November 5, 2012
Jury Awards $1.69 Milllion in Excessive Force Trial Against The LAPD

Here is some news coverage on our recent victory against the LAPD.

September 15, 2012
Boy Scouts Hid Allegations Of Abuse For Decades

According to a Los Angeles Times report, over two decades, the Boy Scouts of America failed to report hundreds of alleged child molesters to police and often hid the allegations from parents and the public. A review of 1,600 confidential files dating from 1970 to 1991 has found that Scouting officials frequently urged admitted offenders to quietly resign — and helped many cover their tracks. In the majority of cases, the Scouts learned of alleged abuse after it had been reported to authorities. But in more than 500 instances, the Scouts learned about it from boys, parents, staff members or anonymous tips. In about 400 of those cases — 80% — there is no record of Scouting officials reporting the allegations to police. In more than 100 of the cases, officials actively sought to conceal the alleged abuse or allowed the suspects to hide it.

September 14, 2012
Wisconsin Judge overturns Wisconsin Union Rights Limiting Law

ABC is reporting that a Dane County Circuit Judge has ruled that the law violates both the state and U.S. Constitution and is null and void. The ruling applies to all local public workers affected by the law, including teachers and city and county government employees, but not those who work for the state. They were not a party to the lawsuit, which was brought by a Madison teachers union and a Milwaukee public workers union.

This ruling means that local Wisconsin government and schools now must once again bargain over those issues. The state Supreme Court in June 2011 ruled that the law was constitutional after it had been blocked by a different Dane County judge on a challenge over its passage being a violation of open meetings law. Anger over the law's passage led to an effort to recall Walker from office. More than 930,000 signatures were collected triggering the June recall election. Walker won and became the first governor in U.S. history to survive a recall.

February 21, 2012
Supreme Court To Hear Race-Based College Admissions Case

MSNBC is reporting that the Supreme Court will once again confront the issue of race in university admissions in an appeal brought by a white student denied a spot at the flagship campus of the University of Texas. The court said Tuesday it will return to the issue of affirmative action in higher education for the first time since its 2003 decision endorsing the use of race as a factor in freshmen admissions. I wrote about this potential danger regarding Historically Black Colleges and Universities while I was in law school. This time around, however, a more conservative court is being asked to jettison that ruling and outlaw affirmative action in the university setting. Stay tuned.

February 4, 2012
Trial Lawyer Of The Year Award (2012)

I am humbled and honored to have been chosen as one of the Trial Lawyers of The Year by The Private Defenders Criminal Bar Association for 2012. I and Dennis Wilson were chosen for our work on the David Green double homicide death penalty case, which resulted in a hung jury.

August 17 , 2011
Advocacy group sues Brawley Elementary School District over firing of Ron Garcia.

Here is an article on a writ of mandate lawsuit that my firm filed in Brawley California on behalf of The Institute For Socio Economic Justice.  The writ of mandate that we filed was against the Brawley Elementary School District. It demands that the district reinstate former superintendent Ron Garcia and declare the school board's decision to fire Garcia null and void. In firing Garcia, the school board violated a plethora of provisions under the Brown Act and the California Government Code. Stay tuned.

March 31, 2011
Press Conference For John Horton.

Here was some interesting press coverage that we got on our lawsuit against the Los Angeles County Sheriff Dept. for the senseless death of John Horton while at the Men's Central jail. John was found dead under suspicious circumstances while in solitary confinement. Trial is currently set for September of this year.

January 22, 2011
An Interesting Way To Fight The Death Penalty.

The sole US maker of the anesthetic used in executions announced Friday it would stop manufacturing sodium thiopental to prevent its product from being used to put prisoners to death.

I am unequivocally against the death penalty, particularly since it is racially disparate in its application and I obeserve it's unfortunate application in my criminal law practice. It's no secret that even though blacks ans whites are murder victims in nearly equal numbers of crimes, 80% of the people executed since the death penalty was reinstated have been executed for murders involving white victims. It's also no secret that more than 20% of black defendants who have been executed were convicted by all-white juries.

Before we can even get to the moral argument, this point has never been addressed by the proponens of the death penalty. Additional, now that Hospiria, Inc. has said that it will not be a tool for state sanctioned murder anymore, maybe our educated nation will now go back to stoning, hanging and firing squad to morally teach us that it's wrong to kill.

November 23, 2010
Jury Orders SAP to pay Oracle 1.3 Billion.

What a Thanksgiving. Today, a jury verdict ordered SAP to pay Oracle $1.3 billion for stealing customer-suppport documents and software in a scheme to siphon off customers. SAP, which is based in Waldorf, Germany, came into the trial ready to lose something. They admitted a subsidiary stole the documents and argued that it owed just $40 million. Obviously, a jury thought otherwise.

August 4, 2010
Federal Court Rules That Prop 8 Is Unconstitutional.

Today, the California District Court Judge struck down as unconstitutional Proposition 8, California's voter approvied ban on gay marriage. U.S. District Chief Judge Vaughn R. Walker said Proposition 8, passed by voters in November 2008, violated the federal constitutional rights of gays and lesbians to marry the partners of their choice. His ruling is expected to be appealed to the U.S. 9th Circuit Court of Appeals and then up to the U.S. Supreme Court.

Both Gov. Arnold Schwarzenegger and L.A. Mayor Antonio Villaraigosa praised the judge's decision. "Because a judge had the courage to stand up for the constitution of the United States, prop 8 has been overturned!" the mayor wrote on Twitter.

February 4, 2010
Illinois Supreme Court Strikes Down Medical Malpractice Caps.

Today, the Illinois Supreme Court today did the right thing: it struck down as unconstitutional limits as to what can be awarded in medical malpractice cases. The court argued that the cap violates separation of powers by allowing lawmakers to interfere with a judge's ability to reduce verdicts. The case, LeBron, a Minor v. Gottlieb Memorial Hospital, involved a malpractice lawsuit filed in 2006 against the hospital by the family of a girl who suffered severe brain damage and other injuries during her delivery there.

State lawmakers in 2005 passed legislation, which was signed into law by then-Gov. Rod Blagojevich, that established caps on noneconomic damages of $500,000 in cases against doctors and $1 million against hospitals. Illinois followed other states, such as California, that capped damages years ago.

The best quote of the opinion? "That ‘everybody is doing it," is hardly a litmus test for the constitutionality of the statute."

December 21, 2009
Brave Judges

Every once in a while, something will happen that will make me proud of our justice system and the members of the bar. This ruling is one of them. Happy Holidays.

July 27, 2009
Sotomayor Approved By Senate Judiciary Committee

Today, the Senate Judiciary Committee voted to approve Justice Sonia Sotomayor as the first Hispanic Supreme Court justice over nearly solid Republican opposition, paving the way for a historic confirmation vote next week. The panel voted 13-6 in favor of Sotomayor, with just one Republican, Sen. Lindsey Graham of South Carolina, joining Democrats to support her. So much for bi-partisanship.

June 25 , 2009
Goodbye Michael

Not law related, but my life related. Goodbye Michael. You affected me in ways I don't even fully understand. I'll always revere the King of Pop.

June 25 , 2009
US Supreme Court Rules That Defendants Have A Right To Cross Examine Forensic Experts

The United Supreme Court ruled today that the Sixth Amendment's Confrontation Clause gives criminal defendants the right to cross examine the scientists who issue forensics reports that are entered into evidence. The breakdown of the 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) was interesting, with Justice Scalia's majority opinion joined by Justices Thomas, Ginsberg, Souter and Stevens. Alito, Roberts, Kennedy, and Breyer dissented.

The ruling will provide for an added layer of challenge by defense lawyers to such criminal evidence as illegal drugs, fingerprints, blood spatter patterns and blood chemistry, guns and bullets, and other forms of physical evidence subjected to lab analyses, at least when the resulting reports are prepared for use as evidence in criminal trials.

Now, if prosecutors want to offer a crime lab report as evidence, and the report was prepared with the aim that it would be used at trial, the prosecution has to bring along the author or scientist and make them available for questioining by the defense — if the defense insists on the right to confront the analyst.  It is not up to defense lawyers to summon them to the stand, but they must assert the right to confront the analyst, the Court indicated. A copy of the opinion can be found here.

June 19 , 2009
Supreme Court Rules That There Is No Constitutional Right To DNA Testing

Wow. In the case of District Attorney's Office for the Third Judicial District v. Osborne, our Supreme Court has held that prisoners do not have a constitutional right to DNA testing after their conviction, the Supreme Court ruled yesterday, even though the technology provides an "unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." William Osborne was convicted in Alaska in 1993 for a crime that DNA testing could prove he didn't commit. Alaska has arbitrarily refused Osborne’s requests for DNA testing for years – even though the testing would be performed at no cost to the state, and the state now concedes that DNA testing could prove his innocence. On June 18, the court ruled 5-4 that his constitutional rights were not violated by the state’s denial of testing.

Peter Neufeld of the Innocence Project, who argued Osborne's case before the court, said the decision will mean that "more innocent people will languish in prison" because they lack the legal right to DNA testing. He's right. A copy of the opinion can be found here.

June 10 , 2009
LAPD Detective Charged 23 Years After Being Suggested As A Suspect In Slaying

After Sherri Rae Rasmussen was beaten and shot to death in 1986, her father urged Los Angeles police to investigate a fellow officer who had had confrontations with his daughter in the months leading up to her death, according to attorneys for the victim's family.

It was only this year, after LAPD cold-case detectives reopened the investigation and interviewed Rasmussen, that Det. Stephanie Lazarus became a suspect. The father's suspicions were bolstered Friday when police arrested Lazarus in connection with the slaying. On Monday, prosecutors charged Lazarus with capital murder, leaving open the possibility that they may seek the death penalty.

As part of an ongoing effort to solve thousands of old homicides, detectives revisited the case in February, testing blood or saliva samples from the crime scene thought to have been from the killer. DNA tests suggested that the attacker was a woman, contradicting the detectives' theory that she had been killed by a man. The cold-case detectives contacted Rasmussen and asked if he knew of any women with whom his daughter might have clashed. Rasmussen once again voiced his theory about Lazarus. This time detectives looked into it.

Why it took 23 years to charge this detective, I have no idea. The article is here.

May 26, 2009
California Supreme Court Upholds Gay Marraige Ban
The California Supreme Court today upheld Proposition 8, the voter-approved law restoring a ban on same-sex marriages in the state, but at the same time left intact the more than 18,000 marriages for gay and lesbian couples who wed last year before the ballot measure went into effect.

This creates an interesting connundrum in California. The Supreme Court has now established a two-tiered system of marriage across the state for same-sex couples. Under the ruling, Proposition 8 will continue to outlaw same-sex marriage in the future, but those gay and lesbian couples who got their marriage licenses before last November's election will remain on equal legal footing with heterosexual couples.

This looks like this issue is in no way over. Chief Justice Ronald George, who authored last year's ruling striking down the state's prior ban on gay marriage, wrote today's majority opinion upholding Prop 8, cautioning that the decision is not based on whether the measure "is wise or sound as a matter of policy,'' but instead "concerns the scope of the right of the people ... to change or alter the state Constitution itself.'' Stay tuned...

February 20, 2009
Crime Labs Seriously Deficient
Confirming something criminal defense attorneys have been saying for quite a while now, The National Academy of Sciences says with the single exception of DNA, no other crime scene evidence is dependable enough to allow police officers to testify in court, as they often do, that it's "a match" to a specific person.

The National Academy of Sciences was directed by Congress to assess the quality and needs of the nation's crime laboratories. Wednesday's report, "Strengthening Forensic Science in the United States: A Path Forward," is the work of a panel of 17 experts, including scientists and lawyers.

In short, the report says the nation's 389 publicly funded crime labs are underfunded, underequipped and so unconnected to scientific standards that testimony in court about their results is often vastly overstated. MSNBC wrote a good article on it.

January 20, 2009
President Obama's Inauguration Speech
My fellow citizens,

I stand here today humbled by the task before us, grateful for the trust you have bestowed, mindful of the sacrifices borne by our ancestors. I thank President Bush for his service to our nation, as well as the generosity and cooperation he has shown throughout this transition.

Forty-four Americans have now taken the presidential oath. The words have been spoken during rising tides of prosperity and the still waters of peace. Yet, every so often the oath is taken amidst gathering clouds and raging storms. At these moments, America has carried on not simply because of the skill or vision of those in high office, but because We the People have remained faithful to the ideals of our forbearers, and true to our founding documents.

So it has been. So it must be with this generation of Americans.

That we are in the midst of crisis is now well understood. Our nation is at war, against a far-reaching network of violence and hatred. Our economy is badly weakened, a consequence of greed and irresponsibility on the part of some, but also our collective failure to make hard choices and prepare the nation for a new age. Homes have been lost; jobs shed; businesses shuttered. Our health care is too costly; our schools fail too many; and each day brings further evidence that the ways we use energy strengthen our adversaries and threaten our planet.

These are the indicators of crisis, subject to data and statistics. Less measurable but no less profound is a sapping of confidence across our land — a nagging fear that America's decline is inevitable, and that the next generation must lower its sights.

Today I say to you that the challenges we face are real. They are serious and they are many. They will not be met easily or in a short span of time. But know this, America — they will be met.

On this day, we gather because we have chosen hope over fear, unity of purpose over conflict and discord.

On this day, we come to proclaim an end to the petty grievances and false promises, the recriminations and worn out dogmas, that for far too long have strangled our politics.

We remain a young nation, but in the words of Scripture, the time has come to set aside childish things. The time has come to reaffirm our enduring spirit; to choose our better history; to carry forward that precious gift, that noble idea, passed on from generation to generation: the God-given promise that all are equal, all are free, and all deserve a chance to pursue their full measure of happiness.

In reaffirming the greatness of our nation, we understand that greatness is never a given. It must be earned. Our journey has never been one of short-cuts or settling for less. It has not been the path for the faint-hearted — for those who prefer leisure over work, or seek only the pleasures of riches and fame. Rather, it has been the risk-takers, the doers, the makers of things — some celebrated but more often men and women obscure in their labor, who have carried us up the long, rugged path towards prosperity and freedom.

For us, they packed up their few worldly possessions and traveled across oceans in search of a new life.

For us, they toiled in sweatshops and settled the West; endured the lash of the whip and plowed the hard earth.

For us, they fought and died, in places like Concord and Gettysburg; Normandy and Khe Sahn.

Time and again these men and women struggled and sacrificed and worked till their hands were raw so that we might live a better life. They saw America as bigger than the sum of our individual ambitions; greater than all the differences of birth or wealth or faction.

This is the journey we continue today. We remain the most prosperous, powerful nation on Earth. Our workers are no less productive than when this crisis began. Our minds are no less inventive, our goods and services no less needed than they were last week or last month or last year. Our capacity remains undiminished. But our time of standing pat, of protecting narrow interests and putting off unpleasant decisions — that time has surely passed. Starting today, we must pick ourselves up, dust ourselves off, and begin again the work of remaking America.

For everywhere we look, there is work to be done. The state of the economy calls for action, bold and swift, and we will act — not only to create new jobs, but to lay a new foundation for growth. We will build the roads and bridges, the electric grids and digital lines that feed our commerce and bind us together. We will restore science to its rightful place, and wield technology's wonders to raise health care's quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories. And we will transform our schools and colleges and universities to meet the demands of a new age. All this we can do. All this we will do.

Now, there are some who question the scale of our ambitions — who suggest that our system cannot tolerate too many big plans. Their memories are short. For they have forgotten what this country has already done; what free men and women can achieve when imagination is joined to common purpose, and necessity to courage.

What the cynics fail to understand is that the ground has shifted beneath them— that the stale political arguments that have consumed us for so long no longer apply. The question we ask today is not whether our government is too big or too small, but whether it works — whether it helps families find jobs at a decent wage, care they can afford, a retirement that is dignified. Where the answer is yes, we intend to move forward. Where the answer is no, programs will end. And those of us who manage the public's dollars will be held to account — to spend wisely, reform bad habits, and do our business in the light of day — because only then can we restore the vital trust between a people and their government.

Nor is the question before us whether the market is a force for good or ill. Its power to generate wealth and expand freedom is unmatched, but this crisis has reminded us that without a watchful eye, the market can spin out of control — and that a nation cannot prosper long when it favors only the prosperous. The success of our economy has always depended not just on the size of our Gross Domestic Product, but on the reach of our prosperity; on the ability to extend opportunity to every willing heart — not out of charity, but because it is the surest route to our common good.

As for our common defense, we reject as false the choice between our safety and our ideals. Our Founding Fathers, faced with perils we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man, a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience's sake. And so to all other peoples and governments who are watching today, from the grandest capitals to the small village where my father was born: know that America is a friend of each nation and every man, woman, and child who seeks a future of peace and dignity, and we are ready to lead once more.

Recall that earlier generations faced down fascism and communism not just with missiles and tanks, but with sturdy alliances and enduring convictions. They understood that our power alone cannot protect us, nor does it entitle us to do as we please. Instead, they knew that our power grows through its prudent use; our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint.

We are the keepers of this legacy. Guided by these principles once more, we can meet those new threats that demand even greater effort — even greater cooperation and understanding between nations. We will begin to responsibly leave Iraq to its people, and forge a hard-earned peace in Afghanistan. With old friends and former foes, we will work tirelessly to lessen the nuclear threat, and roll back the specter of a warming planet. We will not apologize for our way of life, nor will we waver in its defense, and for those who seek to advance their aims by inducing terror and slaughtering innocents, we say to you now that our spirit is stronger and cannot be broken; you cannot outlast us, and we will defeat you.

For we know that our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus — and non-believers. We are shaped by every language and culture, drawn from every end of this Earth; and because we have tasted the bitter swill of civil war and segregation, and emerged from that dark chapter stronger and more united, we cannot help but believe that the old hatreds shall someday pass; that the lines of tribe shall soon dissolve; that as the world grows smaller, our common humanity shall reveal itself; and that America must play its role in ushering in a new era of peace.

To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict, or blame their society's ills on the West — know that your people will judge you on what you can build, not what you destroy. To those who cling to power through corruption and deceit and the silencing of dissent, know that you are on the wrong side of history; but that we will extend a hand if you are willing to unclench your fist.

To the people of poor nations, we pledge to work alongside you to make your farms flourish and let clean waters flow; to nourish starved bodies and feed hungry minds. And to those nations like ours that enjoy relative plenty, we say we can no longer afford indifference to suffering outside our borders; nor can we consume the world's resources without regard to effect. For the world has changed, and we must change with it.

As we consider the road that unfolds before us, we remember with humble gratitude those brave Americans who, at this very hour, patrol far-off deserts and distant mountains. They have something to tell us, just as the fallen heroes who lie in Arlington whisper through the ages. We honor them not only because they are guardians of our liberty, but because they embody the spirit of service; a willingness to find meaning in something greater than themselves. And yet, at this moment — a moment that will define a generation — it is precisely this spirit that must inhabit us all.

For as much as government can do and must do, it is ultimately the faith and determination of the American people upon which this nation relies. It is the kindness to take in a stranger when the levees break, the selflessness of workers who would rather cut their hours than see a friend lose their job which sees us through our darkest hours. It is the firefighter's courage to storm a stairway filled with smoke, but also a parent's willingness to nurture a child, that finally decides our fate.

Our challenges may be new. The instruments with which we meet them may be new. But those values upon which our success depends — honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism — these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is required of us now is a new era of responsibility — a recognition, on the part of every American, that we have duties to ourselves, our nation, and the world, duties that we do not grudgingly accept but rather seize gladly, firm in the knowledge that there is nothing so satisfying to the spirit, so defining of our character, than giving our all to a difficult task.

This is the price and the promise of citizenship.

This is the source of our confidence— the knowledge that God calls on us to shape an uncertain destiny.

This is the meaning of our liberty and our creed — why men and women and children of every race and every faith can join in celebration across this magnificent mall, and why a man whose father less than sixty years ago might not have been served at a local restaurant can now stand before you to take a most sacred oath.

So let us mark this day with remembrance, of who we are and how far we have traveled. In the year of America's birth, in the coldest of months, a small band of patriots huddled by dying campfires on the shores of an icy river. The capital was abandoned. The enemy was advancing. The snow was stained with blood. At a moment when the outcome of our revolution was most in doubt, the father of our nation ordered these words be read to the people:

"Let it be told to the future world...that in the depth of winter, when nothing but hope and virtue could survive ... that the city and the country, alarmed at one common danger, came forth to meet [it]."

America. In the face of our common dangers, in this winter of our hardship, let us remember these timeless words. With hope and virtue, let us brave once more the icy currents, and endure what storms may come. Let it be said by our children's children that when we were tested we refused to let this journey end, that we did not turn back nor did we falter; and with eyes fixed on the horizon and God's grace upon us, we carried forth that great gift of freedom and delivered it safely to future generations.

Thank you. God bless you. And God bless the United States of America.

November 25 , 2008
Judge overturns Florida ban on adoption by gays
Maybe California CAN learn something from Florida. Today, CNN is reporting that a Florida circuit judge Tuesday struck down a 31-year-old state law that prevents gays and lesbians from adopting children, allowing a North Miami man to adopt two half-brothers he and his partner have raised as foster children since 2004.

November 25 , 2008
George Bush And I Finally Agree On Something
I never thought I would see the day that I would actually approve of something that George Bush has done. The Fugees producer John Forte was among those pardoned yesterday by George Bush. Forte, who also has two solo albums as a rapper, was convicted in 2000 for carrying two suitcases filled with over $1.4 million in liquid cocaine through Newark International Airport. He was convicted on intent to distribute charges and given the mandatory minimum 14 years in prison.

I have always been an opponent of mandatory minimum sentences. I never thought Dubya would agree with me.

November 23 , 2008
Prosecuter Seeks To Drop Murder Charge Against 8 Year Old Boy
An Arizona prosecutor Friday asked to dismiss one of two murder charges against an 8-year-old boy suspected in the shooting deaths of his father and another man. Apparently, "the state believes the interest of justice will be served by such a dismissal." The child was charged with killing his father, Vincent Romero, 29, and Tim Romans, 39, who rented a room in Romero's home.

The press has reported that there were a plethora of problems with the purported confession of the 8 year old, specifically, how it was obtained. He was not represented by counsel, he had no adult in the room when it was taken, and it was released to the press. The judge has issued a gag order in the case. We'll keep you posted on this one.

November 5, 2008
Barack Obama Will Be The 44th President
I watched the election coverage after the polls closed and watched the numbers come in. It didn't really hit me then. I woke up this morning and I still can't believe it. I don't know what to say. Maybe there isn't anything to say. Here's an article on how he did it.

October 29, 2008
Chief Judge Nottingham Stepping Down, Hon. Wiley Daniel Replacing Him
Here is an article regarding the Hon. Edward Nottingham stepping down as Chief Judge of the US District of Colorado. This is of particular interest to me because his replacement, the Hon. Wiley Y. Daniel, was the judge I had the honor of serving as a judicial clerk. In the history of the court, there has never been an African American to serve as Chief Judge until now.

September 22, 2008
Classic Gerry Spence in cross examination
Here is a classic Gerry Spence in cross about 25 years ago in Ann Arbor, Michigan. Enjoy.

September 5, 2008
7 Inglewood Officers Are Placed On Leave
The Los Angeles Times reported today that four days after officers fatally shot a homeless man who had a toy gun in his waistband, Inglewood Police Chief Jacqueline Seabrooks broke her silence on the shooting Thursday, expressing concerns about the officers' tactics and saying she had placed seven of them on administrative leave. The Inglewood City Council has called on Seabrooks to consider "a sweeping training program" for the entire department. Memories of Rampart again.

September 1 , 2008
What I Am
I'm in my office this Labor Day, preparing for a trial in a couple of weeks. I've spent the weekend in here. It's funny, but the silence over this weekend has facilitated me hearing my inner voice at it's loudest. When I get caught up in all of the hustle and bustle of this rat race we call daily living, I forget why I'm here or what I'm doing. I enjoy the battle of trial, I enjoy speaking with juries. I also enjoy (narcissitically) the feeling of all eyes on me in a trial. But that's not why I do this. That's not what I am. I am not a tap dancer.

I got a call today from a mother whose son was wrongfully convicted of a murder. She asked me to help her son appeal his sentence. I think about the man I currently represent in a capital murder case. His family can't afford a lawyer, but I am unequivocally against the death penalty. I think about the mother who's son was murdered in cold blood by the police that I currently represent. I think about the scores of people who call my office after being fired from jobs they have faithfully and diligently worked at, simply because someone doesn't like the color of their skin, their gender, or their refusal to succumb to sexually degrading and harassing behavior. I think about the woman walking in a parking lot, getting hit by a car, and the driver's insurance company telling her it's her fault. These people can't speak for themselves. So I do.

I am a voice for the voiceless. I'm a trial lawyer. Unapologetically so.

August 28, 2008
Federal jury acquits ex-Marine in Iraqis' deaths
A former Marine was acquitted Thursday by a civilian jury of voluntary manslaughter in the killings of unarmed Iraqi detainees. Juror Ingrid Wicken said the panel found Nazario not guilty because there was not enough evidence against him. The case against Nazario rested primarily on the accounts of his former comrades, including two who have been found in contempt of court for refusing to testify. Other former Marines testified during the five-day trial that they did not see Nazario kill the detainees but heard the gunshots.

August 27, 2008
Barack Obama Becomes The First African American To Clinch The Democratic Nomination
Yes, I'm proud. Here's the speech in it's entirety.

August 19, 2008
Najee Ali Receives 4 Year Prison Term
Najee Ali, who heads Project Islamic HOPE, which describes its mission as fighting poverty and social injustice, pleaded guilty Monday to attempting to bribe a witness in a case involving his daughter and received a four-year prison term. Most recently, Ali was involved in the protests following last month's fatal shooting of U.S. Postal Service employee Kevin Wicks by Inglewood police Officer Brian Ragan.

August 15, 2008
Welcome To Volta Fazio
The Luti Law Firm would like to welcome its newest addition to the firm: Volta Fazio. Volta joins the firm as our newest legal assistant.   We look forward to utilizing Volta's various talents for the benefit of our clients. Check out Volta's bio.

August 6, 2008
Gerry Spence's Take On Winning
Gerry Spence's blog iincluded a pretty interesting take on winning a couple of days ago. Hopefully Dennis Wilson and I can utilize that mentality on the Kevin Wicks slaying to get justice for Donna, Kevin's mother. Here's Dennis' blog on that case.

June 23, 2008
Same Sex Marraiges Not Included In The 2010 Census
The 2010 Census will not count same-sex marriages, saying the Defense of Marriage Act bars the agency from recognizing same-sex marriages, even though they are legal in Massachusetts and California. Apparently, the Census Bureau does not ask people about their sexual orientation, but it does ask about their relationships to the head of the household. Many gay couples are listed in census figures as unmarried, same-sex partners, though it is an imperfect tally of all gay couples.

June 23 , 2008
Supreme Court puts heavy burden on employers
This one hurts. The recent U.S. Supreme Court ruling that employers bear the burden of production and proof in disparate impact age discrimination cases has business groups and employment defense attorneys worried that employee lawsuits will be much harder to fight. The Court ruled in Meacham v. Knolls Atomic Power Laboratory, No. 06-1505, that in disparate impact claims under the Age Discrimination in Employment Act, the employer bears the burden of proving that "reasonable factors other than age" were the basis for an adverse employment decision.

June 1 , 2008
Going Out On Top
Spence did it. Fieger got acquitted.

April 29, 2008
Gerry Spence Is At It Again
Spence has always been one of my idols. Here is another example of why in the Fieger trial.

Flamboyant attorney and legal analyst Geoff Fieger, perhaps best known for his defense of Dr. Jack Kevorkian, is on trial in federal court in Detroit. He and his law partner, Van Johnson, are charged with having employees at their law firm and others donate to John Edwards' presidential campaign and then reimbursing them, in violation of federal campaign laws. Fieger is also charged with obstruction of justice for allegedly concealing a memo and tampering with grand jury witnesses. Gerry Spence is representing Fieger and doing quite well so far.

March 28, 2008
Mumia's Death Sentence Overturned
Mumia Abu Jamal had his death sentence overturned by a U.S. appeals court in Philadelphia, but his bid for a new trial was rejected. Here's the story. A full copy of the written decision is here.

In the majority opinion, Chief 3rd Circuit Judge Anthony J. Scirica found that Senior 3rd Circuit Judge William H. Yohn Jr. was correct in holding that Abu-Jamal is entitled to a new sentencing hearing because the jury that sentenced him to die in 1982 for killing Philadelphia police Officer Daniel Faulkner received faulty jury instructions on the issue of how to deliberate during the penalty phase.


After 25 years, this is far from over. The district attorney's office in Philadelphia could ask the full U.S. appeals court to reconsider this ruling, or it could ask the Supreme Court to reverse it. Defense lawyers could ask the full appeals court to reconsider the ruling upholding Abu-Jamal's conviction and rejecting the claim of racism in the jury selection. Failing that, they could ask the Supreme Court to take up the case and accord Abu-Jamal a new trial. Stay tuned.

March 18 , 2008
Yes We Can
Today, Barack Obama gave the most important political speech on race of this generation. Here is the speech in its entirety.

February 1, 2008
Dockworker Gets $1.2M In Lawsuit
Jurors awarded a dockworker $1.2 million in damages Friday for on- the-job harassment resulting from her promotion at a marine terminal in the Port of Long Beach. Catherine McCoy, a 47-year-old marine clerk who has worked at Southern California ports since 1988, was awarded the sum following a two-week trial in Los Angeles Superior Court. It was McCoy's second successful lawsuit against her employer, the Pacific Maritime Association, an organization representing most major marine terminals at West Coast seaports. The first case, filed by McCoy because of her inability to get a promotion, resulted in an agreement that called for her to at least receive training for a higher-classification job. The new case centered on her treatment when she began that training."It was a long process for her, and she's emotionally drained, but it proved her point," said Tony Luti, McCoy's attorney. "She was set up to fail." Jurors found McCoy was repeatedly harassed by co-workers after she began training for a highly coveted waterfront position known as a container vessel planner. The job, which pays more than $200,000 annually, involves coordinating ship arrivals, departures and stowage. McCoy's harassment, which included verbal abuse, began in December 2003, when she started training for a nighttime vessel planner position at Yusen Terminals in Long Beach, according to court documents. According to Luti, the PMA failed to abide by an agreement stemming from the first court case that they not disclose the reason for her promotion to co-workers. "Both sides were told to use their best efforts to keep it confidential, because if you're putting someone in an environment where other people may not be happy you're there, you're putting them in a lion's den," Luti said. "She was basically hard-timed. People kept materials from her, screamed at her, prodded her, humiliated her." PMA officials said they plan to appeal."We are disappointed by the jury's verdict today and feel strongly that we will be successful in reversing this decision in post-trial motions or on appeal," the PMA said in a statement. The settlement requires the PMA to pay $540,000 for emotional distress and $660,000 for economic damages, Luti said. The case was argued before Judge Jane Johnson in Los Angeles Superior Court. Attorneys Clifford Sethness and Mirna Villegas represented the PMA.

-- Press-Telegram Long Beach, CA.

November 16, 2007
Thoughts Go Out To Kanye West
Today, a memorial service took place for Dr. Donda West, Kanye West's mother who died last week.The memorial service held at Chicago State University, where she was on the faculty for 24 years. I lost my mother eight years ago suddenly too. You never really get over it and it is something that shapes everything you do from then on. My prayers go out to Kanye as he embarks on this new painful stage of his life.

November 6, 2007
A Great Trial Lawyer On A Great Trial
As OJ Simpson's new legal woes continue, and his co-defendants are taking plea deals and agreeing to testify against him, I remembered that Gerry Spence commentated on OJ in the first lawsuit. Here is a great analysis Gerry did on the original OJ case, before the trial actually started. What is interesting is how much of what Gerry said actually ended up happening in the trial.

October 20, 2007
Milton Grimes Gets A Website!!
No news on this one. I'm just happy to report that Milton Grimes, my mentor and the greatest Black lawyer alive, has finally joined us in the 21st Century and got a website. Check it out:

October 5, 2007
Murder At Plaintiff's Lawyers Office
MSNBC is reporting that Police shot and killed a man who shot five people in a downtown law office, killing two of them, the mayor said early Friday. John Ashley, a 63-year-old former city worker, opened fire Thursday afternoon. Two of the wounded managed to escape, and police rescued a third. Ashley remained in the building with the two remaining victims, who police found dead after using explosives to enter the building early Friday.

August 30, 2007
Gentry Court Rules That Most Class Action Waivers Are Unenforceable In Employment Actions
Here's one for the plaintiffs. In a long awaited and highly anticipated decision, the California Supreme Court issued its decision in Gentry v. Superior Court. As backgound, the Plaintiff filed a putative class action in California state court against Circuit City alleging violations of the state’s unfair and deceptive business practices statutes and labor code arising out of its misclassifying employees as exempt in order to deny them overtime pay. Defense attorneys moved to dismiss the class action and compel arbitration pursuant to an arbitration clause with a class action waiver. The trial court found the arbitration clause and the class action waiver to be fully enforceable, and granted the defense motion. The Court of Appeal agreed with the trial court’s reasoning, but the California Supreme Court reversed.

In another 4-3 split employment opinion, the Supreme Court did not hold that class action waivers in employment contracts are per se unenforceable. They did come close though. The Court laid down a new multi-factor test to determine whether "class arbitration would be a significantly more effective way of vindicating the rights of affected employees." The Court distinguished its opinion in Discover Bank on the grounds that employee wage and hour claims are based on statutory rights.  The Court set out four factors for determining whether class status should be granted notwithstanding a lass action waiver: (1) modest size of potential individual recovery (the Court implied that even $37,000 was not enough, but implied that $269,000 was sufficient); (2) the potential for retaliation against the members of the class; (3) the fact that absent members of the class may be ill-informed of their rights; and, (4) other "real world obstacles to the vindication of class members' rights to overtime pay through individual arbitration."

A copy of the opinion can be found here.

August 23, 2007
Green Decision Goes Against Plaintiff's
Today, the California Supreme Court issued its decision in Green v. State of California. The question before the court is whether an employee bears the burden of proving that he or she is capable of performing the essential duties of the job, or whether the employer has the burden of proving that the employee was not capable of performing those duties. In a blow to California employment plaintiffs, the Supreme Court ruled in a 4-3 decision that the employee bears the burden here. A copy of the decision can be found here.

The facts of the case are as follows: Dwight D. Green worked for the State of California as a stationary engineer at a correctional facility for more than 12 years before he was placed on disability retirement. The jury found that in failing to provide Green with reasonable accommodation for his hepatitis C, the State discriminated against him in violation of FEHA. The court of appeal held that it was the employer's burden to prove, as an affirmative defense, the employee's incapacity.  The court approved the trial court's judgment that there was substantial evidence to support the jury's finding of disability discrimination. As a result, this case basically was deciding whether it is the plaintiff's burden to show that he is a "qualified individual" (language from the American Disabilities Act not found in California's own Fair Employment and Housing Act) or the defendant's burden to show that the plaintiff is unable to do the job even with reasonable accommodations as an affirmative defense.

This decision raises interesting questions for plaintiff employment trial lawyers. For example, how do plaintiffs now deal with the real life difficulty of distinguishing between an inability to perform versus a "threat to self" defense that is often raised by defendants. Similarly, it now is anticipated that defense lawyers will possibly now argue that plaintiffs in California now bear the burden on proving that he is not a "direct threat."

August 5, 2007
A Sad Day Indeed: Noted Howard University Civil Rights Lawyer Dies
Civil Rights Attorney Hill Dies at 100

Filed at 2:05 p.m. ET

Oliver W. Hill, a civil rights lawyer who was at the front of the legal effort that desegregated public schools, has died at age 100, a family friend said.

Hill died peacefully at his home during breakfast, said Joseph Morrissey, a friend of the Hill family.

In 1954, he was part of a series of lawsuits against racially segregated public schools that became the Brown v. Board of Education decision, which changed America's society and touched off a wrenching period for the nation.

In 1940, Hill won his first civil rights case in Virginia, one that required equal pay for black and white teachers.

Eight years later, he was the first black elected to Richmond's City Council since Reconstruction. A lawsuit argued by Hill in 1951 on behalf of high school students protesting deplorable conditions of their Farmville high school became one of five cases decided under the U.S. Supreme Court's landmark Brown v. Board of Education ruling.

He graduated second in his class from Howard University Law School in 1933, behind his classmate and longtime friend, Thurgood Marshall.

Though blind and confined to a wheelchair in recent years, Hill remained active in social and civil rights causes. In 1999, he received the President Medal of Freedom, the nation's highest civilian honor, from President Clinton.

Two years ago, a renovated 100-year-old building adjacent to the state Capitol was renamed in Hill's honor. In May, he greeted Queen Elizabeth II during her visit to the state Capitol to commemorate the 400th anniversary of the founding of Jamestown, the first permanent English settlement in North America.

July 4 , 2007
Frederick Douglass and the 4th of July
On this 4th of July, I never forget what Frederick Douglass said in 1852 at a speech in Rochester, NY. Below is the speech in its entirety:

Fellow citizens, pardon me, and allow me to ask, why am I called upon to speak here today? What have I or those I represent to do with your national independence? Are the great principles of political freedom and of natural justice, embodied in that Declaration of Independence, extended to us? And am I, therefore, called upon to bring our humble offering to the national altar, and to confess the benefits, and express devout gratitude for the blessings resulting from your independence to us?

Would to God, both for your sakes and ours, that an affirmative answer could be truthfully returned to these questions. Then would my task be light, and my burden easy and delightful. For who is there so cold that a nation's sympathy could not warm him? Who so obdurate and dead to the claims of gratitude, that would not thankfully acknowledge such priceless benefits? Who so stolid and selfish that would not give his voice to swell the hallelujahs of a nation's jubilee, when the chains of servitude had been torn from his limbs? I am not that man. In a case like that, the dumb might eloquently speak, and the "lame man leap as an hart."

But such is not the state of the case. I say it with a sad sense of disparity between us. I am not included within the pale of this glorious anniversary! Your high independence only reveals the immeasurable distance between us. The blessings in which you this day rejoice are not enjoyed in common. The rich inheritance of justice, liberty, prosperity, and independence bequeathed by your fathers is shared by you, not by me. The sunlight that brought life and healing to you has brought stripes and death to me. This Fourth of July is yours, not mine. You may rejoice, I must mourn. To drag a man in fetters into the grand illuminated temple of liberty, and call upon him to join you in joyous anthems, were inhuman mockery and sacrilegious irony. Do you mean, citizens, to mock me, by asking me to speak today? If so, there is a parallel to your conduct. And let me warn you, that it is dangerous to copy the example of a nation (Babylon) whose crimes, towering up to heaven, were thrown down by the breath of the Almighty, burying that nation in irrecoverable ruin.

Fellow citizens, above your national, tumultuous joy, I hear the mournful wail of millions, whose chains, heavy and grievous yesterday, are today rendered more intolerable by the jubilant shouts that reach them. If I do forget, if I do not remember those bleeding children of sorrow this day, "may my right hand forget her cunning, and may my tongue cleave to the roof of my mouth!"

To forget them, to pass lightly over their wrongs and to chime in with the popular theme would be treason most scandalous and shocking, and would make me a reproach before God and the world.

My subject, then, fellow citizens, is "American Slavery." I shall see this day and its popular characteristics from the slave's point of view. Standing here, identified with the American bondman, making his wrongs mine, I do not hesitate to declare, with all my soul, that the character and conduct of this nation never looked blacker to me than on this Fourth of July.

Whether we turn to the declarations of the past, or to the professions of the present, the conduct of the nation seems equally hideous and revolting. America is false to the past, false to the present, and solemnly binds herself to be false to the future. Standing with God and the crushed and bleeding slave on this occasion, I will, in the name of humanity, which is outraged, in the name of liberty, which is fettered, in the name of the Constitution and the Bible, which are disregarded and trampled upon, dare to call in question and to denounce, with all the emphasis I can command, everything that serves to perpetuate slavery -- the great sin and shame of America! "I will not equivocate - I will not excuse." I will use the severest language I can command, and yet not one word shall escape me that any man, whose judgment is not blinded by prejudice, or who is not at heart a slave-holder, shall not confess to be right and just.

But I fancy I hear some of my audience say it is just in this circumstance that you and your brother Abolitionists fail to make a favorable impression on the public mind. Would you argue more and denounce less, would you persuade more and rebuke less, your cause would be much more likely to succeed. But, I submit, where all is plain there is nothing to be argued. What point in the anti-slavery creed would you have me argue? On what branch of the subject do the people of this country need light? Must I undertake to prove that the slave is a man? That point is conceded already. Nobody doubts it. The slave-holders themselves acknowledge it in the enactment of laws for their government. They acknowledge it when they punish disobedience on the part of the slave. There are seventy-two crimes in the State of Virginia, which, if committed by a black man (no matter how ignorant he be), subject him to the punishment of death; while only two of these same crimes will subject a white man to like punishment.

What is this but the acknowledgment that the slave is a moral, intellectual, and responsible being? The manhood of the slave is conceded. It is admitted in the fact that Southern statute books are covered with enactments, forbidding, under severe fines and penalties, the teaching of the slave to read and write. When you can point to any such laws in reference to the beasts of the field, then I may consent to argue the manhood of the slave. When the dogs in your streets, when the fowls of the air, when the cattle on your hills, when the fish of the sea, and the reptiles that crawl, shall be unable to distinguish the slave from a brute, then I will argue with you that the slave is a man!

For the present it is enough to affirm the equal manhood of the Negro race. Is it not astonishing that, while we are plowing, planting, and reaping, using all kinds of mechanical tools, erecting houses, constructing bridges, building ships, working in metals of brass, iron, copper, silver, and gold; that while we are reading, writing, and ciphering, acting as clerks, merchants, and secretaries, having among us lawyers, doctors, ministers, poets, authors, editors, orators, and teachers; that we are engaged in all the enterprises common to other men -- digging gold in California, capturing the whale in the Pacific, feeding sheep and cattle on the hillside, living, moving, acting, thinking, planning, living in families as husbands, wives, and children, and above all, confessing and worshipping the Christian God, and looking hopefully for life and immortality beyond the grave -- we are called upon to prove that we are men?

Would you have me argue that man is entitled to liberty? That he is the rightful owner of his own body? You have already declared it. Must I argue the wrongfulness of slavery? Is that a question for republicans? Is it to be settled by the rules of logic and argumentation, as a matter beset with great difficulty, involving a doubtful application of the principle of justice, hard to understand? How should I look today in the presence of Americans, dividing and subdividing a discourse, to show that men have a natural right to freedom, speaking of it relatively and positively, negatively and affirmatively? To do so would be to make myself ridiculous, and to offer an insult to your understanding. There is not a man beneath the canopy of heaven who does not know that slavery is wrong for him.

What! Am I to argue that it is wrong to make men brutes, to rob them of their liberty, to work them without wages, to keep them ignorant of their relations to their fellow men, to beat them with sticks, to flay their flesh with the lash, to load their limbs with irons, to hunt them with dogs, to sell them at auction, to sunder their families, to knock out their teeth, to burn their flesh, to starve them into obedience and submission to their masters? Must I argue that a system thus marked with blood and stained with pollution is wrong? No - I will not. I have better employment for my time and strength than such arguments would imply.

What, then, remains to be argued? Is it that slavery is not divine; that God did not establish it; that our doctors of divinity are mistaken? There is blasphemy in the thought. That which is inhuman cannot be divine. Who can reason on such a proposition? They that can, may - I cannot. The time for such argument is past.

At a time like this, scorching irony, not convincing argument, is needed. Oh! had I the ability, and could I reach the nation's ear, I would today pour out a fiery stream of biting ridicule, blasting reproach, withering sarcasm, and stern rebuke. For it is not light that is needed, but fire; it is not the gentle shower, but thunder. We need the storm, the whirlwind, and the earthquake. The feeling of the nation must be quickened; the conscience of the nation must be roused; the propriety of the nation must be startled; the hypocrisy of the nation must be exposed; and its crimes against God and man must be denounced.

What to the American slave is your Fourth of July? I answer, a day that reveals to him more than all other days of the year, the gross injustice and cruelty to which he is the constant victim. To him your celebration is a sham; your boasted liberty an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your shouts of liberty and equality, hollow mock; your prayers and hymns, your sermons and thanksgivings, with all your religious parade and solemnity, are to him mere bombast, fraud, deception, impiety, and hypocrisy - a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation of the earth guilty of practices more shocking and bloody than are the people of these United States at this very hour.

Go search where you will, roam through all the monarchies and despotisms of the Old World, travel through South America, search out every abuse and when you have found the last, lay your facts by the side of the everyday practices of this nation, and you will say with me that, for revolting barbarity and shameless hypocrisy, America reigns without a rival.

Frederick Douglass - July 4, 1852

June 20 , 2007
Welcome To Ashley Panzarella
The Luti Law Firm would like to welcome its newest addition to the firm: Ashley Panzarella.  Ashley joins the firm as our newest legal intern.  She currently is enrolled at California State University, Los Angeles with a major in political science/prelaw. We look forward to utilizing Ashley various talents for the benefit of our clients. Check out Ashley's bio.

June 8 , 2007
Poor Poor Paris Hilton
Yesterday she was screaming "free at last, free at last." Not anymore. I have no words ...

May 31, 2007
Green Oral Argument Today At The California Supreme Court
Today, Green v. State of California was argued before the California Supreme Court. The question before the court is whether an employee bears the burden of proving that he or she is capable of performing the essential duties of the job, or whether the employer has the burden of proving that the employee was not capable of performing those duties. The Luti Law Firm has been watching this case closely.

Dwight D. Green worked for the State of California as a stationary engineer at a correctional facility for more than 12 years before he was placed on disability retirement. The jury found that in failing to provide Green with reasonable accommodation for his hepatitis C, the State discriminated against him in violation of FEHA. The court of appeal held that it was the employer's burden to prove, as an affirmative defense, the employee's incapacity.  The court approved the trial court's judgment that there was substantial evidence to support the jury's finding of disability discrimination. As a result, this case basically was deciding whether it is the plaintiff's burden to show that he is a "qualified individual" (language from the American Disabilities Act not found in California's own Fair Employment and Housing Act) or the defendant's burden to show that the plaintiff is unable to do the job even with reasonable accomodations as an affirmative defense.

Norman Pine, along with Claudia Center from Legal Aid Society of San Francisco - Employment Law Center argued for the plaintiffs.  The State was represented solely by a Deputy Attorney General, even though Paul Cane of Paul Hastings wrote an amicus, he did not argue any part of the case. From the oral arguments this morning, it appears that the real question seems to be  what the scope of the opinion will be.  The Supreme Court may limit the inquiry to this case where the evidence was far more than substantial in plaintiff's favor no matter who had the burden to show whether or not the plaintiff was "qualified" for the job.  Or, in the alternative, the Supreme Court could find that the statute and regulatory history are clear and unequivocal that the burden is on the defendant to show inability to perform. Finally, the Court could expand their opinion and articulate the prima facie case for a plaintiff in disability cases of all types, or limit that expansion by holding that in direct evidence cases the burden is on the defendant, but in an indirect case, the burden is on the plaintiff as part of their prima facie case.

We will just have to wait and see ...

May 22 , 2007
Mumia Abu Jamal Oral Argument Conducted In Philadelphia Regarding Death Sentence
On May 17, 2007, Mumia Abu Jamal had three claims heard before theThird Circuit Court of Appeals in Philadelphia, all challenging his conviction for the 1981 murder of Philadelphia Police Officer Daniel Faulkner. Judith Ritter, Abu-Jamal’s local counsel, argued argued against a claim by the District Attorney to overturn a 2001 decision by a lower federal court which threw out his death sentence. Christina Swarns, a counsel with the NAACP Legal defense Fund, argued in support of Abu-Jamal’s appeal as a “friend of the court.” Here's a summary of what happened. We'll keep you posted on the result when the court issues a decision.

April 16, 2007
Murphy v. Kenneth Cole: Supreme Court Holds That Section 203 Penalities Are Wages
The Murphy v. Kenneth Cole opinion was released today. In it, the Supreme Court unanimously held that the meal and rest break payments are wages, governed by the three year statute of limitations. In the opinion, the Supreme Court held as follows: " This case presents two issues: first, whether the "one additional hour of pay" provided for in Labor Code section 226.7 constitutes a wage or premium pay subject to a three-year statute of limitations (Code Civ. Proc., § 338) or a penalty subject to a one-year statute of limitations (Code Civ. Proc., § 340); second, whether a trial court, conducting a de novo trial, can consider additional wage claims not presented in the administrative proceeding before the state Labor Commissioner. We conclude that the remedy provided in Labor Code section 226.7 constitutes a wage or premium pay and is governed by a three-year statute of limitations and that the trial court properly considered the additional, but related, wage claims during the de novo trial. Accordingly, we reverse the contrary judgment of the Court of Appeal." This obviously has massive implications for wage and hour class actions in California going forward. This is a good day for employees in California.

April 11 , 2007
Welcome To Altesa Hatcher
The Luti Law Firm would like to welcome its newest addition to the firm: Altesa Hatcher.  Altesa joins the firm as our newest legal assistant.  She graduated from Rutgers University with a major in social work. She also has a Masters of Fine Arts in acting from New School University in New York. We look forward to utilizing Altesa various talents for the benefit of our clients. Check out Altesa's bio.

April 11 , 2007
Don Imus Finally Dropped
MSNBC said Wednesday it will drop its simulcast of the “Imus in the Morning” radio program, responding to growing outrage about the radio host’s racial slur against the Rutgers women’s basketball team. It's about time. My only question is why it took so long.

March 7, 2007
Murphy v. Kenneth Cole Oral Argument Today At The California Supreme Court
Today, Murphy v. Kenneth Cole was argued before the California Supreme Court. The Luti Law Firm has been watching this case closely. In the lower courts, the First District Court of Appeal opined in Murphy v. Kenneth Cole Productions, Inc. (Case No. A107219; A108346), that the one-hour-of-pay remedy for meal and rest period violations in the Wage Orders and Labor Code section 226.7 is a penalty, not wages. As such, these claims have a one year, rather than three or four year, statute of limitations. This obviously has massive implications for wage and hour class actions in California going forward.

The Supreme Court arguments were interesting, to say the least. Stay tuned ...

March 1, 2007
California's Sentencing Guidelines Struck Down
I know I was a little late posting this here, but better late than never. Dividing 6-3, the Supreme Court ruled that California's "determinate sentencing law" is unconstitutional because it allows judges, not juries, to find facts that lead to higher criminal sentences. Justice Ruth Bader Ginsburg wrote for the majority in Cunningham v. California (05-6551). The California system, the Court said, assigns to the trial judge, not the jury, authority to find the facts that expose a convicted individual to an elevated "upper term" sentence. The ruling overturned a decision of the California Supreme Court that the state system satisfied the Sixth Amendment jury trial guarantee.

This case has huge implications for California sentences. Judges no longer can simply delineate a bunch of aggregating factors -- never established beyond a reasonable doubt before a jury -- to unjustifiably (and now, unconstitutionally) add years to a convicted defendant's sentence. The battle continues...

February 22, 2007
Gerry Spence On The Brandon Mayfield Case
Here's a videotaped discussion by Gerry on the Brandon Mayfield Case and the Patriot Act. As you may know, Gerry Spence recently settled this case for $2 million. More importantly, the government was forced to apologize for the atrocities that Brandon had to go through. Way to go Gerry.

February 16, 2007
This Is Why We Fight
The next time someone tells you Plaintiff's lawyers and criminal defense attorneys are the problem in our judicial system, think about this video of how District Attorneys search for the truth at trial. The philosophy of a "fair" trial in this country is a facade.

February 7, 2007
Long Beach Hate Crime Verdicts
Much has been written about the convictions and subsequent sentences of the nine black teenagers convicted of hate crimes after fighting some white teenagers in Long Beach in Halloween. Here is an interesting take on the whole mess.

January 23 , 2007
A Beautiful Quote
"Lawyers have been known to wrest from reluctant juries triumphant verdicts of acquittal for their clients, even when those clients, as often happens, were clearly and unmistakably innocent."
-- Oscar Wilde

December 25 , 2006
Happy Holidays
No news in this one. Just wanted to wish all of our clients and friends happy holidays. And what a year it has been. Here's to the next one...

November 5 , 2006
Saddam Convicted
What a shocker. Saddam Hussein has been convicted. Hussein and six subordinates were convicted and sentenced to death for the 1982 killings of 148 people in a single Shiite town after an attempt on his life.

September 22, 2006
Why We Need Trial Lawyers
Too often in the media we hear about how my profession is ruining this country. I pains me deeply when I think about how many people trial lawyers actually try to help. We are the last line of defense for the common man in this country, and that fact is either repeatedly ignored or ridiculed. One of my mentors, Gerry Spence, wrote a wonderful article on what we do and why we are needed. Happy Reading.
August 21, 2006
He Can't Be A Trial Lawyer
Wow. Court TV is reporting that a former Nashville attorney was convicted Thursday of murdering his wife, who disappeared 10 years ago without a trace. It took the jury 13 hours over two days to find Perry March, 45, guilty of second-degree murder for killing his wife, Janet, whose body has never been found. March was an attorney in the Nashville law firm of his wife's father.

March must have been a civil defense lawyer. Apparently ignoring the adage "never speak without your attorney present when facing criminal charges", the jury also heard from a jailhouse informant who testified that March admitted beating his wife with a wrench after she told him she was going to "take everything" in a divorce. The panel also heard several hours of audiotaped conversations between the defendant and jailhouse informant Nathaniel Farris as they plotted the murders of his in-laws, Carolyn and Larry Levine.

July 14, 2006
Michael Jackson's Civil Lawsuit Goes To The Jury
Court TV is reporting that a bitter money dispute between Michael Jackson and a former associate was placed in the hands of jurors Thursday after the singer's lawyer told them the plaintiff betrayed the star and urged them to "send him from this courtroom with nothing." We'll see.
September 21, 2005
Child Gets $6.2 Million Settlement For False Arrest.
A boy falsely accused of killing an 11-year-old girl seven years ago agreed Monday to settle his lawsuit against the city of Chicago and two police detectives for $6.2 million.

Some of the money would be spent on therapy and counseling for the boy, who is 15 and I am sure needs it. The girl's slaying made national headlines after the boys, then 7 and along with his 8 year old friend, became the youngest murder suspects in the United States at the time. It took almost a month before the boys were cleared after tests showed semen found on the girl's clothing could not have come from them.

Good for him.

Monday June 20, 2005
41 Years Later, the Killen Jury finally starts deliberating.
The murder case against Edgar Killen, a former Klansman charged in the murders of three civil rights workers went to the jury today. Although it probably didn't need to be said, the prosecutors made an impassioned plea for a conviction, saying the victims' families have waited a long 41 years for someone to be brought to justice. These murders focused the nation's attention on the Jim Crow code of segregation in the South and helped spur passage of the landmark Civil Rights Act of 1964.

While the fact that our country is such that it took 41 years for a murder prosecution to be actually brought in this case -- despite the fact that these murders played such a prevalent role in the civil rights movement -- is offensive, what probably bothered me more about this case was the testimony of Harlan Majure, the former mayor of this rural Mississippi town in the 1990s. Majure testified that the Klan was a "peaceful organization." He also testified that the Klan "did a lot of good up here" and said he was not personally aware of the organization's bloody past. The more things change, the more they stay the same...

Monday June 13, 2005
Jackson Acquitted
Michael Jackson was acquitted today of all charges and left the Santa Maria courtroom a free man. According to the jury, which held a press conference afterwards, they had serious problems with the accuser’s mother, who made them uncomfortable during her testimony. They also had problems with the prosecutions timeline of events.
Friday June 3, 2005
Jackson Jury Starts Deliberating
The jury in the Michael Jackson case has started deliberating. Closing arguments completed today at 12:30 p.m., and the jury composed of eight women and four men filed into the deliberation room, where they will sift through nearly 700 pieces of evidence, and rely on their recollections and notes from the testimony of 140 witnesses. Lets see if the jury understands the concept of reasonable doubt.
Saturday, May 21, 2005
Not the Best Of Both Worlds For Jay-Z
A Manhattan Judge has dismissed Jay-Z's counterclaims filed against singer R. Kelly. In November of last year Kelly filed a $75 million lawsuit against Jay-Z. In the suit, Kelly asserts that one of Jay-Z's associates pepper sprayed the singer as he went on stage for a performance at Madison Square Garden. In response, Jay-Z alleged that Kelly deceived him by reneging on a promise to perform a good show during the duo's "Best of Both Worlds" tour last year and that Kelly interfered with the tour contract. Jay-Z's lawyer plans to amend the claims and refile. Stay tuned.
Friday, May 6, 2005
Judge awards no damages in lawsuit over Elian Gonzales raid.
U.S. District Judge K. Michael Moore in Miami ruled today that 13 people who were tear-gassed by immigration agents during the raid to seize Elian Gonzales five years ago are entitled to no damages whatsoever. In a 19-page decision, the court held that said the demonstrators and bystanders failed to show enough credible evidence that federal officers' use of force was "unreasonable under the circumstances." Hmm... It is interesting to note that this was a bench trial, meaning that no jury was empanelled. Accordingly, the entire decision that its ok to be basically tear-gassed without warning was a court call. I would like to think that twelve citizens in the jury box would have thought differently.
Monday, May 2, 2005
High Court To Hear Military Recruiting Case.
Here's an interesting one. CNN is reporting that the Supreme Court said it will consider whether colleges and universities may bar military recruiters from their campuses without fear of losing federal funds. In the lower court, the 3rd U.S. Circuit Court of Appeals, a 1994 federal law requiring law schools to give the military full access or lose their federal funding was invalidated. The appeals court ruled the law infringed on law schools' free speech rights. In light of the fact that certain branches of the military are currently having significant difficulty reaching recruiting goals, the opinion could have some global implications, particularly in the current "war on terror" climate.
Sunday, May 1, 2005
How Not To Try A Case.
Apparently, prosecuting the most publicly scrutinized criminal lawsuit since the OJ trial does not necessitate one actually knowing what their witnesses are actually going to say. Here is a summary article of the prosecution's latest snafus in the Michael Jackson case.
Wednesday, March 30, 2005
Johnnie Cochran dies.
This is one of the saddest days of my legal career. Johnnie Cochran was why I went to law school. I can't even express how I feel now that he is gone.
Thursday, January 13, 2005
We're Two Years Old!!
No news on this one. The Luti Law Firm has just come up on our second year anniversary. Melissa and I would like to take this opportunity to thank all of our clients for trusting us with their legal matters. We remained honored that you continue to choose us to help you with your legal problems. From us to all of you, here's to a great 2005.
Friday, August 11, 2004  
Gay marraiges annulled by the California Supreme Court.
It looks like San Francisco mayor Gavin Newsom won't be running for governor any time soon. Yesterday, by a 5-2 vote, the California Supreme Court voided thousands of marraiges sanctioned in San Franciso earlier this year. According to the Court, Newsom overstepped his authority by issuing licenses to gay and lesbian couples while simultaneously sidestepping California statutory law.
Friday, August 11, 2004
It has been a while.
I haven't posted for a while, due to a ridiculously busy year. It seems, however, the story is still Kobe, Kobe, Kobe. Amazingly, the prosecution of this matter doesn't seem to know when to quit. The latest, according to CNN, is that the judge has denied the prosecution's request for an indefinite stay in the case. No surprise there. The surprise, however, is how easily Mr. Bryant's constitutional right to a speedy trial was simply ignored when the prosecution filed this motion in the first place.
Saturday, January 24, 2004
Supreme Court to look at loan deal lawsuit.
As CNN has reported, the Supreme Court has agreed to hear a case that could affect whether the Truth in Lending Act will continue to permit prevailing individuals to collect sizable damages based on misleading or high-pressure sales tactics for car loans. Every year, about 45 million cars are bought and sold in the United States. Most deals involve a financing plan through a bank or other lender. Car loans and other kinds of consumer credit are subject to the Truth in Lending Act, which was intended to force details of loans into the open and allow consumers to evaluate the cost of credit better. Sounds interesting. Stay tuned.
Thursday, January 16, 2004
What a difference a year makes.
No news on this one. The Luti Law Firm has just come up on our year anniversary. I'd like to take this opportunity to thank all of our clients -- and our staff (yes, you too Claudine) -- for trusting us with their legal matters and continuing to help us "keep the lights on." In light of the fact that this was merely our first year, this year was an extremely successful one. Here's to the next.
Monday, December 22, 2003
Another attack on Plaintiff lawyers.
Recently, Newsweek contained a package of cover stories and opinion pieces called "Lawsuit Hell" and "Civil Wars." These stories, assailed nationally by plaintiffs lawyers, basically condemned the current state of the American civil justice system. While I would normally comment on something like this, I came across a refreshing rebuttal that articulates the opposite position much better than I ever could, by someone who would know -- a Plaintiff that used this purported flawed civil justice system to obtain redress for a horrible injury that she received.

Happy holidays.

Wednesday, November 26, 2003
Califoria Appellate Court Severly Limits The Breadth Of Punitive Damages.
A state appeals court issued a ruling on Tuesday that, if it stands, significantly alters the long-established process judges and juries use to determine punitive damages. The ruling -- which reduced the largest punitive damage judgment ever upheld by a California appellate court from $290 million to about $23.7 million -- could eliminate most multimillion-dollar punitive awards. The 30-page opinion by Fresno, Calif.'s 5th District Court of Appeal interpreted State Farm Mutual Automobile Insurance Co. v. Campbell, in which the U.S. Supreme Court earlier this year narrowed the scope of punitive damages, saying they must bear some reasonable relationship to the individual injury at issue and the compensatory damages awarded.

In Romo v. Ford Motor Co., 03 C.D.O.S. 10150, Juan, Evangelina and Maria Romo sued Ford after they were injured -- and their parents and one brother died -- in a car crash on Father's Day 1993. They claimed that their dad's used 1978 Ford Bronco, with a roof that was two-thirds fiberglass, was defectively designed. The jury awarded $6.2 million in compensatory damages in 1999, as well as $290 million in punitive damages, after finding that Ford executives had acted with malice,for failing to warn buyers about a lack of rollover protection. The 5th District, in an opinion highly critical of Ford, upheld the punitive damage award last year. The state Supreme Court subsequently denied review, but earlier this year the U.S. Supreme Court sent the case back for further review in light of its ruling in State Farm.

After reviewing the State Farm decision and looking at the history of punitive damages, the appeal court held that the high court had impliedly disapproved of the broad view of the goal and measure of punitive damages as accepted in California, and instead adopted a constitutional view that the permissible punishment is restricted to the harm inflicted on the present plaintiffs. This decision obviously has massive implications for plaintiffs and society in general. Obviously, the inability of the being able to use punitive damages as a deterrent is good for corporations involved in wrongful conduct and bad for the rest of us.

Friday, November 21, 2003
Ninth Circuit revives gun manufacturer suit.
The Metropolitan News Enterprise reported that the Ninth U.S. Circuit Court of Appeals has reinstated a lawsuit that seeks to hold gun makers and a distributor responsible for the 1999 shootings by white supremacist Buford Furrow in the San Fernando Valley. The Circuit overturned a district judge’s order dismissing claims against Glock Inc. and China North Industries Corp., as well as Glock distributors RSR Management Corporation and RSR Wholesale Guns Seattle Inc. According the the Judge Paez, who wrote the majority decision, the gun makers may be held liable for negligence and for creating a public nuisance if the plaintiffs can prove that they knew their products were being sold in the “secondary market” to persons who had no legal right to own them, and took no steps to prevent this, or that they deliberately oversaturated the legal market with the knowledge that an illegal secondary market would thereby be created. This could be the next wave of cigarette litigation. Stay tuned.
Tuesday, November 11, 2003
Durst found not guilty...
Happy veterans day. As a former soldier, my prayers (and the prayers of our Firm) go out to all of the brave souls currently serving in Iraq.

Now onto the interesting legal tidbit of the day. Today, New York millionaire Robert Durst was acquitted in the killing of his 71-year-old neighbor, Morris Black, despite admitting that (a) he did in fact kill Black and (b) he dismembered Black's body and then fled. Durst remained in jail following Tuesday's not guilty verdict in his murder trial because he still faces a bail jumping charge.

I'm not one to rant and rave about the inequities in the legal system, and I don't intend to do so now. Indeed, I believe that our justice system is the finest on the planet. However, I can't help but wonder where all of the pundits that were screaming for judicial reform after O.J. got acquitted were today. I didn't hear any comments about how problematic our court system is because a murderer went free -- that was the topic of conversation in 1996 as Simpson left the courthouse. I can not help but notice that, beyond race, there really weren't any significant differences between the two cases (actually, I take that back -- O.J. didn't admit to killing and cutting up Ron and Nicole). Despite this, the public apathy exhibited today regarding the Durst decision was palpable. Notwithstanding the fact that -- from a legal perspective -- I agreed with both decisions (in both cases, the prosecution failed to adequately make their cases beyond a reasonable doubt), the nonchalance with which the public has accepted the Durst verdict, especially when compared with the public reaction to the O.J. verdict, saddens me. Let's see what happens when Kobe's verdict comes in next year.

Monday, November 3, 2003
She's baack...
Linda Tripp, infamous for her secret tapes of conversations with Monica Lewinsky that helped lead to President Clinton’s impeachment trial, is back in the news. MSNBC is reporting that Tripp will get more than $595,000 from the Defense Department to settle a lawsuit over the release of confidential personal information about her to a magazine. Apparently, in 1998, Pentagon officials told the New Yorker that Tripp did not admit an arrest for grand larceny (occurring while she was a teenager) on her security application for her job at the Defense Department. Accordingly, Tripp sued based on alleged violations of the Privacy Act of 1974. The Privacy Act prohibits the government from releasing unauthorized personal information about individual Americans to nonfederal organizations.

In the underlying suit, Tripp claimed administration officials retaliated for her role in triggering the impeachment proceedings. As part of the settlement, Tripp gets a one-time payment of $595,000, a retroactive promotion and retroactive pay at a higher salary level for 1998, 1999 and 2000. Must be nice.

Friday, October 31, 2003
All about da Benjamins, Baby...
P-Diddy seems to be in trouble again. This time, however, no guns are involved -- just some really nice sweatsuits. MSNBC is reporting that the hip-hop music and fashion entrepreneur Sean Combs' trendy clothing line allegedly used a ''sweatshop'' in Honduras where women sew expensive garments for pitifully low pay. Apparently, "Sean Jean" factory managers cursed at workers, refused to pay overtime, fired them when they became pregnant and blocked efforts to form a union, according to a New York-based National Labor Committee. In his defense, Puffy called a news conference to say he was ''shocked'' at the revelations and promised an investigation that would have ''zero tolerance'' for any labor law violations in factories producing his Sean John clothing line. I sense a P-Diddy/Kathy Lee Gifford collaboration on the horizon...
Tuesday, October 20, 2003
Don't worry if you kill 'em Doc; it's ok.
Apparently, the days of becoming a doctor for the sake of saving lives are over, at least in Cleveland. Today, the Plain Dealer reported that since more doctors would treat more poor, uninsured patients if they knew those patients could not sue them for medical malpractice, a bill has passed the Ohio Senate granting civil immunity to doctors who do so. This brilliant bill was passed despite the fact that proponents of the bill recognize that no evidence exists to show an explosion of lawsuits being filed by the poor. In fact, poor uninsured patients are less likely to sue for malpractice, according to a study published in 1993 in the Journal of the American Medical Association and also a study in 2000 done, in part, by the Harvard School of Public Health. Nevertheless, the seeks to expand civil immunity to health care professionals who treat people not only at accident scenes or in free clinics or shelters; but also treatment of the poor in a medical office, hospital or any other medical setting, except in incidents of gross negligence. Remind me never to forget my wallet if I go to a hospital in Ohio.

Friday, April 18, 2003
The big stuff always sneaks up on you.
This morning, the Recorder reported on the Bush Administration's proposed overhaul of the Fair Labor Standards Act ("FLSA"). Last month, the U.S. Department of Labor presented its proposed changes to FLSA -- construed as the first step toward revising federal wage-and-hour regulations. Specifically, the proposed changes raise the minimum salary for employee designated as "white-collar" workers. They also simplify the job description tests that confer white-collar status.

These proposed changes have massive implications, particularly for labor and employment wage and hour litigation. The white-collar distinction is important, since it exempts an employee from receiving overtime pay. Accordingly, depending on which side of the fence you're on (employer v. employee), the changes will either make you very happy, or very sad. Regardless, one thing is certain: by addressing some of the current vague standards under FLSA, the proposed changes will make it more difficult to bring class actions under the Act. It is important to note, however, that while the proposed changes may significantly affect federal wage-and-hour litigation, the effect in California is likely to be minimal. California maintains its own set of wage-and-hour laws, and those laws are considered by many to be much more employee-friendly.

The proposed changes are currently undergoing a 90-day comment period, and could take effect in 2004.

Saturday, April 5, 2003
Pregnant student athlete brings Title IX suit against school
There's an interesting (and I'd argue, completely justified) suit occurring in Connecticut federal court -- Brady v. Sacred Heart University. A former student basketball player, who became pregnant, is suing her former university to affirmatively force the school to develop a comprehensive pregnancy policy for athletes. The suit is being brought under Title IX of the Education Amendment Acts of 1972. Title IX prohibits discrimination based on sex in education programs and activities receiving federal financial assistance. According to her suit, Tara Brady contends that male student athletes have fathered children with no interruption of their scholarship or team status (a practice that they apparently continue once they join the NBA), and that non-pregnant athletes have been accorded "medical redshirt" status, allowing them to rejoin their teams after returning to good health.

The suit alleges that Brady started at Sacred Heart, located in Fairfield, Connecticut, in 1999 with a full basketball scholarship. She became the team's starting center, and continued her athletic and academic progress uninterrupted until June of 2001, when she got pregnant. Brady told her coach she intended to keep her baby. After consultation with university officials, her coach told Brady that she would be a "distraction" to the team and suggested she return home to Pennsylvania. Though out of school, Brady remained in Connecticut in the fall of 2001 and attended all home games. She contends that, in December of 2001, she noticed that she was listed on a program as a "medical redshirt." However, Brady was not receiving any benefits of that status at the time. After a telephone conference with the university's athletic director, the school reinstated Brady her full athletic scholarship for the spring semester of 2002. She gave birth to her son on Feb. 1, 2002.

When another basketball team member invited Brady to join a post-season scrimmage in March, the complaint alleges that the team's coach told the team it was not allowed to include Brady. In April, she was informed she would not have her scholarship renewed for the fall of 2002. Still, in a May appeal before the ad hoc scholarship committee, her scholarship was again reinstated. So was her status as a team member -- except that her coach refused to speak to her in practice. Brady was only communicated to through an intermediary.

Brady withdrew from Sacred Heart last July and is currently playing center on Pennsylvania's West Chester University's basketball team. The lawsuit includes an emotional distress count against Brady's Sacred Heart coach, who is named as an individual defendant. Good for her.
Thursday, March 13, 2003
Does a Levy on Hardware Make Sense for Copyright Holders?
Germany is on the verge of imposing a levy of $13 plus a 16% VAT on every new computer sold in the country. The money will supposedly be used to reimburse copyright holders such as artists, performers, recording companies, publishers and movie studios for unauthorized copying due to peer-to-peer file sharing, file swapping, and the hacking of software, music and e-books. While the motivation may seem unassailable, it remains to be seen just how well any reimbursement system could work logistically, and what impact this may have on copyright holders. How will the government disburse the money amongst the copyright holders? Does this mean that the government must now keep track of exactly what's being copied in order to fairly distribute the funds? Most importantly, since every computer buyer must pay the fee, is everyone now free to copy? If a copyright holder gets reimbursed, is there no longer any cognizable harm--at least economically? A number of countries have been taxing computer peripherals, yet their track record for distributing the monies to copyright holders is dismal--governments either hoard the money, or the levies are challenged in court (as the German levy will certainly be), which stalls any distribution. Such levies threaten the already slim profit margins of hardware manufacturers, and the unencouraging track record of such distribution systems hardly instills confidence that such systems can be effective. Content brokers are beginning to adapt their business models to a digital world, and to consumers' wants--for instance some music companies now have on-line subscription systems for digital music downloads. Maybe we should just wait for the market to catch up to the consumers.
Tuesday, March 11, 2003
And the State leading the civil rights cause is ... Texas?!
The National Law Journal has reported that a federal jury in Texas has awarded more than $24 million to a black Texas family that had a cross burned on their lawn by five white men three years ago. The jury awarded more than $8 million in compensatory damages and more than $16 million in punitive damages.

Apparently, the morning of June 19, 2000, the men trespassed on the family's property while wearing pillowcases over their heads and carrying a wooden cross wrapped in sheets. After a failed attempt to dig a hole in which to place the cross, the men leaned it against a tree outside of the home, doused it in gasoline, ignited it and fled. The family was sleeping at the time of the incident and was unaware of what had happened until a neighbor notified them early in the morning.

The family's attorney has indicated that, although the defendants all claim to be indigent, he intends to collect the entire award from the homeowner policy carriers for the men's parents. The significance of the conduct underlying the suit becomes more offensive when one considers the fact that June 19th, also called "Juneteenth", is recognized as the date in 1865 that, 2 1/2 years after the Emancipation Proclamation, Texas slaves were told of their freedom. Free at last, free at last ...
Tuesday, March 4, 2003
Victor can keep his secret if he wants to.
It seems the most recent Victor-Victoria saga has reached a sordid end, depending on who you ask. Today, the Supreme Court held that there was no proof that a small sex toy and adult video shop that wanted to call itself Victor’s Little Secret harmed lingerie seller Victoria’s Secret's trademark.

At issue for the Supreme Court was (a) whether Victoria’s Secret had to show that its trademark was diluted, or (b) whether there was merely the likelihood of economic harm if the Victor's Little Secret was allowed to keep its name. The Court chose the first option. According to Justice Stevens, “[u]se of the name ’Victor’s Little Secret’ neither confused any consumers or potential consumers, nor was likely to do so.”

I agree with the Court on this one. Just because a customer may make a mental association between a famous trademark and a knockoff does not necessarily mean that the famous trademark has been damaged or diluted. More is needed. As Justice Stevens noted, “[w]hatever difficulties of proof may be entailed, they are not an acceptable reason for dispensing with proof of an essential element.” Notwithstanding this, however, the High Court did skirt the major issue here: since the 1995 Federal Trademark Dilution Act requires a proof of injury, how can a plaintiff making trademark dilution claims, particularly when that company is a major corporation like Victoria's Secret, establish such proof? I guess we'll have to stay tuned for that answer.

Thursday, February 27, 2003
What's good for the goose . . .
A little over a month ago, we commented on a Recorder story in which the California Attorney General's office was threatening to sue the Trevor Law Group for unfair business practices pursuant to Section 17200. Apparently, the AG's office has followed through on that threat. Today its being reported that Attorney General Bill Lockyer has employed California's unfair competition law to sue the Trevor Law Group. As previously noted, the Trevor Law Group, along with a number of other law firms, stands accused of using the 17200 statute to extort settlements from small businesses. By filing this suit, Lockyer has now officially placed himself into the middle of the ongoing debate over reforming Section 17200. Lockyer, a proponent for the statute in its current form, can now point to his own suit to show that there's nothing really wrong with the statute. Lockyer's position is heavily supported by the Plaintiffs' bar. This promises to get interesting.

Friday, February 14, 2003
Democrats File Affirmative Action Amicus Brief
CNN reported today that approximately 100 House Democrats, including Minority Leader Nancy Pelosi, filed a brief with the United States Supreme Court in support of the University of Michigan's affirmative action admissions policy. Apparently, the brief was filed in response to the one filed by President Bush's administration opposing the University's admissions policy and asking the Supreme Court to strike the policy down.

Applicants for Michigan's undergraduate classes are scored by points, with minorities or some poor applicants receiving a boost of 20 points on a scale of 150. At the law school, admissions officers use a looser formula that tries to ensure each class has a "critical mass" of about 10 percent or 12 percent minority enrollment. President Bush has gone on record stating that, while he supports diversity in higher education, Michigan's program "unfairly rewards or penalizes students based solely on their race." The Supreme Court has scheduled oral arguments on the issue for April 1.
Thursday, February 6, 2003
Decreased Cybersquatting featured an article today regarding the decline in domain name disputes. The article cites a number of reasons for the decline in trademark disputes over the use of domain names, including: the slowdown in the Internet economy; the fact that about 70 percent of the decisions under the Uniform Domain Name Resolution Policy have come down in favor of the trademark owners; the ability of today's more sophisticated search engines to sift through old-time ruses such as trademark stuffing, metatags and wallpapering; and, companies are also striking deals with domain name holders. The burst of the internet bubble has certainly assisted trademark owners as domain name holders can no longer expect offers for their domains to reach into the hundreds, or even tens, of thousands of dollars. Of course, gone are the early days of cybersquatting when someone could swoop in and register before the well-known corporate owner of the mark could do so--those most egregious of cybersquatting cases have come and gone.
Saturday, February 1, 2003
Work Product? I think not...
According to the New York Law Journal, the law firm representing an American businessman in a foreign bribery investigation conducted by the Southern District U.S. Attorney's Office is not permitted to invoke the work-product doctrine to shield records obtained from Swiss banks.

The Second Circuit Court of Appeals held that records gathered by lawyers with Akin, Gump, Strauss, Hauer & Feld must be turned over to a grand jury hearing evidence in the probe of The Mercator Corp., Chairman James H. Giffen and bribery in the Republic of Kazakhstan. Apparently, in In Re Grand Jury Subpoenas Dates March 19, 2002 and August 2, 2002, 02-6239, the federal court of appeals upheld a September decision by Southern District Judge Denny Chin, who found that the work-product exception does not apply to records for approximately 30 accounts held in Swiss banks.

The records were being sought because U.S. investigators have had significant difficulty in obtaining information on the accounts directly from the banks. Investigators claimed the records were critical for their investigation of possible bribery of foreign officials, a violation of the Foreign Corrupt Practices Act. Writing for the appellate court, Judge Reena Raggi noted that "the principle underlying the work-product doctrine -- sheltering the mental processes of an attorney as reflected in documents prepared for litigation -- is not generally promoted by shielding from discovery materials in an attorney's possession that were prepared neither by the attorney nor his agents." Good call.

The End of a California Legal Giant.
Less two years ago, Brobeck, Phleger & Harrison was California's most profitable law firm. In approximately 30 to 45 days, it will no longer exist. The Recorder has reported that the firm's partnership -- facing insurmountable debts and the recently failed merger talks with Philadelphia's Morgan, Lewis & Bockius -- have voted to dissolve the firm. The dissolution will probably take effect in 30 to 45 days.

The fact that Brobeck is dissolving isn't necessarily what's interesting to me (unless, of course, any former Brobeck clients are now looking for litigation counsel -- if that's you, please call us at 323-960-2600; we'd love to speak with you). What is worth watching is how the partners plan to deal with the nearly $90 million dollars in debt that the firm owes -- apparently, Brobeck was a general partnership and the partners' liability was not limited. Someone's going to have to pay the piper.

Tuesday, January 28, 2003
Cold War Spy Photos Put To Good Use
Although not legal, this is interesting. It seems that archaeologists studying newly declassified satellite photographs from the 1960s and 1970s are discovering extensive trade networks that existed throughout the Middle East during the Bronze Age. This shouldn't surprise us, since a number of such networks throughout the Mediterranean and Middle East have been extensively studied by archaeologists for years--for instance the Assyrian-Cappadocian trade network extending from modern-day Iraq into Turkey. How else did we think such similar pottery kept showing up in far-flung sites? If you're interested, the upcoming issue of the journal Antiquity will have a paper discussing the findings.
Tuesday, January 21, 2003
Class action arbitrations on the Supreme Court's plate.
According the National Law Journal, the U.S. Supreme Court apparently has decided to resolve the issue of whether arbitrations are a proper forum for class actions. In Green Tree Financial Corp. v. Bazzle, the South Carolina Supreme Court upheld a $27 million arbitration award against the financial corporation. The state supreme court held that classwide arbitration may be ordered when an agreement is silent on that issue if it serves "efficiency and equity, and would not result in prejudice." Green Tree obviously disagreed. According to Green Tree's counsel, arbitration agreements must be enforced according to their terms. Thus, if the state court's approach is taken, courts can modify private agreements that don't explicitly preclude a proceeding or result that a court, "in its discretion, believes will 'serve efficiency and equity, and would not result in prejudice.'" Conversely, however, without an arbitration proceeding that contemplates class actions, many consumers will not be able to bring claims because the costs of arbitration may exceed the possible recovery. Similarly, corporate entities that engage in predatory lending practices and then attempt to circumvent liability by imposing arbitration agreements on consumers -- particularly since arbitration is normally a favorable dispute mechanism for businesses -- will not be able to shield their wrongful practices from class action liability. Isn't that what class actions are all about? In any event, it seems like the Supreme Court will answer that question soon.
Thursday, January 16, 2003
Goofy's safe ... for now.
Please be advised that we will not be posting any images of Donald Duck on our website for another 20 years. The Recorder reported today that the U.S. Supreme Court held that Congress acted constitutionally when it extended copyright protection from 50 to 70 years for most works. Professor Lessig, arguing on behalf of Eric Eldred, a webmaster that publishes public domain material online, contended that Congress' action at issue was unconstitutional on two primary grounds -- (a) the copyright clause, which only gives Congress the power to grant copyright protection for "limited times," and (b) the First Amendment's guarantee of free expression. In a 7-2 decision, however, the high court dismissed both of these arguments, relying on the fundamental tenet that the wisdom of Congress' action is not within the province of the Supreme Court to second-guess. Justices Breyer and Stevens dissented.

The majority's take on the First Amendment argument is probably the most interesting part of the opinion. Justice Ginsberg, writing for the majority, stated that "The First Amendment securely protects the freedom to make -- or decline to make -- one's own speech . . . . It bears less heavily when speakers assert the right to make other people's speeches." In other words, I can say what I want, as long as you didn't say it first.
Wednesday, January 15, 2003
A taste of their own medicine?
It seems that a certain group of attorneys that has spent quite a bit of time prosecuting Section 17200 cases lately may end up defending a few of their own. The Recorder reported today that California Attorney General Bill Lockyer has subpoenaed the records of attorneys from the Trevor Law Group. The law firm has been accused of using the unfair competition law to extort money from small businesses. If investigators find evidence of abuse, it seems that the next step would be filing 17200 civil suits against the lawyers themselves.

The Trevor firm has filed numerous Section 17200 suits against thousands of defendants, including many small auto repair shops and restaurants. Most of the suits are based on technical violations reported by state regulators. The firm files these suits and then pressures affected small businesses to settle claims.

Using the statute against them for these practices may actually help the plaintiffs bar in the long run. The cases filed by the Trevor firm has led to a push by defense attorneys for a repeal of the statute. However, by suing the firm in the interest of the public can remind attorneys what the actual purpose of the law is: to protect consumers and small businesses from unlawful and unfair business practices. The instant practice appears to be a prototypical case.
Friday, January 10, 2003
Oops. Sorry about that whole death row thing...
In an age wrought with cold political bipartisanism, it is refreshing to see a sense of morality and common human decency prevail. Today, CNN reported that Illinois Governor George Ryan Friday pardoned four inmates wrongfully convicted and awaiting execution on death row. The Governor pardoned Aaron Patterson, Madison Hobley, Stanley Howard and Leroy Orange -- men who were tortured by the police in interrogations and convicted on the basis of fraudulent confessions obtained under duress. He is expected to commute the sentences of others on death row Saturday.

In 2000, Governor Ryan halted executions in Illinois after 13 inmates on the state's death row were released because they were wrongly convicted. With the four pardons today, that number is now 17.

While I am sure these four black men are grateful for their newly found freedom, their pardons beg the question: how do you compensate these innocent men for the time they spent mere few feet away from the prospect of state-sanctioned homicide? What value can one put on the freedom that was taken away from them? In my opinion, a simple apology can never be enough.
Tuesday, January 7, 2003
Oral v. Aydin Corp. Class Action Settlement Approved
After five years of litigation, a Pennsylvania federal judge has approved a $4.1 million settlement in a class action suit brought by former employees and executives of Aydin Corp., a Pennsylvania communications company. Those employees stated that they were cheated out of overtime pay as a result of Aydin's practice of classifying employees as salaried workers who were "exempt" from the Fair Labor Standard Act's time-and-a-half overtime pay requirements, while nonetheless docking their pay when they were absent for part of a day. Under the settlement, 83 employees -- including several former vice presidents, a former in-house lawyer and the former director of human resources -- will be paid sums ranging from $1,468 to $193,936.

While the settlement in this class action is not particularly novel, what is particularly interesting is the strategy employed by the defense counsel. Instead of arguing against the feasibility of the opt-in class, or emphasizing the distinctions between the various job classifications and descriptions to minimize the commonality of the claims, the defendants attempted to defend the case at trial by focusing on offering justifications for docking the pay of lower-level management employees and denying the claims of all of the highest-ranking employees. It seems that the size of the settlement may be an indication how effective that strategy was.
Friday, January 3, 2003
I guess they were just kidding.
As we noted on December 30, 2002, the U.S. Supreme Court granted a stay of the California Supreme Court's ruling that Matthew Pavlovich, an Indiana college student residing in Texas, could not be sued in California for trade secret infringement claims based on DVD decryption software programs being offered on his website. Apparently, the U.S. Supreme Court has now changed its mind. Today, the Washington Post reported that Justice O'Connor threw out the emergency stay barring Pavlovich from putting DVD decryption programs on the Internet.

Last week, the DVD Copy Control Association persuaded Justice O'Connor to issue a temporary stay and said that it planned to appeal the state court decision. As a result of Justice O'Connor's decision, the group may reconsider the viability of an appeal. Even though Justice O'Connor did not address the merits of the case in dissolving the stay, it's worth noting that Pavlovich's attorney argued that the stay was unnecessary because the decryption programs at issue are already available on hundreds of other web sites and that they've been printed in magazines and newspapers.
Chalk one up for the bad guys.
After being repeatedly hammered in jury verdicts across the state, Big Tobacco has finally had a legal success in a California trial court. Earlier this week, reported that U.S. District Judge Saundra B. Armstrong ruled that there was insufficient evidence to find Philip Morris Cos. and R.J. Reynolds Tobacco Co. liable in the death of 81-year-old Frank Robert White. The ruling came shortly before jury deliberations were about to begin.

A Big Tobacco celebratory dance based on this result, however, is probably a bit premature. Since 1999, this is the first time (in seven West Coast jury trials) that tobacco companies have won. Indeed, panels in California and Oregon have awarded more than $30 billion in damages in lung cancer victim lawsuits, although the awards later were trimmed to a total of $363 million (it's important to note that in the White case, he never developed lung cancer -- the disease most directly linked to smoking). In fact, last week, the Oregon state supreme court refused to overturn an $80.3 million judgment against Philip Morris. Maybe it's time for Big Tobacco to start settling these cases--at least on the West Coast.

Tuesday, December 31, 2002
Some cases need no explanation.
Here's a defamation case that should add a bit of levity to your day. In light of the fact that the Plaintiff in this case has affirmatively put himself out as a public figure, and therefore must establish actual malice on the part of Viacom pursuant to New York Times v. Sullivan in order to prevail, this case becomes even more amusing. Happy New Year.

Monday, December 30, 2002
Where ya gonna sue?
MSNBC recently published an article about the United States Supreme Court's decision to finally intervene in the motion picture industry’s intellectual property war against DVD copying. The case, brought against an individual offering a program to break DVD encryption software on the web, has the potential of eventually establishing standards for how and where people can be sued for information posted online.

In 1999, while he was a college student in Indiana, Matthew Pavlovich allowed codes that permitted people to copy DVDs to be posted on his Web site. The software, however, was written by a teenager in Norway. To complicate matters further, Pavlovich is a resident of Texas. Deciding that neither Indiana, Texas nor Norway were suitable venues, the California-based DVD Copy Control Association, which licenses DVD encryption software to the motion picture industry, brought a trade secret infringement case against Pavlovich in California state court. In November, the California Supreme Court ruled for Pavlovich, holding that while he could be sued in Texas or Indiana, he could not be sued in California. Last week, the U.S. Supreme Court granted a stay of that ruling.

It appears that the issue of where lawsuits based on intellectual property claims originating from the World Wide Web can be filed is now squarely before the Supreme Court. This promises to get interesting. Stay tuned.