Monday, June 30, 2008

Bond, Babes, Boom

So sue me for the alliteration... I just thought I would share the new Bond trailer.

NRA v. San Francisco Housing Authority

Flush from their success before the Supreme Court, the NRA has vowed to challenge gun control laws it views as violative of the Second Amendment around the country. Two of the ones which were mentioned frequently after the Supreme Court released the decision in District of Columbia v. Heller, were San Francisco and Chicago.

The suit against San Francisco was filed on Friday before the U.S. District Court for the Northern District of California.

Now, it first might be helpful to explain what the Heller decision actually says. Written by Justice Scalia, the decision essentially states that the 2nd Amendment of the U.S. Constitution is a personal right. It is not a right which is dependent on being an active member of an organized militia. The reason why, argues Justice Scalia, is that when the Amendment was written certain terms had slightly different meanings than they do now. In 1789, militia effectively meant any able-bodied (male) person who could hold a weapon and use it as part of an organized militia. (Interestingly, he also argues that the "free state" term in the Amendment refers to a free politiy instead of a political entity. While I agree with the first definition the second one seems a little bit of a stretch.)

In striking down the District of Columbia law, the Justice Scalia's majority opinion made it clear that they were not making 2nd Amendment an exception under American law, i.e. that there were no limits on it. Within the opinion, he stated that the States and Federal government could limit the rights of felons and the instance to own firearms. He also stated that reasonable time and place limitations could be placed on the keeping of firearms (District of Columbia v. Heller, (2008) slip op. 07-290 at 54.) Specifically, the opinion states,

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
So, while the right is personal, and cannot be taken away, it can be limited as to when and where the firearms may be brought. Blanket bans are unconstitutional.

Now, the NRA has brought suit against the San Francisco Housing Authority, the City and County of San Francisco, as well as other entities which help enforce San Francisco's ban on firearms. Under San Francisco's ban, passed last August, firearms are prohibited from generally everywhere in the city that is not private property (including public buildings of the city and county, parks, and public housing operated by SFHA), unless you fall into one of the exceptions. These exceptions including police officers, military personnel, private guards, and "honorably retired Federal officers and agents of Federal law enforcement". It also curtails sales of weapons and ammunition except for a gun club/firearms range.

What the law does not do is ban ownership of firearms by private citizens in their own homes. It does not criminalize them for transporting their own weapons on city streets or sidewalks.

Now, although the gun advocates have won a significant victory with the Heller decision, that does not mean that suddenly San Francisco's gun ban on county property going to go away. There are significant differences between the Heller situation and the law in San Francisco. First off, the D.C. law banned all weapons everywhere in the District of Columbia unless you had a special permit that had to be renewed every year. Furthermore, it mandated that for those who were able to obtain the special permit, the weapon must be rendered inoperable or disabled by use of a trigger guard.

San Francisco's law does neither of these things. It only permits firearms on city and county property.

Now, the complaint was filed on behalf of NRA members in the county, including named plaintiff Guy Montag Doe (a pseudonym) for a man who lives in an SFHA unit (and I wonder now, have I ever represented this guy?) who keeps the weapon for protection. The argument goes that Mr. Doe is being denied his right to keep a firearm for self-defense against
particularly against perpetrators of sexual orientation-based hate crimes, i.e. physical attacks on persons perceived as homosexuals, motivated solely by antagonism to them because of their perceived sexual orientation.
(side note... did anyone tell this attorney who picked this guy as the named plaintiff that this is San Francisco? Yes I know hate crimes and discrimination occur, but...)

Looking at the Heller decision, a lot of the law should withstand challenge. It is unlikely that anyone in the U.S. N.D.CA is going to completely strike down this law (or the 9th Circuit). The ban on weapons in county buildings, including schools, will probably remain in effect. The banin those places can be supported by the clear wording of the Heller decision It may be closer as far as weapons in plaza's, parks, and the like, but I think that the courts will probably uphold the ban there as well.

The question, at least in my mind, is how the court is going to deal with guns in public housing. On the one hand, a lot of people live there. On the other, they are not required to live there. Now, although the argument could have been made that gun owners did not have to live in the District of Columbia, that situation was different. Under that law in Heller, nowhere in the District of Columbia could a person own a firearm, even in their own private homes. Under the San Francisco law, the right is not curtailed in private property, only on government property.

Furthermore, there is a host of case law which acknowledges that if you accept public benefits you have to comply with the rules of the benefit programs in order to retain those benefits. People receiving SSDI/SSI have to spend down their assets or forego other types of employment if they want to retain their benefits. People who are receiving aid under Section 8 have to comply with the programs guidelines and re-certify economically periodically. Arguably, both require a person to forgoe property rights that they might have had by earning additional money (i.e. a Fifth Amendment taking does not occur).

While I don't have brief ready to go to court on this one, I am sure some well-qualified attorney over at the San Francisco City Attorney's office is already putting together the case law to write one up on this issue. Basically, I think the NRA is not going to get the law struck down like they think they will.

Thursday, June 26, 2008

And the UN takes another step towards irrelevancy

In case you had not heard the latest bit of lunacy from the UN, apparently a new rule was adopted recently by the UN Human Rights Council. Apparently, it has decided that it is no allowed to criticize the practices of any religion.

Incidentally, the rule was proposed by the Pakistani (a predominantly Muslim country) representative to the head of the council, a Nigerian (a country where a large portion of the country is subject to Sharia law heard by courts of Islamic mullahs), and supported by Egypt and Iran.

That's nice. So being unable to criticize, apparently in any form, practices of any religion, the Council can no longer really deal with issues such as genital mutiliation, stoning, and child marriage. Interestingly enough, all issues which are practiced (to some form or another) by reactionary Islamic nations such as Iran, unstable Islamic nations such as Pakistan, and authoritarian dictatorships like Egypt and Saudi Arabia.

I guess with all those pesky issues out of the way, the UN Human Rights Council can get back to important issues, like condemning Israel for defending itself against outlaws who want to indiscriminately kill its citizens. Nice to see their priorities are in the right place.

Oy! My Head This Week From All the Supreme Court Decisions

So, as anticipated, with the end of term approaching, the Supreme Court has been releasing its decisions in the most controversial cases. Since I have to actually try and work (more so since I just got back from a little trip) I am still putting my thoughts together on some of the cases that picque my interest.

However, I saw today that the Supreme Court ruled 5-4 in District of Columbia v. Heller. Essentially, the majority held that there is an individual right to gun ownership and that blanket bans such as the ones in the District of Columbia are unconstitutional.

Now, I am not a gunowner. When I read the 2nd Amendment, I see that there is a provision for a well-regulated militia and an individual right of the people to bear arms so that there is a militia. However, I am also some one who lives in the 21st Century and realize that well regulated militias no longer drill on the town green ever few weeks before heading off to the tavern for a few pints of beer (which the locality would pay for usually in exchange for showing up for the drill).

Therefore, it would seem that the Court got this one right (I'll tell you more when I finish reading the opinion). However, this does not mean an end to gun regulation.

Now, some people would tell you that any regulation on firearm ownership is just wrong. But I think there is an opportunity to do some things that would both respect the rights of gun owners and assuage fears on the left of guns flooding the streets.

My initial response is to propose that there be some additions to the state statutes. One of them making it a felony to lose control of a weapon that is stored that does not have a trigger lock. Another would be a statute making it per se negligence to own a firearm without first attending a firearms safety course. You want to exercise your right to have a weapon, fine, you have to be responsible for it.

Most gun owners I know are actually very responsible people about their weapons. However, I do remember some idiots from when I was growing up. I think the goal, when it comes to personal ownership of firearms, should be to make sure that people understand the gravity of exercising that right, not trying to prohibit them from exercising it.

Of course, this could all change after I finish the decision and dissent.

Friday, June 20, 2008

So, I Can't Sleep And Then I Read This...

I was reading over at TortsProf Blog about the a recent report issued by the publication, Directorship talking about which states have the best "litigation climates". And as I was reading the article, I came across this:

The Guide is a collaboration of Directorship and the American Justice Partnership (AJP), a coalition of more than 70 state and national organizations that work together to achieve tort and other business liability reform at the state level through legislative action and public support for pro-reform candidates for state office.
Why the mobilization? Trial Lawyers Inc. has created nearly a trillion-dollar tort industry. If America’s tort system was a country and tort awards were its gross domestic product, our tort system would be the 17th largest economy. The total direct and indirect costs of our tort system are $865 billion annually; Australia’s GDP is only $24 billion more than this.
Then there’s the danger of the “litigation trifecta.” The first stage was asbestos lawsuits, the longest running mass-tort category in history. The second stage was the $265-billion national tobacco settlement between states and tobacco companies. The R&D arm of Trial Lawyers Inc. hopes to cash in on the third stage of the trifecta: global climate-change litigation. If the plaintiffs’ lawyers hit the “litigation trifecta,” U.S. tort costs could soon exceed Russia’s GDP of $1.2 trillion.
Let's think about this paragraph for a second. Or rather, what they are trying to say. First, they start off by decrying the costs to their target audience, saying how bad things are for corporate America because of the U.S. tort system. They point out how much money has been paid out in judgments and settlements, as well as the costs of defending the cases. Then to show how truly horrific these numbers are, they compare them to the GDP of Australia.

Of course, a lot of the numbers to support the alleged "tort crisis" which are used come from a study which has been repeatedly reviewed and found to be inaccurate. Included in the numbers are the administrative costs for insurance companies (i.e. rent for their offices, employees on staff, and etc) and the costs of auto accidents (paid for by a driver's premiums).

There is always room for improvements to the system. We do need to take a look at some of the tort actions which we as citizens allow to be filed every day in almost every jurisdiction of this country. But then, they try and point out the evils of some of the largest tort groups going on in various states: asbestos and tobacco.

Why has asbestos been going on for so long? Could it be that asbestos was used in so many different types of products? That asbestos was used on virtually every ship manned by members of the U.S. Navy and Coast Guard during World War II, Korea, Vietnam, as well as all throughout the numerous other small actions that made up the Cold War? That it was even used by a tobacco company as filter for a brand of Kent cigarettes?

What the article conveniently omits is that asbestos industry brought this on themselves. From as early as 1935, with the Saranac Lab studies, as well as Johns Manville's own testing, it was known that inhalation of the fibers could cause pleural plaques, asbestosis, and possibly cancer. Earlier studies from Britain at the beginning of the twentieth century had already revealed a link between asbestos fibers and respiratory problems and deaths among asbestos miners and workers. Fearing that they might lose their profits, or be sued, the companies and their insurers decided to alter the report of the Saranac Lab when they published it. They covered up other studies which confirmed the earlier ones... because they looked only at the profits they were reaping.

Terrible now that those companies and their successors are being sued for their actions.

The second example of the horrors of the mass tort litigation is the tobacco industry. That's right, saying that the poor tobacco industry has been hurt by plaintiff's attorneys and various state attorney generals pressing suits against the tobacco industry. The cost in terms of health-expenditures alone for smoking has been variously estimated at being around $55 billion to $75.5 billion a year. Did the smokers bring on these? To an extent they did. On the other hand, the companies which produce the cigarettes have agressively marketed their products, that they knew their products were addictive, and that they caused cancer. However, the tobacco industry, instead of doing something other than making money off addiction, did everything in its power to undermine studies, and cover up what it knew about the health effects of their products.

Apparently producing a product which you know to be harmful, which causes a great amount of harm, should be rewarded by insulation from further law suits. Ok.

Then the authors of the report go into their top states, the ones which they believe are the best for corporations. However, even the states which they believe to be the best for corporations under this "litigation climate" are worrisome for them. For instance,

Moving up from 11th place in last year’s rankings, Tennessee is now the top-ranked state. Pacific Research Institute’s 2008 report listed Tennessee as the state with the lowest litigation risks in the country. While the state’s liability climate encourages growth and job creation, it’s also a state to watch because its tort laws do not place limits on non-economic and punitive damages and there are someplaintiff-friendly venues in Tennessee. The state Supreme Court is considered neutral on liability issues.
The key here is that the authors are applauding the ones where corporate America will face the least cost in litigation. In reading the article, the methodology seems to be placed heavily on the question of "how much can a corporate wrongdoer expect to pay if they do wrong."

Now, I know, not every corporation is evil. Not every plaintiff is an angel. However, where someone does wrong, why should they not be placed at risk for their actions? Why should we limit punitive damages in the way that U.S. Supreme Court has fashioned over the past decade? Punitive damages, based on number which I can find right now, were calculated at being awarded in only 1 to 4% of all civil cases.

When looking at the numbers for tort actions (which is really what the Directorship "study" is about), the numbers indicate the juries and judges award punitive damages in approximately 5.3% of the cases filed. Interestingly, when businesses sue each other, the number goes up a bit to 5.8%. The average punitive award in a tort case was (inflation adjusted average) $50,000. In cases based on contract action (typically corporation vs. corporation) punitive awards were typically $83,000.

Let's see, studies by the DOJ and others show that tort actions only produce the rare punitive damage award averaging $50,000. Then we have Directorship, along with the misnamed American Justice Partnership and the American Tort Reform Association fanning the fears of uncapped punitive awards.

Not only do they want to limit punitive damages, but they also seek to limit what are referred to as "non-economic" damages. That is what people who have been injured call the pain and suffering which they go through. However, they are more than that. They include damage claims for permanent disability.

One of the more commonly cited examples of a success is California's MICRA law. This law caps recovery for injured people in medical malpractice cases to $250,000. Sounds like a lot. However, when you consider that this is the most someone can recover for a life-long injury, its really not that much. Furthermore, since the law was passed in 1975, the cap has remained the same. $250,000 in 1975 was a lot of money. Were it to be adjusted for inflation, that cap should be $1,006,654.28. Unfortunately, no such provision was included. And every year, the insurance industry reaps the benefits while the people injured by medical malpractice are forced to try and stretch out the cap limit even further.

Getting back to the tort-reform groups, these organizations, like all others, represent an interest group. In this case, these organizations are representing the people who by and large are the targets of plaintiff's suits: corporations, manufacturers and etc. They argue that people are better served by allowing these groups to be able to have certainty when it comes to forecasting their own wrongdoing.

From my perspective, this is simply nuts. We live in a society where the implements which we use have become so complex, that it is simply impracticable for us not to turn to corporations to produce them. A century ago, the pharmaceutical industry was competing with doctors and pharmacists for control of the drug market. A century ago, it was not necessary to have a computer, all that was necessary was a pen/pencil and paper to do much of what would be necessary to operate a business.

Now, corporations have an interest in keeping their customers happy. However, they also have a greater interest in keeping their bottom line healthy. In the past when corporations have felt able to plan out how much they can expect to incur in litigation costs when determining whether to make a safety improvement, the result is a situation like Ford Pinto litigation.

The only way that consumers, individuals, in this era can protect themselves from being taken advantage of is by being able to assert their rights. Not only must individuals have the ability to assert their rights in court, but they must also have the ability to seek to civilly punish a wrongdoers. The only thing that hurts a corporation is money. Since that is the one thing about which a corporation ultimately values, it stands to reason that the deterrent effect of lawsuits is a valid one.

Of course, tort reformers, argue that what law suits really do is simply inhibit corporations from doing more innovative things. Maybe. However, what is to protect the end-user, or even the bystander when that new innovation proves to be half-baked? The government can only regulate so much, or else the free-market will cease to be free. Furthermore, it depends on the government to fully fund and support the agencies which enforce the regulations in order to make that work.

The better course would be to allow for people to take responsibility for what happens to them. If they feel that they have been injured, then they should press their own rights in court. If industries want to decrease their litigation exposure, maybe they should implement better practices which take into account something other than the bottom line. It would be in their own self-interest to do so.

Limiting a person's ability to seek compensation and redress devalues the people in our society. Are there abuses of the system? Yes. Are there cases that go unprosecuted because people choose not to press for their rights? Yes. Are there cases which result in unusual verdicts that seem outrageous? Yes, but when you get into the facts of the case, the verdicts make more sense.

Despite all the hoopla of the tort-reformers, the sky has not fallen. The sky is not going to fall. Bottom line is this: this report is just another piece of propaganda to solve a problem which does not really exist.

Tuesday, June 17, 2008

And people wonder why I despise IP law most days

So in the past, I have mentioned my dislike for IP law. Yes, I understand that it is important for the creator of something to be compensated for its use. However, I think that the way it is being abused lately, among other things, to protect vested interests over public discourse.

And the latest, if you have not heard by now is the AP's new policy. Apparently, if I were to quote from their article, which I am not going to anymore barring a change, it would cost me $12.50 for up to 25 words. Should I go whole hog, and say put in a paragraph or two totaling up to 100 words, I would be hit with a bill for $25.00.

As some people have pointed out, apparently the AP feels that they are exempt from the fair use laws in the U.S. Apparently, the AP feels that fair use is violated if more than 4 words is used from one of their articles.

Monday, June 16, 2008

Note: World Has Not Ended

Even though California has allowed two women to get married. And here I was promised brimstone... or at least the end of civilization. What a gyp!

Wednesday, June 11, 2008

Isn't It Ironic

As a rule, I really, really dislike obscenity trials. We live in a country where the freedom of speech is deemed to be one of the fundamental freedoms (unless of course you happen to be someone who believes that "free speech zones" are constitutional). So when talking about criminalizing speech as "obscene" then, in my opinion, in most cases you are talking about supporting censorship.

Which is why today's news is a bit ironic. In Los Angeles today, a trial has started. In it, the Department of Justice is prosecuting Ira Isaacs for obscenity. Now, Ira Isaacs is not some misguided artist, or someone trying to make a statement with their art. He is a porn producer. Among the titles he is being prosecuted for, include such titles as "Hollywood Scat Amateurs No 7" and "Gang Bang Horse (Pony Sex Game)". (A strong advisory is out not to Google search for any of Mr. Isaacs' videos).

Now, whether or not these videos are obscene is not something I am going to comment on. Whether they should be criminalize, is something else. Regulating speech is something that is a slippery slope. Would I want to watch any of the titles I have heard of Mr. Isaacs producing? Almost certainly not. Should he be criminally penalized for his speech (as opposed to perhaps animal cruelty or health and safety regulations)? I think not.

By the way, the test of whether something is obscene, as defined by the U.S. Supreme Court in Miller v. California, is whether (1) the average person, applying contemporary community standards, would find that the material as a whole appeals to the prurient interest; (2) the material depicts or describes sexual conduct in a patently offensive way; and (3) the material, as a whole, lacks serious literary, artistic, political or scientific value.

In the past, trials have upheld the artistic value of photographs shown depicting homosexual sex, sadomasochistic acts, "filthy" or profane language. Some literary works which are now considered to be classics, such as Ulysses, Lady Chatterly's Lover, and Last Exit to Brooklyn, have all been attacked as obscene in various court systems. After long periods, have eventually been cleared of being criminally obscene.

Alright, now for the ironic bit. At the same time that the trial judge is warning the jurors about the graphic nature of the images which they will be shown as part of the evidence, another story has come across the wire. Apparently, the chief judge of the Ninth Circuit Court of Appeals has had to pull down a website. A website which contained "a video of a man cavorting with a sexually aroused farm animal[.]" Judge Kozinski has since restricted access to his website. Ultimately, if there is a conviction in the Issacs case, Kozinski is the Chief Judge of the court of appeals which will hear the appeal.

Correction and update at 2122:

I made a mistake earlier. Apparently Judge Kozinski is the trial judge. Although Judge Kozinski is the Chief Judge for the Ninth Circuit (making him an appellate judge), it appears that there is a program where Ninth Circuit judges are hearing trial cases in criminal matters. It appears that Kozinski has offered to recuse himself in this case. Above the Law apparently has Judge Kozinski's explanation about how this all happened.

Monday, June 09, 2008

The California Bar Association Has Something Against Small Firms

Most of the time, I do my best to ignore The State Bar of California . For the first couple of years of being a lawyer in California, that meant paying my dues and sending in my MCLE certificates. However, lately, its as if the California Bar is determined to make me pay attention.

Recently the Bar Association passed a rule which mandates that lawyers have to disclose whether they have malpractice insurance coverage. Now, for big firms, this is not a problem. If they are a big firm, it is almost a given that they can afford it. However, for solo and small firms, malpractice insurance is expensive and some choose to go forward without it (the AngryBell may or may not have insurance). I can see that for a number of clients, this is something that will they will take into account. It is not that I believe that this will make lawyer's more likely to be the target of law suits. This is about the appearance of a law firm. Some solos simply cannot afford the insurance. The lack of the insurance may make people more hesitant to retain those lawyers because in their mind the lack of malpractice insurance will raise questions as to:

- the quality of their work
- whether those attorneys are any good (because of course all good lawyers have insurance)
- whether the firm/solo is just a fly-by-nighter who will dissappear on them

So not content to impose an additional burdens on small business (you'd think I was a republican with that statement), the State Bar is at it again. This time, it is with this proposal:

The Office of the Chief Trial Counsel believes that public protection requires that members of the public who are interested in consulting with, and possibly retaining California attorneys, should have ready access to information about disciplinary proceedings pending against those attorneys.

So not only do they want to force disclosure as to insurance (which I am not aware of any other profession in California requiring... and I have read those papers that my doctors force me to sign... but don't tell them that.), but now they want to alert the public every time a lawyer has a disciplinary proceeding pending against them.

Yes, I know that in this country, every person is innocent until proven guilty. Of course, how well did that work for O.J. Simpson, Barry Bonds, or how about William Lerach and Melvyn Weiss? How about Richard Jewell. Yes, they were all guilty, but public opinion against all of them was against them from the moment indictments came out.

Now, in the past year, the AngryBell dodged a disciplinary charge. A dissatisfied client threatened to bring an action before the Bar against me. Forget the fact that I won the case for the client. Forget the fact that I got them the best possible result that they could hope to get. Forget the fact that result was approved of by the client when they signed the papers. Under this new rule, if this client had gone through with their threat, the fact that an action was pending against me would be disclosed to anyone who looked AngryBell up at the State Bar's website.

For a solo or a small firm, approving this new rule would significantly harm them. Large firms are known by their names. Solos and small firm practitioners cannot hide by large letters and fancy offices where there are literally hundreds of attorneys practicing. Instead, they are known by their names and their faces.

Is the Bar going to send out emails to everyone who looks at the Bar's website when the person is cleared? Of course not. Instead, the people who check up on the lawyer are only going to know that Lawyer X underwent a disciplinary action, even if no conviction/discipline is actual ordered by the Bar, because someone claimed that he stole money. This new rule would smear their reputations by having a listing next to their name that they are undergoing a disciplinary proceeding (in much the same way that the Bar lists an attorney's history of being actually disciplined).

Before You Hire An Attorney...

If you are ever going to be involved in litigation (i.e. a case that will be decided by court) it is the opinion of this blog that you should always hire an attorney (the exception being a small claims case). Even if you are an attorney, you should still hire an attorney. Why? First, of all, litigating a case is difficult. There are lots of rules. There are lots of statutes (municipal, state, and federal) which may apply to any given case. Then throw in the fact that we live in a common law system which means that not all the laws are in teh law books, a litigator is going to have to research the case law as well.

Now, if you are going to be part of a lawsuit, make sure that you understand what kind of lawyer you need to hire. Not all lawyers are suited to every type of case. If you are considering initiating a law suit, talk to more than one attorney. Do not feel like you have to settle for the first attorney who has an opening in their calendar. Ask your friends to see if they have had to retain a lawyer in the past. Ask questions of the attorneys. In a sense, you are interviewing them to work for you.

Why am I writing about this? Because too many times in the past few years, I have run across people who took on cases without understanding what they were getting into. Then they panicked. Then the clients had to find new counsel because the old counsel had not done enough preparation to know what they were getting their clients into.

Which brings us to why this post is getting written. Mrs. Angrybell brought me a recent edition of the verdict search report which contained the report of a case which went to trial last year.
It told the tale of a trial which happened just over a year ago, where some tenants were forced to leave because the landlord refused to make necessary repairs. The family repeatedly requested the repairs. The landlord told them that they were not going to make the repairs and if they did not like that, they could leave. Coupled with the fact that there was a severely disabled (as in a quadriplegic) living in unhabitable conditions and the family had to leave.

Now, the family took the next step: the decided to sue to press their rights. The lawyer they went to has experience with landlord-tenant situations. However, most of this attorney's experience is as a landlord's attorney.

The end result was a verdict just over $21,000.00. On its face, not a bad result for a tenancy that lasted just over a year. However, this was not $21,000 to the client. The court awarded about $6,000.00 in damages and $15,000.00 in attorneys fees. Now, in looking at the complaint in this case, its clear that the attorney knows something about landlord-tenant law. However, it is equally clear that there were causes of action which were available to the plaintiffs which could potentially resulted in doubling or tripling the damages.

Why were these not plead? Most likely because they are causes of action which is antithetical to the landlord's bar. Was this attorney trying to undermine their own client's case because of an ideological bent? Almost certainly not. It is my belief that they were not plead because this attorney was practicing on the opposite side from what they are normally on.

Litigators are by nature type A people. They like to be the best. They also tend to believe that they can handle any case which comes their way. So its up to the client to make sure that they are getting the right kind of lawyer. If you are going to a person with a general practice (i.e. does more than one type of law) ask questions about the types of cases which they have taken. Ask them what their experiences are. Do not simply accept their bare pitch to you. In the end, it can mean the difference between a a verdict and a victory.

Wednesday, June 04, 2008

Thank You For Voting... Now Will Someone In Sacramento Do Their Job?

Thanks to all the Californians who did their civic duty yesterday. Among the decisions made, Prop 98 lost, which if you have been reading my blog you will know fills me with a huge sense of relief.

Now, if the people we elected to serve as our legislators in Sacramento will get off of their collective bums and start working on actually dealing with issues affecting Californians, they may start earning their pay check. The issues in Props 98 and 99 are not new. Its not like it is a great secret what the majority of Californians want done about eminent domain laws in the state. However, we allow our legislators to take the easy way out, over and over again, by allowing re-electing them when they are not passing laws which the people of this state want passed.

A short list of those would be:
- Actual eminent domain reform (even I agree that Prop 99 is not a full solution)
- Same Sex Marriage (you can only hide behind the California Supreme Court so many times)
- Reforming the Worker's Compensation (which was ruined by the hype and misinformation which convinced Californians to gut worker's compensation rules in California)

Once again, thanks for voting. Now if only our elected officials would do the same in Sacramento.

Monday, June 02, 2008

Tomorrow, if nothing else, VOTE NO ON 98

Prop 98 is not the solution to the problem of eminent domain use in California. The proposition, as drafted, is just too broad. It denies the government, both local and state, the ability to regulate things including, possibly zoning, environmental regulations, and rentals. Without the ability to pass regulations as to private property, in a manner rationally related to the public good, then we are left with appealing to property owner's better natures to do the right thing in a variety of arenas including zoning and the enviroment.

A few people have left the comment to my previous postings urging the defeat of Prop 98. Some have suggested that Prop 98 will not affect rent control. Others have asked whether rent control will actually be affected by Prop 98 since there is the provision as to the effective date.

First, let's be clear: Prop 98 will end rent control. People who are in rent controlled units will not lose their rent control right away. Rather, as soon as they move, the units that they move into will not be rent-controlled and the units which they have left will also not be rent-controlled. For example, if Prop 98 were to pass on June 3, and Person A was to move in to a new apartment in San Francisco (where rent-control laws exist) on June 5, then Person A's lease would not be protected by rent control.

Now something that has bothered me about Prop 98 about the language used in the definitions. Although the people at the Howard Jarvis Taxpayer Association say that "Our initiative has nothing to do with regulatory takings[.]" However, according to a Daily Journal (subscription required) report published earlier today, "'a fair reading of the measure would allow a property owner to sue based on any regulation of the use of property no matter how insignificant,' said John Echeverria, executive director of Georgetown University's Environmental Law & Policy Institute and author of a recent report on the regulatory takings reforms. "

I'm undecided on Prop 99. To my mind, it does not go nearly far enough to bring the use of eminent domain powers in line with what they have traditionally been meant to be used for. On the other hand, it can be viewed as a first step. A step that if our legislators did the work to earn their salaries could finish in the next session in Sacramento. And if it passes by one more than Prop 98, then it eliminates Prop 98.

It's not just about rent control. It's not just about the environment. Its not just about the ability to set up zoning regulations that make sense. And its not just about eminent domain. Its about all of it.

What California needs is eminent domain reform. What it does not need is a constitutional amendment which will harm the enviroment, cause endless litigation over virtually any law which regulates privately owned property, and eliminate municipalities' ability to police their housing markets.

Vote No on 98.