Walter Moore's Law Blog

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2011-06-22T15:02:00.001-07:00

LA Law: Can The Mayor Order Layoffs Legally?

2010-02-07T09:40:00.000-08:00

By Walter Moore

You may have read that L.A.'s Chief Deputy City Attorney wrote a memo asserting Mayor Villaraigosa cannot order layoffs of City employees on his own.

To find out whether he's right or wrong, read my essay, "Fake Budget Crisis Goes 'LA Law'" at my political blog, WalterMooreSays.com.

What Will Happen When Los Angeles Declares Bankruptcy?

2010-01-27T07:44:00.000-08:00

By Walter Moore

What will happen, exactly, when the City of Los Angeles files for bankruptcy protection due to the years of overspending by Villaraigosa and the City Council?

I’m an attorney, but not a bankruptcy attorney. But why let a little thing like an utter lack of relevant expertise or experience stand in the way of answering a perfectly good question?

Based on an exhaustive 90 seconds’ worth of legal research, which led me to a helpful website set up by the U.S. Bankruptcy Courts, I think we might see something along the following lines:

Union contracts will get torn up. Remember all those overly generous raises? I think they’ll be set aside, and employment compensation will be brought into line with current recession market conditions. Oh, and those platinum parachutes, the ERIPs? I suspect they’ll get e-ripped up.
DWP could be sold off. The bankruptcy courts can, I believe, order the sale of assets. The DWP is a big asset, and could easily be severed from local government.
Port, airports, convention center, and other real estate, too. The City currently owns all sorts of assets that cities don’t inherently need to own. It would hardly be shocking for the bankruptcy trustee to divest the City of all real estate and other property that it does not need in order to perform basic municipal functions.
City automobile fleet? The trustee may decide that City Council Members can drive their own cars and pay for their own insurance. Other employees may likewise wind up having to drive their own cars and submit expense reports -- you know, the way all of us in the private sector do.
Bye-bye bloated staffs. Villaraigosa will probably have to pare down his current staff of, what, 200, back to the 70 he had a few years ago.
Subsidies will stop. You know all those give-aways to politically connected corporations owned by billionaires? Somehow I don’t think those will survive bankruptcy.
Pension reform, of course. The pension system cannot survive in its current form. Presumably the defined benefits would be replaced by defined contributions, or conversion to IRAs or whatever.
No more frequent flyer miles for Tony. You know all those trips all over the world at your and my expense? He’ll be lucky to get five Southwest tickets to Sacramento per year.
Civil litigation. Whatever lawsuits are pending against the City for discrimination, breach of contract, personal injury, etc. will not go to trial. Instead, they will be resolved summarily, without any jaw-dropping multi-million dollar awards. In other words, no more Tennie Pierce settlements.
No more love for all those sketchy non-profits. The gravy train for the gang “academy” and all the “ex” gang members will come to a halt. Ditto for all the other unregulated, un-monitored collections of cronies living off you and me. And you know all those one-dollar-per-year leases they get? History. The bankruptcy trustee will require that City real estate be sold or leased at fair market value.

Okay, that’s my take. What’s yours? What do you think the bankruptcy trustee appointed to provide adult supervision to this city will do?

Trial On YouTube? Five Out Of Nine Supremes Say "No"

2010-01-13T19:16:00.000-08:00

By Walter Moore

The United States Supreme Court issued a ruling today to stop the United States District Court in San Francisco from posting video of the "gay marriage" trial on YouTube.com.

It was a five to four decision.

Do you see why sometimes it's hard for lawyers to give you a definitive answer to what you think is a "simple" legal question?

I mean, what could be simpler than a decision on whether to broadcast a trial? And yet, of the ten people in black robes who considered it, they split 50/50: five Supreme Court Justices said "no," and four Justices plus the District Judge said "yes."

When Judges Attack

2010-01-11T21:43:00.000-08:00

By Walter Moore, Trial911.com

You've heard about runaway juries awarding excessive damages.

But have you ever heard of a runaway judge awarding excessive damages? You have now.

The California Court of Appeals just issued an unpublished opinion reversing a Superior Court judge's award of compensatory and punitive damages.

This was the case where the private airplane charter company secretly videotaped conversations between the late Michael Jackson and his attorney. The trial judge awarded compensatory damages of $2.25 million and another $6.75 million in punitive damages, for a total of $9 million. Wow and ouch.

The Court of Appeals ordered what lawyers call a "do-over." The plaintiff can either accept $150,000 in punitive and $500,000 in punitive, for a total of $650,000, or try the case again.

Are you getting that? The judge awarded $9 million, and the Court of Appeals said it should have been $650,000 -- just 7.2% of the amount awarded.

What does this mean to you? It means you should never agree to arbitration. If the lower court's decision had been an arbitration award, the defendant would basically be screwed. You see, you cannot appeal an arbitration award except on very narrow grounds.

This case also illustrates why you want a jury rather than a judge to decide your case. You see, judges are human beings, too. And it's much easier for one human being to make a remarkably terrible decision than for nine out of 12 jurors to make a remarkably terrible decision.

So, summing up: jury, good; arbitration or judge, not so much.

A Rant About Underwear Bombs, Drones, Crimes And War

2010-01-08T22:25:00.000-08:00

By Walter Moore

Pardon my rant, but I just read that underpants bomber has pleaded “not guilty.”

Let’s recap: an airline passenger from a foreign country is caught by his fellow passengers trying to detonate his unmentionables on Christmas. He admits he was working with terrorists in Yemen, and wanted to blow up the plane. What does our government do? Indict him for a crime.

The Obama administration is treating acts of war as crimes.

The underpants bomber did not commit a “crime.” He committed an act of warfare.

Likewise, when the 9/11 terrorist flew airplanes into the World Trade Center, they were not violating FAA regulations. They were attacking our nation, just as if they had fired missiles into, or dropped bombs onto, those buildings.

We are at war. This war is different from past wars, because we are not at war against a formal nation-state. We are not fighting an army that wears matching uniforms, or marches in neat formations.

We’re at war against an informal army whose soldiers are scattered around the globe, and who attack individually and in disguise. They give new meaning to the recruiting slogan, “An Army of One.” One man hiding explosives in his underwear, one traitorous officer shooting up Fort Hood -- one person at a time is all it takes to wage a war of terror.

Terrorist soldiers have no right to remain silent. They have no right to an attorney, nor to have us pay for an attorney. They are waging war on us, and should be treated, at best, like prisoners of war. No trials. No lawyers. No years of appeals. The best they should reasonably expect is internment at a prison camp.

The terrorist soldiers, moreover, do not defend themselves by using armor, or Kevlar, or surface-to-air missiles. Instead, the terrorist army tries to take advantage of our civility and morality by surrounding themselves with innocent people whenever possible. They rely, in short, on the “human shield” method.

We could probably kill everyone and every living thing in Pakistan and Afghanistan in less than 40 minutes if we wanted to do so. Maybe 20 minutes using just one submarine.

Instead, we try to single out the bad guys. When we kill “innocent bystanders” using our remarkably precise technology, we do so reluctantly, and we kill as few of them as possible.

So spare me any more whining, hand-wringing or self-recrimination about the civilians who are killed when we use Predator and Reaper drones to attack terrorists abroad. That we go to great lengths to avoid killing civilians is remarkable. In World War II, we bombed the hell out of cities in Europe and, obviously, Japan.

Unlike the terrorists, moreover, we are trying to kill enemy combatants, and trying to avoid killing civilians. The terrorists, by contrast, are content to kill any and all Americans.

Forget the “not guilty” plea. Forget the trial. This is war, not crime. In war, you kill or capture enemy soldiers You do not arrest and prosecute them.

The enemies of America have adapted their strategies to wage war against us. We likewise need to adapt our strategies to defend ourselves.

Why Do People File Groundless Lawsuits? I'll Tell You

2009-12-31T08:53:00.000-08:00

This week, the United States Court of Appeals for the Ninth affirmed the decision of the United States District Court to dismiss a class action product defect lawsuit.

Care to guess what the product and alleged defect were? A car that accelerates suddenly? Nope. Aspirin that kills? Negative. Power tools that electrocute the people who use them? Not even close.

No, the allegedly dangerous product was the ubiquitous iPod, and the "defect" was that users can set the volume really high if they so choose.

Stupid, right? I mean, this is an insanely stupid claim: a stereo is "defective" because it can be played loudly? What do you want to bet the same people would have sued if the iPod volume was limited to some lower level?

Apple won, but I can guarantee you, without even having seen any of their bills for legal fees, that it cost them a small fortune.

And that, my friend, is why people file groundless idiotic lawsuits like this one. They hope and expect that, by subjecting the defendant to exorbitant legal fees, they will coerce the defendant into paying the plaintiff and its lawyers just to go away, because caving into the abuse is cheaper than standing up for one's rights.

I have seen this far too often in my practice. The United Kingdom has a strict "loser pays" system for lawsuits. We may want to consider that here, at least for certain types of lawsuits, and require the plaintiff to post a bond sufficient to cover the defendant's legal fees if plaintiff loses.

Would this have some disadvantages? Absolutely, it would. But it would also have the advantage of clearing frivolous, shake-down lawsuits out of our courts, and encouraging people to protect themselves with clear contracts and written warranties.

World Government vs. National Government

2009-12-26T20:09:00.000-08:00

By Walter Moore

The European Court of Human Rights is now hearing a case filed by three women against the Republic of Ireland to invalidate that nation's abortion laws. (You can read about it at the BBC's website.)

Earlier this year, Italian prosecutors rested their case against CIA operatives for "kidnapping" a suspected terrorist -- an Egyptian.

The United Kingdom, moreover, has issued, in the words of the Wall Street Journal, an "arrest warrant for [Israel's] former Foreign Minister Tzipi Livni on war-crimes allegations, with the government threatening to sideline the U.K. in Mideast peace talks."

What is going on here? What has happened to national sovereignty?

In part, nations are ceding bits of sovereignty by treaty. By agreeing to abide by the rulings of international tribunals, nations hand over control of what happens within their borders to people who live beyond their borders.

Part of what's happening, moreover, presumably reflects a laudable desire to prevent genocide. But those efforts should be conducted through heads of state, not local prosecutors looking to make a name for themselves. That's just chaos.

Bottom-line du jour: the U.S. should be very careful about what treaties it signs. If we're not careful, you might get arrested and imprisoned on your next vacation for committing crimes against the environment because you own a car with a six-cylinder engine.

Pollution, Porn and Prostitution

2009-12-24T15:11:00.000-08:00

By Walter Moore

You're just reading this because the title says "porn and prostitution," huh? I can live with that.

Two legal news stories caught my eye the other day:

One article proclaimed that L.A. area pollution at the port might drop 80% because the federal government is imposing new, more-stringent emissions standards to American-flagged vessels.

The other article reported that a judge had thrown out a lawsuit which sought to compel porn "actors" in L.A. County to wear condoms during filming. The plaintiffs said that the County Health Department could require, but was not requiring, the use of that . . . safety equipment, and that disease is spreading as a result.

Digression: is a camera the only difference between legal and illegal prostitution? If a "John" asks a prostitute to make a sex movie with him, is that different from just asking for sex? End of digression.

So what is the link between the pollution from ships and the wearing of condoms? If you guessed "seamen," you're just being silly. Cut it out.

The correct answer is that both of these situations illustrate that people who pass laws better understand economics, or they can get hit with unintended consequences galore.

Imposing more stringent pollution requirement on American-flagged ships indeed might reduce pollution. But it might instead simply convince the owners of those ships to charter them under a different country's flag.

Likewise, requiring the use of condoms in local porn movie production might reduce the spread of disease. Then again, it might instead simply convince the people who make those movies to make them elsewhere.

The lesson, I think, is that before any legislative body passes a law -- whether it is to raise taxes, impose additional obligations, limit hours or whatever -- the lawmakers should think long and hard about whether and how people will react to that law in ways other than simply complying with it.

Felons Entitled To Buy Body Armor Despite Ban, Court Rules

2009-12-20T10:19:00.000-08:00

By Walter Moore

Remember that terrible, 44-minute long shoot-out in North Hollywood where the bank robbers wore armor, and the gun battle just went on an on?

Afterwards, the legislature passed a law prohibiting felons from having body armor. Sensible enough, right?

Alas, reports the L.A. Times, a court of appeals has voided the law on the theory that the definition of "body armor" is too vague. Let's hope the legislature fixes this one in a heartbeat.

Tiger Woods vs. David Letterman: Blackmail, Privacy and Publicity

2009-12-19T15:17:00.000-08:00

By Walter Moore

When a man threatened to publicize David Letterman's affairs with women on his staff, he reported it to the police, and prosecutors charged the man with blackmail. His "defense" was that he was merely offering to sell Letterman the literary rights to the story.

Meanwhile, the Wall Street Journal reports that, way back in 2007, the publishing company that owns the National Enquirer agreed to refrain from publicizing Tiger Woods's affairs in exchange for his granting an interview to another magazine owned by the same company.

What then, is the difference between blackmail, on the one hand, and a legal agreement to purchase or sell publicity, literary and privacy rights?

As a practical matter, I think it basically boils down to consent: If the person whose private life would be exposed gives in, and makes a deal, no one is going to be prosecuted for blackmail or extortion, is he? Successful blackmailers are deemed not to be blackmailers.

Yacht-Racing Litigation

2009-12-16T08:07:00.000-08:00

By Walter Moore

Back in law school, some of my classmates wanted to be corporate lawyers. Others wanted to be prosecutors. I don't recall anyone dreaming of litigating about where and how people would race yachts, and yet, there has been litigation over just that subject. You can read about the latest America's Cup appellate decision in the New York Times.

Art Imitates Life In Colorado: No Smoking On Stage

2009-12-15T20:27:00.000-08:00

By Walter Moore

Apparently Colorado's state legislature has solved all the big problems, because they found the time to pass a law -- which the state's supreme court just upheld -- banning smoking by actors on stage.

What's next? Perhaps they'll mandate that when actors eat on stage, or during the filming of a movie, they will be limited to a low-fat, high-fibre menu.

It hurts my head just to read about laws like this. I need a cigar.

Executive Privilege vs. "Rank Hath Its Privileges"

2009-12-11T16:16:00.000-08:00

By Walter Moore

Yesterday I noted that a U.S. Court has held the U.S. Defense Department in contempt for failing to videotape an interrogation of a detainee at Guantanimo Bay. That, I argued, violates the Separation of Powers in the Constitution. Courts don't run wars. The Executive Branch runs wars. At least, that's how I read the Constitution, in my simplistic fashion.

Today, think about this: the same White House that failed to raise the Separation of Powers issue in the military case raised it in another situation recently. Do you know what I'm talking about? Of course you do: Gate-Crasher-Gate.

The White House invoked "Executive Privilege" -- another name for the Separation of Powers doctrine when applied to the Executive Branch -- in refusing to let Desiree Rogers, the cruise director for Obama's first state dinner, appear before Congress to testify about how in the world those tacky "undocumented guests" infiltrated.

Are you scratching your head? Me, too. Under the current administration, our military must submit to judicial supervision when questioning prisoners of war on foreign territory, but the White House social secretary need not testify before Congress about a major security breach that could have cost the life of the President, the Vice-President and India's head of state.

What explains the White House's decision to treat the two situations so differently? The explanation, perhaps, can be found in politics and money, rather than law. The White House apparently has no qualms about subjecting the military to scrutiny and second-guessing. After all, what have any of those soldiers done but put their life on the line for their country? Desiree Rogers, by contrast, was a campaign cash-cow. Consider the following from the Wall Street Journal:

Also at the dinner was Ms. Rogers's ex-husband, John Rogers Jr., head of Chicago-based Ariel Investments LLC and a close friend and top fundraiser for the Obamas. He said accusations that Ms. Rogers hobnobbed with guests and overlooked her duties are unfounded.

* * *

Ms. Rogers previously ran an online social-networking unit at Allstate Financial and served as president of Peoples Gas and North Shore Gas, a Chicago utility. During the 2008 campaign she tapped into her network to raise as much as $200,000 for Mr. Obama's presidential bid, federal records show.

"Desiree's been able to weather tremendous storms" in the corporate world, said long-time friend Linda Johnson Rice, head of the company that publishes Ebony and Jet magazines. "She'll be fine."

Maybe SHE will be fine, but how about the soldiers who have to fight one battle overseas, while defending a second front in America's courtrooms? Will they be fine, too?

U.S. Court vs. U.S. Military: Is This Crazy, Or Is It Just Me?

2009-12-10T20:50:00.000-08:00

By Walter Moore

A U.S. District Court Judge has held the U.S. Defense Department in contempt for . . . failing to videotape the testimony of a Guantanimo Bay detainee "so that the public and the news media could see it," in the words of the New York Times.

This strikes me as a violation of the Constitutional separation of powers. The President is the Commander in Chief of the armed forces, and we are at war. Why, then, is the Judiciary ordering the Department of Defense to videotape interrogations? Can you imagine this happening at any other point in history?

"General Eisenhower, not so fast. We're going to need to see your timetable for this 'invasion.' There are many endangered species in the English Channel, and the noise from all those ships and boats could disrupt their reproductive cycles."

Are Your Lawyers Efficient? Here's How To Find Out.

2009-12-10T11:10:00.000-08:00

By Walter Moore
Law firms' revenue will be down 5-10% this year, according to Bloomberg.

That's hardly surprising given the state of the economy. Fewer deals means less work for lawyers. But I think it reflects another circumstance: clients cannot afford inefficient law firms, not in this economy.

Here are three ways your lawyers can and should protect your interests efficiently:

Efficient staffing. How many people are assigned to your case? Who are they, and why were these particular people assigned? Is there a rational mix of lawyers and legal assistants?
Efficient strategy. Do your lawyers have a game-plan for winning efficiently? Or is their plan simply to assert every conceivable claim and defense, and conduct all discovery allowed by law?
Efficient techniques. Are your lawyers re-inventing the wheel? Or are they saving you money by using work done on previous cases? Do they use technology in a way that increases costs, or reduces costs?

Why In The World Should You Care About E-Bay vs. Craigslist?

2009-12-04T17:01:00.000-08:00

By Walter Moore

Two giant companies, E-Bay and Craigslist, are fighting one another tooth and nail, just like Godzilla and Mechagodzilla -- except in a courtroom.

They are fighting about what the terms of their agreement were, and whether one misused the other's trade secrets. Meg Whitman, candidate for governor and former E-Bay executive will testify. (Click here to read an article about it in the Wall Street Journal.)

Think about that. They're giant companies. They each paid armies of lawyers to draft their agreements to protect their rights. But it didn't keep them out of court, did it?

Do you understand why it is important to have clear contracts drafted by trial lawyers with actual courtroom experience?

Of course you do. Trial lawyers see what happens when disputes arise. Unlike transactional lawyers who might never set foot outside their office, trial lawyers see how contracts written in legalese can hurt, rather than help, the parties avoid disputes over who had what obligation to whom.

Okay, now comes the incredibly subtle sales pitch part:

Want a real trial lawyer to draft your next contract? Of course you do. When you're ready, contact me Walter Moore, and let's put together a contract that can help keep you out of court altogether, or at least help you win if you wind up in court.