Quote of the Day - We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.
Lawyer 2 Lawyer Internet Radio Gets Social With Networks
Social networking sites have reconnected old friends and former colleagues, created networking ties and have rekindled relationships all over the world. On this week's Lawyer2Lawyer, we explore privacy rights, intellectual property issues and even defamation and cyber bullying, all rising from social networking sites.
Please join me and my fellow Law.com blogger and co-host Robert Ambrogi as we welcome Chris Carfi, co-founder of Cerado, Eric Goldman, Director of the High Tech Law Institute at Santa Clara University School of Law and Kara Swisher, co-executive editor of All Things Digital, to discuss the popularity of these sites and the legal issues surrounding the online world of social networking.
A Post-it Happy Birthday!
Sometimes there's not much more you can say about your staff celebrating your birthday. And yes, it goes all the way around the other side. It's not my car, but it's one in the parking deck just a few spaces away.
Payments, Payments, Payments. When Are They Partial And When Final?
When is a payment to a contractor a progress payment and when is it a final payment? Why does it matter?
Well, penalties may apply, and then again they may not. Under California Civil Code section 3260.1, a progress payment withheld without a good faith dispute may require payment of a two percent per month penalty. The penalty is based on the amount in dispute if the payment is unjustifiably withheld. Otherwise, if there is a good faith basis for the dispute, then the owner may legitimately withhold 150% of the disputed amount of the progress payment.
On the other hand, if the dispute involves a final payment -- as opposed to a progress payment -- then the statute doesn't apply at all. No need for a good faith dispute, no penalties apply; nothing.
You know. Zip. Zero. Nada.
That's the ruling in Murray's Iron Works, Inc. v. Boyce, a California appellate decision handed down yesterday. Here's the facts:
Phillip Boyce contracted with Murray's Iron Works to install decorative railings in his home. As required by the contract, Boyce paid MIW 50 percent of the contract price upon signing, the balance upon completion. MIW completed the job in July 2002. Boyce gave MIW a punch list. MIW completed satisfied the punch list in December 2002. Boyce paid $50,000, but withheld the balance of $66,222.40.
In February 2003, Boyce told MIW he wanted actual gold leaf on the railings, not imitation gold leaf. MIW argued with Boyce and said the contract did not require actual gold leaf. Boyce still did not pay the balance.
MIW then refused to return to touch-up some sealant. defects, which would have taken only a couple of hours. MIW next sued Boyce. Boyce testified that he was quite happy with MIW's work until he discovered the imitation gold leaf.
The jury awarded MIW the $66K in dispute and then $49,004.65 in penalties under Civil Code § 3260.1. The Court of Appeal upheld the $66K award reasoning the jury could have easily determined the work as substantially complete. The Court reversed the penalties, awarding MIW no penalties since it determined the last payment did not qualify as a progress payment, making the statute inapplicable.
How To Speak *LA*
A friend of mine sent this email to me, and I made some slight changes to it:
A new and improved guide for visitors to Los Angeles:
You must first learn to pronounce the city name; it is "L. A.," not "Los Angeles."
The morning work rush hour starts at 5:00 a.m. and ends at noon. The afternoon work rush hour starts at noon and ends at 7:00 p.m. The evening "night club" rush hour starts at 7:00 p.m. and ends at 5:00 a.m.
The weekend rush hour starts on Thursday, just after noon and ends on Monday at 5:00 a.m.; 5:00 a.m. Tuesdays if Monday is a holiday. See above for the rest of the rush hour schedule.
The minimum acceptable speed on most freeways is 85 mph, and 90-95 is preferred. On the 105 or 110, your speed is expected to match the highway number. Anything less and everyone will know you're from out-of-town.
Forget the traffic rules you learned elsewhere. L.A. has its own version of traffic rules. For example, passing on the right is perfectly acceptable. On city streets, cars/trucks with the loudest muffler go first at a four-way stop; the trucks with the biggest tires go second. In Malibu, however, SUV-driving, cell-phone-talking moms ALWAYS have the right of way.
If you actually stop (or heaven forbid brake or slow down) at either a yellow light or stop sign, then you will be rear-ended, cussed out, and probably shot.
Never honk at anyone. EVER. Seriously. It's another offense that can get you shot.
Road construction is permanent and continuous in all of L.A. and Orange counties. Detour barrels and concrete K-rails are moved around for your entertainment pleasure during the middle of the night to make the next day's driving a bit more exciting. Construction signage has been outlawed altogether.
MapQuest does not work here--none of the roads are where they say they are or go where they say they do, and the freeway off- and on-ramps are moved each night. Freeways are not labeled with directions (N-E-S-W), but instead use the more logical name of a city along the way. We don't care if you're unfamiliar with the city's location. Off-ramps may or may not be numbered; it's fun to guess, don't you think?
If someone actually has their turn signal on, then wave them to the shoulder immediately to let them know it has been "accidentally activated."
If you are in the number one lane (the left-most lane for anyone not from L.A., a.k.a. the "fast lane") and only driving 75 mph in a 65 mph zone, then you are considered a road hazard and will be "flipped-off" accordingly. If you return the flip or otherwise look sideways at the other driver, then you will be shot.
Do not try to estimate travel time -- just leave Monday afternoon for Tuesday appointments, by noon Thursday for Friday appointments and right after church on Sunday for anything on Monday morning.
If you're in a "parking lot" (L.A.-ese for freeway) and you see red light flashing ahead and a car flipped over, don't get your hopes up the traffic jam will clear up as soon as you get on the other side of the accident. We have accidents strategically placed in intervals around the city, designed solely to keep you on-time for your next appointment (see "departing times" above).
Why is the L. A. Freeway called the '4-oh-5'? Because no matter where you are going, it takes 4 or 5 hours to get there. In L.A., we don't measure distance in miles. Hours and minutes are the standard form of measurement.
And don't forget your standard-issue vanity plate with a Save-the-whales background on your foreign hybrid car. American cars will be pulled over and cited unless you're driving a Hummer with the chrome package. It's important to understand the exceptions.
Failure to wash your car weekly will likewise result in a citation, and rust spots constitute a felony violation, issued by the fashion police.
Oh yes, the weather. If it's sunny, then put the top down on your car. If it rains, then stay home. Your windshield wipers won't clear the rain because they only get used once a year. If it's raining, then it's snowing in the mountains. Definitely don't go there, either, unless you learned to drive back East. You don't have to worry about buying chains for your car, however. There will be plenty of spare chains laying about the road from those who don't understand how to put them on.
One last thing. If you see a Ford Bronco followed by a string of police cars, you're not required to pull over - it's the only time you can just wave and smile like you know the driver.
Lawyer 2 Lawyer Internet Radio Hits the Books
Many lawyers out there are writing books to benefit their peers in the law, whether it is through giving advice or educating by writing about the history of law. On Lawyer2Lawyer, we will feature two attorneys who have recently written books that will appeal to attorneys worldwide.
Please join me and my fellow Law.com blogger and co-host Robert Ambrogi, as we welcome returning guest, Attorney Carolyn Elefant, to talk about her new book, Solo by Choice: How to Be the Lawyer You Always Wanted to Be. Also on the program is Attorney Alan Dershowitz, to discuss his new book entitled, Finding Jefferson: A Lost Letter, a Remarkable Discovery, and the First Amendment in an Age of Terrorism.
Vote For Your Favorite Blawg Review
The race for Blawg Review of the Year will end soon, with the time to nominate ending tomorrow, January 14.
According to the anonymous Editor, the rules for nominating are: This year, the award for Blawg Review of the Year will be given to that issue of Blawg Review, from #89 to #140 inclusive, that is nominated by the greatest number of those who have hosted an issue of Blawg Review from #1 through #140. Each of those hosts may nominate for Blawg Review of the Year 2007 as many issues, from #89 to #140 inclusive, as they wish to recognize for excellence by linking such nomination(s) on their blogs in a post dated not later than January 14, 2008, titled "Blawg Review Nominations" linking to the issue(s) nominated for Blawg Review of the Year.
If you haven't hosted Blawg Review yet, but are scheduled to host an upcoming issue of Blawg Review, then your nominations will be counted as well. Just send an email to the editor, including a link to your post, to ensure that your nominations are counted. Nominations for one's own presentation of Blawg Review, however excellent, will not be counted as a peer-reviewed nomination.
In this particular case, telling you to vote early and vote often won't help.
How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 6
Experts, Closing Argument And Final Wrap-up
It's the last day of a whirlwind, six-day, eight-hours-a-day class on how a lawsuit goes to trial, and the students are understandably worn down. Once they get done in class, they go home to read a hundred or so pages of Mauet's Trial Techniques as well as the fictional case files and then prepare outlines of examination and exercises for the next day. They're putting in 10-16 hour days, if they're doing it right.
Just like a real trial.
Today we cover how to qualify a witness as an expert and have the judge accept the witness as an expert to testify and educate the jury. There are many variations to the technique, but here's a slightly edited one from Forensic Magazine that demonstrates the technique appropriately:
QUALIFYING QUESTIONS FOR THE EXPERT WITNESS
Like most other aspects of trial work, it's not a matter of rocket science to qualify an expert. There are, however, other issues that may trip you up, such as whether the subject matter of the witness's testimony is a proper subject for expert testimony, and whether the science is generally relied upon by those in the same field. But those are substantive subjects, not techniques, and beyond the scope of this course.
That's it for testimony, exhibits, witnesses and the like. As I laid out in the beginning when you "told 'em what you're going to tell them," you've wrapped up the second section of your sermon: you "told 'em."
Now it's time to present closing arguments. How? That's a subject of great debate. Generally, you continue to follow the sermon format, recognizing that you're in the third phase: "tell 'em what you told 'em."
But it's not that easy. It's likely there are events and new facts that came up during the trial that you didn't anticipate in the beginning, and you've got to make sure what happened fits into your theory of the case. You must also deal with any evidence you told the jury about in your opening that didn't get in. It all has to make sense to the jury, or your case may go down the tubes.
You also have to persuade. It's time to pull out those adjectives and adverbs you weren't allowed to put into your opening statement.
You must also discredit the opposing side's theory of the case, and explain it away in your closing argument. Some lawyers make rhetorical challenges to the other side, and "dare" opposing counsel to answer the question left hanging. It's a dangerous tactic that sometimes backfires. Sometimes it wins cases.
There's no right or wrong way to make a closing argument. Most of all, it has to fit your style. You can't get up and be indignant about the other side unless you truly are. You have to be yourself. But it's not really about the lawyer (unless the lawyer gets in the way).
It's about the facts, credibility, the evidence and the law in the jury instructions. You weave it together to match your theory of the case. Then you ask for the remedy sought by your client.
You're in sales, remember? You have to close the deal.
There are several technical procedural elements present in any trial, such as Motions in Limine and Judgment on the Pleadings before trial, objections, hearsay and best evidence rule, interlocutory writs, motion to exclude witnesses and media gag orders during trial and Motion for Nonsuit, a Directed Verdict and a JNOV, or Judgment Notwithstanding the Verdict. They're an entire set of classes in themselves, and more than I have time to cover here. But if you're going to trial, study up.
There you go. Around the courtroom in six days. Ready to do it on your own?
How To Try A Case: University of Iowa College Of Law Trial Advocacy Intercession, Day 5
Impeachment And Rehabilitation
Witnesses on the stand occasionally need to be impeached - calling into question their character, truthfulness, bias, observational skills or a host of other bases.
You can impeach a witness through prior criminal convictions, but typically it must be a felony conviction within the last ten years. If the conviction is the same as the one the defendant is on trial, then you may not be allowed to introduce it into evidence. You can impeach a witness based on reputation for bad character, but that attack would allow the attorney for the witness to rehabilitate the witness's good character, and you're left with a swearing match.
Not a good result.
You can impeach a witness with bias, such as the witness's relationship to the other party. If the witness is an expert, then you can expose that the expert is being paid. Occasionally, you will discover the witness was not in a position to observe the incident, and you can impeach the witness accordingly.
One of the most common ways to impeach a witness is through a prior, inconsistent statement. Typically, the witness will have testified about the incident in a prior proceeding. In a civil case, you most likely will have taken the witness's deposition. In a criminal trial, the witness may have testified at the preliminary hearing.
All you need is the transcript, and a three-step process: (1) credit; (2) confirm; and, (3) confront. Let me explain how it works.
On direct examination (the other side calls the witness first), the witness testifies that when he saw the accident occur, the light was red. In the earlier deposition the witness gave, he had testified it was green. Your client wants the light in the green position, so it's important to discredit the now "red light" witness before the jury.
When it's your turn to cross-examine the witness, you have your copy of the deposition testimony about the green light at the ready. You will have already given the judge a copy of all the witness depositions before the trial started.
Step One: Credit the earlier statement.
Examiner: When you testified moments ago, you said the light was red, isn't that correct?
Witness: Yes, that's what I said.
Step Two: Confirm the earlier testimony.
E: You remember testifying months ago in my office about this accident, don't you?
E: In fact, when you gave your testimony earlier, you took the same oath to tell the truth that you took again here today, didn't you?
W: Yes I did.
Step Three: Confront the witness with the earlier testimony.
E: I'd like to invite the Court's attention to page 30, lines 5-10 of W's deposition transcript, which I have just shown to opposing counsel. May I approach the witness?
E: [Showing the witness the copy of the deposition transcript] Mr. Witness, please read along silently on page 30, lines 5-10 as I read it out loud. In your earlier deposition, I asked you the question, "When you saw the accident, was the light red or green?" You answered in response, "Green." I read your prior testimony, correctly, didn't I?
E: But you testified moments ago today that the light was red, didn't you?
W: Yes, I did.
Viola, you have successful impeached your witness, and you can argue away in your closing argument. Opposing counsel will next have the opportunity to rehabilitate the witness, but the damage has been done, and in this case, the rehabilitation will likely be ineffective.