Courtroom View Network is streaming a wrongful death trial trial involving a Ford Explorer rollover accident

Courtroom View Network, with over three years of experience Webcasting high-stakes civil litigation, is streaming the trial of Moreno v. Ford.  This trial is part of the statewide coordinated judicial proceeding involving Firestone tire tread separation and Ford Explorer rollover related litigation, currently centralized in Los Angeles.  Judge Anthony Mohr is presiding over the trial.  Access to video and streaming is available here.

Courtroom View Network has covered multiple legal proceedings across the country, including such cases as “Jose Adolfo Tellez et al v. Dole Food Company Inc et al” and “Norman Turner v. Chevron Corporation” in Los Angeles Superior Court. Courtroom View Network’s target audience are members of the legal and financial community who require instant, comprehensive coverage of litigation that affects their business. Its Web site is at www.courtroomview.com.

California's budget problems are threatening a constitutional crisis

A colleague of mine (Linh Hua) and I have been talking out an issue that has troubled me for some time now.  It occurred to me that there must be a constitutional limit of some sort to the underfunding of California's judiciary.  I didn't have any specific case in mind when the concept crossed my mind, and my discussions with other practitioners elicited general agreement without specific supporting authority.  Coincidentally, just as I began to look into this issue, a confirming answer of sorts dropped into my lap.

This evening (for publication on 2/24/2010), Joel Stashenko reports in the New York Law Journal that New York's highest court has held unconstitutional the failure to grant pay raises to judges for the last 11 years.  Joel Stashenko, Denial of N.Y. Judicial Pay Raise Is Ruled Unconstitutional (February 24, 2010) www.law.com.  The high court (the New York Court of Appeals) declared the de facto pay freeze a "crisis" that threatened the separation of powers.  Declining requests for an order mandating an immediate pay raise, the Court said, "By ensuring that any judicial salary increases will be premised on their merits, this holding aims to strike the appropriate balance between preserving the independence of the Judiciary and avoiding encroachment on the budget-making authority of the Legislature."

While the Court proceeded with caution, it also warned, "It [the Legislature] should keep in mind, however, that whether the Legislature has met its constitutional obligations in that regard is within the province of this Court," citing Marbury v. Madison, 1 Cranch 137 (1803). "We therefore expect appropriate and expeditious legislative consideration."

Writing for the 5-1 majority, Judge Pigott said, "Because the Separation of Powers doctrine is aimed at preventing one branch of government from dominating or interfering with the functioning of another co-equal branch, we conclude that the independence of the judiciary is improperly jeopardized by the current judicial pay crisis, and this constitutes a violation of the Separation of Power doctrine."

In California we don't just have a pay crisis, we have a funding crisis.  Our Courts are closed one Wednesday each month, and I've heard mention that an additional closure day is under consideration by some.  We've lost a complex litigation court in Los Angeles County, a court designed to better manage the burdens imposed by complex, multi-party litigation.  If the pay issue in New York is a constitutional "crisis," what California is experiencing is a constitutional debacle.  The judiciary is not just impaired here, it is hamstrung and handcuffed.  As participants operating within one of the presumably co-equal branches of government, we must be vigilant and speak out when it is clear that a failure by one branch imperils the unfettered operation of another.

I intend to continue speaking about this issue until the futility of it all depresses me into silence.

Second Interim Report on class actions in California sheds new light on certification

Earlier this month, the Administrative Office of the Courts released its Second Interim Report from the Study of California Class Action Litigation.  The Second Interim Report specifically analyzed class certifications in cases initially filed with a class action designation.  The findings were surprising.

First, over the period of 2000 to 2005, certification rates plummeted: "The rate of class certification (by any means) decreased by more than 50 percent over the study years."  Report, at 6.  This sharp decline mirrored findings in federal courts.

Second, a meager 13% of cases initially filed as a class action ever had a motion for class certification filed before final disposition, and only 46% of those motions were granted.  Report, at 8-9.  However, three times more cases were certified as part of a settlement.  Report, at 11.  The Report speculated that the rate of certification by settlement could be attributable to the State's complex litigation programs:  "In California, the frequency of classes certified as part of a settlement agreement may be another product of the Complex Civil Litigation Program."  Report, at 11.  Sadly, the apparent success of this program hasn't ensured that class actions filed in Los Angeles County receive the careful attention of the Complex Civil Litigation Program.  Due to limited resources, the Los Angeles County Complex Courts are rejecting most class actions to focus on construction defect cases, mass torts, and other multi-party suits.

The Second Interim Report also examined data to test the hypothesis that class certification pressures settlements from defendants.  The data did not support that hypothesis.  For example, the lack of interlocutory review of orders granting certification did not reveal a settlement pressure when compared to federal courts:

Given the absence of an interlocutory appeal option in California, one may conclude that settlement pressure would exert more effect and more cases would be compelled to settle after the granting of a motion for class certification as compared to federal court. However, the disposition composition for certified cases that reached a final outcome in California does not support this hypothesis. Table 16 shows that the rate of settlement after certification through a court-granted motion for certification is 69%. This is actually slightly lower than the rate of 72% in the federal court. California‘s lack of intermediate recourse in response to the granting of class certification does not result in a higher rate of settlement in that situation when compared to data from federal court.

Report, at 26.  Summing up the data analysis related to the theorized pressure to settle, the Report concluded:

In sum, California data show that very few cases could be included in a category in which the commonly discussed parameters that define settlement pressure from class certification may have been a factor in the decision to settle. Many cases circumvented the issue altogether by including class certification as an element of the settlement itself. In cases with a class certified through a court-granted motion for certification, neither the overall disposition composition nor the time-to-settlement analyses seem to suggest an automatic or immediate progression from certification through motion to settlement which would allow the determination that pressure results in inevitable settlement. The conclusion here is not that the idea of settlement pressure is fabricated, or even altogether negligible, but rather that the pervasive effect of settlement pressure in California does not appear to be supported by the data.

Report, at 28.  It is at least fair to say that the only comprehensive study of California class action data available does not provide support for the recent, repeated claims by CJAC, Governor Schwarzenegger, and others that class actions are out of control, forcing settlements or in need of reforms such as the right to immediately appeal any order certifying a class.  Such a reform would likely lower the number of contested settlements from meager to negligible.  Certainly, that is a desirable result for businesses that underpay employees, sell defective products, or falsely advertise goods and services.  It is not, however, necessary to save our bankrupt state.

Consumer Attorneys of California makes it to the bleeding edge: Twitter and Facebook

Consumer Attorneys of California (CAOC) is breaking into new media territory with presence on Facebook and Twitter.  You can find CAOC on Twitter by following @ConsumerAttysCA.  You can become a fan of CAOC on Facebook here.  Personally, I've almost given up on Facebook, purely because of its deplorable disregard for user privacy.  Facebook needs to keep its act clean for a while just to get back to zero with me.  The problem is, half the planet is using Facebook, so my protestations are unlikely to start a grass roots movement.

California Supreme Court activity for the week of January 18, 2010

The California Supreme Court held its (usually) weekly conference on January 20, 2010.  The only interesting, if not significant bit of information, is the fact that some well-known cases are still kicking around:

• Review denied in Gattuso v. S.C. (Harte-Hanks Shoppers)
• Review denied in Harper v. S.C. (24 Hour Fitness) (Successful plaintiff-appellant in initial appeal challenged the striking of their 170.6 challenge on remand.  Court of Appeal affirmed.)

United States District Court Judge Florence Marie Cooper passes

As reported by the Los Angeles Times, United States District Court Judge Florence Marie Cooper died of lymphoma on January 15, 2010.  Judge Cooper was appointed to the federal bench by President Bill Clinton in 1999.

Google takes a first step at upsetting the cell phone purchase apple cart

Of interest to the gadget-loving attorneys out there, today Google announced on its blog a first step towards another attempt to change how consumers buy cell phones.  Google will offer the Nexus One "superphone" through a Google-hosted store.  The Nexus One was built by HTC and runs the Android operating system.  Google was heavily involved in the creation of the device and customized the operating system to showcase what the newest version of Android can do.  Google said that other phones on other carriers will follow.

Keep an eye on Google in this space.  As with its Google Scholar search capabilities that allow free searching for caselaw, this first step by Google into the mobile phone sales arena won't unseat the major players...yet.  In fact, the initial offering is a fairly conventional choice of a subsidized phone through T-Mobile or an unlocked Nexus One at a typical smartphone price.  The interesting part of this development is Google's ability to bring so many handset manufacturers together under the Android umbrella.  Handset makers just want to sell their hardware.  A desirable consumer experience and a solid operating system with the ability to run large numbers of third-party applications sells the hardware.  Apple proved that.  If Google gains enough traction in the cell phone space to change pricing models and, perhaps, move towards a different subsidy model, such as ad and metrics-based subsidies, could inject a new dynamic into this market.

For the mobile lawyer, this may mean a downward pressure on prices and an increase in the quality of smartphone choices as service providers compete in the one way they most easily can - offering better handsets with lower service prices.

California Proposition 8 elicits constitution-based, discovery rights opinion from Ninth Circuit

For those following the complicated twists and turns of litigation over California Ballot Proposition 8, which amended the California Constitution to provide that only marriage between a man and a woman is valid or recognized in California, the litigation about that measure continues.  Today, the Ninth Circuit, in Perry, et al. v. Arnold Schwarzenegger (9th Cir. January 4, 2009), issued a writ of mandamus directing the trial court to enter a protective order barring access to internal campaign communications of proponents of the Proposition.  I'm no constitutional law expert, but high-stakes litigation like this tends to create its own complexity, so I simply note the opinion for the constitutional law scholars, fans and practitioners.  I can say that it's not every day that you see discovery limited because it would intrude on the the First Amendment right of freedom to associate.  The one-page appendix to the opinion is also available.

California's mismanagement of its finances causes further damage to Court system

The California Supreme Court has announced on the California Courts website that its Los Angeles Clerk's Office will close at the start of the new year.  The Notice states:

Notice

EFFECTIVE JANUARY 1, 2010, the Los Angeles Clerk's Office of the Supreme Court of California will be closed. The Supreme Court will no longer accept filings at Court of Appeal locations. All petitions for review, writs, and legal briefs must be filed at:

Supreme Court of California
Office of the Clerk, First Floor
350 McAllister Street
San Francisco, CA 94102

The Supreme Court will continue its practice of conducting oral argument in Los Angeles, typically in the months of April, June, October, and December.

Update on 2009-12-23 01:20 by The Complex Litigator

The UCL Practitioner has additional helpful comments about alternative methods for filing briefs under the Rules of Court.

Courtroom View Network is providing live coverage of eBay v. Craigslist

The Delaware Court of Chancery, in Georgetown, Delaware, is playing host to a wild one.  Courtroom View Network is now providing live coverage of eBay v. Craigslist, otherwise known as eBay Domestic Holdings, Inc. v. Craig Newmark.  California online mainstays eBay and Craiglist are involved in a bi-coastal battle over director voting rights and the alleged theft of confidential information.  In a nutshell, eBay claims that Craiglist's directors unfairly diluted eBay's 28.4 percent minority shareholder stake in Craigslist and eliminated eBay's right to appoint a director.  In another lawsuit filed in San Francisco, Craigslist claimed that eBay used its shareholder position to obtain confidential competitive information to gain an unfair commercial advantage in developing eBay's own competing online classified ad business, kijiji.com.

Courtroom View Network is providing free access to a sample clip of cross-examination of Meg Whitman, the former CEO of eBay.  Other media outlets have more coverage of the opening day of trial.  See, e.g., Shannon P. Duffy, Craigslist, eBay Face Off in Closely Watched Trial (December 8, 2009) www.law.com.

True, it's not a class action, but this is complex litigation at its best.  Two cyber-goliaths trying to strangle each other on opposite sides of the country is too good to pass up.  I just don't know who to root for.