Today's Realization

So today I attended my first Defense Medical Examination. I was doing it as a contract, but on a case that I have worked on before, so I know a little about it.

As I sat there with my tape recorder (or as they are now called, Digital Audio Recorder) the doctor conducting the exam kept complaining about my not letting the plaintiff answer some of his questions. He was trying to take a complete medical history, which is not permitted since what he is really there for is to examine the plaintiff for the injuries suffered in the accident which is the basis for the case.

At one point the doctor snarled at me, "I don't try and tell you the scope of the law, I can't see how you can tell me the scope of examing a patient."

And for a moment, I felt a little bad. Then I remembered. This guy is not there to give treatment to the client. He was there for one reason, to find any reason why the client should not get the compensation that they deserve.

And then, I didn't feel the least bit bad about telling him that he could not ask these questions and that the client would not answer them.

As Captain Mallory would have said

We're in it now, up to our necks...

The Giants have just finally, formally announced the signing of Barry Bonds. Its like the full employment act for sportswriters.

A Different View of the Brayton Mess In Ohio

Over at Legal Pad, there is a posting about the another view of the Brayton mess in Ohio that I have mentioned earlier. Ninth Circuit Court of Appeal Judge, and former San Francisco Superior Court judge (where the vast majority of Brayton Purcell's cases are venued), Carlos Bea offered this analysis of what went on Ohio. He is quoted as saying, “Far from being unprofessional conduct, it would be malpractice for an attorney not to file claims against defendants who constituted possible sources of asbestos ingestion by the stricken plaintiff, rather than merely shoot for one.”

Judge Bea was also quoted as saying, "“that’s a pretty good indication whatever [Andreas] did may have miffed the judge, but he didn’t miff the opposing attorneys enough that would get them to ask for dollars.”

Now, I'm not against a plaintiff's attorney trying to maximize a wronged person's recovery from the criminal corporations which poisoned them. (And let's be honest, after the tobacco industry, the asbestos industry was probably the worst, to a certain level.) But how does Judge Bea get around the finding that Andreas instructed his experts to perform destructive testing after telling the court he had never done such a thing? Or that he had lied to the court about submitting certain documents? Or that they obstructed the discovery process? Maximizing the recovery is one thing... the rest... I'm not sure about. Then again, perhaps Judge Bea could have a defense for it.

Let Me See If I Have This Right

You agree to provide someone with the means to defend themself. And then when they are actually attacked, and some of their family is kidnapped in the course of the attack. While defending themselves, and trying to get their family members back, they use the means provided for the defense. And when all is said and done, do you then complain about what they did and punish them for doing it?

Apparently you do if you are the Bush Administration.

It seems that Israel, while trying to end rocket attacks on its northern cities (that would be places wehre people live and try and go about their business just like they do all across the U.S.), had the temerity to use weapons which the U.S. sold it. Weapons it sold to Israel to help her defend herself. Weaposn it used to attack positions used by Hezbollah to launch rocket attacks on Israel. Locations which supplied the men who kidnapped two IDF soldiers from Israeli territory.

Remind me, isn't it a center piece of the Bush doctrine to support democracies that fight against terrorism?

Integrity Justice Angers Viewers?

Apparently, according to the Comedy Central boards, people are growing angry about the lack of any news, guarranteed to have both integrity and justice, on integrityjustice.com.

CitiApartments 2

So the Citiapartments case continues on.

In the event that anyone missed it, CitiApartments has been on a bit of a P.R. campaign lately to show that they really, could not be guilty of the charges laid against them in the case. This has included renting one (that would 1), apartment below market to a formerly homeless family, making donations to San Francisco AIDS charities, and donating a box of coats to the homeless.

In other news, since the original suit was filed back in April, the City and County of San Francisco has filed suit (San Francisco Superior Court case no. CGC-06-455241). The CCSF case essentially boils down to a charge that CitiApartments, in its various forms, has been engaged in eviction for profit (using evictions to cause evictions to raise the rents on the rental units), violating the San Francisco Residential Rent and Stablization Ordinance, imposing utility shutoffs (that would be an allegation that the landlord would cut off water and/or electricity) and generally harassing the tenants unreasonably.

This boils down to 2 counts of public nuisance per se and a count of 17200 (aka Unfair Business Practices). Citiapartments has yet to respond to the 2nd Amended Complaint.

In the case brought by the tenants, CitiApartments has answered, and of course has denied everything. Looking at the docket sheet, it looks like a mediation was scheduled but then either occurred and failed or was cancelled. There was also a discovery fight that resulted in an order compelling further responses to interrogatories from CitiApartments. Not unusual in case, but not exactly surprising.

All in all, the case appears to be moving along. It currently has a trial date of June 4, 2007.

Why Isn't the AAJ condemning this?

Or for that matter, the CAOC? The AAJ, otherwise known as the American Association for Justice (formerly known as the American Trial Lawyers Association), and CAOC, otherwise known as the Consumer Attorneys of California, have not made any comment that I have been able to find. However, yesterday, the misnamed CJAC (Civil Justice Association of California) sent a letter to the State Bar of California requesting the bar investigate Brayton Purcell in general and Chris Andreas in particular for their roles in the Ohio scandal.

Its clear from Judge Hanna's order that Brayton Purcell, and its partner Andreas, were caught lying to the court. Aggressive advocacy is one thing. Standing up for a person who has been injured through the almost criminal actions of the asbestos industry is a good thing. But to lie and deceive the court is wrong and no one in the bar should condone it.

So why have the organizations which support the concept of true civil justice for consumers and those injured by the acts of others been more outraged by this? In one fell swoop, the Brayton Purcell firm seems to have given the tort-reformers their very own Willie Horton. The AAJ, CAOC and the State Bar of California should be doing more than just reading the headlines on this one.

Still Hiding

I like how President Carter is trying to avoid facing up to what he has done. He is doing the least amount possible to try and look like he has not changed sides to take up the cause of terrorists.

This week, Carter appeared at Brandeis University. However, instead of appearing to debate and defend his ideas, he appeared at an event closed to the public. All the questions were pre-screened. To his credit, he did allow questions asking why his foundation took Saudia Arabia. However, he apparently failed to answer the second part of the question: why had he, or his foundation, never criticized Saudia Arabia for their human rights abuses.



Still, he had a chance to put his ideas to a test. But like virtually all modern "statesmen", he refused. Its shame that this country has gone from a place where leaders were unfraid to confront the most contentious questions of the day in head to head debate, and have now retreated to sniping, and then only owning up to their actions in controlled, private events.

As far as what he said, it is interesting. He admits in an interview that he wrote every word, that there was no one else involved in the writing of the book. However, he says he is being misunderstood for a poor word choice that makes it appears that he supports the continuation terrorism against Israel until Israel unilaterally does everything the Arabs demand. And that the passage in question, on page 213, will be left out of future editions.

Let's see, that has been promised by someone else. Who else promised to take out passages from future editions of something to renouncing the use of terror? That's right, it would have been Yasser Arafat. Worked out real well.

Integrityjustice.com found!

So it looks like Colbert's newest venture into the media world has gotten off to a rocky start. Although announced as being active yesterday, but after searching for it last night, it has only popped up today. Could this mean that there is trouble in Colbert-land? Could Papa O'Reilly be exhibiting some displeasure at his protege?

Anyways, it appears the integrityjustice.com is now up.

So What Is Good Cause?

In the past week, I have appeared for two ex parte motions in two different counties. I lost both of them.

Normally, I do not like losing in the least. However, I was trying to take the grown-up mature approach to this one and figure out how I went wrong.

In both case, I was going in ex parte to get an order shortening time. In both cases, they were so that I could file motions to compel responses to discovery. In no particular order:

Case A, the discovery judge read the ex parte application. He ruled against me after he asked a couple questions. His denial was absed on the fact that we had served the underlying discovery request so late without any good cause to have delayed for so long. Ok, fine that makes sense. It was a tactical decision made by the attorney I was assisting that did not pan out the way it was hoped.

Case B, the discovery judge read the a similar ex parte application. In this one, more was aalleged as to the good cause. The application laid out what the issues were, why the discovery was needed, and the reason that the motion was coming so late (We could not have discovered the information any earlier). There was no way to have possibly brought the motion to compel any earlier. The application laid this out, along with the position that the opoosition was taking position that they were denying a number of things which would pertinent to the case, especially when it came to the habitability of the place. Finally, the motion also laid out how these issues would be relevant at trial. And the judge denied it saying that there was no evidence of good cause.

So will someone explain where the threshold is? In case A, I see why the judge denied. In case B, .... I just don't know. The only good thing I can say is, in both cases we won.

Integrityjustice.com

So where is it? I want my link to Colbert!!

The Problem With Our Leadership (Pictorial Version)

And

Greed Is Good... Sometimes

I like lawyers like Greedy Trial Lawyer. I'm not as greedy as he is. Greed is a powerful motivator. It makes us get up and go to work in the mornings, or at least most of us.

However, you have to balance that greed with a bit of honor, a dash of integrity, and some common sense, otherwise you end up in more trouble than you bargain for.

Kind of like Brayton Purcell did. In a case in Ohio, it appears that Brayton Purcell got caught with its hand in the cookie jar, trying to collect from multiple sources on a single client and not being... terribly straight... with the facts. The defendants in one of the cases caught wind of it and moved to have the case dismissed and for Brayton Purcell's ability to practice law in Ohio revoked.

Apparently Judge Hanna agreed with the facts as layed out by the defendants and did just that today.

Another Tidbit From Someone Who Believes In Peace

Or at least says he does. I missed this one the other day, but came across it over at Airborne Combat Engineer. The New York Post quotes former president Carter as saying,

"It is imperative that the general Arab community and all significant Palestinian groups make it clear that they will end the suicide bombings and other acts of terrorism when international laws and the ultimate goals of the Roadmap for Peace are accepted by Israel." (Emphasis added by New York Post.)

Let's think about this statement for a second. The Roadmap for Peace was premised on a few ideas. First, Israel was to accept the formation of a Palestinian state. As a condition for this, the Palestinian Authority was to end certain practices. Which ones? The acts of terrorism and violence.

In fact, it states in the Roadmap for Peace 's agreement, that

At the outset of Phase I:

• Palestinian leadership issues unequivocal statement reiterating Israel’s right to exist in peace and security and calling for an immediate and unconditional ceasefire to end armed activity and all acts of violence against Israelis anywhere. All official Palestinian institutions end incitement against Israel.

Since 2003, when the Roadmap for Peace was announced, the Palestinian Authority has yet to follow through on its commitment to end violence. In fact, the government of the Palestinian Authority, now made up primarily of officials of the terrorist group Hamas, have made it clear that they are fundamentally opposed to any peace negotiations with Israel. In fact, article thirteen of its charter states, "[Peace] initiatives, the so-called peaceful solutions, and the international conferences to resolve the Palestinian problem, are all contrary to the beliefs of the Islamic Resistance Movement." So the government elected by the arabs in the West Bank and Gaza Strip elect people who refuse to participate in peace negotiations. Instead, only wanting the elimination of Israel as its pre-condition to peace.

Its nice to know that Mr. Carter, who has made such helpful contributions of late to the situation in the Middle East, such as labelling the only functional democracy that allows all of its citizens the chance to vote as an Apartheid state, is willing to stand up for peace and call on Arabs and Muslims extremists to lay down their weapons of destruction after Israel has capitulated fully and totally to their demands.

In Honor Of Some Of The Comments I've Been Getting

I actually have received a few comments, surprising as it may seem. And it appears they all seem to lean in one direction when it comes to Israel. So, I figured it was time for this little ditty again.

Enjoy...

And the Games We Play

So I have this case that is going to trial. Actually, by all rights, it should have gone tyo trial on Monday. However, there was the whole issue of one of my two clients being in the hospital with a life threatening condition.

Now in California, we have a discovery cutoffs in unlawful detainer cases, just like in regular cases. In a UD matter, this is usually, barring some sort of agreement, set at five days prior to the trial call. Well that has come and gone.

So the landlord in this case has decided to try and conduct a site inspection. Usually this takes a discovery request. Since discovery is closed, he has tried getting around it by serving what is known as a Civil Code 1954 notice of entry.

Now the Code section 1954 states that a landlord can enter to make needed or agreed to repairs. However, until he served this notice, yesterday, the landlord had never once admitted that any repairs to the rental unit were needed.

Therefoe, I believe, he is trying to end around the Discovery Act. So even though we want the repairs done, I find it highly unlikely that there will be any done, at least competantly, at 4 pm on a Friday afternoon of a three day holiday weekend. This looks more like a pretext to see what they already know and to harass my clients a bit more.

So we are blocking this.

At the same this is going on, the opposing counsel is threatening to have me removed because of conflict of interest. Now this one is interesting. It is based on a letter which was written by someone else who had my client sign it without reading it while she was sick. The opposing party has not acted on this until I was hired on as their attorney, through the VLSP. Then suddenly, it became the controlling document in the case, at least according to their attorney.

Offers are being made and then retracted before I can communicate them (yeah, that 5 whole minutes you gave me to call and track down my client who is in the hospital, receiving treatment, and heavily medicated was certainly an adequate amount of time to get a response), counter-offers rejected by stating that my clients are criminals, and concilliatory talk from opposing counsel about how I am not looking out for my clients interest.

And now, even though I have been trying to get in touch with the plaintiff's attorney, I can't even make the counter offer.

UPDATE: Landlord's attorney did call me back. Angry that I was protesting their entry. Funny how he shut up when he realized that he had gone back on a agreement to copy me on any notice.

Why is it after a week of no one being reasonable, that everyone is starting to get more reasonable. Of course, this is after I did all the trial prep. Grrrr.

What clients will do never ceases to amaze me...

So I was referred a client right before Christmas. I had been working on another case for another attorney and had some client interaction. They liked me. They referred me this person.

The client in question had been evicted from his home on a pretext almost three years ago. It had just been discovered that the landlord had been lying (there is no other way to describe what they said). With the statute limitations literally days away, this guy needed an attorney. Fortunately, I could complete the necessary investigation in time to make sure that he actually did have a cause of action.

And then I signed this person up as a client. I told this person from the begining that for this type of case, I would only take it on a contingent basis. Doing it on an hourly fee retainer would make no sense and based on this person's economic situation, it would put me in a position where I woiuld constantly be asking this person to replenish the retainer. The person agreed. I sent the retainer agreement down to him.

The client signed it a few days later, after looking it over. The client sent it back to me. And proceeded to do the leg work and research necessary to put together a complaint.

Over Christmas.

With the client calling at odd hours.

Now the odd hours thing would be bad enough, but this case I believed, had a value worth the hassel.

And then the client starts complaining about provisions in the retainer agreement. Provisions taken from the model bar retainer agreements and the ones in the Rutter Guides. Provisions I am lead to believe are standard in virtually every other plaintiff's attorney's contingency retainer agreement.

So, in order to calm the client's fears, I agree to execute a new retainer agreement. One which takes care of this person's concerns, yet still protects me. I send it to this person, and wait.

And today, the client sends me an email. In it, the client states that they did not realize what they were getting in to with regards to a contingency agreement. They also thought that I would work for an absurdley low hourly rate. A rate which I never quoted this person.

All I can say is, I told this person up front how I worked. I got their approval at every step of the way. I was responsive. I was honest about my abilities, what I thought was appropriate for the case, and what I thought I could offer him in terms of service. And in the letter this person just sent me, they completely ignored all of it and created a fantasy where this person claims that they were never told any of it. (Glad now that I am a pack rat, since I kept notes of the original conversation.)

And now, I have to ship this person their file. And give up their case. Because this person cannot get it through their head that I am not trying to cheat them.

My wife says that I should wish this person well. Well, like Captain Reynolds, I'm just not that good a person.

Riddle Me This (Or Is This A Set Condition 1?)

So I got into my office this afternoon after working from home for most of the day. And in my mail box I found something I had not seen in almost six years.

It was a notice of appeal on a case I thought was done and gone.

Motherfrakkers went and changed their mind on appeal. Now I have to tell the client we know why they are not accepting the rent.

How is it I cannot get a case to go to trial for the life of me but I can get one appealed? I'm starting to thing there is a hidden rule out there that I am violating.

Oh well, time to brush up on my appellate procedure.

Starting Again

So for the past eleven months, I have been out of commission with this nagging pain in my leg that prevents me from running or biking for more than 10 minutes. Consequently, I have put on a lot of weight, lost a ton of muscle and generally what I used to call, back in my lightweight rowing days, a "Fat B*st*rd". (Actually I remember my entire senior year crew swearing that after our last race we would all become that... just took me longer to make good the promise.)

As of today, I am 231.5. My waistband has expanded, in the past year, from a 34 or 36 (depending on the clothing manufacturer) to a 40.

In about a week, I will hopefully, thanks to my new medical insurance, be starting some physical therapy. In the mean time, I guess its back to the pool.

Interesting, and Disturing, Editorial About Some Library Practices

What is the purpose of a library? I always thought it was place to check books out from, but I never thought about what sort of policy a library follows in choosing what sort of books to retain.

Probably why the best library I ever used was this one.

Seriously, I think that I basically agree with the editorial. Libraries should not be concerned about which books are popular, so much as making available the widest possible selection to the community.

Rumpole Was Right

Pomeroy's plonk does help with the health. Now I know how Rumpole managed to outlive that doctor of his.

This Just Strikes Me As Wrong

I have not read the opinion yet. However, just reading the background of the opinion makes me wonder what the appeals court was thinking when it wrote the opinion.

Apparently, in a murder case, the prosecutor started to exclude a certain class of people. They were not excluded because they were one race or another, or on the basis of their sex. He was excluding all journalists and teachers. The theory for this? They were too liberal.

The court of appeals, which in California is the intermediate court before the State Supreme Court, has stated that this is ok.

As I've said, I have not read the opinion yet. Some would argue that the California and U.S. Constitution only guarrantees that challenges or strikes to jurors based on race, creed, or sex are improper. However, as I recall, the point of a jury is that community is asked to decide who has violated the law. By allowing this type of strikes, it furthers narrows down the pool who can be allowed on a jury.

The basic rule so far has been that a person is eligible to sit as a juror so long as they are not biased one or another. Even in the case of Witherspoon v. Illinois, which gave us the rule that allows prosecutors to have a death penalty qualified jury (i.e. one that does not have people who cannot, under any circumstances, vote for the death penalty), there is the idea that it is actual bias, not potential bias based on what job a person has.

I would suggest that it should be harder to strike jurors, not easier.

I am Cheap, but I would pay for this

Someone to be on call for me when it comes to issuing subpoenas. I can write bloody oppositions to Good Faith Settlements, put together a motions for summary judgments in my sleep, and draft all the motions in limine for multiple trials simultaneously and arguing for contradictory results of law on the same factual patterns, but when I need to put together a freaking subpoena I go entirely to pieces with a "what the hell do I do with this stupid form".

I must be retarded. Every single time I need to issue a subpoena, I manage to confuse myself hopelessly. It should not be this difficult. And I should not be this stupid.

In the Category of...

How is this day different from all other days, Iran apparently has stated that it intends to humiliate the United States.

Maybe he hasn't noticed the headlines recently, but I think its fair to say that this is a nation with very little shame left and even less to worry about Iran trying to get in on the act of humiliating us.

I could only hope that was all Iran wished to do.

Weird Al, were these questions for which we needed answers?

Maybe not, but he asks them anyways....