waste of time as sanctionable conduct

In preparation to my second visit to London with our Bar's Litigation Section (called "A Legal Week In London," highly recommended), I was sharing my experiences from my first trip in 2015 with colleagues, and the discussion quickly centered on what differences I had then observed between how the courts operate there and here.  My observations are from the ground up: I appear regularly in law & motion and trial settings, and so can only compare from a view of a field practitioner. I make this comment because our visiting group in London included all kinds of members, from transactional attorneys, to appellate practitioners, to in-house counsel, and even judges and one appellate judge. So, what may have appeared noticeable in differences for them, might not strike me a worthy of note at all.

Senior Water Rights Are Suspended In California

Suspending senior water rights in California is a new development in the state's real property law, with its practical implications being of much more interest than its legal background. The drought affects all Californians and this reform relates to many. Will it sustain the challenge?

Historical Development Of Eviction Laws

An eviction lawsuit is not a modern invention. Its elements developed over the course of centuries, some surprisingly long time ago. This short article is an attempt to cover most noticeable cornerstones.

Access to UK Caselaw And Beyond

If you need to look up a case decided in United Kingdom, try this free database. While there, look at the right column, entitled "World Law Resources," it has links to a collection of world jurisdictions.

In re: Christmas Trees

In the spirit of this season, I want to share a short post on the subject of Christmas trees. Decorating a tree seems to be an ancient tradition, predating Christ himself, and a custom of having a Christmas Tree also seems to exist for several centuries, yet the appearance of Christmas celebration in the US law is not that old--the oldest cases I was able to find only date back to 1879.

Federal Courts Will Remain Open During Shutdown

I just started wondering today, what would happen procedurally with the cases pending before the Federal courts during the Shutdown, when I received an email from our District's Bankruptcy Court, stating that "[t]he federal Judiciary will remain open for business for approximately the next 10 business days. On or around October 15, 2013, the Judiciary will reassess its situation and provide further guidance." This arrived at 9:30 A.M. and I couldn't stop myself from imagining scenarios, what would happen to the cases and whether it can be used to my clients' advantage. I felt half-worried half-excited approaching the Unknown.

In Leasing an "In-Law" Apartment Don't Be "In Pari Delicto" - Beware of an Exception for Legal Enforcement of Illegal Contracts

Leasing an "unwarranted" unit contains inherent risks: recent court cases often treat such lease agreements as illegal contracts, a finding leading to a set of scary, but possible discussions, ranging from such lease being simply unenforceable to a claim for restitution of back rents. A question then naturally arises, what can be done with an illegal contract, and are there any exceptions or conditions for its enforcement. The basic rule is that the contracting parties are both "in pari delicto" and neither can enforce the contract or recover therefrom. There is, however, an exception developed in California, which still lets one side to such allegedly illegal contract to recover from the other. An exception itself is not new, but its application to "illegal" leases developed more recently.

Update 03-07-14: San Francisco pilot program for legalizing in-law apartments got approved at the Planning Commission level.
Update 04-07-14: Board of Supervisors approves the pilot program
Update 02-21-16: Decision in Chen v Kraft invalidated a lease with an unlawful object, under CC § 1598.

F. Lee Bailey is coming back

I was preparing a post on language tools, when I thought of F. Lee Bailey. A quote from his book "To Be a Trial Lawyer" will be a great opener for the subject. I searched for the links and found out that he was actually disbarred for several years and just recently (June 2013) got his clearance to practice law again.

A Case For July 4

I came across a good case to present for the July 4: Nixon v. United States, 978 F.2d 1269 (D.C. Cir. 1992). I was looking to find a case describing past presidents, seeing if any decision reflected the fact that three presidents died on that day. I found this case instead, and, although it does not directly relate to July 4th, it has all the elements of a rightly fitting case for the occasion.

Involuntary Un-Servitude

There is a recent move in the State of New York to increase the age limit for judges, to allow them to serve beyond the currently imposed 70 years. New York Times' article states that there are more than 30 states, plus D.C., that have an age limit on jurists. I found the article very interesting: it gives a reader a broad set of facts and, at least to me, feels like an exam set, inviting to "discuss this" and spot possible issues. I came up with these:

The Time Has Come to Abolish the Slave Law

Slavery was abolished with the passage of 13th Amendment in 1865, and now, with the State of Mississippi completing formalities of filing their ratification this year, it seems fully and universally approved, nationwide. It should be only logical that the "slave law," a body of pre-Amendment court decisions regarding slavery aspects, would become outlawed just as its subject did, instantaneously with it. I was surprised to find out that it didn't. Majority of the slave cases are still marked as "good law." Many of them are cited in decisions made decades after the Amendment. Some are even recognized authority in up-to-date treatises. I think this is an important issue, worthy of our attention, something we should, and now can, fix.

Affirmanti, non neganti, incumbit probatio

AFFIRMANTI, NON NEGANTI, INCUMBIT PROBATIO
a more common form: Ei incumbit probatio qui dicit, non qui negat

Meaning: The proof lies upon one who affirms, not upon one who denies.

The maxim provides a rule in establishing a presumption of who initially carries the burden of proof. This is a deep-rooted and well known maxim, mentioned in the Blackstone's Commentaries (Book 3, p.366 (1791)) as one established both in common and civil laws. It appears to be a part of the Justinian I's Corpus Juris Civilis (Digest book*), completed in 533 A.D. And even there, it is referred as "A maxim of Paulus," enforced by the Emperor Pius' rescript. Its full cite and a detailed account are given here.

Books to read

If you have ever scanned through biographies of successful figures in legal profession, you could not miss a similar element in their upbringing. It is a very basic, foundational element: their education. Being educated is not the whole recipe, but is an unavoidable ingredient for success in a "learned" profession. This necessity, traditionally, is a costly one, and a large share of the costs fell on books.

From Cicero's times, "books, like works of art, were expensive." You would think that with the advance of printing technology the prices would drop, yet the textbooks remain extremely expensive today,* and the prices are on the rise. Imagine, how different our history would be, if Thomas Jefferson wouldn't be lucky to inherit his father's library and then get another one from George Wythe. The world will be all so more different if Abraham Lincoln, who "was mostly self-educated and was an avid reader and often sought access to any new books in the village," wouldn't be able to self-educate himself with books.

De Minimis Non Curat Lex

DE MINIMIS NON CURAT LEX

Meaning: The law cares not for trifles.

This maxim may be seen as one of the principles of judicial economy―that the court should not spend its time on trifling matters, or that some trifling details should not divert court's decision on a material point.

Not Having The Fear of God Before His Eyes: How Long Does It Take to Separate Religion From Indictment? [208+ years]

When I studied the legal maxim "Allegata et Probata" and came across a 1778 case Respublica v. Carlisle, 1 U.S. 35 (1778), it caught my eye that the allegations against the defendant were made with a help of religious reference to God and Devil: "not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil."

The allegation sounded very romantic, but looked suspicious for its place in a middle of an indictment of a serious criminal case. I thought to myself, this smells like an issue of mixing religion with the government, and decided to look closer. Here is what I found:

Are the decisions of the Confederate courts good law?

When I research on a given rule, I try to look for a chain of decisions as far as it may go. Getting with a well-settled rule past the 20th century and into 18xx-ies' decisions is something happening often and without much of an effort.

Since I practice in California, rule's ancestry beyond 1860s quickly becomes unpredictable: we may have a US Supreme Court's case (lucky!), or it be referred to another state's earlier decision (easy), or to jump a hundred years and quote an earlier UK case (not so easy), or even rely on a Spanish/Mexican rule or tradition (the research stops there for me, almost always). This unpredictable change in time or space makes the search exciting, yet it also made me think, what if the chain gets into a decision held by a Confederate court? Are those decisions "bad law"?

Upholding monetary obligations through the times of change - from 1796 to 2001

I had an assignment to find citations to the cases, which deal with the problem of conflicting loan papers: if there is a conflict between a note and a deed of trust, whose terms prevail.

As it usually goes, I went too far with it too soon, quickly finding myself in the 19th century territory. There, I came across a case, Gavinzel v. Crump, 89 U.S. 308 (U.S. 1875). While the case had little to do with my research subject, it caught my eye for its rich story, a real-life adventure (even within the original meaning of the word), where the backdrop was the Civil War, and where two residents of a rebellion state (Virginia) made a deal, one borrowing from another a certain sum in Confederacy notes. The lender then "got out of Richmond and went to Europe; his escape through the rebel lines having been, according to his own account, almost impossible; attended with greater difficulties than anything which he had ever in his life done." (Id. at 5)