MonthSeptember 2014

California’s Jerk Laboratory

A new bill taking effect January 1, 2015 would re-introduce sanctions for bad lawyer behavior.  The bill also includes provisions for conducting a three year study on its effect on litigation in the State. (More on that later).

The new (actually, old) law, California Code of Civil Procedure 128.5, allows for sanctions for “bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” Actions or tactics include basically anything other than discovery and discovery motions. (Which has its own ruleset for sanctions.)

Currently, litigators must try and seek sanctions under CCP 128.7, which provides for a mandatory 21 day safe harbor. 128.7 sanctions are limited to sanctions for filed papers, like pleadings and motions. Functionally, (and as someone who has attempted to get 128.7 motions on two occasions for egregious conduct I will not get into here) that 21 day safe harbor provision is the biggest practical obstacle to an effective sanction device. If a frivolous motion is filed and scheduled for hearing within that time period, 128.7 sanctions are meaningless. I still have to do all the work for the frivolous motion anyway in addition to preparing and serving my 128.7 sanctions notice. And then the offending lawyer can just withdraw the frivolous motion within the safe harbor period, making my motion moot.

The bill is supported mostly by business interests, i.e. people who get sued alot. It was introduced by Democrat Ken Cooley, who represents most of Sacramento County and was State Farm’s top lawyer for 17 years.

One of the more interesting bits of the bill (to me anyway) is that it is essentially conducting a study on its effectiveness for the first three years.  If you file a 128.5 motion, you also have to serve a copy on the  California Research Bureau of the California State Library (CRB). You also must forward to them any Order on the motion.  This is a public record according to the law and will be submitted to the Legislature in 2018 to examine the law’s effectiveness. If I suspect my adversary is acting unethically and I hear bad things from colleagues about bad behavior, can I subpoena the CRB for prior sanction paperwork filed against the party or attorney? I don’t see why not, although I really hope I don’t encounter a situation bad enough to warrant such an expedition.

Reason Number 1 to Not Come to Work Stoned

If someone kills you under questionable circumstances, they might get away with it. Especially if they’re famous NASCAR driver Tony Stewart. Tune in next week for Reason No. 2!

Grand Jury Decides No Charges for Tony Stewart in Death of Kevin Ward Jr.




Tony LaRussa and Redemption

I will not bore you with the history of why a Red Sox fan is about to talk about the A’s. Suffice it to say it would be confusing for the point of this blog post. I will thus get to the point.

Tony LaRussa’s entire career has been carefully orchestrated to exact revenge on Kirk Gibson by firing him from the Diamondbacks. Let me explain.

It is 1988. Tony LaRussa is the A’s skipper. I’m seven years old, watching my beloved A’s on my Grandma’s TV in Lafayette, California.  As an A’s and 49ers fan in my childhood I only knew victory at a young age of sports fandom, which I am sure leads to some sort of adult dysfunction. Anyways, Dennis Eckersley is closing Game 1 of the A’s Dodgers World Series game. “Eck” for those not in the know is probably second only to Mariano Rivera as far as best closers in the history of the game. The A’s are up, 4-3. Bottom of the 9th, two out. Man on. Gibson, hobbled and gimpy, is sent to pinch hit. This is unexpected because he hurt both legs in the NLCS and was not supposed to play in the Series at all. Eck goes up 0-2 on him. It is game over, in my sweet, innocent child brain.  My poor, naive brain.

Ball 1. Ball 2. Ball 3. Gibson steps out of the box. Drama, like only baseball can deliver. Eck delivers the next pitch.

Gibson sends it out of the park over the right field fence of Chavez Ravine. Dodgers walk off, 5-4. My poor 7 year old self is introduced to the uniquely stunning and brutal reality of defeat that only a 9th inning walk off can deliver. Twisting the knife, Gibson proceeds to trot around the bases pumping his fist, and so begins decades of agony of seeing that clip again and again and again and again. I to this day cannot watch it, but here it is anyway.

I Thought This Was About Tony LaRussa.

Yes I know. Anyway, this totally sucked. It was devastating. The A’s went on to lose this series 4-1.  They famously won the Battle of the Bay the next year but lost again to the Reds in 1990.  That home run has never been forgotten by A’s fans or by Tony LaRussa though. Ever.  So although some of you think Tony LaRussa’s Hall of Fame managerial career has been motivated by his desire to be a successful baseball mind and win world series rings and be around the game he loves on a daily basis, you are wrong. No my friends. This has all been a long, Keyser Soze-esque play to fire Kirk Fucking Gibson and his fist pumping ass.

Don’t believe me? When asked about the homerun recently, LaRussa remarked “Every time I see him, I have to overcome that memory…. It would bring such great joy to give him that pink slip. Because they play that dang replay all the time…” Watch that video and look at the pain in that face! He wants to do this so bad. It still hurts. I was seven, I was a little snot nosed kid just sitting on the floor watching the game. The A’s are not even my favorite team anymore and it still pains me to see it. He was a grown man, a manager standing there watching this guy beat him in a walk off of the first world series game, a series he would eventually lose. It was crushing. And now, LaRussa can finish the circle. He can end the loop. He can fire Gibson. You know it will happen, it is inevitable. I am amazed any sportswriter thinks Gibson will have a job with the Diamondbacks come April 1, 2015.

It is revenge, served very very cold.





Whither the Arbitration Fairness Act of 2013?

On May 7, 2013, Sen. Al Franken (D-MN) and  Rep. Hank Johnson (D-GA) introduced S. 878, the “Arbitration Fairness Act of 2013.” It currently resides in the Senate Judiciary Committee, under the safekeeping of Chairman Sen. Patrick Leahy (D-VT). The current political climate leaves him little choice but to stow it away, as it would surely never pass. (Can anything pass? Oooh a bill for better sunscreen sure can! Way to go, Congress!)

This is unfortunate, since the Arbitration Fairness Act would eliminate forced arbitration from consumer, civil rights, and employee contracts, stating that “no predispute arbitration agreement shall be valid or enforceable if it requires arbitration of an employment dispute, consumer dispute, antitrust dispute, or civil rights dispute.” Forced arbitration has significantly eroded access to justice for consumers and employees, and it has done so right under almost everyone’s noses.

First a little background. The Federal Arbitration Act (“FAA”) was enacted in 1925. Its early history was not very exciting. By 1959 it had been cited in cases a grand total of 5 times in any state court.  In the past thirty years however, it has radically altered the landscape of consumer and employee dispute resolution.  It is the “tort reform” battle that has already been lost by consumers and employees.

There is a very enlightening (and sad, considering where we are now) history of the FAA in the dissent of Justice John Paul Stevens from the Supreme Court case of Gilmer v. Interstate/Johnson Lane Corp 500 U.S. 20 (1991).  In it, Justice Stevens notes that “There is little dispute that the primary concern animating the FAA was the perceived need by the business community to overturn the common-law rule that denied specific enforcement of agreements to arbitrate in contracts between business entities.” (Emphasis mine.)  The American Bar Association (the ABA) drafted the Act and actually testified during hearings on the Bill in 1923 that the FAA “is not intended [to] be an act referring to labor disputes, at all. It is purely an act to give the merchants the right or the privilege of sitting down and agreeing with each other as to what their damages are, if they want to do it. Now that is all there is in this.” (Emphasis mine, again.)  This was perhaps to allay the fears of many that the Act would be interpreted precisely as it is today, and would essentially gut the rights of employees and consumers in situations where they have absolutely zero bargaining power. Take, for example, the prescient comments of Senator Walsh of Montana, at these same hearings:

“The trouble about the matter is that a great many of these contracts that are entered into are really not [voluntary] things at all. Take an insurance policy; there is a blank in it. You can take that or you can leave it. The agent has no power at all to decide it. Either you can make that contract or you can not make any contract. It is the same with a good many contracts of employment. A man says, ‘These are our terms. All right, take it or leave it.’ Well, there is nothing for the man to do except to sign it; and then he surrenders his right to have his case tried by the court, and has to have it tried before a tribunal in which he has no confidence at all.”

The hostility in 1923 to the potential scope of the act was, perhaps, why the following was added to the version of the FAA passed in 1925: “[N]othing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. § 1.

Seems pretty straightforward. Businesses wanted knowledgeable arbitrators familiar with the vagaries of their industry, rather than potentially disinterested and hard to predict juries. Workers were carved out because it seemed unfair to make someone waive their right to a jury trial in a take it or leave it context, and juries and courts were more than apt to decide employment disputes since these involved regular people just like them. Bill passes, everyone’s happy.

This was, in fact, how the FAA was interpreted for the first half of the century. Circa 1956, three appellate courts had held that the FAA did not apply to contracts of employment.

What a difference the last 60 years or so have made. The FAA is now, clearly and unmistakably, enforceable against employees and consumers alike, via take it or leave it contracts  that hardly anyone ever reads. (What’s the point? You don’t have a choice.)  Buy a different product, you say? 95% of credit card agreements are subject to mandatory arbitration. Cable and internet? Time-Warner, Comcast, and AT&T all have mandatory arbitration agreements. Buying stuff online? Paypal has one.  Amazon has one. Do you put money in a bank, maybe? Basically every bank has one.  Do you listen to music? Apple’s iTunes has one. Popular media and video game vendor Steam has one. Reading this on Windows? Microsoft has one.  Netflix? Check. Hulu? Check. Google any major business and “arbitration” and you will see they have one, and you probably signed it without even knowing about it. (Google’s Terms of Service do not have an arbitration clause as of the date of this post. Hooray! But I only checked their all encompassing TOS, not any individual ones for Google Wallet, Play, and so on, which may be different.)

Almost every single national service or product supplier or employer has one. You cannot escape them, because why would any company let you  escape mandatory, binding arbitration? It is well documented that in both consumer and employment arbitration agreements, the consumers and the employees usually lose, or do not win as much as they could in court. Problems like the repeat player effect are well discussed by people way smarter than me, such as in Lisa Bingham’s excellent study “The Repeat Player Effect” (1997).

But it is not just the repeat player effect, at least not the simplified one many people argue about. (I.e., Joe Employee vs. the oft-sued Employer who happens to pay for the arbitrator’s mortgage thanks to the repeat business.) I am arguably a Plaintiff’s “repeat player” and even I dislike arbitration.  That’s because in my not so humble opinion, the problem is not just the whims of an arbitrator who knows where his or her bread is buttered.  I know and trust lots of skilled employment arbitrators and mediators.  The problem is that the process is tailored to these companies. This system is built and paid for by companies and employers and other large business entities with a vested interest in its success. (Like the National Arbitration Forum, which stopped performing consumer arbitration in 2009 after it was revealed they were owned by the very same debt collectors who forced consumers to use them.)

There is legally zero oversight or accountability over an arbitration proceeding. It is almost impossible to overturn an arbitration award.  Unlike a Judge, there is no real appeal. There is no public record.  You cannot ask a higher court to review a particularly harmful pre-trial ruling on a motion.  Discovery–far more critical for consumer and employee Plaintiffs than businesses and employers–is restricted, such as a de facto 1 deposition limit absent good cause (JAMS) or rules limiting paper discovery (AAA).  The “spirit of arbitration” (the phrase that I hear defense counsel crow when they think I am serving too much discovery) often works against the Plaintiff by design. And of course, most importantly, the employee or the consumer loses the right to make their employer or the business that wronged them face a jury of their peers. 

Arbitration is a major international business, and these companies have a vested interest in making sure the product they sell is wanted by their customers.  Their customers being, of course, businesses and employers who choose them as providers for their arbitration clauses.  This is not how it should be. We need our courts back. Call your congressperson and tell them to support the Arbitration Fairness Act. More on this in subsequent blog posts.

Lawyering in the Digital Age

With the incredible range of technical tools available to practicioners these days, I have to think that it has become a little easier to be a solo practicioner with very little administrative overhead. At least that is what I tell myself, considering I voluntarily left the word of the “normal” law firm, complete with regular paychecks and support staff and everything else, to run my own show.

Practically speaking, a functional attorney in 2014 needs the following:

1. A workspace.

2. A place to meet clients.

3. A phone number.

4. An e-mail address.

5. An address.

6. Some way to do legal research.

7. A computer + the internet.

Yes, you need clients, but I just said “functional.” I did not say “busy.” Am I missing anything? A website is optional, I think. (And can be free or only as expensive as your monthly hosting, which can be as cheap as a cup of coffee per month.) This isn’t a list about being uber SEO Lawyer 2.0 of 2014, it’s a list about how to get to near zero in overhead (not including case costs). I know a lot of attorneys who have no web presence of their own, and who instead exist entirely on word of mouth and referrals or old fashioned phone book and newspaper ads. If you’re good and you know people and you leave a trail of very happy clients in your wake, cases have a way of finding you. The second hand lawyer listings that seem to miraculously pop up on the internet without you ever doing anything to create them take care of the rest. (Lawyer listing sites like are big business and there are a lot of players in that game.)

One through seven on that list can, in the modern age, be acquired with a single cellphone and a computer, and for almost nothing. Behold the sub $100/month in administrative costs law office:

1. Workspace? Wherever you want. (Ideally private, with no one peering over your shoulder or intercepting your internet traffic or your emails.) Rent deposition space on an hourly basis either from a court reporter or from a virtual office.

2. Place to meet clients? Rent conference space, meet in public (somewhere private, again) make nice with other lawyers who will let you use their conference space or offices, meet at a local law library… whatever you are comfortable presenting to your clients, so long as you’re upfront with them.

3. Phone number? If you do not want to use your private number, which is wise, Google voice is free. You can tell it to ID the call as your Google Voice line when it rings so you know it is a work call.

4. E-mail? If you do not want to use your private email, which is also wise, and you do not want to use something like lawoffices@gmail, which might be cheesy, it is trivially easy to set up your own domain and get your own email name. A namecheap domain costs around $10 per year. You do not need to set up a website, just buy the domain and then use the free email services that every competent domain registrar provides. You can even set it up to work through a free Outlook equivalent like Thunderbird. Did I mention that is $10 per year?

5. An address? See number 2. Getting a mailing address for people who can handle your mail for you costs between $40-$70 a month. Careful of the nickel and diming that every single one of these virtual offices will do, but they are your one stop shop for mail service, conference room rentals, and so on. If you pay more, like $120 and above, then they will also answer the phones and take messages and so on.

6. Many virtual offices also offer low cost Lexis accounts. (Too bad, since I like Westlaw better.) This is perhaps the one place you cannot skimp, as you need some way to do legal research so you can continue to competently represent your clients. If you live in an urban area consider joining a local public law library (odds are your court might have one) or check out what your alma mater can do for you.  Every law library should have Rutters or CEB or whatever practice guide you prefer. In my experience a solid on-topic practice guide like Rutters will usually have you covered for the majority of law and motion issues, assuming they’re up to date.  Of course, you would be amazed at how far along Google has come in performing basic legal research. If you have a cite, odds are you can get the case for free, although in a slip opinion pdf or some other format that may be difficult to cite to.

7. A computer and the internet. I almost  made this optional, but this list is about functionality, not torturing yourself. Of course if you are reading this the odds are pretty good you don’t need either.

That’s basically it. I’m not including obvious things like bank accounts/IOLTA accounts, a law license, and other things. Optimum? No. Cheap? Yes. This is more a thought experiment on how lean and mean you can go, rather than “you should totally try this,” but it is interesting to me how technology has really changed the practice. Of course you will need to also figure out client billing, accounting, bookkeeping, printing, how to manage all of your files, and how to be a great advocate for your clients (if you have not figured that out already) and all the rest of it, but this list comprises things that could normally cost you thousands of dollars a month, which you can now get for almost nothing. (A free second phone line and you can choose the number? And check your voicemails and texts on any computer? Come on. That’s awesome.)

Drawbacks abound, of course. If you do not know any lawyers well you will be very lonely. You will lose out on referrals you might get in a shared office space. You will have to have a clientele that is comfortable with your very lightweight monthly admin costs. I.e., do your clients want a fancy accent wall with a fountain and oak paneled bookshelves stuffed with old lawbooks no one uses?* This might not be your ideal route to take then.

*(Ever. No one ever uses those. I suppose they will come in handy when we all have to practice law during the zombie apocalypse when there is no power.)

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