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.
Tuesday, June 17, 2008
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.
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:
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).
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.
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.
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.
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.
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