Category Archives: Bet-the-Company Litigation

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.”  https://deadline.com/2015/11/bill-cosby-marty-singer-depositions-paused-janice-dickinson-1201621842/

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

Civility in the Courtroom

I have four children.  Two are older.  For them, the parenting I was able to impart is in the rear view mirror.  I have two younger ones as well.  So, I’m getting a second chance at parenting.  Among the most important lessons I try to teach is to treat others as you would like to be treated, including saying “please” and “thank you” as much as possible.

I attended a christening at which the parish priest told the gathered that children watch us, very intently, and do what we do, not what we say to do.  Thus, he said, if we say one thing and do another, we teach our children that it is okay to be a hypocrite. read more

Effective Cross-Examinations at Trial

My favorite part of any actual or fictional trial is the cross-examination. Who can forget the climax of the cross-examination in the “Caine Mutiny” of Captain Queeg, played by Humphrey Bogart, where the question was whether he had lost control of his ship? Under the heat of the examination, Bogart/Queeg reaches into his pocket, acting palpably shaken, begins to roll marbles in his hand and demonstrates his instability in a long-winded answer. (See “Caine Mutiny Queeg on the Stand.”) Some of my favorite cinematic cross-examinations occur in “My Cousin Vinny,” in which Joe Pesci’s inexperienced Brooklyn lawyer conducts hilarious but effective examinations while defending a family member concerning a murder in a convenience store. read more

Business Litigation in Bankruptcy Court

It is hard to read the legal news these days, especially concerning entertainment, without reading about the spectacle of Relativity Media.  Relativity was dubbed the “next-generation global media company” by founder Ryan Kavanaugh, a “helicopter-flying, high-living mogul.”  Kavanaugh claimed to have reinvented the movie business with algorithms that minimized the risk of film slates, yet Relativity filed for bankruptcy protection on July 30, 2015, disclosing assets of $560 million but liabilities of more than $1.18 billion.  (See “Relativity’s Ryan Kavanaugh Breaks Silence, Points Fingers in Emotional Post-Bankruptcy Interview (Exclusive).”)  Relativity is pushing to quickly auction most of its assets.  (See “Relativity Media Files Bankruptcy; Film and TV Units for Sale.”)  read more

Anti-SLAPP Motions: a Powerful Tool for Media Defendants

Actor Frank Sivero sued Fox over his claim that “The Simpsons” character “Louie” was based upon Sivero’s character Frankie Carbone in “Goodfellas.” Sivero’s case was thrown out of court by a California state judge. (See “Fox Gets $250M ‘Simpsons’ Lawsuit From ‘Goodfellas’ Actor Tossed.”) No jury heard his claim. Nor was he defeated by a motion for summary judgment, a traditional pretrial motion to dismiss a claim that should be rejected if there is any triable dispute of fact for a jury to resolve. Instead, Sivero’s claim was dismissed pursuant to an “anti-SLAPP” motion, a powerful procedural device that was originally intended to benefit public interest groups, but has become the courtroom weapon of choice for media companies. read more

Case Evaluation: Critical Factors One Cannot Find in Law Books

My clients are usually entrepreneurs who founded a successful company and then find themselves dealing with their first lawsuit. In the initial intake meeting, clients are focused on explaining the facts of the case, asking what law would apply and evaluating likely results. These are fine and necessary subjects. However, I find it necessary to steer the conversation toward factors that cannot be found in law books, but which I have learned in nearly thirty years trying cases.

Clients conditioned to an “L.A. Law” view of the trial process – the popular 1980’s lawyer show in which new cases were discussed in one episode and tried in the next – want to drive right down to the courthouse be found right or wrong. read more