Ninth Circuit Finds NY Attorney Entitled to Additional Fees for Value of Referring Case to Nevada Law Firm

The Ninth Circuit has remanded a fee dispute case between attorneys to the trial court for a recalculation of the fees the referring New York attorney is entitled to for the referral to the Nevada law firm that successfully settled the case.

New York attorney Brian Fitzgerald referred a medical malpractice case to the Nevada law firm and alleged that there was an oral agreement to share the fees 50/50. The trial court rejected this argument, instead awarding Fitzgerald fees based on quantum meruit in an amount totaling one third of the added value to the client for Fitzgerald convincing the Nevada law firm to lower its contingency fee arrangement with the client. Fitzgerald appealed both the rejection of the oral agreement and the award under the theory of quantum meruit. The Ninth Circuit affirmed the trial court's rejection of the oral agreement, but remanded the case for the trial court to recalculate the quantum meruit award. The Court concluded that the trial court did not properly consider the value to the Nevada law firm of Fitzgerald's referral of the case to the firm.

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US Supreme Court Vacates Seventh Circuit's Opinion for Failure to Consider All of Death Row Inmate's Arguments

 The U.S. Supreme Court granted certiorari in Corcoran v. Indiana, 558 U.S. __ (2009), to death row 
inmate Joseph Corcoran in his appeal from the Seventh Circuit's reinstatement of his death sentence. 
Corcoran's habeas corpus Sixth Amendment challenge to his death sentence was granted by the 
district court but overturned by the Seventh Circuit.

In granting Corcoran's Habeas Corpus Petition, the district court stated Corcoran's other arguments 
against his death sentence were rendered moot. On appeal by Indiana, the Seventh Circuit failed to 
provide any explanation for disposing of Corcoran's other arguments, which included claims that the 
trial court committed various errors at sentencing, Indiana's capital sentence statute is unconsti-
tutional, prosecutorial misconduct at sentencing, and that Corcoran should not be put to death 
because he is mentally ill. The Supreme Court concluded the Seventh Circuit erred by not considering 
or explaining its disposal of Corcoran's other arguments, and remanded the case for resentencing.
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US Supreme Court Chief Justice Dissents from Court's Refusal to Hear DWI Case

AOL News reports that Chief Justice John Roberts has expressed his disagreement with the U.S. Supreme Court's decision in Virginia v. Joseph A. Moses Harris, Jr., 558 U.S, __ (2009), to deny certiorari in a DWI guilty verdict overturned by the Virginia Supreme Court. The Virginia Court overturned the conviction because the police were alerted to the defendant's drunk driving by an anonymous tipster without personally observing the defendant breaking any traffic laws prior to stopping the defendant.  
The Virginia Supreme Court concluded that the traffic stop violated the Fourth Amendment's prohibition of unreasonable searches and seizures. Justice Roberts, in a dissent joined by Justice Scalia, pointed out that state and federal courts are divided as to whether a traffic stop based on an anonymous tip to police that the driver is drunk when the investigating officer did not personally observe any traffic violations prior to the traffic stop actually violates the Fourth Amendment. Justice Roberts expressed doubt that a DWI case would fall under the general rule expressed by Florida v. J.L., 520 U.S. 266, 270 (2000), because "[t]he imminence of the danger posed by drunk drivers exceeds that at issue in other types of cases."
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What Do Lawyers Know About the Law Anyway?

Besides being an attorney, I am an avid amateur photographer and a member of the Nevada Camera Club. Whilst trolling the internet for a sample model release to use when I take pictures of interesting strangers, I came across a web article by Dan Heller, who advises that photographers should not consult a lawyer when trying to compose a model release to suit their purposes and avoid being sued. Being an attorney, you can imagine how I feel about this advice.  Heller gives three flawed reasons for his advice.  

As Heller's first reason, he advises that model releases fall under the specialized scope of the First Amendment.  Heller writes,

There is no government mandate about when a release is required. That is, the government does not track down violators. It is strictly a matter of civil law that must be enforced by individuals themselves. People have rights to privacy and publicity, but the First Amendment of the US Constitution also grants freedom of expression. It is this mixture of rights that often run counter to one another, so what a model release does is remove that conflict.

This is entirely misleading.  The First Amendment guards against government intrusion on one's free speech, not action by private parties.  Rendell-Baker v. Kohn, 457 U.S. 830 (1982).  Click here to obtain the full text of the Supreme Court case Rendell-Baker v. Kohn.  Wikipedia gives a nice overview of U.S. First Amendment protections.   Private actions such as libel and slander are tort actions between private parties that do not ordinarily invoke the First Amendment except in specific areas of law that require state enforcement, such as the Noerr-Pennington Doctrine or SLAPP suits.

Heller's next two reasons are that there is no clear answer as to what kind of model release a photographer needs, and that lawyers give bad business advice.  While he is correct that there is no clear answer unless a photographer wants a release for a very specific situation (for that matter, there is no clear answer to any legal question without knowing the specific circumstance), Heller makes the erroneous conclusion that lawyers give bad business advice.  But business decisions are generally the purview of the client/business owner.  What lawyers do do is give legal advice.  Any lawyer worth her salt will a) not give advice in an unfamiliar area of law; b) give thorough advice (i.e. all possible legal scenarios) as to what the state of the law in the client's jurisdiction is, based on the circumstances enumerated by the client; and c) not tell the client what to do.  An attorney needs to provide all relevant legal information to a client so the client can make an informed decision about how the client wants to proceed based on sound business reasons (i.e. the chances of being sued vs. the cost of preventing suit).  So, perhaps Heller has consulted only shady attorneys in the past whose only interests were in "running up the meter."

Notwithstanding the above, Heller does a fair job of explaining the nuances of when a model release might or might not be necessary.  But then again, Heller is not an attorney, and he fails to emphasize that he is relating general law and not a specific jurisdiction.  Be careful of taking his advice.  But don't take my word for it; click here for an attorney who is versed in intellectual property, copyright and entertainment law.
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Inadequate Case Citation Results in $100 Fine for Attorney

The ABA Journal reports that an attorney in Wisconsin has been fined $100 for providing the Wisconsin Court of Appeals with an inadequate citation to an unpublished case. The attorney referenced the case in a footnote to support his argument for liquidated damages in a vending machine case, however got the case caption entirely wrong (citing instead to a misrepresentation case between newlyweds and a photographer) and provided a cite to nothing more than a docket number without so indicating.  The Court expressed its frustration in the unpublished opinion imposing the fine.  The pertinent portion of the opinion can be found at Legal Blog Watch.
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U.S. Supreme Court Grants Certiorari to Hear Appeal of Enron CEO's Convictions

On October 13, 2009, the United States Supreme Court granted Certiorari to hear former Enron CEO Jeffrey K. Skilliings' appeal from his conviction of 19 criminal charges stemming from his role in the 2001 collapse of the Fortune 500 company Enron.  Skilling was convicted in 2006 and sentenced to 24 years 4 months in federal prison.

Despite Skilling's repeated requests for a change of venue, a Houston jury convicted Skilling in 2006 of insider trading, conspiracy, five counts of making false statements to auditors and twelve counts of securities fraud.  Skilling's appeal to the Fifth Circuit was denied. Skilling appealed to the Supreme Court and, according to NPR news reports, is claiming that the lower court erred by not granting a change of venue amidst the wide publicity his trial received in Houston, where Enron was located.

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We Never Really Leave School, Do We?

My five-year-old started kindergarten this month.  I was mortified in the first week when, after getting her to school two or three minutes after the late bell had rung two days in a row, we were both chastized by the principal on each of those two days.  I thought my days of getting in trouble with the principal were over once I graduated high school, but apparently, I was wrong.

I feel much better now after reading an article in the ABA Weekly Law Journal Newsletter I received last week.  A federal judge in the Middle District of Florida apparently became fed up with an attorney's sloppy brief writing and took it upon himself to mark up the attorney's brief with red ink.  He then ordered the attorney to file a Notice of Complaince certifying that he had personally delivered the marked up motion to his client.

Writing skills among the bar have become quite deplorable.  We are, after all, professional writers and should pride ourselves in producing quality writing.  While the Florida attorney's work was a bit sloppy, his is not the worst I have seen from opposing counsel.  More than once I have had to attempt to explain to the court in my brief what I believed opposing counsel's arguments were before even attempting to refute their arguments, simply because their brief was so unintelligible.  I once had to respond to a brief with a sentence that was half a page long.  And that is not hyperbole; it was literally half a page in length before encountering even a comma, much less a period.

The practice of law would improve immensely if counsel would take the time to pick up a style manual once in a while, or have another set of eyes edit for typos or even just for comprehensibility.  Counsel does not serve her clients' best interests if the judge can't understand the arguments in the written motion.  We all understand that deadlines and time crunches can make it impossible to produce the perfect prose to get our points across, but typos aside, we should all strive to tell our clients' stories in a way the judge will understand.  We may not be in school anymore, but our written work is still going to be judged and evaluated.  So, even if your motion doesn't come back with a grade, dripping in red ink with a requirement that your parents sign it your client sees it,  make sure you proof and edit your written work before filing it with the court.  And I vow to do better at getting my Kindergartener to school on time.

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Nevada Supreme Court Denies OJ's Request for Bail Pending Appeal

September 4, 2009

OJ Simpson will remain incarcerated while his appeal is pending.  In a two-page Order, the Court concluded that Simpson had not met his "heavy burden" to convince the Court he is not a flight risk in light of the "serious, nonprobationable, violent offenses" that Simpson was aquitted of.

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Nevada High Court Hears Oral Argument on OJ's Request for Bail Pending Appeal

Today, the Nevada Supreme Court heard oral argument from Yale Galanter, counsel for OJ Simpson, in Mr. Simpson's request for bail pending his appeal of twelve guilty verdicts, including armed robbery and kidnapping. The Nevada convictions stemmed from the well publicized events of September 13, 2007, in which Simpson and others accompanying him forced their way into a Palace Station hotel room, carrying guns and demanding the occupants turn over OJ Simpson football memorabilia. On December 5, 2008, the trial court sentenced Simpson to 15 years to life with the possibility of parole in six years.

Citing the factors in Bergna v. State, 120 Nev. __ (2004), Mr. Galanter argued before the three justice panel that Simpson is not a flight risk because Simpson's noteriety makes it impossible for him to flee or hide without intense media scrutiny. (One can only speculate that Mr. Galanter had in mind Mr. Simpson's prior failed attempt to flee arrest in 1994.) Galanter also argued that the errors by the trial judge in Simpson's trial were "so egregious and so outrageous" that there is a high likelihood that Simpson's convictions will be overturned on appeal. Of particular note, Galanter argued in rebuttal that the trial court's failure to instruct the jury on specific versus general intent rendered the verdicts invalid.

Justice Siatta expressed concern about the public policy considerations regarding granting Simpson's bail request and the precedent it could set among all convicted appellants seeking bail pending appeal. David Rogers, counsel for the State of Nevada, reiterated Justice Siatta's concerns and emphasized the high burden placed on Simpson under Bergna given the violent nature of the crimes and the significant sentence imposed. Mr. Rogers also opined that nothing would prevent Simpson from taking "a short boat ride" from Florida to another country to escape justice.

Rogers indicated the State's Response Brief to Simpson's underlying appeal would be filed sometime within two weeks.

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Ninth Circuit Reverses Las Vegas Judge's Grant of Rule 50(b) Motion

On March 3, 2009, the Ninth Circuit published the opinion, Tortu v. LVMPD, reversing a decision of the U.S. District Court District of Nevada, Hon. Robert C. Jones presiding. The plaintiff sued the Las Vegas Metro Police Dept. and several Metro Police officers for unreasonable force when plaintiff was arrested at McCarren International Airport. The jury found in favor of two of the officers and found a third officer, Engle, liable to the plaintiff. Engle filed a Rule 50(b) motion for judgment as a matter of law and, in the alternative, a Rule 59 motion for a new trial. The court granted both motions.

The Ninth Circuit reversed, stating that Engle was not entitled to file a Rule 50(b) motion without first having filed a Rule 50(a) motion prior to submission of the case to the jury. The Court cited the plain language of the Rule and the 1991 advisory committee notes stating, "This provision retains the concept of the former rule that the post-verdict motion is a renewal of an earlier motion made at the close of evidence."

The Court also reversed the district court's grant of Engle's Rule 59 motion for a new trial. The Court concluded that the district court abused its discretion because the weight of evidence was not against the jury's verdict. Contrary to the district court's reasoning that finding for the other two officers conflicted with the jury's finding for plaintiff against Engle, the Ninth Circuit conluded only that plaintiff had not met his burden of showing excessive force by the other two officers, particularly where separate evidence as to Officer Engle was given. Moreover, the district court was not entitled to substitute its evaluation of the evidence for the jury's, simply because it would have arrived at a different verdict. Thus, the jury's verdict was not irreconcilable, and Engle could have been found liable while the other two officers were not found liable.
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