It was the wrong thread

[Tyrone Slothrop]

• Calderon filed a complaint against IBEW Local 47 (IBEW) and Southern California Edison Co. (Edison) on August 8, 2005. Calderon served IBEW, but initially failed to serve Edison. On November 3, the district court issued an order to show cause “why [the] action should not be dismissed for failure of plaintiff to file proof of service.” Notice of the show cause hearing was sent to the parties only via email, but Calderon’s counsel didn’t check his email regularly. As a result, he did not see the notice, and he failed to show up at the hearing. The district judge promptly dismissed the case for lack of prosecution. After learning that the case had been dismissed, Calderon served Edison. Calderon then moved to vacate the dismissal. The district judge denied the motion without argument, so plaintiff came to us for relief.
  
  We review for abuse of discretion, Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999), and find it here. The district court’s dismissal of the complaint was based entirely on counsel’s failure to attend the show cause hearing; it was not based on plaintiff’s failure to serve the complaint on Edison in a timely fashion, nor could it be, as the time for service had not yet expired. See Fed. R. Civ. P. 4(m) (120 days to serve complaint). While failure to attend a scheduled hearing may justify the imposition of some sanction on the attorney and perhaps even the client, we doubt that the drastic remedy of dismissal could be justified by a single such event. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
  
  We need not consider the question, however, because there is a far more fundamental problem here: Plaintiff’s counsel was not given proper notice of the show cause hearing. Counsel was notified only by email, yet the rules did not authorize service by electronic means, except where the judge specifically designated the case as part of the District’s experimental electronic filing program. See C.D. Cal. R. 5-4; C.D. Cal. Gen. Ord. 05-01 § III.A (Jan. 18, 2005). There is no indication that this case was part of that experimental program, so service was governed by Fed. R. Civ. P. 5, which specifies that service may be made by electronic means only if the party served consents thereto. Fed. R. Civ. P. 5(b)(2)(D). There is no evidence that Calderon or his lawyer consented to electronic service.
  
  Where the rules do not authorize service by email, counsel has no obligation to check his email on a regular basis for possible orders from the court. He is entitled to assume that orders will be served by mail. When the rules change, so as to make electronic notice sufficient, counsel will then be on notice that they need to check their emails just as carefully as they now check their regular mail. Because plaintiff’s counsel was not on notice that orders would be served by email, he can’t be deemed to have received notice of the show cause hearing. Neither he nor his client may be sanctioned for his failure to attend the hearing.
  
  The district judge’s unseemly haste in dismissing this case, and his failure to heed the perfectly plausible (and meritorious) explanation proffered by plaintiff in his motion for reconsideration, has cost the parties significant money and delay in pursuing this wholly unnecessary appeal. Justice suffers when judges act in such an arbitrary fashion. We apologize to the parties and admonish the district judge to exercise more care and patience in the future.
  
  REVERSED AND REMANDED.

Calderon v. IBEW Local 47 et al., (9th Cir., Nov. 13, 2007).

[Hank Chinaski]

anyone know of hybrid comp schemes for a few lawyers in a big firm doing a contignecy file.

I know of firms that treat the billed hours like real billed hours, and then treat the $$$ like any other firm income.

I have also hear of firms that give no credit for the billed hours, but take very little of any return.

Anyone have an example of something more mixed?

[taxwonk]

Lawyers from big-name schools make more money.

Read it here.\

[Replaced_Texan]

Oops

[Mmmm, Burger (C.J.)]

Originally posted by Replaced_Texan
Oops

I'm glad to see the press places as much importance on the confidentiality of communications by others* as it does on its own "reporters" privilege.


*I have to imagine the email had the standard disclaimer at the bottom about the "intended recipient".


ETA: BTW, Outlook's autofill is terrible, like most MS products. It picks one person and doesn't give options. And it's not like Microsoft doesn't know how to do better: On Entourage**, if there are multiple names matching the letters you type a drop down box appears with all the matches. If you hit accept too quickly you can make a mistake, but it's a lot harder.



**available on Macs only.

[notcasesensitive]

Originally posted by Mmmm, Burger (C.J.)
ETA: BTW, Outlook's autofill is terrible, like most MS products. It picks one person and doesn't give options. And it's not like Microsoft doesn't know how to do better: On Entourage**, if there are multiple names matching the letters you type a drop down box appears with all the matches. If you hit accept too quickly you can make a mistake, but it's a lot harder.



**available on Macs only.

Uh, Outlook autofill has a drop-down box showing all matches too. I really don't have any idea what you are talking about. Or you don't.

[Mmmm, Burger (C.J.)]

Originally posted by notcasesensitive
Uh, Outlook autofill has a drop-down box showing all matches too. I really don't have any idea what you are talking about. Or you don't.

I'm talking about the (apparently) outdated version of Outlook that my employer has stuck us with.

[Atticus Grinch]

Originally posted by Mmmm, Burger (C.J.)
I'm glad to see the press places as much importance on the confidentiality of communications by others* as it does on its own "reporters" privilege.

Abovethelaw.com is reporting that Alex Berenson and Brad Berenson are cousins. Awkward!

[Hank Chinaski]

Originally posted by Atticus Grinch
Abovethelaw.com is reporting that Alex Berenson and Brad Berenson are cousins. Awkward!

dude. everyone makes email mistakes, not everyone has NYT reporters in their contacts. I say, end of the day, this actually helps Pepper.

[Tyrone Slothrop]

• They call him "psychologically abusive."
  
  He insists their "venomous attacks" and "reckless hyperbole" are motivated by greed and personal vendettas.
  
  They say they were appalled by his "fiscal and executive mismanagement" and "reckless and wasteful spending."
  
  He dismisses their accusations as "baseless and defamatory."
  
  It's the kind of overheated language that often has aggrieved parties hiring lawyers. But in this case, lawyers themselves are making the angry allegations. And their dispute is detailed in a tell-all lawsuit that lays bare an ugly business divorce, the kind usually settled behind closed doors.
  
  The case, which goes to arbitration this month, involves the acrimonious breakup of the founders of Donovan Hatem, a 50-lawyer Boston law firm. Nine former partners have sued the firm and founder David J. Hatem, whom they describe as jealous, tyrannical, and dictatorial, claiming they are owed a collective $2 million in unpaid compensation.
  
  The lawyers, who left the firm last summer to open a new Boston firm, LeClairRyan, accuse Hatem of manipulating the firm's finances to prevent them from be ing fairly paid. They also allege he wrote off bills for favored clients, spent lavishly on marketing to promote mainly himself, and wasted money on first-class travel that he billed to the firm rather than to his clients.
  
  In legal filings, Hatem has lashed back, arguing that his former partners are trying to humiliate and destroy a firm with which they now compete. He accuses one of them of billing Donovan Hatem for New England Patriots season tickets that went to clients of their new firm, and says the incompetent legal work of two others resulted in a pending malpractice allegation that could cost Donovan Hatem $50,000.
  
  "This is all very much about Mr. Hatem not wanting to pay his partners," said Warren D. Hutchison, a plaintiff in the lawsuit who had worked with Hatem for nearly 20 years. "He really considers nobody of any value other than himself, and he was incapable of recognizing the worth in his former partners."
  
  Hatem's lawyer, Michael E. Mone, did not return a call. But in legal documents, Mone asserts the plaintiffs sued "to embarrass and harm their former partners, particularly Mr. Hatem," and calls their case "an outrageous and salacious effort to leverage a quick payment of money to which they are not entitled."
  
  A call to Hatem was returned by Andrew M. Paven of O'Neill and Associates, a Boston public relations firm. In a statement provided by Paven, the firm described the suit as "baseless and defamatory." . . .

Boston Globe

Of course, there's more.

[Mmmm, Burger (C.J.)]

Originally posted by Tyrone Slothrop [list]
founder David J. Hatem,

This has a who's on first routine written all over it.

What do you think of your boss?

Hatem.

No, that's his name. What do you think of him . . . .

[Tyrone Slothrop]

From Orin Kerr at Volokh.

Supreme Court Trivia: Name the Supreme Court Justice who made the following remark to counsel during oral argument: "Are you sure? I have smoked them, and I am sure I am not a dude."

Scroll down for the answer.

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Answer: Justice Oliver Wendell Holmes. This comment was made during oral argument in an antitrust case, in response to a lawyer's effort to establish that there was no foreign competition in the cigarette business by asserting to the Justices that "nobody but dudes and fools smoke foreign cigarettes." Source: Bander, ed., Justice Homes Ex Cathedra, at page 201.)

[Tyrone Slothrop]

Lifted from an English paper:

• A most extraordinary trial is going on in the High Court at the moment in which a man named Chrysler is accused of stealing more than 40,000 coat hangers from hotels round the world. He admits his guilt, but in his defence he claims that – well, perhaps it would be simpler just to bring you a brief extract from the trial. We join the case at the point where Chrysler has just taken the stand.
  
  Counsel: What is your name?
  
  Chrysler: Chrysler. Arnold Chrysler.
  
  Counsel: Is that your own name?
  
  Chrysler: Whose name do you think it is?
  
  Counsel: I am just asking if it is your name.
  
  Chrysler: And I have just told you it is. Why do you doubt it?
  
  Counsel: It is not unknown for people to give a false name in court.
  
  Chrysler: Which court?
  
  Counsel: This court.
  
  Chrysler: What is the name of this court?
  
  Counsel: This is No 5 Court.
  
  Chrysler: No, that is the number of this court. What is the name of this court?
  
  Counsel: It is quite immaterial what the name of this court is!
  
  Chrysler: Then perhaps it is immaterial if Chrysler is really my name.
  
  Counsel: No, not really, you see because...
  
  Judge: Mr Lovelace?
  
  Counsel: Yes, m'lud?
  
  Judge: I think Mr Chrysler is running rings round you already. I would try a new line of attack if I were you.
  
  Counsel: Thank you, m'lud.
  
  Chrysler: And thank you from ME, m'lud. It's nice to be appreciated.
  
  Judge: Shut up, witness.
  
  Chrysler: Willingly, m'lud. It is a pleasure to be told to shut up by you. For you, I would...
  
  Judge: Shut up, witness. Carry on, Mr Lovelace.
  
  Counsel: Now, Mr Chrysler – for let us assume that that is your name – you are accused of purloining in excess of 40,000 hotel coat hangers.
  
  Chrysler: I am.
  
  Counsel: Can you explain how this came about?
  
  Chrysler: Yes. I had 40,000 coats which I needed to hang up.
  
  Counsel: Is that true?
  
  Chrysler: No.
  
  Counsel: Then why did you say it?
  
  Chrysler: To attempt to throw you off balance.
  
  Counsel: Off balance?
  
  Chrysler: Certainly. As you know, all barristers seek to undermine the confidence of any hostile witness, or defendant. Therefore it must be equally open to the witness, or defendant, to try to shake the confidence of a hostile barrister.
  
  Counsel: On the contrary, you are not here to indulge in cut and thrust with me. You are only here to answer my questions.
  
  Chrysler: Was that a question?
  
  Counsel: No.
  
  Chrysler: Then I can't answer it.
  
  Judge: Come on, Mr Lovelace! I think you are still being given the run-around here. You can do better than that. At least, for the sake of the English bar, I hope you can.
  
  Counsel: Yes, m'lud. Now, Mr Chrysler, perhaps you will describe what reason you had to steal 40,000 coat hangers?
  
  Chrysler: Is that a question?
  
  Counsel: Yes.
  
  Chrysler: It doesn't sound like one. It sounds like a proposition which doesn't believe in itself. You know – "Perhaps I will describe the reason I had to steal 40,000 coat hangers... Perhaps I won't... Perhaps I'll sing a little song instead..."
  
  Judge: In fairness to Mr Lovelace, Mr Chrysler, I should remind you that barristers have an innate reluctance to frame a question as a question. Where you and I would say, "Where were you on Tuesday?", they are more likely to say, "Perhaps you could now inform the court of your precise whereabouts on the day after that Monday?". It isn't, strictly, a question, and it is not graceful English but you must pretend that it is a question and then answer it, otherwise we will be here for ever. Do you understand?
  
  Chrysler: Yes, m'lud.
  
  Judge: Carry on, Mr Lovelace.
  
  Counsel: Mr Chrysler, why did you steal 40,000 hotel coat hangers, knowing as you must have that hotel coat hangers are designed to be useless outside hotel wardrobes?
  
  Chrysler: Because I build and sell wardrobes which are specially designed to take nothing but hotel coat hangers.
  
  Sensation in court. More of this tomorrow, I hope

The Independent

[Flinty_McFlint]

Originally posted by Tyrone Slothrop
Lifted from an English paper:

• A most extraordinary trial is going on in the High Court at the moment in which a man named Chrysler is accused of stealing more than 40,000 coat hangers from hotels round the world. He admits his guilt, but in his defence he claims that – well, perhaps it would be simpler just to bring you a brief extract from the trial. We join the case at the point where Chrysler has just taken the stand.
  
  Counsel: What is your name?
  
  Chrysler: Chrysler. Arnold Chrysler.
  
  Counsel: Is that your own name?
  
  Chrysler: Whose name do you think it is?
  
  Counsel: I am just asking if it is your name.
  
  Chrysler: And I have just told you it is. Why do you doubt it?
  
  Counsel: It is not unknown for people to give a false name in court.
  
  Chrysler: Which court?
  
  Counsel: This court.
  
  Chrysler: What is the name of this court?
  
  Counsel: This is No 5 Court.
  
  Chrysler: No, that is the number of this court. What is the name of this court?
  
  Counsel: It is quite immaterial what the name of this court is!
  
  Chrysler: Then perhaps it is immaterial if Chrysler is really my name.
  
  Counsel: No, not really, you see because...
  
  Judge: Mr Lovelace?
  
  Counsel: Yes, m'lud?
  
  Judge: I think Mr Chrysler is running rings round you already. I would try a new line of attack if I were you.
  
  Counsel: Thank you, m'lud.
  
  Chrysler: And thank you from ME, m'lud. It's nice to be appreciated.
  
  Judge: Shut up, witness.
  
  Chrysler: Willingly, m'lud. It is a pleasure to be told to shut up by you. For you, I would...
  
  Judge: Shut up, witness. Carry on, Mr Lovelace.
  
  Counsel: Now, Mr Chrysler – for let us assume that that is your name – you are accused of purloining in excess of 40,000 hotel coat hangers.
  
  Chrysler: I am.
  
  Counsel: Can you explain how this came about?
  
  Chrysler: Yes. I had 40,000 coats which I needed to hang up.
  
  Counsel: Is that true?
  
  Chrysler: No.
  
  Counsel: Then why did you say it?
  
  Chrysler: To attempt to throw you off balance.
  
  Counsel: Off balance?
  
  Chrysler: Certainly. As you know, all barristers seek to undermine the confidence of any hostile witness, or defendant. Therefore it must be equally open to the witness, or defendant, to try to shake the confidence of a hostile barrister.
  
  Counsel: On the contrary, you are not here to indulge in cut and thrust with me. You are only here to answer my questions.
  
  Chrysler: Was that a question?
  
  Counsel: No.
  
  Chrysler: Then I can't answer it.
  
  Judge: Come on, Mr Lovelace! I think you are still being given the run-around here. You can do better than that. At least, for the sake of the English bar, I hope you can.
  
  Counsel: Yes, m'lud. Now, Mr Chrysler, perhaps you will describe what reason you had to steal 40,000 coat hangers?
  
  Chrysler: Is that a question?
  
  Counsel: Yes.
  
  Chrysler: It doesn't sound like one. It sounds like a proposition which doesn't believe in itself. You know – "Perhaps I will describe the reason I had to steal 40,000 coat hangers... Perhaps I won't... Perhaps I'll sing a little song instead..."
  
  Judge: In fairness to Mr Lovelace, Mr Chrysler, I should remind you that barristers have an innate reluctance to frame a question as a question. Where you and I would say, "Where were you on Tuesday?", they are more likely to say, "Perhaps you could now inform the court of your precise whereabouts on the day after that Monday?". It isn't, strictly, a question, and it is not graceful English but you must pretend that it is a question and then answer it, otherwise we will be here for ever. Do you understand?
  
  Chrysler: Yes, m'lud.
  
  Judge: Carry on, Mr Lovelace.
  
  Counsel: Mr Chrysler, why did you steal 40,000 hotel coat hangers, knowing as you must have that hotel coat hangers are designed to be useless outside hotel wardrobes?
  
  Chrysler: Because I build and sell wardrobes which are specially designed to take nothing but hotel coat hangers.
  
  Sensation in court. More of this tomorrow, I hope

The Independent

Unavailable for cheeky comment:

[Tyrone Slothrop]

"A New Zealand man who claimed he was raped by a wombat and that the experience left him speaking with an Australian accent has been found guilty of wasting police time."