Monthly Archives: May 2013

Who wins? It can be a big deal when attorney’s fees are involved…

Maynard v. BTI Group.

BTI was the listing broker for the plaintiff in her sale of a business.  The buyer went bankrupt.  The plaintiff sued BTI for breach of the listing agreement and for negligence because BTI failed to obtain security for the transaction as the plaintiff requested.  The listing agreement contained a clause that awarded the prevailing party their attorney’s fees following arbitration or litigation of any dispute arising out of the agreement.

The judge in a court trial found for the plaintiff on the negligence claim and for BTI on the contract claim, resulting in a net verdict of $24,000.00 for the plaintiff.  The judge then held that the plaintiff was the prevailing party and awarded her her attorney’s fees.

BTI claimed that the contract provided for the recovery of attorney’s fees and that BTI prevailed on the contract claims.  The court of appeals affirmed the decision of the trial court because the subject prevailing party applied to “any dispute,” including the negligent performance of the obligations contained in the agreement.

Following a court trial and an appeal, the attorney’s fees almost certainly exceeded the $24,000.00 judgment.     Any time attorney’s fees drive a lawsuit, everyone loses except… the attorneys.  

Maynard is a prime example of a case where a judge should recognize that no one really won this lawsuit and order everyone to pay their own fees.  That would force the parties to recognize that they are wasting precious judicial resources on a matter that is not worth its time in court.

Do LinkedIn endorsements violate legal ethics rules? – ABA Journal

Do LinkedIn endorsements violate legal ethics rules? – ABA Journal.

If someone endorses you on Linked In for an area of expertise where you have little or no experience, then should you remove those endorsements?

They are, in part, representations about your skills to which you acquiesce if not affirmatively trumpet.  As a result, you should check your endorsements to make sure that they are accurate.

Facebook Friendship Not Proof of Judicial Bias?? Really??

Click For Article.

While being Facebook friends with the parent of a victim in an assault action may not prove bias, it certainly smells bad.

The judicial system rests on the impartiality of the decision-makers.  This judge may not have been biased in favor of his friend, but should have checked something as simple as a Facebook friend list before taking a case, disclosing the relationship to all sides and giving them a chance to request a new judge.

Maybe things are different in Texas


Can a mediator with an opinion be a neutral? Yes!

Click for article.

Ken Strongman, one of my favorite mediators, comments on the role of a mediator as a neutral and as a source of valuable evaluative information critical to any mediated settlement.

Amendment To Contract Cured Prior Illegality

Corrie v. Soloway – Google Scholar.

The parties entered into an option agreement to sell real property.  The agreement, however, was illegal since it involved a sale of land that did not comply with the California Subdivision Map Act.  The consideration for the option was $100,000.00 plus $5,000.00 per month. The option was extended twice, for increased consideration.  In the second amendment, the parties made the obligations conditioned upon the filing of a final subdivision map, which cured the legal issues with the original agreement and the first amendment.

The trial court sided with the owner, holding that the initial illegality of the agreement made it void.

The court of appeal reversed.  The second amendment with its conditional language salvaged the agreement as a whole.  The court recognized that all such cases are different and public policy may not always revive a once illegal act.  In this case, however, the owner received over $1.3 million of option payments and the second amendment substantively conveyed on its own a legal option to purchase real property.  Therefore, the decision of the trial court resulted in an unfair windfall to the owner that the courts should not condone.

It is refreshing to see a court elevate substance over form and fairness over a hypertechnical application of what might be the most complicated body of California statutory law.


Law schools should mostly ditch C grades, law prof argues – ABA Journal

Law schools should mostly ditch C grades, law prof argues – ABA Journal.

If today’s C equals an F from 25 years ago, then my law school GPA should be revised upwards to about 5.7.  I am building my self-esteem retroactively, much like current law schools build up their current students.

Second Bite at the Apple: How Unregistered Domestic Partners and Other Cotenants Can Still Avoid Property Tax Reassessment | CEB Blog – Your Partner In Practice

Second Bite at the Apple: How Unregistered Domestic Partners and Other Cotenants Can Still Avoid Property Tax Reassessment | CEB Blog.

New statute on how to avoid reassessment on death of a co-tenant.  Qualifying for the exclusion is complicated but the rewards can be significant.


No Relief For California Courts

May Budget Has Nothing More For Judiciary

When the California legislature and the executive branches can strangle the judiciary with withing cuts, we no longer have justice and we no longer have true separation of powers.

The U.S. Postal Service– A Nickel? Really?

Yesterday, the mail carrier for the building where I work stopped by my office regarding a mailing with 95 cents postage due.  It was a CD of documents from a copy service that already had over $1 in postage.  I handed a dollar bill to the mail carrier and he said that he would owe me the nickel.

The envelope with the CD was very light, weighing less than two ounces, but the envelope was nearly square, which resulted in total postage of just over $2.

Question 1- is it the best use of the mail carrier’s time to make a special trip to collect 95 cents to impose the surcharge for square envelopes or should he just have delivered the envelope?  You could say that because I had a dollar bill in my wallet, it was a big win for the postal service even though the value of the mail carrier’s time spent traveling from the mailboxes in the garage to my office and back was greater than the dollar recovered.

Today’s mail contained an U.S. Postal Service envelope, like the one used for stamps, with a nickel taped inside.  The envelope probably cost more than a nickel.

Question 2- How has the United States Postal Service stayed in business as long as it has?


Los Angeles Superior Court Shutters ADR Program

Los Angeles Superior Court Shutters ADR Program.

Randy Drew reports on

Not only are we losing civil judicial resources throughout the state, making it harder each day to get papers filed, to get a hearing date, or to get a courtroom for trial, the LA Superior Court is getting rid of its ADR Program, which provides efficient and inexpensive mediation services to civil litigants to ease the burden of overwhelming caseloads.

This is a sad development.