To improve legal writing, dump the nominalizations

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At Legalwriting.net, Wayne Schiess discusses the abuse heaped upon the English language when lawyers use nouns that wanted to be verbs.  What are "nouns that wanted to be verbs?"  Wayne explains:

Nouns that wanted to be verbs go by many names: nominalizations, hidden verbs, buried verbs. I've even heard them called smothered verbs. What you call them is not important. What is important is that you learn to recognize when you've got nouns that could be verbs and train yourself to return them to their preferred state.

(Wayne Schiess, When verbs become nouns (May 9, 2008) www.utexas.edu/law/faculty/wschiess/legalwriting/.)  Wayne then provides examples of nominalizations in common legal use:

For example, this sentence contains two nouns that wanted to be verbs:

  • My expectation was that counsel would make an objection.

If we return these nouns to their verb forms, the sentence improves:

  • I expected counsel to object.

(Ibid.)  The best part of the article is the list of common nominalizations.  Take a look at the list and check off all the ones that you think you've used in your own writing.  It's painful to see how predictable we are as writers.

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CAOC and CAALA present Class Action Seminar: Secrets From the Bench and Bar

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On May 21, 2008, at the CAALA Offices, 800 W. 6th Street, Suite 700, Los Angeles, California, Consumer Attorneys of California (CAOC) Class Action Section and Consumer Attorneys Association of Los Angeles (CAALA) will present a seminar entitled "Class Action Seminar: Secrets from the Bench and Bar."  The program should have a lot to offer:

Welcome and Introduction
Co-Moderator: Paul R. Kiesel Kiesel, Boucher & Larson, LLP, Beverly Hills
Co-Moderator: Brian S. Kabateck Kabateck Brown Kellner, LLP, Los Angeles

How To Make An Impact From A Research Attorney's Perspective
Jason E. Barsanti (State) Arias, Ozzello & Gignac, LLP, Los Angeles
Kevin McReynolds (Federal) U.S. District Court, Central District

Want Your Settlement Approved? Hon. Carolyn B. Kuhl (State) Los Angeles Superior Court, Central Civil West
Hon. George P. Schiavelli (Federal) U.S. District Court, Central District

How To Manage Your Class Action
Jeff S. Westerman Milberg LLP, Los Angeles

Winning Writs
David M. Arbogast Arbogast & Berns LLP, Los Angeles

Winning Appeals
Gretchen M. Nelson Kreindler & Kreindler, LLP, Los Angeles

Access To Justice – Class Action Preservation Project
Gerson H. Smoger President-Elect, Public Justice

(See, CAOC Seminar Information page.)  The only part of this seminar that I don't get is where they came up with that Barsanti fellow.  Who is this guy?  Oh, yes, he's in that office next to mine.  I remember now.  Seriously, congratulations to Mr. Barsanti.

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When legislators decide to "fix" things, the remedy is often worse than the ailment

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Paul KarlsgodtClassActionBlawg.com has a short post, entitled "Congressmen seek investigation on practices of class action lawyers: A good use of taxpayer dollars," that says a lot.  Referring to a CFO.com news story, ClassActionBlawg.com offers a modest proposal to the legislators that want to put the entire class action system under the microscope, all on account of recent media coverage of a few bad apples (Lerach, et al.).  (See, Plourd, On the Hill, Trying to Put Plaintiffs' Bar on the Defensive (May 6, 2008) www.cfo.com.)

The post on ClassActionBlawg.com is short, so I repeat the core of it here:

Certainly, there have been some high-profile abuses among members of the plaintiffs’ class action bar recently. But these are examples of individual arrogance and greed, not evidence of an epidemic in need of a Congressional investigation–especially in light of the myriad other things Congress could be doing these days. The acts of a few bad apples shouldn’t ruin the bunch.

Among other things, Boehner and Smith seek “[r]eforms that Congress can make to rid the judicial system of [class action] abuses.” If you really want to spend government money to prevent class action abuse, here’ s a modest proposal from a class action defense lawyer’s perspective: try better funding for the courts. If there were more, better-paid judges available to give the time and thoughtful analysis needed in carrying out their function as gatekeepers rather than simply doing whatever they can to manage their overflowing dockets, maybe there wouldn’t be any incentive to pursue frivolous class actions and abusive tactics. Just an idea.

It is worth emphasizing that Paul Karlsgodt practices primarily on the defense side of class actions.  The class action device isn't "broken" because of few bad actors.  Every profession has them.  Let's entrust our court system to talented jurists that are appropriately compensated.  Let's give them the resources they need to do their job in an orderly manner, and let's give them facilities that aren't crumbling and overcrowded.  The Complex Litigator seconds ClassActionBlawg.com's proposal.

[Via ClassActionBlawg.com]

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Serrano v. Stefan Merli Plastering decides interesting fee dispute over court reporting charges

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Greatsealcal100Serrano v. Stefan Merli Plastering (May 7, 2008), arising from a fee dispute between the plaintiffs and a court reporting agency, is an interesting decision that may ultimately affect complex cases with far greater frequency than simple cases like Serrano.  In Serrano, the Court of Appeal (Second Appellate District, Division Three) reviewed a ruling by the trial court that required plaintiffs to pay the full amount charged by a court reporting agency to receive their certified copies of various transcripts:

The defendant noticed the depositions of several of the Serranos’ expert witnesses, including Robert Audell. The Audell deposition took place on June 26, 2006, and was reported by a certified shorthand reporter employed by Coast. Counsel for the Serranos requested a certified copy of the transcript. The trial was scheduled to begin on July 25, 2006.

(Slip op., at p. 4.)  Despite the fact that the defendant requested the expedited transcripts, the court reporting agency also charged the plaintiffs an "expedite" fee on top of the cost of the certified copies.  (Ibid.) "The Serranos filed an ex parte application on July 5, 2006, for an order requiring Coast to provide a copy of the Audell deposition transcript without charging any expedited service fee." (Slip. op., at p. 5.)

At this point, things get exciting.  The court reporting agency provided the transcripts on the condition that the plaintiffs agree to be bound by the trial court's ruling on the charges.  At the ex parte hearing, the trial court expressed sympathy with the plaintiffs, but denied them relief:

“I would love to give you relief. I don’t think I can. So take it up. Maybe, you know, one of the divisions up there will feel sympathetic.”

(Slip op., at p. 6.) The Serranos then petitioned the Court of Appeal for an extraordinary writ on August 25, 2006. The Court of Appeal summarily denied the petition on September 20, 2006 (parenthetical note: the denial of a petition for a writ is many times not an opinion on the merits of the issue raised).  The parties settled, but the trial court carved out the issue of the transcript fees on appeal.  Then, the Court of Appeal considered the merits, the court reporting agency appearing as objector and respondent.  After dispensing with various standing and jurisdictional arguments, the Court didn't mince words when examining the core contention:

Coast argues that a court ordering a deposition reporter to provide a copy of a transcript to a party pursuant to section 2025.510, subdivision (c) must order that party to pay the fee charged by the deposition reporter regardless of the amount of the fee. We firmly reject that argument. As we now explain, if a deposition reporter either refuses to provide a copy of a deposition transcript to a non-noticing party in a pending action, for whatever reason, or imposes unacceptable conditions upon such delivery, and the court must intervene, we conclude that the “expense” that the court may require the non noticing party to pay for the transcript must be reasonable.

(Slip op., at pp. 27-28.)  Continuing to pound in the point, the Court said:

Depositions play an important role in litigation and trial preparation, and deposition testimony may be offered as evidence in pretrial proceedings and, in some circumstances, at trial. In light of the importance of deposition testimony in a pending action and the non-noticing party’s lack of bargaining power, a trial court must be cautious not to lend assistance to overreaching by the deposition reporter. For a deposition reporter to refuse to provide a copy of a transcript to a non-noticing party in a pending action unless the party agrees to pay an unreasonable fee would be grossly unfair. Moreover, for a deposition reporter, as an officer of the court, to engage in such conduct would be an abuse of the reporter’s authority. For a trial court to condone such conduct by conditioning the party’s right to receive a copy of a transcript on payment of an unreasonable fee would undermine rather than promote the administration of justice and could very well result in a denial of due process to the non-noticing party victimized by the reporter’s conduct. It therefore follows that the only monetary condition that the court may properly place upon the non noticing party’s right to receive a copy of the deposition transcript would be payment of a reasonable fee.

(Slip op., at pp. 28-29.)  The Court of Appeal concluded by expressly holding that "[t]he cost of transcription must be borne by the party noticing the deposition, unless the court on motion and for good cause orders otherwise (§ 2025.510, subd. (b)), so a reasonable fee for a copy of the transcript would not include any amount that compensates the deposition reporter for the cost to expedite the transcription."  (Slip op. at p. 31.)

So out of a simple personal injury case that settled, we now know that court reporters cannot charge non-noticing parties an expedited transcript fee if it was the noticing party that requested the expedited transcript.  Court reporters around the state must be calling the respondent to thank them for clearing up this point of law.  Complex, multi-party cases may see a significant bottom-line cost savings, although I do not profess to know whether there is an industry practice by court reporters to charge non-noticing parties an expedited transcript fee when it was the noticing party that initially requested the expedited processing.

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(Just Slightly) OFF TOPIC: Neo blames paparazzo for damaging Neo's car with body. Mr. Smith laughs evilly.

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I am very sorry, but I am constitutionally incapable of remaining serious for the life of this blog.  Thus, when I read on California Punitive Damages that Keanu Reeves lost a motion to strike punitive damage claims brought by a photographer that acccused Mr. Reeves of intentionally running into him, I saw a fat one in my wheelhouse.  Imagine the hearing...

NEO:  Your Honor Dude, I move to strike that paparazzo's outrageous punitive damage claims.

MR. SMITH:  Mr. ... Anderson.  We have your file.  We know how much force you applied to the accelerator.  We know you backed up to look for tread marks.  You struck the photograher.  Your motion to strike is denied Mr. Anderson.  And you know what they say; two strikes do make an intentional tort.  [Laughs evilly.]

NEO:  Who are you?  I want my lawyer.

MR. SMITH:  And how will you speak to your lawyer...when you don't have a mouth.  [Laughs even more evilly as NEO claws at his now mouthless face in horror.]

If you didn't watch the Matrix films (i.e., if you are older than me or lack the nerd/geek gene) this will all be meaningless to you.  It was really, really funny to me.  For an ever so slightly less fanciful version of this story, head over to California Punitive Damages.  If you have no idea what I am talking about, but are curious enough to do some research, take a look at Wikipedia's page on the Matrix.

[Via, oddly enough, California Punitive Damages.]

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Apologies to the blogroll members

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Due to a configuration error, a number of highly commendable blogs were not appearing on The Complex Litigator's "Blogs of Note" blogroll, despite having been entered on the administrator's site.  That has been corrected.  The Complex Litigator invites all readers to explore what these "Blogs of Note" have to offer, as some of the early entries were pushed off the list for the past several weeks.

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In light of the Federal Reserve's proposed new credit card regulations, are we looking at the next frontier in unfair practice class actions?

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On May 2, 2008, the Federal Reserve Board proposed rules "to prohibit unfair practices regarding credit cards and overdraft services that would, among other provisions, protect consumers from unexpected increases in the rate charged on pre-existing credit card balances."  (See, May 2, 2008 Press Release.)The proposed revisions to the FTC Act include five key protections for consumers that use credit cards:

  • Banks would be prohibited from increasing the rate on a pre-existing credit card balance (except under limited circumstances) and must allow the consumer to pay off that balance over a reasonable period of time.
  • Banks would be prohibited from applying payments in excess of the minimum in a manner that maximizes interest charges.
  • Banks would be required to give consumers the full benefit of discounted promotional rates on credit cards by applying payments in excess of the minimum to any higher-rate balances first, and by providing a grace period for purchases where the consumer is otherwise eligible.
  • Banks would be prohibited from imposing interest charges using the "two-cycle" method, which computes interest on balances on days in billing cycles preceding the most recent billing cycle.
  • Banks would be required to provide consumers a reasonable amount of time to make payments.

The proposed rule revisions would also address subprime credit cards by limiting the fees that reduce the available credit to the consumer. In addition, banks that offer credit by advertising multiple rates or credit limits would be required to disclose in their solicitation the factors that determine whether a consumer will qualify for the lowest rate and highest credit limit.

Looking at the detailed regulations governing mortgage lending (TILA and Regulation Z), and the decisional law that followed, it appears that even sophisticated banks routinely fail to implement practices and procedures that are fully compliant with regulatory requirements.  Assuming similar difficulty by lenders in adjusting their practices to comply with new credit card-related regulations, we may be looking at the "next thing" in consumer class action litigation.  After all, we're still waiting to see what the Seventh Circuit will do with the trial court decision in Andrews v. Chevy Chase Bank FSB (E.D.Wis. 2007) 474 F.Supp.2d 1006, a case holding that a declaration of the right to rescind under TILA was available on a class-wide basis.  If that question still isn't settled under TILA to this day, you can safely wager your home that new credit card practices regulations will leave much for Courts to decide.

[Via Consumer Law & Policy Blog]

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COMPLEX TECH: Are you protecting your (and your client's) data with encryption?

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Well?  If you aren't entirely clear on what is meant by "encryption," you need to be.  If you understand encryption and aren't using it, are you waiting for a data breach or loss before you actually implement any form of encryption security?  Depending upon your level of tech know-how, you should either be learning about encryption or using it.

Consider the recent Ninth Circuit decision in United States v. Arnold.  In that opinion, the Ninth Circuit held that border patrol agents can search your laptop or other digital device without limitation when you are entering the country.  The Electronic Frontier Foundation suggest encryption as one solution: "If you encrypt your hard drive with strong crypto, it will be prohibitively expensive for CBP to access your confidential information."  (Jennifer Granick, Protecting Yourself From Suspicionless Searches While Traveling (May 1, 2008) www.eff.org.)

But you don't travel outside the country with a laptop, so United States v. Arnold doesn't impress.  So consider this hypothetical that probably hits close to home for many attorneys.  You are at Big Firm's offices for endless days of deposition testimony in a massive toxic chemical spill case.  Big Firm graciously provides an open wireless network for you to access while in their offices.  You don't know anything about WiFi, other than your Windows laptop is set to look for open WiFi networks and connect automatically.  It seems to work every time you go to offices like Big Firm's, so you don't worry about it.  You surf the Internet during breaks, you log onto your office e-mail server, you check your bank account balance online, all with not a care in the world.  But did you know that all your wireless data is flying through the air in an unencrypted format that any junior high school hacker could capture and analyze.  You might luck out if some of the sites you visit use SSL encryption for password submission, but you are basically operating your computer out in the open.  Even Big Firm's IT staff could be reading and recording your transmissions...

Subsequent posts in the COMPLEX TECH series (i.e., those posts that follow after this very first post under the COMPLEX TECH moniker) will identify some specific encryption options.  But for now, a simplified explanation of what is meant by "encryption."  In grade school you likely discovered the substitution cypher.  A simple substitution cypher is created by writing down the alphabet and then writing a second copy of the alphabet under the first shifted over by an arbitrary number.  For example, if you shift two letters right, your second alphabet's "A" appears under the "C" of the first.  Your second alphabet's "B" appears under the "D" of the first, and so on.  When you get to the end of the first alphabet, you wrap back around to the beginning.  The second alphabet is used to encode a message.  First, you write out your message.  Next, you find each letter of your message in your first alphabet and record those letters.  The result is that the original message is replaced with a set of letters that have been shifted using your "key."  The problem with substitution cyphers is that they are incredibly easy to crack, even without computers.

In WWII, the Germans created the Enigma machine, which created encoded messages that were very hard to break.  Essentially, the machine used a substitution cypher that changed every time a key was typed on the keyboard.   In other words, every letter was encoded with a different substitution cypher.  But even that complex encoding system was cracked without the use of the computing power available today.

Encryption techniques used today take data and either divide it into blocks, scrambling and obscuring each block individually, or convert a block of text into a large number and perform mathematical operations on that number with other huge numbers.  The important piece of information that you should take from this discussion is that secure encryption methods, like PGP, are believed at present to be secure from all decryption techniques, or so secure that only governments with the highest level of technical know-how could every crack the encryption technique (it is generally believed that if PGP is breakable, perhaps only the NSA is capable of doing so).

Stay tuned for more encryption discussions in the COMPLEX TECH series.

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Profit Concepts Management, Inc. v. Griffith provides further guidance on "prevailing party" definition

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Greatsealcal100 In complex litigation, as jurisdictional and factual circumstances become increasingly complicated, it is regularly difficult to ascertain the identity of prevailing parties.  In Profit Concepts Management, Inc. v. Griffith, the Court of Appeal (Fourth Appellate District, Division Three) offers some additional guidance on the concept.  Specifically, the Court considered whether a defendant that successfully quashed service for lack of personal jurisdiction was a "prevailing party" entitled to recover attorney's fees pursuant to a fee recovery clause in a contract underlying the dispute.

The Court first established the framework for its analysis: "Attorney fees are allowable as costs under Code of Civil Procedure section 1032 when they are authorized by contract. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A).)" (Slip op., at p. 3.)  Next, the Court noted that authority cited in the trial court by appellant (Berard Construction Co. v. Municipal Court (1975) 49 Cal.App.3d 710) relied upon a prior version of Civil Code section 1717 that had been amended subsequently.  The Court than analyzed the outcome of the matter before it to determine if Griffith prevailed:

The only claims before the trial court were contained in Profit Concepts’s complaint, which sought compensatory and punitive damages in an amount to be determined, as well as preliminary and permanent injunctive relief. The case in California has been finally resolved. What was awarded on Profit Concepts’s complaint? Zero. Thus, the contract claim was finally resolved within the meaning of Hsu v. Abbara, and that case does not use the term “merits.”

(Slip op., at 7.)  Here's the real catch to all of this:  "Griffith moved to quash service of summons for lack of personal jurisdiction. Profit Concepts filed a notice of nonopposition to the motion to quash, and the trial court granted the motion."  (Slip op., at 3.)  You'd have to imagine that Profit Concepts would have opposed the Motion to Quash if it knew that the granting of the Motion would have resulted in Griffith obtaining attorney's fees as the "prevailing party."  While this action isn't complex, you can certainly imagine situations like this arising in complex actions with dozens of defendants and cross-defendants.  Moral:  Be careful who you name as a party in a contract-based action.  You might be writing them a check for their attorney's fees.

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Breaking (Unpleasant) News: U.S. federal courthouse in San Diego closed Monday due to bombing

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Wage Law, a usually pleasant read on developments in California's wage & hour litigation-scape, is the source for the unfortunate news on this blog that a pipe bomb exploded outside the federal courthouse in San Diego (Southern District of California).  According to FOXNews, the pipebomb exploded at 1:40 a.m. on Sunday, May 4, 2008.  Fortunately no injuries resulted from the late night detonation.  You can view the notice regarding the courthouse closure on the Southern District's homepage.

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