Thursday, August 31, 2006

This Is Just Wrong

The guy who created the Britney Spears birthing statue has decided that he needed to do another celebrity birth-inspired piece. A picture of it is here.

I think the world could do with less Suri Cruise hoopla and definitely less Suri Cruise-inspired art.

New Vioxx Twist

Recently, a federal jury held Vioxx-maker, Merck, liable for the heart-attack of a retired FBI agent. The jury ordered that Merck pay $50 million in compensatory damages and $1 million in punitives.

The judge in that case has ordered a new trial to determine the damages, finding that the jury's award was excessive.

Now, unless the FBI agent suffered a huge medical bill, or had some other job that he was working, this is probably accurate. Compensatory damages are supposed to compensate for the losses suffered as a result of the wrong doing or it is usually put "to make whole" the plaintiff.

However, I'm curious to know what happens when the case gets retried on the damages issue to see how the judge reacts to punitives if the jury reverses the numbers. Especially since the jury found that Merck "acted in wanton, malicious, willful or reckless disregard for the plaintiff's rights."

Wednesday, August 30, 2006

New Case

I keep swearing that I will not do this to myself again. And yet, here I am, once again jumping into the middle of a case that another set of attorneys (from a much larger, well funded) law firm threw their hands up in defeat and decided to cut their losses.

One of the first things I do when I get a case, I check out who the opposing counsel is. In the begining it was because I was curious to know who I would be dealing with. After one particular case, where the attorney in question had a history of being disciplined by the bar, I was glad that I did, since it lead me to not take the attorney in question at his word.

So as I was looking at the website for the opposing counsel, I got a kick out of the last line. It read "Born [XXXX date], excellent health."

Glad to know he's healthy.

Tuesday, August 29, 2006

So I'm Not Sure This Should Be The Top Six

Over at (the SciFi Network's website) I found a poll for the top Star Wars scenes from the original trilogy.

While I agree with theses Obi-Wan's duel with Vader (from the A New Hope), the "I am your father" scene (from Empire Strikes Back), and Han and Leia finally saying I love on Endor (in Return of the Jedi), I have series problems with the other three. I mean, yes, it is the scene that always gets played as a trailer, but the swinging across the chasm of the original Death Star to me is not anywhere near the top of the list. Likewise, the chase on the speeder bikes through the forests of Endor is a good chase, it has not held up as well as other bits of the trilogy.

I would have rather seen the scene from Empire where Han is about to enter the asteroid field barkin at C3P0, "Never tell me the odds." I would also have put the scene with Jaba the Hutt telling Skywalker that his Jedi mind tricks would not work on him. For the third replacement scene, why not the scene in the Death Star where Luke is tempting Han into saving Princess Leia and ending with the line "lock the door... and hope they don't have blaster scene".

Those are my thoughts.

Monday, August 28, 2006

Anyone Want to Buy My Old Test Prep Stuff?

Actually I am not sure if I still have any of it. Although, now I am wishing I did after reading this little article over at

Let me preface this by saying I think all multiple choice tests are bad. Never liked them when I did well on them. Hated them when I did poorly on them. I do not think they are a good measure of what a person has learned.

For those who have suffered through the three days of the bar exam in California (or Delaware or New York) there is a day of unbelieveable suffering. That would be the day where the morning and afternoon sessions are all multiple choice in what the sadistic bar examiners refer to as the Multistate Bar Exam. Essentially these are questions based on a made up set of laws (which they quaintly refer to as "fundamental legal principles" in their literature) and the bar taker has to choose the best possible answer (even if the right answer is not there).

For years, or at least since I entered Law School in 1997, the gold standard for preparing for the MBE was to take the PMBR course, which would give you access to their books of practice questions. After taking one of their courses, you would sit for days on end in some hidden away place testing yourself with the practice questions in the hopes that on the day of the exam you would be able to complete a this section and move on into a lucrative career defending either the downtrodden and oppressed or corporations and their money.

However, now it seems that the MBE is afraid PMBR is getting to good at preparing students for the bar exam and filed suit, alleging that PMBR's practice questions were violating the MBE's copyright because of their similarity to the real questions. A federal judge in Pennsylvania agreed with them, stating that "By exposing its students to questions likely to appear on the MBE, [the defendants] undermined the integrity of the bar examination, possibly causing the admission of unqualified applicants. That the victims of this harm are impossible to identify and the injury impossible to quantify underscores the need to deter would-be copyright infringers[.]"

Now, I am not crying for PMBR's loss in profits or damages which they have to pay (which are substantial). What I want to know is, how can you test "fundamental legal principals" in a country which has fifty-one separate jurisdictions, some of which disagree on how they view laws.

If you are going to make a "national" objective test, it seems inherently unfair to base it on something as unquantifiable as "fundamental legal principles", even more so since that is not really what law schools do these days. They teach you how to think like a lawyer. Some state schools focus on the jurisdiction where they are liable to place their graduates into the work force. At the school I went to, a private one, they tended to go to federal issues and common law rules, which different jurisidictions go different ways on.

If only they could get rid of the MBE altogether. But that, alas, is a pipe dream. End of rant.

Friday, August 25, 2006

Calling It Good Natured Is Probably Not the Right Response

There is this group out there, Jews for Jesus, which tries to get converts. They claim to be a sect of Judaism but views Jesus as the Messiah (which kind of makes it sound like they are Christians..).

And lately, they have had a new ad campaign which has been using the likeness of a fairly well known comedian labeling him "A Jew for Jesus!?". As a representative for the group commented, it was just a good natured use of his image and, "Shame on him for getting so upset about this."

Speaking as a Jew who is not for Jesus (and has had to deal with their prosthelytizing schtik on too many occasions) , I fail to see what is good natured.

Anyways, I hope Jackie Mason gets to laugh good naturedly all the way to the bank when all is said and done with the law suit he filed today.

Need a Spaceship Right Now!

Apparently someone is now trying to peddle the idea that the average personal injury case verdict/settlement is going for $3 million dollars.

As Greedy Trial Lawyer asks, what planet is this? Me too. I need to hop a ride to that one (preferably not on a Vogon construction ship).

But a little more seriously, the article in question, by Steve Maggi, makes this claim trying to illustrate his point that evil plaintiff lawyers filed too many suits to keep open hospitals. In particular, he brings up the example of Putnam General Hospital in Putnam County, West Virginia.

Now, Putnam County apparently has around 55,000 people living there. Two neighboring counties, Charleston and Huntingdon counties, are roughly the same size. Apparently, Charleston has four hospitals and Huntingdom has two. Neither of these hospitals is at risk for closing. However Putnam County Hospital has to close and re-open as an urgen care facility. Could it be because, perhaps, it was negligent in who it allowed to perform surgeries?

Putnam General Hospital is closing. This is true, but part of the reason is that they hired a Dr. John King as an orthopedic surgeon. Problem is, Dr. King does not appear to be accredited as an orthopedic surgeon. According to some reports, he never finished a residency in orthopedic surgery. It would probably have been something for the hospital to check before they granted him privileges. Of course, they did not, and as Bob Carroll at Injury Board pointed out, paid him nearly $420,000.00 a year and allowed him to operate on people in need of an orthopedic surgeon.

So people were injured. Injured because the hospital failed to do what it should have done in the first place. And yet, it is the plaintiffs and their lawyers who are to blame because a hospital that could not protect its patients is closing?

Is it jackpot justice to be operated on by someone who does not know what they are doing, leaving you in pain and possibly worse? People need to look beyond the rabble-rousing expressions of tort-reformers and realize that what most plaintiff attorneys are actually doing is trying to get some measure of compensation for people who have been actually hurt by someone or some organization. Yes, they get compensated, but then again they only get compensated for work which they do. Just like any other profession.

If the idea on this planet is that those who are hurt should be blamed for getting hurt, then I definitely need to get on a spaceship now.

Thursday, August 24, 2006

On A Lighter Side

I have to wonder about this girl who is trying to lose her virginity. Its not that I am opposed to pre-marital sex. I am not even opposed to remaining a virgin till you find the right one. But I have to wonder why anyone would try and lose their viriginity by announcing it to the world in Jane Magazine.

Or am I just being mean?

Either way, she is kind of cute for a blonde.

Some Thoughts While Scanning

If you read the banner above, you may notice that this whole thing of running my own office is fairily new to me. In fact, I've taken to dating the actual opening of my practice to March 1, 2006 (I moved in a few weeks earlier but was still working at a contract document review).

Now, I have practiced law since 2001. I have done appellate work for a state attorney general's office, I have done contract work for a variety of big firms, pro bono representation of clients through the San Francisco Bar Association, and worked for a medium-sized law firm here in the city.

Practicing law does not worry me. I like it. Its a game that involves a lot of calculation, a fair amount of risk, some skill, some luck, and tenacity. As I told someone once, I like that nervous feeling I get when the other side sends me their opposition. Weird, but that is not the point.

The part that I am still having trouble with is the nervousness/fear that comes with looking at a case from the inception. In my other experiences the client has been pre-screened. By the time they have reached me, someone else has already decided that this person has a matter which can be dealt with.

Now as a solo, I do not have that anymore. So it makes me cautious about what cases I take. Part of me wants to take everything that comes through the door. The other part of me looks at the resources that I have available for each case and cringes. Is this case worth the amount of money that I will need to advance to see it through? Is this client actually going to be able to pay up for the costs that are going to be a part of the case and be able to pay their hourly rate when the retainer runs out.

I am sure, and I hope, that with time, I will be better able to make these assesments. Right now, I err a bit to the conservative side, but that is while I am still learning what things actually cost (in time and money).

The part that is truly humbling is what the clients say. People come into my office (still painted light purple much to my fiancee's chagrin, without my diplomas up), and tell me that they trust me, when all they have to go on in a smiling picture from place holder page, an advertisment on craigslist which lists some of my background, and the 30 or 45 minutes that we have spent talking about their matter. It scares me a little because these people need legal representation and suddenly they have decided that I am the right person to do it.

And then all of those little self-doubts inside start to bubble up. What if I am not up to the task? What if I lose, what will happen to them?

I do the work, well usually. I hate that feeling of doubting whether I am the right person for the job. So much easier when someone else has already decided that for you.

Oh well. Back to work.

Wednesday, August 23, 2006

The "Too Bad" Award of the Day Goes to

The Christian Coalition.

Apparently, as if a $1 million dollars in the red was not enough, local chapters of the organization are starting to disassociating themselves with the once powerful organization. As one of the defecting leader noted, "In our prime, we were rated the seventh-most powerful lobbying organization in the country ... Now, there's not even any blip on the radar screen."

Now if only it would go away entirely.

Good News For Plaintiffs

Apparently the Court of Appeals for the D.C. Circuit has decided that emotional damages are not taxable by the federal government. Up till now, the IRS has treated monetary awards for emotional damages as income and not as compensation for loss of a personal attribute (i.e. physical injury). When I learned this back in my income tax class in law school, it never made sense to me how a person who has suffered an injury, gone to court, made the other side pay for the wrong that they were put through, should have the money taxed as normal income. Thanks to Marrita Murphy, that may no longer be the case.

Of course, the IRS could always appeal to the U.S. Supreme, but that decision has not been officially made yet.

On the other side of the coin, there are those who are warning that this decision could be disastrous. I'm not sure that I agree with those arguments, but some are mentioned at the article over at

Monday, August 21, 2006

And Its All Over

Well, my trial is over. Over before it really started in fact.

This morning we fought out the motions in limine with the opposing party who had initiated the case. After the motions were done, the plaintiff made one final offer, which the client rejected stating that he would only accept the decision of a jury. When we left , he was promising us that the refusal of their final offer meant that there would be no further offers.

Either my co-counsel and I were really ready, or too stupid be scared, but we thanked the opposing counsel and apologized that we were not able to agree to the opposing party's "generous" offer. When we came back from lunch, the opposing party was signing a different tune.

It went "We dismiss your honor."

So we won. But I still would have liked to have picked a jury and seen what happened.

Trial Starts Today

So the presiding judge called the calender this monring. And the client has refused to take a deal. So in forty-five minutes, we start picking a jury.

I'm excited and scared at the same time.

Friday, August 18, 2006

The Definition of Chutzpah

The best definition for chutzpah used to be the example of the boy who killed both his parents for their money and then threw himself on the mercy of the court claiming that he was an orphan.

That might changing. According to an article that I was liked to via Skelly at Arbitrary and Capricious, apparently neo-Nazi white supremacists are claiming that they are orthodox jews in order to get kosher meals.

Freedom of religion needs to be respected... but maybe there is some way to actually respect it instead of allowin it to be abused.

Thursday, August 17, 2006

Some Big Rulings Today

I'm sure that everyone out there is talking about the liquor license victory for strip clubs in Pennsylvania which was handed down by the 3rd Circuit recently?

Or could it be the jury verdict against Merck for $50million in compensatory damages?

Probably isn't that little decision that came out of the Federal District Court for the District of Michigan could it?

When I get done with work, I'll put more up about one of them.

Should I be surprised?

Well it appears that France has gone back on its committment to lead the force which would implement the UN Resolution in Lebanon. Instead of sending the troops it said it would, 3,500, it will now only dispatch a contingent of 200. Of course, France already has 200 solidiers assigned to UNIFIL, and its not clear if that means any more will be sent.

Why should I be surprised. After all, it is France that has been saying that Iran is a stabilizing force in the Middle-East. It has also been France's position that defending the sovereign territory against terrorist attacks and rocket bombardments is disproportionate.

Of course this entire cease fire resolution is dependent upon Hezbollah agreeing to abide by the terms. So far, it seems that they have not released their hostages, begun to disarm, or even signalled a willingness to disarm when the UN troops arrive.

Its so nice to see that UN and France are willing to have peace at any price.

Wednesday, August 16, 2006

Life Imitating Law & Order

It looks like Law & Order could have gotten it right in the JonBenet Ramsey case. Apparently, an arrest has been made of someone believed to be the mysterious intruder who killed the pageant queen more than 10 years ago.

But if it had been Logan and Briscoe's case to start, an arrest would have been made in 30 minutes.
Just weird when that show is right.

Then again, I know plenty of people who used it to teach themselves the basics of criminal procedure back in law school.

Tuesday, August 15, 2006

The Streak Ends and Starts Again

In honor of the Giants finally breaking the current losing streak, the referral service I belong to sent me a couple of referrals this week. One did not pan out, since she had already found an attorney. The other ended a streak that I have been on.

From what I can tell, this client has no obvious mental disease or defects. This person does not exhibit any obvious signs of substance abuse, and does not live a lifestyle that would shock the horses in the street. In short, this person is rather... normal. And the other side in this case... seems to be reasonable, just wanting a judicial imprimateur on a previous agreement. This could all be... well... civilized.

Just when I thought I was going to lose my mind (because if you have seen many of the people I have reperesented, both for pay and pro bono, you would understand), the Bar Association came to my rescue. The coordinator (who really is a great person) at the VLSP sent me an email asking if I would meet with a potential client. She said that it was a case that a mutual acquaintance of ours thought I would be perfect to handle.

The acquaintance is a social worker who specializes in helping people with mental problems. So in other words, I am back to being the lawyer for crazy people.

My mother will be so happy. But at least the story will be better.

Apparently 226 Arrests Does Not A Record Make

But it probably keeps his public defender very busy.

Kevin Holder was arrested for the 226th time on Sunday. His rap sheet is 43 pages long. He has spent three of his sentences in state prison, the last starting in 1996.

However, this only makes him the 40th most arrested person in his home state of Nebraska. (Apparently, the record is held by the now deceased Edward Rooks, who was arrested 652 times.)

This says two things. First, we need to do something to prepare people when we relase them from jail. Second,... this guy is really awful at being a crook.

Monday, August 14, 2006

Today's Rundown

So after packing up my future in-laws and moving them over the weekend (a story to be told later), I returned to San Francisco only to find more idiocy. The most idiotic came to me via a voicemail from a client.

Apparently, the other side in a case I am working on has decided that they are not going to comply with the court's order. The order that they begged the judge to give as opposed to the one my party was seeking.

Does he think that disobeying the court's order is a good idea?

So today, I get to give him the "option A, option B" talk. Option A, we all follow the court's order and everyone gets on with their life. Option B, we go to go court with the proof that they are refusing to comply with the court order for no other reason than they think that it might, someday, possibly inconvenience them (not that they have proof that it will, just that it theoretically might). We also bring up the fact that they are also being evasive as to an earlier court order. And then we ask the court for sanctions and fees.

Unfortunately, I never got to give my little speech (and it was nice too) because about 5 minutes into the conversation, as I was still trying to nicely talk him into compliance, he hangs up on me.

As my fiance said when she heard about this "He chose option B, I wouldn't recommend that."

I just wanted everyone to abide by a freaking/fracking/insert f-word court order that was good for everyone.

Don't Lie To The Judge

Lowering the Bar, as well as some others, have had this story about the lawyer who showed up drunk to try a case. After watching this video, I'm wondering why it took the judge and prosecutor so long to figure that out.

The rest of the videos involved can be found here.

Wednesday, August 09, 2006

Must be a slow newsday

Either that or the vice squads have quotas to meet because, shock of all shocks, prostitution occurs on craigslist. Or people are really intersted in mowing, or lack thereof, of lawns in Kentucky. Of course, there could be a report about the failures of Reuters, AP, and others to look at the pictures they are publishing and verify their authenticity, but my local paper does not seem to want to talk about something so mundane.

Monday, August 07, 2006

This Could Be Problem

I have a serious problem with crying mothers. Today, I had two that I represented on a limited scope basis (which I have talked about on prior occasions.) Both were mothers. Both had children who were at risk if they lost their housing. One of them, clearly a proud woman who would not have been in this situation but for circumstances she could not control, was on the verge of tears.

Fortunately, we ended up with a good pro tem for the settlement discussions. Normally, the pro tems that are assigned these cases are either landlord or tenant attorneys with more than a few years of experience. The problem with that is that they bring in serious baggage of their own into the negotations (not all, but there are some who definitely show their bias). The one we had today was an attorney with his own mediation practice who managed to come up with a creative settlement solution that addressed all of the problems and got the landlord accept a de minimiss payment plan.

However, even though I explained that I was only representing them in limited scoped (i.e. just for the settlement proceedings), he was volunteering me to try the case. Mind you, the case was set for trial today. The only information I would have had if things had gone sideways (and early on in the process they were going very sideways) was the bare word of the defendant and her daughter. Plus, her circumstances dictated the need for a complete and total victory, in order to get the rent down to such a low level, that I would have had to have been Denny Crane.

However, given the fact that the woman was crying, I was about ready to try anything if the negotiations had broken down. This will get me in trouble one of these days.

Sunday, August 06, 2006

So while I was enjoying my weekend

Well, not entirely enjoying it. My beloved Giants managed to drop 2 of three to the Colorado Rockies, salvaging a get-away day victory on the strength of a 12 strike-out performance by Matt Cain. Vinnie Chulk is looking pretty impressive as well (hopefully that will continue).

So as I scan through the weekend, I get to see all the news from the Mdidle East. It looks like Reuters has been busy providing its version of news to the world. This on top of the high death count this weekend that the Hezbollah rockets managed.

All in all, quite the weekend.

Friday, August 04, 2006

Oh I can't think of a good line here. Enjoy

So is the next step..

Today the Iowa Supreme Court upheld the conviction of a man for criminal transmission of HIV. (And if you want to see the video of the oral arguments before the Iowa Supreme Court, the link is here. The four opinions in the separate cases are here.) The convict in this case knew he had HIV but still went on to have unprotected sexual intercourse with several other partners and did not tell them that he was infected.

My first question is, why did they need to come up with a new law that was specific to transmission of HIV. What is to stop the state from prosecuting it as an assault with intent to kill?

Now, while I am in favor the ruling, does this mean when one of the women he had sex and contracted the virus, dies of an HIV related illness, will he be re-tried for murder. And if so, is that the right thing to do?

Thursday, August 03, 2006

A Pair of Disturbing Cases Today

The main reason that I did not apply to become a public defender after law school goes back to one client I assisted with while interning at the San Francisco Public Defender. From the attorney I was assigned to (Mark Iverson, an excellent attorney and someone I thought of as a mensch when I was there) I learned alot about how to handle difficult clients. Unfortunately, I also got to assist in representing a man who had molested and raped one, and possibly second, teenage boy.

The crime was bad enough, but what made it worse was the fact that this client simply did not see that there was anything wrong with what he had done. And that was the scary bit.

And the reason I bring this up today is because there are two cases, one that just ended and one just starting, that are particularly disturbing. The first is the case of Gary Engles. Mr. Engles is a member of a fundamentalist sect of Mormonism that still practices polygamy. Polygamy, in my opinion, would not be so bad if it did not frequently involve child brides. Mr. Engles had sex with his third wife, whom he married under the sect's law, at the age of 16. For this, the judge sentenced him to a grand total of .... 45 days.

The second case is that Phillip Distasio. Mr. Distasio is being charged with 74 counts of rape, pandering obscenity to minors and corrupting another with drugs. His victims were young boys, only one of who was over the age of 13. Among them were seven autistic boys and two disabled boys. Not only is he not denying that the rapes took place, he proudly told the court that he is a pedophile and has been for 20 years. Furthermore, he states that his acts are protected because he is a minister and leader of a religious group called Arcadian Fields Ministries and that the acts were sacraments of his religion.

Hopefully the judge in Ohio, in the Distasio case, will not look to Arizona court for assistance in sentencing.

Gotta Love Potential Clients

So this week has been one where I have been meeting with potential clients. And so far, its been a monumental pain in the tuckus.

Sometimes, I wish back practicing law where the only client was "the People". So much easier when the client is an amorphous entity for whom you work your hardest to serve. The upside, the client never complained as long as you won and you never, ever had to go through the meet and greet intial meeting.

As opposed to the people with whom I have been dealing. Now, they are not bad people. They are more in the category of confused. Confused about what the law can actually do for them. And confused about what are important facts and what are not important facts.

Although there are a few who make you wonder why you bothered agreeing to see them in the first place.

Moral of the story? If you are the prospective client, just answer the whole question that the attorney asks you. Do not edit out thing you think might be bad. For attorneys, make sure you ask all the questions. Do not assume anything. And if the questions are really important, make sure to swing back and ask them a few more times to make sure the answers remain the same.

Wednesday, August 02, 2006

Thank You

I just looked and noticed that sometime yesterday, I had my 2000th visitor. I never thought I'd have a 100.


An Interesting New Law Suit

Apparently (I know I overuse that word), a Marine Staff Sergeant has filed suit against Rep. John Murtha for statements that he has made about the Haditha incident. The interesting thing about the timing of this suit is that the NCIS (not the television show) is still investigating the incident and has not issued its report yet. Truth is usually a defense... but I am wondering what the lawyer for this Marine was thinking when they had the meeting on this one.

Tuesday, August 01, 2006

Death Penalty Appeals

Following in Brigitte Bardot's footsteps, John Irving and Stephen King have appealled the reported death sentence of a high school senior.

Their appeal has been taken under advisement, though apparently the decision has already been made.