May It Please The Court
Quote of the Day - The poor man's budget is full of schemes.
Lawyer 2 Lawyer Internet Radio Inspects the Madoff Scandal
While Bernie Madoff awaits sentencing for the largest Ponzi scheme in U.S. history, hear from one of his victims - Lawrence R. Velvel, Dean of the Massachusetts School of Law. Join me as I welcome Dean Velvel as he tells his story and how he is turning his experience into activism, along with special guest, Attorney Ross B. Intelisano, partner of the law firm Rich & Intelisano LLP, who represents other Madoff victims. They will take a look at the fate of the victims and who else could be involved.
How To Challenge A Red Light Ticket
Perhaps you're out for something other than a Sunday drive, as my grandparents used to observe when a driver whizzed by. If you are, then perhaps you've also had the experience of driving through a pink light.
You know: the fourth color on a traffic light - somewhere between yellow and red. The "I'm-going-too-fast-to-stop-and-the-light's-still-yellow" syndrome. In other words, not yet red and maybe no longer yellow.
It's at that point that you see the white light. Not the one where you find out whether you've lived a clean life, but when the white flash immediately precedes the silent "click" of a red light camera. Just after that, the image of you in the middle of an intersection you shouldn't be in gets transferred to a computer somewhere in Arizona. That computer then scours the DMV records in your state to find your home address (the camera also snapped a picture of your license plate), and a few seconds later, prints neatly out on a traffic ticket bearing your name and address. The ticket then magically finds its way into an envelope, into your mailbox only to be greeted by your sigh of disgust when you see your mug behind the steering wheel.
It's at that point that you may resign yourself to paying the $75 dollar ticket. Not so fast there, bucko. There may be some other options for you.
Many red-light camera companies make a lot of money on those tickets, and the cities who use red light cameras don't make as much money unless they negotiate a more advantageous contract. Some citizens appeal to their local city and town councils to reconsider those contracts. Some also complain about the net result: while red-light cameras have been shown to reduce T-bone intersection traffic collisions, they tend to increase rear-end collisions.
Certainly the intersection collisions are on the average more dangerous, but statistically, there apparently are comparatively more rear-end collisions that may result in just as much, if not more monetary damage. Apocryphally there are likely fewer deaths and less severe personal injuries in rear-end collisions, however.
If your city or town uses red light cameras, you might want to check with the members of the local council to ensure that your city or town is getting its fair share of the revenue. In some instances, the red-light camera company is making a handsome profit by collecting all of the revenue from the tickets if, for example, your town fails to issue an artificial minimum number of tickets per month. No sense sending all that money to Arizona if you can keep most of it in your town.
On the other hand, why pay at all?
There's this little thing called the evidence code you may be able to use to your advantage. In California, like most other states, we have the evidentiary requirement that personal knoweldge is required for evidence to be admissible. There's also the burden of proof, which the prosecutor must meet. That means that the prosecutor must introduce evidence of the red light picture of you and your car in the middle of the intersection after you went through a red light. The court then has to admit the picture into evidence in order to convict you of going through a red light.
To admit a photograph into evidence, the prosecutor must have the person who took the photograph testify to that person's individual knowlege of the photograph to lay the foundation to admit the photograph into evidence. In other words, the person who took the photograph must testify that the camera was working properly, the computer that stored the photograph was working properly and correctly cross-referenced your license plate number against DMV records and that the car being driven was your car. The evidence also has to show that you were behind the wheel, that the light was red (in your direction) and that you were past the intersection limit line.
That's a lot of things one photograph has to show.
That person must then testify to her personal knowledge that the photograph in court is the same photograph taken by the camera, recorded on the computer, cross-referenced against DMV records, mailed to you, that the car in the photograph is registered to you, you were driving the car and you were past the limit line - all before the photograph in the prosecutor's hands can be admitted into evidence.
Unless the person from Arizona who operates the computer is nearby, that level of proof is hard to place before the judge. The correct objection to assert then is "Lack of Foundation, California Evidence Code section 402." If you make that objection and the judge understands it, then the photograph should not be admitted into evidence unless those criteria have been met. The prosecutor can attempt to introduce the photograph using Evidence Code sections 1550, et seq., but without someone to establish that the photograph is a business record, the photo might not come into evidence.
Plus, you've got chain-of-custody issues if the prosecutor tries to use someone locally to introduce the photo. How did it get from Arizona to whatever city/town you're in? Was it altered along the way? Without someone who can trace it from the camera to the courtroom, the photograph should not come into evidence.
Without the photograph, the red-light case against you should be dismissed and no one will get any revenue.
On the other hand, you could just stop for the red light and avoid all of this hassle.
Just a thought.
Courts Rule It's Not Nice For Mother Nature To Fool Proposition 65
Proposition 65 is that twigs, nuts, fruits and berries statute out here on the Left Coast that warns consumers that just about everything in existence contains chemicals known to the State of California to cause cancer, birth defects and reproductive harm. At least in California, that is. The other 49 states don't give warnings to their citizens; presumably they just know.
Many businesses call it a bounty-hunter statute. At least one law firm lost its license to practice law because it filed too many of these lawsuits. To top it off, one appellate court awarded a plaintiffs' firm $1.98 instead of the several tens of thousands it wanted in attorneys fees.
Can you tell not everyone thinks the statute is a good idea?
There are a number of attorneys, however, who have campaigned to eliminate toluene from nail polish, lead from soda bottles and formaldehyde from schools. In fact, I stopped eating shark and swordfish given the mercury warnings on restaurant menus. That chemical should be in thermometers, not in fish.
There are many Californians who believe Prop 65 has made the state a safer place to live, even though there are no warnings for earthquakes. But I'm off-topic.
Still, tuna contains a chemical known as methylmercury in amounts that occur naturally in the environment, not as a result of pollution. It's just part of the fish. Unfortunately, however, methylmercury occurs in tuna in amounts that are higher than the state's threshold limit. Fortunately or unfortunately - I don't know which - when you apply the Prop 65 statute, you have to deduct the level of naturally occurring methylmercury from the amount found in the tuna, and when you do, the amount left is not higher than the threshold limit. The consequence of this mathematics means that the purveyor of the tuna does not have warn consumers that the tuna violates Prop 65.
The state didn't like that outcome and filed suit against the purveyor, in a case entitled People v. Tri-Union Seafoods, LLC, who fought the lawsuit using the facts and arguments I described in the last paragraph. The trial court agreed with the Seafood company, and so did the appellate court.
So, if Mother Nature puts chemicals in food that are known to the State of California to cause cancer, birth defects and reproductive harm, you may never know it if Mother Nature intended it that way. At least according to California courts.
We'll be just as well-preserved as Egyptian mummies just from the food. No chemicals or preservatives added.
Lawyer 2 Lawyer Internet Radio Discusses the Recent Wyeth Ruling
How will the pharmaceutical companies, doctors and patients and legal cases be impacted by the recent SUPCO ruling in the Wyeth v. Levine case? Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome Wyeth's attorney, Bert W. Rein, founding partner of the law firm, Wiley Rein LLP, to discuss the wide-reaching impact this ruling will have for many years to come.
California Supreme Court Finally Clarifies Insurance Pollution Exclusion ProvisionsThe California Supreme Court issued its long-awaited decision unanimously interpreting pollution exclusion provisions in comprehensive general liability insurance policies. The Court defined the meaning of the policy term "sudden and accidental" for discharges on land and air and the "absolute pollution exclusion," which in three out of the four insurance policies at issue applied to discharges into watercourses. The Court went on to describe how to allocate the burden of proof between covered and non-covered claims in the case entitled: State of California v. Allstate Insurance Co.
Let's do a little bit to set the stage first. The State of California made a $500 million claim for contamination of Pyrite Creek in Riverside County against four insurers: Allstate, Century Indemnity, Columbia Casualty and Westport Insurance. The contamination was caused by several factors: gradual leaks in the bed of a canyon dammed by the State in the 50's to hold some 30 million gallons of industrial waste and overflows from holding ponds into the Creek caused by heavy rains and emergency releases of one million gallons into the Creek to prevent the loss of the entire containment (known as the Stringfellow Acid Pits) into the Creek.
So to tally the score, it was a split decision. The trial court decided in favor of the insurers on the State's claim. The appellate court reversed. The Supreme Court went down the middle, holding partially for the insurers and partially for the State. Here's the scorecard:
The "Relevant Discharge"
But in other cases, it may be when the insured deposits pollutants directly onto land or water without any effort to contain them, then the initial deposit may be considered the discharge. The Court held that there may even be two different discharges that trigger coverage: both the initial deposit and then the subsequent escape of the contamination.
Just to confuse things that much more.
The Court found in favor of the insurers who contended the flood waters flowed directly from the site into a creek rather than onto surrounding land. The Court held, however, that the insurer has the burden of showing that the overflow was confined to the channel of the stream (even if the creek was not flowing at the time). Like most other California watercourses, Pyrite Creek is mostly a dry bed.
Had the state followed this recommendation, the subsequent releases would not have occurred.
The Court rejected the insurers' arguments that these controlled discharges were not "accidental," holding instead that liability policies cover damages resulting from an act undertaken to prevent a covered source of injury from occurring, even if that act would otherwise not be covered.
The Court found that the intentional mitigation to avoid a covered event makes sense as a matter of causation, is consistent with the reasonable expectations of the insured, and does not harm the insurers since they would be responsible for greater liability had the measures not been taken.
Due to the threatened "sudden and accidental" release of waste from the site, the State's intentional releases prevented a greater accidental release and consequently the State's claims were not barred by the qualified pollution exclusion. The Court further held that the State's awareness of the risk of the event is not equivalent to its knowing that the damage was "substantially certain or highly likely" to occur. Showing that the State "should have known" that the damage would occur was insufficient. The Court held there was an issue of fact concerning the level of the State's knowledge that will require a further trial.
We haven't seen the last of this case yet.
Proximate and Concurrent Causation
Go ahead. You try to break that long sentence up into two.
Once the State proves that the damage from concurrent causes ("sudden and accidental" events and subsurface leakage) was indivisible, the burden shifts to the insurer to prove otherwise. The Court expressly disapproved Golden Eagle Refinery Co. v. Associated Internat. Ins. Co., 85 Cal.App.4th 1300 (2001), and Lockheed Martin Corp. v. Continental Ins. Co., 134 Cal.App.4th 187 (2005), to the extent they held the insured has the burden of showing "how much of an indivisible amount of damages resulted from covered causes."
When an insured proves that multiple acts or events caused a single injury or an indivisible amount of property damage and one or more of the covered causes would have rendered the insured liable for all of the damages, the insured's inability to allocate damages does not excuse the insurer from its duty to indemnify it for all of the damage. The Court noted that its decision does not extend to indemnity situations where the insured can only speculate that polluting events were "sudden and accidental" or where "sudden and accidental" events contributed only trivially to the property damage. The "sudden and accidental" events must have caused an "appreciable amount" of damage.
Sure, it's a torturous decision to follow, but let's put it this way: if one covered event contributes contamination to an uncovered event, the uncovered event doesn't matter - the whole thing is covered. Maybe. That's the lawyer in me talking, though.
Otherwise, you can read the entire 37 pages of the opinion.
MIPTC gives a big hat tip to my partner at Sedgwick, Laura Goodman, for providing this analysis. I added a few facts and remarks.
Orange County's Celtic Bar Association Makes It Into A Court Opinion
Bloggers eagerly scour court opinions to see whether an appellate judge has included their blog in the opinion, and several have notably been included. MIPTC hasn't tracked court opinions so much, but I did stumble across this court opinion, which references an association I helped found: the Celtic Bar Association.
The Celtic Bar Association meets just after work at 5:30 p.m. on the third Tuesday of each month at Muldoon's Irish Pub in Newport Beach, owned by lawyer Ron Schwartz. His law office is above the pub, likely more famous for its St. Patrick Day celebration and its steady stream of Irish performers.
The Celtic Bar Association got its start fittingly in a bar in Belize on a Hispanic Bar Association trip. Co-founders Scott Well and I were sitting having a drink. We were grousing that there were many minority bar associations like the HBA, MALDEF, the Asian Bar Association, the Italian Bar Association, and ... and ... and ... well - you get the idea. We complained that the Celts should have our own bar association but that there wasn't anyone with enough interest to start one up. Joe Chariez joined us and listened to the tail end of our woes, but surely got the gist of our motivations.
Sure enough when we got back from the trip, Scott and I did nothing about starting up a group of Celts. Joe Chairez, on the other hand, was full of vigor having just finished a term as the president of the HBA. He set up a meeting of Celtic attorneys at Ron's office, with plans to go downstairs after the formative meeting.
True enough, several of us showed up for the first organizational meeting but none were interested in actually having a meeting. We just wanted to go downstairs and talk. It didn't hurt that Ron's pub also served drinks.
Twenty-five or so Irish, English, Welsh, European and Spanish attorneys signed on to found the Celtic Bar Association. We've now got a rather sizeable membership, which includes many judges and arbitrators. We've taken trips to England, Ireland, Scotland, Wales, Spain and big plans to travel to many other European countries. In fact, regular readers will remember my Scotland travelogue series, which got many compliments and several to take the trip themselves.
So when I read this recent opinion where the losing attorney challenged the bias of Celtic Bar Association member Robert Thomas, who is now a neutral with the Orange County office of JAMS, I was intrigued. The cast of characters in the opinion feature many other members of the Celtic Bar Association.
The Appellate Court ruled that Judge Thomas correctly refused to recuse himself from an arbitration just because both he had run into one of the attorneys in the case on the Scotland trip and at a Celtic Bar Association. So have about 65 other Orange County attorneys on the Scotland trip and about 125 attorneys at various Celtic Bar Association meetings.
Bar trips allow attorneys to get to know one another. They also allow attorneys to get to know judges in a more informal setting. But they're merely social events, where niceties are passed between professionals. In fact I know Judge Thomas from the Scotland trip and the Celtic Bar Association meetings, as well as having participated with him on an MCLE panel. But not so much that I'd even dream that he'd swing a decision in my favor if I appeared in front of him - especially if another member of the Celtic Bar Association were on the other side of the case - or not.
Sure, Judge Thomas and I would make the required disclosures that we are social acquaintances, but there's really nothing more to it than that, much in the same way that there was no reason for Judge Thomas to recuse himself in the case underlying the opinion.
And now that you've read the opinion, those long-haired shaggy cows standing knee-deep in a field behind the Colloden House are called Highland Cows, pronounced "Hee-lin coos" if you're from Scotland.
I was there too. And by the way, if you're in Newport Beach on the Third Tuesday of the month, stop by. I'll buy you a drink.
Librarians And Harry Potter: Not All Are Happy With The Occult
Harry Potter presents a multi-faceted approach to literature. Many people view the interest in the books as a means to get children to read. Others have cataloged the entire series and documented it. Still others view it as an deep-seated attempt to corrupt society and perhaps children.
That last part comes from the Southern Baptists. My mother was one, and she raised me to believe in the Bible. She married a minister, and I was/am a preacher's kid, through and through.
Even so, I've read all seven Harry Potter books. All were enjoyable and the seventh one got me to go back and read the entire set, plus watch all the movies. Do I think it worships the occult? Well, in a word, no. But it has many occult aspects to it, and that's simply part of the literature.
Just like Tom Clancy's books have many militaristic aspects, but that doesn't make Tom or his readers into soldiers or for that matter occult worshipers. See what I mean?
Apparently Deborah Smith didn't think so. She was a librarian (well, actually a part-time Assistant Librarian II) in the Poplar Bluff Missouri library (where else?) that wanted to hold a Harry Potter night to promote the release of Harry Potter and the Deathly Hallows.
It does have a bit of an occult feel to it, doesn't it?
The librarians were to dress up as witches and warlocks (a la the novel), which offended Ms. Smith's legitimate religious beliefs. Ms. Smith objected and said her legitimate religious beliefs prohibited her from participating in the event. Her supervisor at first told her that she didn't have to participate, but after he talked with his supervisor, presumably a full-time Librarian I, he then told her she had to did have to show up that night.
Even more of an occult feel, if you ask me.
The Head Librarian said she could participate behind-the-scenes so her church members would not know that she violated her religious beliefs. She refused to show up that night and got suspended for ten days without pay.
In the American way, she sued.
Before the matter could get to trial, they settled. While the settlement surely avoided a lot of attorneys fees and costs, as well as a potentially seminal decision that would have set back American jurisprudence at least 100 years (I'm kidding about the seminal decision part), the rest of us are left hanging.
What happened? Will she have to participate in the next Harry Potter night? Did she get her back pay? Did the library apologize? Did her church support her? Is there a conflict between religion and Harry Potter?
We'll never know. She settled, and nobody told.
MIPTC's Writer Moves WLF Firm To Sedgwick, Detert, Moran & Arnold, LLP
You may have noticed some changes going on around here. We've taken away the burgundy background and added in its place a soft taupe and slate blue and you'll soon see changes in the branding, removing WLF | The Williams Lindberg Law Firm, PC from the site. We're excited to announce that our firm has been acquired by Sedgwick, Detert, Moran & Arnold, LLP. I'm housed in SDMA's Irvine office, just a hop, skip and a jump away from Newport Beach.
While WLF has ended its operations, MIPTC will continue as a blog independent of SDMA, but still written by me. Sedgwick's webmasters have beed kind enough to make the color changes to more closely match the SDMA site colors, although my blog will not be branded with SDMA's name. Plus, we've added in a new disclaimer to make sure you understand that while I may be a partner at Sedgwick, what I say here is not firm policy. So if I do anything to offend you, it's not their fault. It's mine.
With that out of the way, MITPC will return to its regular format of daily news and legal observations. As you can imagine, I've been just a bit busy with the transition. So if you get the chance, give me a call at the new firm at 949-852-8200 or send me an email at jcraig.williams - at - sdma.com (just replace the - at - with the @ symbol). I'd love to hear from you about what you think of our new look.
You'll still see my weekly podcast Lawyer2Lawyer on the site and we're continuing our companion blogs, A Criminal Waste of Space and Sharks in the Water. Just about everthing else will remain the same, especially the dry satirical take on things. Plus, you'll soon see my new book, Bad Decisions? 10 Famous Cases That Went Wrong, published by Kaplan Publishing this fall.
Stay tuned. Exciting things are coming, and thanks for your continued support. Stay in touch.