Category Archives: Bet-the-Company Litigation

Legal Troubles Overhang Presidential Election

This presidential election cycle is groundbreaking in so many different respects.  The one respect that intersects my world is the degree to which each presumptive nominee’s campaign is dogged by ongoing legal battles.

Hillary Clinton has been beset for months by criticism over her exclusive use of a personal email server to conduct State Department business, when according to State Department policy she should have used a government email address and government server.  The problem was not merely technical, because when she left the State Department she did not turn over her emails to the government.  Thus, when the emails were sought by subpoena in connection with the Benghazi affair, the process of reviewing and turning over responsive emails was in the hands of Clinton staff rather than the government.  read more

Gawker Verdict Reinvigorates Power of Privacy Claims

I’m old enough to remember the days when “the news” consisted of thirty minutes on one of three major television networks.  In those days there were high barriers to entry into the world of television or print media, leaving the news in the hands of major entities that, I believe, tried to apply sincere journalistic standards.  We had a relatively high level of comfort that what was delivered to us as “news” was: a) relatively important; b) relatively objective and c) relatively accurate.

With the advent of cable television and the Internet, “news” is now ubiquitous, available 24/7 through an unlimited number of sources.  read more

Music copyright cases illustrate the potential for confusion in business trials

I have high regard for my personal injury and employment trial colleagues.  However, in one respect I believe their jobs are easier than that of the business trial lawyer.  In a case involving injury or, say, employment discrimination, I think the issues and values at stake are clear and within the juries’ general knowledge.  Did the defendant act negligently and thus injure another?  Was the plaintiff fired for reasons legitimate or unlawful discriminatory reasons?  It may be hard for juries to get far off track when these are the questions to decide.

This is not always the case in business trials.  read more

Jury Pools and This Crazy Election

I try business cases for a living.  A trial is, boiled down to its essence, a chance to tell your client’s story, in a relatively short period of time, to a captive audience that for the most part has no legal training.  The story you tell is usually backed up by a limited number of exhibits and graphics that hopefully underscore your theme.  Except if you get a legal professional or two on the jury, the jury’s entire legal training consists of twenty minutes at the end where the judge reads jury instructions in a boring monotone.  I spent three years in law school and almost thirty years in practice figuring out how to apply facts to legal standards.  read more

Contracts can Limit Ability to Use Otherwise Freely Available Facts or Ideas

Here in Tinsel Town, I regularly read about lawsuits where the plaintiff claims that his or her screenplay was revealed to someone who turned it into a hit film or show without consent or payment.  Just as regularly, I read that the case ended in judgment for the defense, as the judge granted a motion finding insufficient similarity between the plaintiff’s writing and the film or show.

These rulings are often grounded in a distinction in the law that copyright only protects original expressions but not ideas.  In other words, one cannot copyright the general idea of a mild-mannered person who doubles as a superhero with prodigious powers, but copyright law will protect the writings and images in “Superman” comics and stories.  read more

New Arena for Entertainment Litigators: Elder Competency

Many attorneys in Los Angeles identify as “entertainment lawyers” or “entertainment litigators.” “Entertainment,” however, is not a body of law unto itself like, say, patents.  Rather, entertainment lawyers market experience with the customs and practice of the industry and the numerous legal issues the industry faces, such as copyright, trademark, contracts and right of publicity.  For those of us who try entertainment cases, being an entertainment litigator means comfort with multiple courthouses, as these issues can arise under federal, state or even bankruptcy law.

I recently had the experience of handling an entertainment case in a specialized world not usually experienced by business litigators, probate.  read more

Cosby Deposition Battle Demonstrates Power of Pretrial Tool

The California Court of Appeal recently issued an order temporarily staying the pretrial depositions of Bill Cosby and his former attorney, Martin (“Marty”) Singer, in a defamation action filed by former supermodel Janice Dickinson.  The action arises from statements by Singer in which Singer called Dickinson’s account of being raped by Cosby in 1982 a “lie.”

Dickinson never pressed charges or sued over the 1982 incident.  Dickinson claims that when she wrote an autobiography, the publisher would not permit her to include the rape story.  Finally, when a number of women went public with their charges against Cosby, Dickinson stated that Cosby drugged and raped her in a November 18, 2014 interview.  read more

Employment Trials: T.J. Simers wins $7m verdict for Age Discrimination Case

California’s courtrooms are likely to be filled with employment cases for the foreseeable future. California has a significant and growing body of laws governing the field of employment. These include detailed regulations concerning wages and hours, which have been the grist for numerous class action lawsuits. There are also serious state laws forbidding discrimination against employees based upon factors including race, gender, age and medical condition.

The latter were at issue in the recent trial of claims by longtime Los Angeles Times sports writer T.J. Simers that he was effectively fired from the Times due to age and medical condition. Simers resigned from the paper in September 2013, allegedly under pressure from the Times due to his age and medical condition, a recent mild stroke. read more

The Trial Lawyer as Generalist

I belong to a business development network where members can post needs broadcasted on blast emails. A request for a litigation attorney often asks for a lawyer who specializes in the type of case in question – a “defamation lawyer” or a “policy holder litigator.”

At larger firms it is common for lawyers to cultivate specialization, so that the firm as a whole can market depth of knowledge in any given subject. Specialization certainly promotes clear marketing.

I, however, have avoided undue specialization, and have tried to follow in the steps of old school trial lawyers, available to appear in any matter contested in court. read more

Judicial Activism and Balls and Strikes

Some years ago the term “judicial activism” became common.  The phrase was coined by conservatives to claim that conservative judges apply the law and liberal judges ignore the law and make up the result.  Liberals picked up this theme and leveled accusations of “judicial activism” in connection with conservative-majority decisions, such as those on gun rights and campaign finance.

I have not been able to discern any consistent use or definition of the term “judicial activism,” other than that the person using the term does not like the decision they are criticizing.  The judges all seem to be attempting to apply the law; none admit to making it up. read more