Justice Anthony Kennedy, former Secretary of State Hillary Rodham Clinton
and Attorney General Eric Holder will all be on hand this week for the American
Bar Association's annual meeting in San Francisco—and so will The Recorder.
Our reporters will be dropping in to hear from Silicon Valley GCs, pick up
on the latest developments in trade secret litigation, and reflect on last
year’s blockbuster IP trial in Oracle v. Google. We’re also
following conversations on legal education reform, venture financing, hot
topics in patent law and new tech tools for lawyers and judges.
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In what appears to be a last-gasp effort to save Proposition 8, same-sex marriage opponents have asked the California Supreme Court to immediately ban county clerks from issuing marriage licenses to gay couples.
The Supreme Court’s response? Make your argument — quickly.
The high court ordered Governor Jerry Brown to file his opposition to ProtectMarriage’s request for an immediate stay by 8 p.m. Friday. As in tonight. ProtectMarriage must respond by 9 a.m. Monday. The court gave the governor another week to answer the remainder of ProtectMarriage’s 50-page petition. The petitioners’ reply deadline is Aug. 1.
The Prop 8 supporters say “at least” 56 of California’s 58 county clerks are still barred from issuing licenses to same-sex couples because they were not parties in the recently decided federal lawsuit. Prop 8 backers also say Brown and Attorney General Kamala Harris had no authority to tell the clerks to start authorizing the unions.
“We are asking California’s Supreme Court to restore the rule of law and the public’s confidence in the integrity of the initiative process,” ProtectMarriage attorney Andrew Pugno said in a prepared statement.
A spokesman for Harris declined to comment Friday afternoon.
Horvitz & Levy of counsel Jon Eisenberg, an appellate expert, did not give Prop 8 supporters much chance of prevailing with their current argument.
“It is extremely rare for the California Supreme Court to grant a writ petition in the first instance, and it’s not likely to happen here,” he said.
The White House at long last is closing in on a pick to fill the Northern District judicial seat once held by U.S. District Judge Jeremy Fogel.
San Mateo County Superior Court Judge Beth Labson Freeman is the administration’s new leading contender to replace Fogel, who has been on leave as director of the Federal Judicial Center since 2011, the San Jose Mercury Newsreported Sunday.
Freeman, who was appointed to the San Mateo bench in 2000 by former Governor Gray Davis, served as presiding judge in San Mateo from 2011 to 2012 and previously handled general trial, law and motion, and family law assignments.
From 1983 to 2000, she worked as a deputy county counsel in San Mateo and before that spent four years in private practice in San Francisco and Washington D.C.
Freeman, 59, is a Bay Area native and Harvard Law School grad. Several local lawyers and judges contacted by The Recorder said they believed Freeman was a candidate for Fogel’s seat but had no direct knowledge. Freeman declined to comment through her clerk.
By tradition, the state’s Democrat senators Dianne Feinstein and Barbara Boxer alternate in submitting candidates to the White House based on the recommendations of screening committees. Feinstein’s committee, led by former San Francisco City Attorney Louise Renne, had been charged with finding a replacement for Fogel’s seat.
The committee initially recommended U.S. Magistrate Judge Paul Grewal who sits in San Jose, but the White House rebuffed the suggestion because Grewal is a registered Republican.
Meanwhile, San Francisco lawyer William Orrick III is slated for a Senate vote this week and expected to be confirmed to the seat once held by his father (and more recently by U.S. District Judge Charles Breyer).
That leaves the busy Northern District with two judicial posts yet to fill — the seat held by former Chief U.S. District Judge James Ware and that soon to be vacated by U.S. District Judge Susan Illston, who announced she would assume senior status in July.
The lawyer most responsible for developing Silicon Valley's culture of entrepreneurship is feeling
the pressure of disruptive change.
Speaking to Santa Clara University law students this week, Wilson
Sonsini Goodrich & Rosati chairman Larry Sonsini described a legal
profession under siege by an information revolution, globalization, alternative
fee requests and commoditization of various practices.
“There is no place to hide in the profession because you’re
on the firing line every day,” he said at a panel on lawyer leadership. Appearing with him were California Supreme Court Justice Carol Corrigan, Santa Clara County Deputy
District Attorney Jeff Rosen and Sixth District Court of Appeal Justice
All four emphasized they see a bright future for the
profession. But the panelists, especially Sonsini, also sounded cautious,
sometimes even wistful notes about the enormous challenges facing lawyers today.
“Technology has changed the game,” said the lawyer who helped nurture Apple, Google and numerous other game-changing companies. With greater
access to information, clients expect faster answers at lower rates. At the
same time, law firms have to negotiate globalization “without losing your
momentum” and the commoditization of lower-end work.
“All of that has put a lot of pressure on the practice,” Sonisini said, from
graduates seeking jobs, to senior associates trying to make partner, to established
partners who must “stay on top of the game.”
When it comes to their own new hires, Wilson is looking for people
who already have a personal strategic plan. “Now that sounds like a
terrible thing for a person just getting out of law school,” Sonsini said, but
it helps demonstrate vision, skill set and -- theme of the night -- ability to thrive under pressure.
Sonsini acknowledged it took him a little while to develop
his own strategic plan. He’d expected to study medicine before opting for
law school at the last minute.
“How’d that work out for you?” Rosen quipped.
The April 17 panel was organized by SCU adjunct law professor Bob Cullen.
When the Sixth District Court of Appeal found “flagrant” prosecutorial
misconduct in the case of Daniel Shazier last December, the Santa Clara County district
attorney’s office was contrite.
"Based on the court's opinion, if I had it to do over
again, I would make my arguments differently,” Chief Assistant DA Jay Boyarsky told the San Jose Mercury News at the time.
But the California attorney general’s office, which is
prosecuting the appeal, didn’t have the same misgivings. Nor may the California
Supreme Court, which granted the AG’s petition for review this week by a 4-3
The court of appeal “distorted the substantive standard for
misconduct claims by ignoring material facts in order to infer the most
damaging inference from the prosecutor’s comments,” Deputy Attorney General
Bridget Billeter wrote in her petition.
Wednesday’s hearing of the subcommittee overseeing California courts started off like so many others have -– with another sad recital of the suffering that years of budget cuts have brought to the judiciary.
And then Assemblyman Bob Blumenfield crashed the party.
Blumenfield, D-Van Nuys, is not a regular member of the Assembly budget subcommittee no. 5. He is, however, chairman of the full budget committee. So if he drops in on a subcommittee hearing, he’s going to get people’s attention. And that he did when he told the assembled leaders that their past decisions are not forgotten.
“While the state grappled with a budget crisis, court administrators sometimes have acted fiscally irresponsible even though fiscal responsibility was the mantra of the day, “ Blumenfield said. “We've seen a failed computer system with years of cost overruns and nearly $500 million wasted. In the process, the courts took millions from trial courts -- sacrificing access to justice -- to keep the failed computer project running. This year, the court system will likely enter an agreement and spend $100 million more than we should to build a new courthouse in Long Beach.”
Blumenfield said he isn’t pleased with Los Angeles County Superior Court’s decision to close courthouses and consolidate services either.
“The Legislature has acted to keep court budgeting stable through fees and other solutions,” he continued. “But the court's requested increases demand an assessment of how responsibly existing budget levels have been used.”
Branch leaders, who didn’t respond to Blumenfield at Wednesday’s hearing, will surely argue that funding has been anything but stable with the significant loss of state general fund dollars. And they would say -– they have said -– that the chief justice and Judicial Council have turned a page on the spending decisions of the past.
But reading between the lines, the Assembly’s top budget official seemed to be saying that if the Legislature does restore any judicial funding, it’s going to come with some serious strings attached. What those conditions might be aren’t clear yet, but they’d probably include requirements that money be spent on increased trial court staffing and re-opened courthouses, things that labor would surely like to see, and not case management systems or electronic recording.
Blumenfield said he also wanted to hear more cost-saving ideas from the branch. “My only request is that your proposals focus on maintaining or improving access to justice,” he said.
There was a yin and yang to U.S. District Judge Jon Tigar’s investiture ceremony Thursday afternoon at the federal courthouse in San Francisco.
The Northern District's newest judge was lauded first by a lover — longtime friend Dacher Keltner, director of UC Berkeley’s Greater Good Science Center and an expert in compassion, gratitude and other positive emotions.
Keltner described Tigar as a “searcher” with an appreciation for the “sublime.” (Practitioners take note: According to Keltner, if Tigar ever takes a pause on the bench, turns away and returns with misty eyes, you’ll know your argument is resonating.)
Next up to fete Tigar was a fighter — veteran S.F. trial lawyer John Keker, who hired Tigar in 1994 fresh from a stint in the federal public defender’s office.
Th ex-Marine described the young Tigar as a talented and brash attorney who was “a little cocky sometimes.” He added: “We made him a partner as quickly as we could.”
The Keltner-Keker line up was like having a speech from the Dali Lama followed up by martial arts actor Chuck Norris, Tigar joked when it was his turn at the podium in the ceremonial courtroom.
The induction was classic Northern District, with speeches about justice and service, and a little good-natured ribbing of the new member of the club, in the presence of local legal luminaries from the Ninth Circuit, California Supreme Court, the Alameda bench (where Tigar served for 11 years), along with big-name litigators and judicial vetters like Cristina Arguedas.
With an audience of nearly every judge from the Northern District, Keker declared: "When the job is done right, district judges are the most important people in America," because they decide "how free we are."
"Judge Jon Tigar, we tell you we are all counting on you to protect us."
Chief Judge Claudia Wilken performed the ceremonial swearing in, assisted in donning the robe by Tigar's wife Caroline Avery — a "fully recovered" attorney, as he put it.
His high-school and college-aged sons led the pledge of allegiance with Tigar’s 96-year-old grandmother and his father, the legendary human rights lawyer Michael Tigar, looking on. (Also in attendance: Northern District judicial nominee Bill Orrick, whose appointment has lagged in the U.S. Senate for more than nine months. Both Tigar and Orrick were recommended to the White House by U.S. Senator Barbara Boxer and nominated in June 2012.)
True to Keltner’s predictions, Tigar was visibly moved by the ceremony and the gathering of supporters. He choked up — and a pin drop could be heard — when he recalled his clerkship in Alabama for Judge Robert Vance of the U.S. Court of Appeals for the Eleventh Circuit in 1989, the year Vance was murdered by an angry litigant.
“I’m sorry Judge Vance isn’t here,” said Tigar, who keeps the judge’s photo in his chambers.
Tigar pledged to approach his role with humility and gratitude and to remember the difference “between the size of the office and the size of the person.”
As a judge in Alameda County, Tigar said he posted a quote from the Book of Proverbs on the back side of the bench that read: “If one gives answer before he hears, it is folly and shame.”
The California Supreme Court may be feeling some pregancy discrimination fatigue.
Six weeks after handing down its blockbuster decision in Harris v. City of Santa Monica, the high court on Wednesday said no thanks to a bitterly fought contest between Angela Alioto and Altshuler Berzon on one side and Lucasfilm Ltd. on the other.
Instead, the court left intact an appellate decision that wiped out Julie Gilman Veronese's $113,830 jury award and a $1.1 million attorney fee, sending it back to Marin County Superior Court. Veronese, Alioto's daughter-in-law, alleges that Lucasfilm withdrew a job offer after learning she was expecting twins and that one had miscarried.
Plaintiffs counsel had warned that Justice James Richman's opinion in Veronese v. Lucasfilm Ltd. carved a dangerous exception into discrimination law by excusing employers who had well-meaning concerns about the health of a fetus. It will make it "far more difficult for victims of discrimination to prove their claims," they argued — not only pregant women, but older and disabled workers as well.
Lucasfilm's attorneys, Steven Drapkin at the Law Offices of Steven Drapkin and Paul Cane of Paul Hastings, had called the argument exaggerated, and countered that Harriscompelled a new trial anyway on Lucasfilm's motives.
None of the justices voted to grant review the case.
In the quest to answer Governor Jerry Brown's call to make trial court funding more equitable, a group of judges and court executives may have come up with a solution.
The Funding Methodology Subcommittee, a Judicial Council bunch led by Sacramento County Superior Court Judge Laurie Earl, has unveiled a model that purports to link individual court allocations with their workloads, not their historical -- and
historically unequal -- funding levels.
The formula is complex and a little wonky, and it still has some holes. It would be phased in through 2018. Bottom line, some-better off courts would lose money under the plan while others that have gone begging would gain. But Earl and her
subcommittee colleagues aren't making public yet the full list of winners and losers.
"It's a very, very rough draft, and there's more tweaking to be done," she said Tuesday after briefing the Trial Court Funding Working Group. (That's the panel appointed by the governor and chief justice to analyze the success of 16 years of
state funding for courts).
She did say her own court would lose funding under the plan. So would Santa Clara County Superior Court. Courts in Riverside, San Bernardino, Kings, Riverside and Los Angeles would also benefit, at least under the formula's first draft.
In addition to tweaking its model, Earl's group has a formidable sales job ahead of it. Will judges from courts that would lose money still back the plan? Will organized labor?
The group's best hope may be convincing the governor that the funding formula is fair, or at least more fair than the current method. A satisfied governor may be more inclined to retore branch funding, and that should mean more money for everyone. That may be why the proposal seems to have some momentum behind it.
Earl's subcommittee is presenting its model to judges and court executives in private meetings around the state. The Sacramento judge said she expects to make the proposal final before it goes to the Judicial Council in late April.