Legal Pad

We R in Ur Computer, Killing Ur Billable Minutz

In case you’ve been under a rock for the last year and a half, there’s this Internet phenomenon known as lolcats. We won’t waste your time explaining how and why they became so popular, but Wikipedia will. We were shocked to find that the nexus of lolcattery revealed no legal-themed captions. We could not let this stand, because Legal Pad fights for what’s right, and because it was a slow Friday afternoon. Thus, if it please the court, we present … lawlcats!!!!!

   Using the very convenient and not-at-all-time-wasting lolcat builder at icanhascheezburger, here are a few lawlcats that cracked us up. You know you want to click on them. Leave your LOLZ in the comments, and if you make some lawlcats of your own, post the link!

—  Jessie Seyfer

GOP Video Villanizes Prison Reform Judges

The inmates are coming! The inmates are coming! And when the early-release thugs in orange jumpsuits show up on the doorsteps of your homes, you can blame those wacky, liberal, activist, federal judges Lawrence Karlton, Thelton Henderson and Stephen Reinhardt.

That's the message state Assembly Republicans are broadcasting on their new You-Tube friendly Web site designed to let crime-fearing Californians know that they're fighting tooth and nail to stop the aforementioned three-judge panel from "having their way" and flinging open the doors to California's overcrowded prisons. Key location nouns appear on the screen as the announcer intones that we'll have "40,000 dangerous criminals" in "our communities, our neighborhoods, and our parks."

You can view the video here. It's not quite Willie Horton-esque, but check out the beautiful multigenerational family on the stoop at the end. (Also interesting, the non-sequitur line, "... that's why Assembly Republicans passed a bipartisan bill ...")

On a serious note, the Republican caucus is trying to generate some publicity about the issue at a time when sentencing reform has fallen off the legislative radar screen and prison expansion plans have become bogged down in bureaucratic red tape and squabbling between the state and counties.

Here's the Republicans' pitchman, prosecutor-turned-Assemblyman Todd Spitzer of Orange County, on the topic. Note his shout-out to the GOP's legal team: Steven Kaufhold, with the law firm Akin, Gump, Struass, Hauer and Feld and Steve Baric, chairman of the California Republican Lawyers Association.

—  Cheryl Miller

How Do You Make the Supremes Notice You?

So a couple of opinions that have crossed Legal Pad’s desk recently have got us wondering: What’s a court of appeal justice got to do to get a little love and attention from the Supreme Court?

Specifically, the kind of attention that would have the high court’s justices say, "Hmm, you’ve got a good point there. Maybe our own case law is so antiquated that we ought to take another look at it."

In the last two weeks, two First District panels have urged the high court to take another look at these cases: In re Mitchell P., 22 Cal.3d 946, People v. Orin, 13 Cal.3d 937, and People v. Superior Court (Romero), 13 Cal.4th 497. The 1978 Mitchell P. case dealt with how much weight should be given to an accomplice’s uncorroborated testimony in a juvenile case. The 1975 Orin and the 1996 Romero cases both discuss how, technically, a judge has to record his explanation when calling upon the Penal Code's broad Section 1385 to dismiss a charge.

The docket’s showing no signs that the First District panels have piqued the Supremes’ interest, but then, it’s early yet.

Santa Clara University School of Law professor and court watcher Gerald F. Uelmen says that, “by and large, I think those suggestions are taken quite seriously and very often do lead to a grant of hearing,” considering how few cases overall get taken up by the Supreme Court.

But of course, it may also be a question of the messenger. “I think the court probably will pay more attention to such recommendations from some justices on the court of appeal than from others,” Uelman said, probably favoring those who have had a lot of experience, or who have captured the high court’s confidence.

Who would Uelman say fits that bill? “I’m not going to go there.”

The opinion bagging on In re Mitchell P. was written by Timothy Reardon, and joined by Ignazio Ruvolo and Maria Rivera. The opinion taking issue with Orin and Romero was written by James Richman, and joined by Paul Haerle and James Lambden. How about you, Legal Pad readers? Got any guess at their chances?

—  Pam Smith

Former MIPS GC Also Lands a New Gig

So yesterday Cal Law told you about Stu Nichols finding life after the backdating inferno at KLA-Tencor as the new GC of MIPS. Well, the woman who preceded him in that post, Kate Rundle, also has a new job.  She’s the new GC at Bookham Inc., a San Jose company in the light signal biz. Rundle resigned from MIPS in May, and has not returned Legal Pad’s phone calls to chat about why she stepped down after barely a year on the job.

Rundle, a former Wilson Sonsini lawyer, replaces Tom Kelley, who “resigned in order to remain with his family in Ottawa,” according to the press release. 

—  Zusha Elinson

'Badass Diva' Ready to Run Heller in L.A.

Legal Pad checked in with the new managing partner of Heller Ehrman’s L.A. office, Nancy Cohen, the litigator "Above the Law" described as a "divalicious"  "badass litigatrix" who "protected her witnesses like a lioness protecting her cubs." Below, is the edited interview with Cohen on everything from her plans for the office to her new nickname to layoff rumors.

Legal Pad: So, you worked as Heller’s L.A. managing partner before.  Did you ever think you’d be back?

Cohen: Never in a million years. I thought I had handed it over, and I could ride into the sunset, but no.

Legal Pad: How do you feel about doing it again?

Cohen: I am actually excited about it. Leadership in the office is important. And growing the office, and keeping the morale up, that’s important. We put lots of pressure on lawyers these days. You have to keep a happy work environment.

The Diva is In

Legal Pad: How are you going to do that?

Cohen: You have to make sure people in the office are having opportunities to relate to each other so we don’t get caught in silos. We get together for lunch on Friday, all the lawyers in the office.  And we’re having a Dec. 15 retreat.

Legal Pad: Where’s that?

Cohen: Sunset and the 405, at a hotel. We’re going to spend a day together, and talk about issues that are important to associates. People want a work environment where they’re continually challenged, and that means growing the business, so I am quite focused on that as well.

Legal Pad: How much time are you going to spend practicing vs. managing?

Cohen: I am going to keep my fulltime schedule.  Leadership in a law firm is an enormous commitment. I have two trials scheduled in 2008 and I am going to do them.  This comes out of your personal time.

Legal Pad: Is there any truth to rumors that there are going to be layoffs of lawyers in the L.A. office?

Santa Lawyers Up (And It's About Time)

Sign that you may have gone rabid in your tort-reform crusade: when asking for ID before handing out letters full of children's personal information — including addresses and maybe phone numbers — to random people is another facet of the cabal of wicked trial lawyers' evil scheme to propagate an overly litigious society, rather than a minimal effort to keep any random freak from finding vulnerable urchins who might be lured into harm's way with the promise of a Sue Me Elmo or a Satanic Litigator Barbie.

While Legal Pad was lost in a post-holiday food coma, USAToday ran a little article about how the U.S. Post Office is changing its policies for letting volunteers answer children's letters to Santa Claus.  From now on, volunteers will have to present ID and sign a waiver before they can read and respond, with notes or gifts, to some of the more heartfelt holiday missives.

We were drawn to this quote:

"This is absurd," says John Andrews, a former president of the Colorado Senate who specializes in tort reform at the Claremont Institute, a conservative public policy think tank in California. "You would think the North Pole is one place on Earth that is safe from the trial lawyers and the litigation experts."

Yeah, you would. But you would not think the random foot traffic in your local post office is necessarily free of pedophiles and con artists. Mr. Andrews seems to miss the point that the letters don't go to the elvin sweatshops at the North freakin' Pole, they go to any actual human who shows up and asks for some. Oh hell, did we just ruin Mr. Andrews' belief in the reality of old St. Nick?

Of course, all this is beside the real legal point. The brilliant courtroom climax to "Miracle on 34th Street" is predicated on the claim that federal law prohibits the Post Office from giving mail to anyone other than the addressee, meaning all those Santa letters could only go to the one, true Mr. Claus. If they're passing out that right jolly old elf's mail to randomly charitable folks (with valid driver's licenses), where does that leave little Natalie Wood's tender belief in the magic of the holiday?

No wonder postal officials are starting to go in for waivers, too ...

—  Brian McDonough

Panel: 'Notices of Unavailability' Don't Cut It

Ah, the perfect pre-holiday ruling: A state appellate panel late Wednesday gave loud and somewhat grouchy notice that lawyers can no longer dictate the terms of their availability. Taking aim at a practice it says is premised on nothing more than "made up" authority, a three-justice panel in Santa Ana warned that the Fourth District won't accept so-called "notices of unavailability,"  which it says have become common in trial courts in the years since a 1992 case, Tenderloin Housing Clinic v. Sparks, was decided.

According to the per curiam opinion (.pdf), that case held that an attorney can be sanctioned for  intentionally timing filings to land while an opponent is on vacation. That's led lawyers to send opponents — and courts — notices setting out dates they aren't available.

In the petition dispatched Wednesday, attorney David Williams filed a statement of disqualification against the judge assigned to his client's case, then sent a notice saying he wouldn't be available to respond to anything for more than a month. Since trial judge Judge Ronald Bauer has only 10 days to act, he ignored the notice and ordered the statement stricken.

It gets better.

Seeing Through x-Ray Appeal

I see London, I see France, I see a failed attempt to appeal a Los Angeles trial court decision on X-ray machines at state prisons!

(Doesn’t really flow like the traditional underpants song, does it? Ah well.)

In any case, Tuesday was not a good day for several former visitors to the state prison at Lancaster who had sued the state for allegedly violating their state and federal Constitutional rights by subjecting them to search by so-called “backscatter” X-ray machines. The appeals court declined to revisit  a lower court ruling that left a lot of loose ends, and no damage award.

The Secure 1000 machines were used from 1999 through 2001 at the prison and produced images that included “an outline of breasts, genitalia and folds of skin,” according to Tuesday’s denied appeal (.pdf), written by Second District Court of Appeal Presiding Judge Dennis Perluss. Perluss acknowledged that “darkened areas” on such images, on further search, sometimes turned out to be “feminine hygiene products, breast implants, brassiere underwire and diapers.”

Death Penalty Plan — How Big an Impact?

The California Supreme Court announced Monday that it will seek a constitutional amendment to push death penalty appeals down to the California Court of Appeal. This bombshell raises intriguing questions, and while we could just ask Chief Justice Ronald George, we thought it would be more fun to pose them to Legal Pad readers:

1. How many more justices, if any, would the court of appeal likely need to handle the additional workload?
2. If you're old enough to remember the name "Rose Bird," you know that death penalty cases can sometimes cause political blowback. Would justices on a regional appellate court be more vulnerable to attack on their death penalty voting records than justices on the California Supreme Court?
3. Would moving capital cases to the court of appeal achieve the stated goal of expediting appeals in the state courts? What impact might there be, if any, when cases reach habeas corpus review in the federal courts?
4. What would happen to the California Supreme Court central staff, a big chunk of which has been specially groomed over the last decade to work up death penalty appeals? Would it continue to operate as a unit, or would those positions be reassigned to the six different districts of court of appeal?
5. Who would certify, supervise and pay the court-appointed counsel?

If this proposal has legs, it will be the subject of hot debate for years, so let's not waste any time. If you are familiar with the capital appeals process — or heck, even if you're not — please share your opinions in the comment section below.

—  Scott Graham

Boris Feldman Going to Bat for Fred Thompson

Boris Feldman is supporting “the real conservative” in the 2008 presidential campaign.

Feldman, a partner at Silicon Valley's Wilson, Sonsini, Goodrich & Rosati, on Friday was named one of three national leaders of the Lawyers for Fred Thompson coalition.

The former Tennessee senator has tried to distinguish himself as the anti-liberal among Republicans, but he was running fourth in a recent poll of likely voters in California's Republican Party primary. “Sen. Thompson understands exactly the limited role an independent judiciary should play in our government,” Feldman said in a campaign press release. “He is committed to appointing strict constructionist judges who faithfully interpret the law, not legislate from the bench. It is a great honor to serve as his co-chair of Lawyers for Fred."

If Feldman is going to boost Thompson's numbers in California, or even at his own firm, he may have to convince some lawyers to drop other candidates first. After all, Larry Sonsini and his wife recently donated $4,600 to the John McCain campaign, and Wilson CEO John Roos is backing Barrack Obama.

The others heading Lawyers for Fred are Victoria Toensing, a Washington, D.C., attorney who worked as a deputy assistant attorney general in the Reagan administration, and Charles Trost, a tax attorney at Nashville, Tenn.'s Waller Lansden Dortch & Davis.

—  Matthew Hirsch