringe every day when I go back and read some of my postings on this weblog. The only good thing is that when I spot an error, I can correct it, if I spot it. When the courts goof, it’s in the opinion for good, because it’s in print. The internet has its’ benefits. [Did you catch that one?]
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