Legal Pad

New CJA President Hungers for Judicial Unity

[Cheryl Miller]

Maybe it was the approaching lunch hour. Maybe he was just hungry when he wrote his speech. Whatever the reason, new California Judges Association President Allan Hardcastle delivered an inaugural address Saturday that was well-spiced with dining analogies.

On the judiciary’s shrinking budget: “My mother used to tell me that the table manners changed when the pie got smaller. That’s so true,” the Sonoma County Superior Court judge told a receptive gathering of State Bar and CJA leaders in Monterey. “And that pumpkin pie we used to have? It’s looking like a three-day- old Pop-Tart to me right about now.”

And on the need for judges to “unite” against state budget cuts: “Like a family coming home for Thanksgiving, we must ensure that the front door is open, and we must ensure that everyone gets a seat at the table. And once they’ve gotten that seat at the table, we need to ensure there’s adequate food on the table to feed everyone.

“Once we win that goal, then there’ll be time to discuss whether two years ago mom should have used the stainless steel flatware or the sterling silver flatware,” Hardcastle continued. “Only when everyone’s at the table and their needs are met should we have a debate about whether the dinner fork goes on the right or the left.”

Some judges may not find Hardcastle’s message so palatable. Critics, most notably the Alliance of California Judges, have described the call to quell dissent as stomach-churning. Hardcastle, a Harley-riding Army veteran, has the next 12 months to make his plea bear fruit.

 

Perfecto Evening for Cigar-Loving Jurists

[Scott Graham]

It was easy to find the Blacksmoke cigar appreciation event at the California Judges Association meeting Friday evening. All you had to do was follow your nose.

The pungent gathering drew about 50 judges to a hotel plaza overlooking Monterey Bay. At least, we think it was about 50 -- it was hard to see through the haze. (OK, we exaggerate. Somewhat.)

The festivities were held in abeyance momentarily as the group honored the memory of Matthew Manoukian -- son of one of the Blacksmoke organizers, Santa Clara County Superior Court Judge Socrates "Pete" Manoukian. Matthew Manoukian died last summer while serving as a Marine captain in Afghanistan. Just six months ago, he had shared a smoke with many of the same jurists at CJA's mid-year meeting in Indian Wells.

Los Angeles Superior Court Judges Tim McCoy and Lance Ito presented Judge Manoukian with a statue of a Marine bearing a flag, and about 15 jurists wore t-shirts emblazoned with the younger Manoukian's likeness.

Judge Manoukian said his son didn't try to draw a lot of attention to his service, but was especially proud that millions more Afghan girls are going to school now than under the Taliban regime.

 

Tech Workers Challenging Anti-Poaching Pacts Petition Koh

{Amy Miller]

Lawyers for a group of software engineers accusing Apple, Google and five other tech stalwarts  of entering into "gentlemen's agreements" not to compete for each other's employees filed a heavily redacted class certification motion on Monday. 

The former employees asked U.S. District Judge Lucy Koh of San Jose to certify a class of more than 100,000 salaried workers employed by the companies between 2005 and 2009.

“Plaintiffs have evidence capable of demonstrating that the compensation of all class members was suppressed due to the alleged conspiracy,” wrote plaintiffs attorney Kelly Dermody, a partner at Lieff Cabraser Heimann & Bernstein, in the 33-page motion.

The motion also asked Koh to certify Lieff, Cabraser and the Joseph Saveri Law Firm as co-lead class counsel.

The suit was filed on the heels of a 2010 settlement between the defendants and the U.S. Department of Justice, which found that their agreements not to cold-call each other's workers did violate federal antitrust law. The companies admitted no wrongdoing, but they agreed not to enter into similar agreements in the future.

'Bridges' Star Is Saved by the Toll

[Scott Graham]

If it seems like ages since the TV show Nash Bridges was airing regularly, that's because it is. The last regular season episode aired in 2001.

So when show star Don Johnson sued in 2009, saying he was still owed millions of dollars, the production company quite naturally raised the statute of limitations. Unfortunately for Rysher Entertainment and subsequent owners Mark Cuban and Todd Wagner, Rysher had agreed to toll the statute of limitations way back in 2002.

Although the California Code of Civil Procedure requires that waivers of the statute of limitations be renewed every four years, the same rule does not apply to tolling agreements, a divided California Court of Appeal ruled Monday in Don Johnson Productions v. Rysher Entertainment.

That issue of first impression will be worth $15 million to Johnson, who claims 50 percent ownership of the copyright, along with his guaranteed income of $167,000 per episode and 50 percent of the show's profits.

Silence on the line

[Cynthia Foster]

San Mateo Superior Court has $9 million in the bank, but court officials are announcing their intent to lay off court commissioners and shutter courtrooms all the same. If state funding to county courts doesn’t increase by July 2013, they say, they’ll have no choice but to make dramatic cuts that echo those already made by neighboring counties like San Francisco.

The proposed cuts, detailed in a press release circulated Thursday, include plans to shut six courtrooms and lay off all but one of the court’s seven commissioners.

According to new state law, courts are required to spend down any reserve funds by 2014, a point that is particularly sore with San Mateo Presiding Judge Beth Freeman.

“We saved that money; it’s not like an inheritance,” Freeman said in an interview Friday. “Those reserves allowed us to be an innovative court.”

According to Court Executive Officer John Fitton, San Mateo Superior “would’ve had a balanced budget if the cuts had not continued and deepened” during the last legislative session. Since the 2010-2011 fiscal year, Fitton said, the court’s revenue has dropped nearly $9 million.

Fitton said the court announced its budget cut proposal so far ahead of time in part to make the public aware of the court’s future financial straits before Californians vote on Gov. Jerry Brown’s tax plan in the November general election.

Freeman said although she believes the Administrative Office of the Court and Judicial Council have taken steps toward being better, more responsible advocates for trial court funding, “we haven’t gotten the results we wanted.” Like many other judges throughout the state, Freeman points to “mistakes” made by previous AOC administrations in spending decisions. When asked if she was referring to the court’s controversial efforts to centralize electronic court records through the computerized California Case Management System, Freeman said unequivocally that she was.

“I have great respect for the direction the chief justice is going,” she said, “but I say that in full recognition that the AOC has made very serious misjudgments in the past.”

Both Fitton and Freeman said the cuts will have serious impact on citizens of the county. Fitton said that budget gaps are already noticeable around the court. In the traffic division, for instance, it formerly was “standard” for staff to pick up the phone by the third ring. Now, he says, the public waits up to 45 minutes to speak to someone, because court staff has shrunk 30 percent in four years.

“We used to take great pride” in picking up the phone, he said.

Now, court officials caution, there may be even longer silence on the line.

Patent Myths Debunked

[Amy Miller]

There’s a perception among patent litigators that speedy patent trials, especially in the Eastern District of Texas, usually wind up favoring the party that is suing for infringement.

But it turns out, the length of a trial has no effect on the outcome, Stanford Law School Professor Mark Lemley reveals in his latest patent litigation study, “Rush to Judgment? Trial Length and Outcomes in Patent Cases,” which he presented Friday at the first annual Empirical Patent Law Conference at Cornell Law School.

It’s just one of several findings that Lemley made after collecting data on every U.S. patent trial between Jan. 1, 2000 and June 30, 2011.

Trials that ended in favor of patent owners took on average 7.76 days, while those ending in favor of defendants took 7.74 days.

“The biggest surprise was that trial length doesn't make any difference at all, even though patent lawyers all seem to think it does,” Lemley said.

The study, which has yet to be published, also found that juries are more favorable to patent owners than judges are.

It also uncovered some variations from district to district, such as that patent owners win more often before juries in the Eastern District of Texas and the District of Delaware than they do in the Northern District of California. But the differences weren’t enough to conclude that the district where a case is tried significantly affects the likelihood that the jury will find in favor of the plaintiff.  

“If the length of a trial doesn’t skew outcomes, one might reasonably argue that long trials are a waste of party and judicial resources,” Lemley wrote. “Far from a rush to judgment, a quick patent trial may produce the same outcome more quickly and cheaply.”

Arizona AG: Request to Recuse Graber Untimely, Unfounded

[Scott Graham]

The Arizona attorney general's office is defending Judge Susan Graber -- and its most recent death penalty win -- saying there's no reason the judge should recuse herself from the case of murderer Kevin Miles.

The Arizona federal defender moved for Judge Graber's recusal last week, saying the facts of Miles' case bear a strong similarity to the 1974 carjacking murder of Graber's father, Julius. A lay observer would "entertain a significant doubt as to Judge Graber's impartiality," Assistant Public Defender Timothy Gabrielsen wrote.

Assistant Attorney General Jonthan Bass fired back Wednesday, saying the motion was untimely -- coming a month after Graber and another judge denied Miles' petition for habeas corpus -- and unfounded.

"Miles did not move to disqualify Judge Graber until the panel ruled against him on the merits," Bass wrote. "The delay suggests that Miles is misusing the recusal statute for strategic purposes."

There's no authority for a judge's duty to recuse when a close relative has been a victim of a similar crime, Bass added. In any event, the murder of Judge Graber's father occurred "almost 40 years ago, 24 years before she was confirmed to this court" and 14 years before her appointment to the Oregon Supreme Court. "Since assuming the bench, she has ruled impartially in countless murder cases."

The Name Game

[Cynthia Foster]

“Ms. Bogus” tried her best for four long hours to get the $1.4 million verdict tossed, but came up short.

In hearings this week and last, defense attorney Debra Bogaards argued at length that a verbal slip by a judge tainted a personal injury verdict against her client, the California Academy of Sciences.

According to Bogaards, retired San Francisco Superior Court Judge Wallace Douglass, who was sitting by assignment, twice called her “Ms. Bogus” in front of the jury, one time interrupting direct examination to apologize to her for the first time he’d called her by the wrong name.

Bogaards, a partner at Bogaards Davis in San Francisco, said she believed the slip to be accidental, but argued that it “impugned” her credibility with jurors and helped to build bias against her client.

Plaintiffs lawyer Steve Brady of The Brady Law Group in San Rafael argued that the defense didn’t  have transcripts to prove the slip even happened – although he himself called Bogaards “Ms. Bogus” once during arguments late Monday afternoon.

Brady represents Susanne Ice-Dunnigan, who hurt her back when she was rear-ended by an Academy employee in 2006. The May trial lasted nearly 11 days, with the jury awarding $1.1 million in non-economic damages. Bogaards says that number should be closer to $500,000.

The judge’s slip was one of Bogaards’ 14 grounds for a new trial – grounds she argued at length during two hearings spanning two days. Douglass disagreed, though, and declined to elaborate much on the basis for his ruling.

“Cumulatively,” he said, Bogaards’ 14 points didn’t amount to enough to toss the verdict.

Throughout the hearing and in comments afterward, Bogaards hinted at her intent to appeal.

Plenty of Smiles for All of Judge Browning's Children

[Scott Graham]

There were far more smiles than tears at a memorial service for James Browning on Friday. And it seems that's how the former chief judge of the Ninth Circuit would have wanted it.

Speaker after speaker remarked on Browning's warm smile and ability to emphathize, regardless of whether he was talking to a United States senator or a homeless person on the streets of San Francisco's civic center.

"He was the judge who walked the neighborhood every day," said Judge Marsha Berzon, a former clerk of Browning's. "He was essentially friends with everyone on the street."

"He'd always come up to me and say, 'Friend Max!'" Senator Max Baucus of Browning's home state of Montana said in a videotaped statement. "And he meant it."

Browning -- known in his family as Jimmy, according to his nephew William Warden -- served on the Ninth Circuit for 50 years until his death in May at 93. At the San Francisco courthouse named in his honor, he was remembered Friday as a strong leader who invariably put the institution ahead of his personal ego, with the foresight to use information technology to keep the circuit unified.

Power Down

[Amy Miller]

Matthew Powers may have thought he’d get even richer by switching sides in the patent wars to open his own plaintiffs shop, Tensegrity Law Group. But he’s not racking in the cash yet.

Powers, and his team at Tensegrity, lost the first patent suit that he filed after leaving Weil Gotshal & Manges. On Tuesday, Northern District Judge Edward Chen dismissed an infringement suit for Tensegrity client OIP Technologies Inc, a tiny Menlo Park company. The suit accuses online retailer Amazon of infringing OIP’s one and only patent, which is related to the automatic pricing of online goods and services.

Chen granted Amazon’s motion to dismiss, filed by attorneys at Latham & Watkins, saying that because OIP’s patent describes an abstract idea, it’s not eligible for patent protection.   

The patent’s “claimed steps are not meaningfully distinguishable from those found ineligible under Supreme Court and Federal Circuit authority,” Chen said. “In simple English, the ‘713 patent in essence teaches nothing more than the calculation of a demand curve based on consumer response to different price points.”