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Quote of the Day - We all know here that the law is the most powerful of schools for the imagination. No poet ever interpreted nature as freely as a lawyer interprets the truth. - Jean Giraudoux
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Lawyer 2 Lawyer Internet Radio Covers the School Scene

Law students are back at school, thinking ahead to the job they want once they graduate. And big firms are looking at the cream of the crop of law students.  

Please join me for two different perspectives on that process.  This week's guests include David Leinwand, Partner and Chair of Cleary Gottlieb Steen & Hamilton's Recruiting Committee, Matthew Donnelly, third year law student at the University of Iowa College of Law and Roger Smerage, a third year law student at Suffolk University Law School in Boston.  We discuss how large firms are recruiting, the interview process, the competitive environment, and what students are looking for in a firm.  Hear the insights you won't get anywhere else.



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, August 22, 2008 at 12:38. Comments Closed (0) |

When In Rome, Do As The Californians Do, Except When You're In New York

It's a How to Get Sued week in New York, and I'm on radio, several TV shows and at a media luncheon promoting my book.  As a consequence, this week on MIPTC you'll see some new posts typical of the stories in the book. 

But first, if you get AM radio anywhere in the country, you've likely heard of WOR Radio, and one of its late-night jocks, Joey Reynolds.  I'll be on Joey's show late Monday night (technically Tuesday) at 1:00 a.m. Eastern time.  WOR has been broadcasting in New York since 1922, and you may recognize some of the station's other personalities Bill O'Reilly and Dennis Miller. If you live outside the station's coverage area or don't have an HD Radio, you can tune in on the WOR radio's internet podcasts page, and we'll try to get the interview up on the How to Get Sued press page.  As the week progresses, I'll provide updates for the TV shows.

So with that announcement, on to the How to Get Sued post.

Pirates of the Colosseum, complete with gladiator fights, lions and chariot races.  You think I'm kidding?  Rome's Deputy Mayor Mauro Cutrufo said, "the model is Euro-Disney in Paris," as he  announced plans to build a vast ancient Rome theme park just outside the city.  And as we all know, Euro-Disney is modeled on Disneyland in California.

It took me awhile, but I got there.

Of course, not everyone is happy.  "I say no to Americanization," said Claudio Mancini, a member of the Lazio council, who obviously opposes the plan.  I guess that's why the Deputy Mayor said the model was Euro-Disney, not Disneyland.

Besides, the Romans used the Colosseum for 500 years, starting back in 80 AD, and predated modern-day Disneyland by nearly 1,900 years.  I think it's the other way around, actually.  Walt took the idea from the Romans.  At 50,000 spectators per event, the attendance at the Colosseum surely outstrips the attendance at Disneyland.

I'm all for it.  Who wouldn't want to watch gladiators fight?  It would be a whole new kind of reality show. 

Oh, that's right.  We already have American Gladiators.  Since the "Colosseum" name is already taken, they could call it "Roman Gladiators."  After all, the Italians had the name first.



Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Monday, August 18, 2008 at 09:03. Comments Closed (0) |

Tired Of Spam? Here's A 100% Solution: Sendio's I.C.E. Box

4:57 PM PDT, August 15, 2008

At the end of June, I went to LegalTech West and ran into a vendor, Sendio, Inc. whose display banners promised 100% no spam in my inbox.

"Right," I thought to myself as I walked by.  "That's impossible."  Like any lawyer, I see shades of gray, and this bold claim was certainly anything but. 

So, I went up to the booth and asked a few sarcastic questions, as regular readers of MIPTC can readily imagine.  I just didn't believe the claim. 

"Prove it," I said.

The company rep, Nancy Chaisson, explained that their product, the I.C.E. Box is based on "verification" technology, a system that sends queries back to the email sender to confirm that the sender is a real person and not a spammer.  You've likely gotten one or two of them yourself, if you've been using email for any length of time. 

You know the type of emails I'm talking about:  those snippy little emails that say something like, "I'm really concerned about spam and I'm making an effort to ensure that you intended to send this email to me.  Respond with this code and your email will get through." 

"Ugh," I thought.  Just what my clients need - an email that says you can't communicate with me.  I didn't want anything to stand between me and my clients, especially an impersonal email like that. 

Nancy had an answer for that issue, too.  She said their system would scan our firm's contact list as well as everyone's outbox and compile a list of "approved" senders.  With that list programmed into the I.C.E. Box, everyone on our list would get through without verification.  "But what about new clients?" I asked.  As long as we send an email to the new client, they're automatically added to the list and all of their emails get through.

To prove me wrong (and perhaps garner publicity), Sendio offered to install their box on our server system.  So here's my disclaimer - we got the box for free, and we're the test dummies. 

The installation went smoothly, and spam emails dropped practically instantaneously.  Now, the system sends each member of the firm an email first thing in the morning, and provides each of us with a link to administer the system individually.  With the web-based interface, we can decide which emails to allow through and which to drop.  Sendio's training was very helpful and the company very responsive to our questions.  Our firm members saw the installation as seamless and without the glitches typical of software and hardware installations.

Sendio's made a believer out of me, and I heartily recommend their hardware.  The 100 or so spam emails I received every day are now gone from my inbox.  The couple of hours that I spent dealing with that trash just disappeared. 

That reduction alone is worth the cost of the I.C.E. Box.  Now I get to spend my time productively responding to client emails, not wondering whether I may have just won a cruise or inherited $50 million dollars.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Sunday, August 17, 2008 at 14:28. Comments Closed (0) |

We're Still Arguing Over Hurricane Katrina's Causes

What do you think constitutes the main reason the levees broke in New Orleans during Hurricane Katrina?  Wind?  Flood?  Rain?  A combination of all of the above?  Maybe we could mix a poorly planned levee system not built by the Dutch, but that's blaming the U.S. Army Corps of Engineers too much. 

Northrop Grumman had a shipyard in NO that suffered a substantial amount of damage as a result of the Hurricane when the storm surge hit 22 feet.  To cover that risk, Northrop covered itself with two insurance policies:  the primary for $500 million and a second, excess policy for $19.8 billion.

That's a big shipyard.

After the Hurricane, Northrop submitted a claim to Factory Insurance and got $15 million in coverage under the primary policy.  When it came to the excess policy, Factory chose to separate the loss caused by wind from loss caused by flood and didn't pay anything because flood coverage was excluded from the excess policy.  Flood and wind were covered together under the primary policy.  Not happy with that result, Northrop sued in the case of Northrop Grumman v. Factory Mutual Insurance Company.

In the trial court Northrop won.  On appeal, it lost, with the Ninth Circuit reasoning essentially that the two policies were separate contracts and since the coverage was different, the contract language was not ambiguous and controlled the relationship of the parties.  The Court wasn't with some sympathy, however.  It "remand[ed the case to the trial court] for a determination of whether California's efficient proximate cause doctrine mandates coverage of the damage notwithstanding our interpretation of the contractual language."

MIPTC has written about efficient proximate cause language before, and explained it this way:  it's whatever event is the most important cause of the chain of events that led to the damage. You may not have read California Insurance Code section 530. It's one of the most confusing statutes I've read, and a California Supreme Court opinion, Julian v. Hartford, covers it fairly well. Here's how they say it:

"When a loss is caused by a combination of a covered and specifically excluded risks, the loss is covered if the covered risk was the efficient proximate cause of the loss," but "the loss is not covered if the covered risk was only a remote cause of the loss, or the excluded risk was the efficient proximate, or predominate cause."

Yes, I know, it's not much clearer than the statute. Let me see if I can do better: if the cause of the loss is covered by the policy, but too remote in the causal chain of events, there's n coverage.

So, if the wind was the most important cause of the damage, Northrop wins under its excess policy, even if flood is excluded.  If the flood was the most important cause of the damage, then Northrop loses. 

What's the difference?  Just a few million dollars, give or take.  Why does this analysis matter to you?  Just move the decimal point over to the left one, two or three places as appropriate, and you'll find the insurance concepts are the same in your insurance policy. 

What, you've never read it?  Time to pull it out, dust it off and see what you have.  Better to do it now than be in Northrop's position after the horses escaped.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Saturday, August 16, 2008 at 12:28. Comments Closed (0) |

Tired Of Spam? Here's A 100% Solution: Sendio's I.C.E. Box

At the end of June, I went to LegalTech West and ran into a vendor, Sendio, Inc. whose display banners promised 100% no spam in my inbox.

"Right," I thought to myself as I walked by.  "That's impossible."  Like any lawyer, I see shades of gray, and this bold claim was certainly anything but. 

So, I went up to the booth and asked a few sarcastic questions, as regular readers of MIPTC can readily imagine.  I just didn't believe the claim. 

"Prove it," I said.

The company rep, Nancy Chaisson, explained that their product, the I.C.E. Box is based on "verification" technology, a system that sends queries back to the email sender to confirm that the sender is a real person and not a spammer.  You've likely gotten one or two of them yourself, if you've been using email for any length of time. 

You know the type of emails I'm talking about:  those snippy little emails that say something like, "I'm really concerned about spam and I'm making an effort to ensure that you intended to send this email to me.  Respond with this code and your email will get through." 

"Ugh," I thought.  Just what my clients need - an email that says you can't communicate with me.  I didn't want anything to stand between me and my clients, especially an impersonal email like that. 

Nancy had an answer for that issue, too.  She said their system would scan our firm's contact list as well as everyone's outbox and compile a list of "approved" senders.  With that list programmed into the I.C.E. Box, everyone on our list would get through without verification.  "But what about new clients?" I asked.  As long as we send an email to the new client, they're automatically added to the list and all of their emails get through.

To prove me wrong (and perhaps garner publicity), Sendio offered to install their box on our server system.  So here's my disclaimer - we got the box for free, and we're the test dummies. 

The installation went smoothly, and spam emails dropped practically instantaneously.  Now, the system sends each member of the firm an email first thing in the morning, and provides each of us with a link to administer the system individually.  With the web-based interface, we can decide which emails to allow through and which to drop.  Sendio's training was very helpful and the company very responsive to our questions.  Our firm members saw the installation as seamless and without the glitches typical of software and hardware installations.

Sendio's made a believer out of me, and I heartily recommend their hardware.  The 100 or so spam emails I received every day are now gone from my inbox.  The couple of hours that I spent dealing with that trash just disappeared. 

That reduction alone is worth the cost of the I.C.E. Box.  Now I get to spend my time productively responding to client emails, not wondering whether I may have just won a cruise or inherited $50 million dollars.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Friday, August 15, 2008 at 17:41. Comments Closed (0) |

Lawyer2Lawyer Talks To Legendary Trial Attorney Gerry Spence

Attorney Gerry Spence has practiced law for over fifty years, has never lost a criminal case and is the author of sixteen books. On this week's Lawyer2 Lawyer please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we talk to Attorney Spence about his most prominent cases, life as a trial attorney, his founding of the Trial Lawyers College, his opinion about law school, stepping into the world of blogging and his mission to represent the poor, the injured and the forgotten. Listen and find out why he says "Lawyers disappoint me."

Podcast 

Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Thursday, August 14, 2008 at 14:48. Comments Closed (0) |

Read Those Mediation Agreements Carefully: Confidentiality Has Exceptions

Just about every lawyer I know agrees on one thing:  There is an exception to every rule.  Even ones that are supposedly "absolute." There's been much ballyhoo lately about the confidentiality of mediations.  There's a rule prohibiting the admission into evidence discussions held in course of mediation.

So you know what's coming next, don't you?

Right.  The exception. 

So let's get to the setup.  Thresiamma Thottam's three children, Peter, Jameson, and Elizabeth, disputed the distribution of assets from her estate after her death. They were each co-trustees of her trust, and agreed to mediation.  So far, so good.

Then they signed a confidentiality agreement prohibiting matters discussed in the mediation from being used in future litigation "except as necessary to enforce any agreements resulting from" the mediation.

The big print giveth, and the small print taketh away.    

During the course of the mediation, Peter, Jameson and Elizabeth reached an agreement and created a chart detailing how the properties owned by the trust would be split up.  They each initialed the chart.  When Peter tried to enforce the contract in Court, the court would not admit the chart into evidence and ruled against Peter.

The appellate court in Thottam v. Thottam in the Estate of Thottam case reversed the trial court.  It ruled under California Evidence Code section 1123(c) that a written settlement agreement prepared in the course of mediation is admissible if all parties agreed in writing to its disclosure.   Although the three children expressly agreed not to disclose matters discussed in mediation, they did agree to the exception noted above.

If the trial court had admitted the chart, the appellate court reasoned, it would have corroborated Peter's testimony regarding the existence of a written agreement and undermined his siblings' claims that he breached his fiduciary duty in handling the real property.  The appellate court ruled its exclusion prejudiced Peter, and reversed the judgment against him.

While you may think discussions in mediation are completely or absolutely confidential, you may have agreed otherwise.

It always pays to read the fine print.

Update:  September 24, 2008.  James Thottam of Texas called to let me know that he and his sister Elizabeth dispute the appellate court's finding that they reached an agreement, and have filed a Petition for Certiorari to the California Supreme Court to overturn the ruling.  They are looking for amicus briefs, if any lawyer is willing to file one.  A copy of the "agreement" is contained in the Peition, if you'd like to see it.



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Wednesday, August 13, 2008 at 18:43. Comments Closed (2) |

When You Define 'Livestock,' Would You Include Dogs?

Let's take a trip for a moment to the mountains of Idaho, and go back in time nearly 30 years.  In 1973, Earl and Iona Monroe, owners of a plot of land along the Middle Fork of the Clearwater River in Idaho, including a twoacre tract, granted the United States a scenic easement under the Wild and Scenic Rivers Act, 16 U.S.C. sections1271-1287. 

The purpose of the easement is to allow the U.S. Forest Service "to administer such land to protect the scenic, recreational, geologic, fish and wildlife, historic, cultural, and other similar values [of the region] and to prevent any developments that will tend to mar or detract from their scenic, recreational, geologic, fish and wildlife, historic, cultural, or other similar values . . . ."

Then, in 1989, Ron and Mary Park purchased the tract of land. At the time there was a chicken coop there. The Parks requested and the Forest Service approved modifications to some of the existing buildings and also approved the addition of horse stalls. In 1990, the Parks received approval to use a portion of their home as a craft and hobby shop. A year later, the Parks received approval to run a bed and breakfast from their home. In 1997, they began advertising that they were offering a dog training and kennel business, Wild River Kennels, on the property.

That's when the Forest Service got fed up and put their foot down, so to say.  They told the Parks to remove the kennels, and when they didn't, the Forest Service sued in the case of US v. Park.  In their defense, the Parks argued that the "senic easement" allowed livestock, and dogs were livestock.  So you're not missing any information, the easement reads, in part:

The Parks "retain the right to use the easement for general crop and livestock farming and for limited residential development consistent with applicable State and local regulations..."

There you have it.

Not so fast, you say.  Maybe cattle, horses, pigs and perhaps goats are livestock, but dogs?  That's the Court's initial reaction:  "Despite a gut inclination that the answer might be "no," resolution of the issue is not so clear, thus precluding summary judgment at this stage of the proceeding. As it turns out, the term 'livestock; is ambiguous at best and much broader than the traditional categories of horses, cattle, sheep, and pigs."

In fact, we get quite a lesson in the definition of livestock.  The Court observes, "The term "livestock" stems from the Middle Ages, when it was used as a measure of wealth or to refer to property that could be moved, particularly to a market for trade. Online Etymology Dictionary, http://www.etymonline.com (last visited July 25, 2008). Later, the term began to be used in a more limited sense to describe cattle. Id.  Today, the dictionary definition of 'livestock' is sweeping, capturing every type of domesticated animal. For example, Merriam Webster's Collegiate Dictionary defines 'livestock' as 'animals kept or raised for use or pleasure; esp: farm animals kept for use and profit.' MERRIAMWEBSTER COLLEGIATE DICTIONARY 728 (11th ed. 2003). The Oxford English Dictionary is  in accord and defines "livestock" as 'animals, esp. on a farm, regarded as an asset.' THE CONCISE OXFORD DICTIONARY OF CURRENT ENGLISH 797 (9th ed. 1995).5 Even Black's Law Dictionary defines 'livestock' broadly as 'domestic animals and fowls that (1) are kept for profit or pleasure, (2) can normally be confined within boundaries without seriously impairing their utility, and (3) do not normally intrude on others' land in such a way as to harm the land or growing crops.' BLACK'S LAW DICTIONARY 953 (8th ed. 2004); see also Levine v. Conner, 540 F. Supp. 2d 1113, 1116 (N.D. Cal. 2008) (analyzing the dictionary definitions of the word 'livestock' and observing that 'the scope of domestic animals used or raised on a farm can potentially extend to guinea pigs, cats, dogs, fish, ants, and bees.').

"Despite the broad definitions in the dictionaries, we recognize that 'livestock' has been used to describe a more limited set of animals such as cattle, horses, and pigs. The government calls our attention to § 25-1101 of the Idaho Code, which limits "livestock" to a narrow set of animals, namely, 'cattle, horses, mules, or asses.' Idaho Code § 25.  That section, however, pertains to brands and identifications affixed to the hide of an animal. Not surprisingly, this provision is not the only one in the Idaho Code that defines 'livestock:' § 25-3601 states that cassowary, ostrich, emu, and rhea are 'livestock' and § 25-3701 adds fallow deer, elk, and reindeer to the list. Idaho Code §§ 25-3601, 25-3701."

Wow.  That's a fairly comprehensive list of livestock, but none of the definitions offered by the Court include dogs.

The lower court held that the Parks' dog kennel business was a prohibited commercial activity. The Ninth Circuit observed further that "[a]lthough the Parks are running the kennel for profit, this fact does not preclude the operation from also being a permissible livestock farming use. Farming surely can be undertaken for profit and the easement expressly states that the grantors, now the Parks, 'retain the right' to engage in 'general crop and livestock farming.' This right was retained without exception. The only consistent way to understand the restriction is as prohibiting commercial activity except to the extent that it qualifies as 'general crop and livestock farming.'"  

I've been around farming for a bit, and I wasn't aware that there was much about it that was profitable.  I've also seen lots of dogs on farms, and some fairly helpful dogs at that.  Some dogs have rescued farmers from falls under tractors and some even herd sheep and other animals.  As a former gentleman farmer and now a lawyer, I'd have to agree that dogs can be livestock. 

Besides, if the Parks can operate a bed and breakfast out of their home, why can't they have dog kennels?



Printer friendly page Permalink Email to a friend Posted by J. Craig Williams on Tuesday, August 12, 2008 at 18:20. Comments Closed (0) |



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