Saturday, September 16, 2006

Mediation - Latest Experiences

During the last couple of weeks, I've participated in several mediations. Some of those have been successful; one was not. I've come to the conclusion that the mediators that claim to have some of the highest result rates might be engaging in conduct that is inappropriate and unethical. One practice that I've seen is that a mediator will suggest that the client is unsavory, or should not be represented. The mediator might even suggest that the attorney should state that they will not continue to represent the client, in order that the case might settle.

To reach an agreement that is equally unhappy for each side might be a noble objective, but where an attorney is importuned to abandon a client's righteous cause because the client is physically unattractive, not "jury friendly", or will not "present well", is not in keeping with the attorneys' duty to not "reject, for any consideration personal to himself or herself, the cause of the defenseless or oppressed." Bus. & Prof. Code section 6068(h). The California Legislature did not put in its instructions to attorneys that they may only represent the "presentable."

It appears that some of these mediators have simply ignored or forgotten the requirements of professional responsibility once they engage in the role of a mediator. What I've taken to doing at the outset of the mediation is simply informing everyone that I'm not going to discuss the case outside my client's presence unless the other side's attorney is present. In other words, I won't speak separately with the mediator.

I'm not going to tolerate anyone bad mouthing my clients and expecting me to sit by silently, particularly not a supposedly unbiased mediator who my client is paying to attempt to acheive a settlement.

Thursday, June 01, 2006

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Sunday, May 21, 2006

Kudos for Qwest Holding Out on the Phone Records

A civil liberties group praised telecommunications carrier Qwest for refusing to turn over its customers' phone records to a U.S. spy agency. The Electronic Frontier Foundation (EFF) applauded Qwest's decision not to participate in a broad surveillance program, run by the National Security Agency (NSA), even though other large carriers have apparently complied.

In January, the EFF filed a class-action lawsuit against AT&T for its alleged participation in the NSA's "massive and illegal program to wiretap and data-mine Americans' communications."

"In our country, we follow the law," said Rebecca Jeschke, the EFF's media coordinator. "We don't follow orders. Qwest decided it had a responsibility to its customers and also its shareholders to follow the law."

Without court-issued warrants, the NSA's collection of phone records violates federal law, according to the EFF and the Center for Democracy and Technology (CDT), another civil liberties group.

USA Today, said the NSA has secretly collected the phone call records of "tens of millions" of U.S. citizens since late 2001. Telecom carriers AT&T, Verizon, and BellSouth have participated in the NSA surveillance program, launched after the Sept. 11, 2001, terrorist attacks on the U.S., USA Today said.

Qwest declined to turn over phone records to the NSA when it discovered U.S. agents would not seek court approval, said Herbert J. Stern, lawyer for Joseph Nacchio, a former CEO at Qwest.

The U.S. government approached Nacchio and asked for customer phone records in late 2001, Stern said in a statement released Friday. The phone records requests continued until Nacchio left Qwest in June 2002, Stern said. A federal grand jury in Colorado indicted Nacchio in December, 2001, on 42 counts of insider trading.

Qwest asked "whether a warrant or other legal process had been secured in support of that request," Stern said. "When he learned that no such authority had been granted and that there was a disinclination on the part of the authorities to use any legal process... Mr. Nacchio concluded that these requests violated [federal] privacy requirements. Accordingly, Mr. Nacchio issued instructions to refuse to comply with these requests."

President George W. Bush defends his administration's terrorist-fighting methods, saying government agents are not monitoring the individual phone calls of "innocent Americans." Instead, the NSA has monitored records to detect calling patterns that suggest terrorist activity, USA Today reported.

It is notable that Mr. Nachio was later indicted for "insider trading." Guess that government has its means of demonstrating what happens to those that don't comply with its requests.

One of my lawyer friends, upon hearing this news, cancelled his Verizon subscription and immediately signed up with Qwest. I think that is appropriate.

Friday, May 19, 2006

Work-a-holic, overwhelmed, or simply enjoy working?

I thought this was a particularly funny cartoon. I like what I do, and sometimes feel guilty about working too much. I am not sure if I do so because I expect things to get done sooner, or because I simply like to work.

At our San Diego Real Estate law practice, we certainly enjoy what we do, the clients we serve, and the problems that we get to resolve.

Sunday, May 07, 2006

9/11 Conspirator Zacarias Moussaoui Sentenced to Life

The jury's decision to allow Zacarias Moussaoui to live, in jail, without possibility of parol is a truly remarkable decision given the testimony that Zacarias Moussaoui provided following the testimony of the victims' family members.

On April 13, 2006, September 11 conspirator Zacarias Moussaoui said that he had no regrets for those who died in the hijacked plane attacks and told jurors in his death penalty trial he wished "there would be more pain."

In comments that brought at least one relative of a victim to tears, Moussaoui mocked survivors of the attacks who had told the court of their pain and said he would like to see similar attacks against Americans every day.

"I find it disgusting that some people would come here to share their grief in order to get the death of someone else," he said.

"We wanted you to have pain in your country," said Moussaoui, an admitted al Qaeda member. "I just wish it would have happened September 12, September 13, September 14 ... there's no remorse for justice."

He was speaking after a week of graphic testimony by guilt-stricken survivors of the deadly attacks and sobbing family members of some of the nearly 3,000 people who died.

Asked during his 2-1/2 hours of testimony whether he had any regret for the suffering caused by the attacks, Moussaoui responded: "None whatsoever."

Moussaoui said he had enjoyed recent images in court showing the Pentagon after it was attacked on September 11 and said reports of all the deaths "make my day."

His comments prompted tears from a distraught family member of one victim who eventually got up and left the courtroom.

Moussaoui, 37, who has pleaded guilty to six counts of conspiracy in connection with the attacks, pulled back from statements made after his indictment that indicated he would welcome a death sentence.

His lawyer Gerald Zerkin showed him a filing he made to the court in August 2002 in which he said the "greatest jihad in Islam is to speak the truth in front of the tyrant and be executed for it."

Moussaoui said he no longer wanted to include the "and be executed" part, because he had consulted Islamic books and decided that violated Muslim religious beliefs.


Moussaoui, who was taking the stand for the second time at his sentencing trial against the advice of his lawyers, also criticized his court-appointed defense team. He said their strategy should have included the argument that life in prison was the best punishment since execution would reward him with martyrdom.

Defense lawyers are trying to persuade the jury that Moussaoui is mentally unstable with delusions of importance in al Qaeda and should not be sentenced to death.

Moussaoui said in court last month that he was supposed to fly a fifth plane into the White House as part of the al Qaeda hijacking plot. That contradicted his previous claims that he was not meant to be part of the September 11 hijacking, but was supposed to be in a second wave of attacks.

Moussaoui, dressed in a green prisoner jumpsuit and a white cap, said on Thursday his testimony made little difference.

"I thought about ... the consequences for me saying I was a part of 9/11. I decided to just put my trust in God and tell the truth and time will tell," he said.

"Even without my testimony, taking into account the emotion of the case, there was definitely a chance I would be found eligible for death," he said.

The 12-person jury had already found that Moussaoui is eligible for execution. Jurors are now deciding whether to sentence him to death or life in prison.

What does this mean? I interpret it as a failure on the part of the United States Government, who has a particularly bloodthirsty bent towards killing and destruction. I view the verdict as a victory of the wisdom of the jury, who decided to end the cycle of death. The symbolism of this act of mercy is hard to ignore; it will be fascinating to watch the Muslim reaction to the jury decision that allows Moussasaoui to live.

From a litigation point of view, I question the benefit of not putting a client in a criminal trial on the stand. In my criminal cases, I've always engaged the client with the intent of having them testify. Of course, I've only engaged with clients that could testify truthfully. I've yet to have a criminal defense client take a guilty plea or suffer a conviction.

Energy Consumption - Gas Prices Still Climbing

Despite the recent increases in fuel, there is no indication that petroleum prices will level off. Maybe, we should start focusing on the positive aspects of these increased prices -- such as lower carbon dioxide emissions, lessening the global warming effect? Or, since fuel is so expensive, that more people will stay off the roadways, or if they do need to travel, will use cleaner and more efficient public transportation. Will this result in increased home improvement work by homeowners? Should we expect shares of stock in Home Depot, and Loews to increase?

Since carbon-based fuel use is directly related to global warming, isn't ironic that two topics have been discussed in the last two weeks -- gas prices and the extinction of the polar bear by 2030?

According to a recent article:
Many Arctic animals, including polar bears and some seal species, could be extinct within 20 years because of the effects of global warming.

Traditional ways of life for many indigenous people in the Arctic will also become unsustainable unless the world "takes drastic action to reduce climate change," according to the World Wide Fund for Nature.

"If we don't act immediately the Arctic will soon become unrecognisable" said Tonje Folkestad, a WWF climate change expert. "Polar bears will be consigned to history, something that our grandchildren can only read about in books."

By 2026, the earth could be an average 2° Celsius warmer than it was in 1750, according to research commissioned for WWF to be presented to a February 1-3 conference on climate change in Exeter, England.

"In the Arctic this could lead to a loss of summer sea ice, species and some types of tundra vegetation as well as to a fundamental change in the ways of life of Inuit and other arctic residents," WWF said in a statement.

The total area covered by summer sea ice in the Arctic is already decreasing by 9.2% a decade and "will disappear entirely by the end of the century" unless the situation changes, WWF said.

Food source in jeopardy

This would threaten the existence of polar bears and seals that live on the ice, which in turn would remove a major source of food for the indigenous communities who hunt them.

Forested areas will spread northward as those areas become warmer, threatening habitats for birds like ravens, snow buntings, falcons, loons, sandpipers and terns.

"Migratory birds will lose a vital breeding ground in the Arctic, affecting biodiversity around the globe," WWF said.

Indigenous peoples such as the Eskimos in North America and Saami in Scandinavia could lose their traditional livelihoods, and their communities will be threatened by the thinning sea ice, melting glaciers and thawing permafrost.

WWF said it was calling on participants at the Exeter conference to send a clear message to governments of the Group of Eight nations, meeting in Britain later this year.

Must reduce climate change

"If we are to ensure that unique ecosystems like the Arctic are not lost, the G-8 meeting must take drastic action to reduce climate change," said Catarina Cardoso, a WWF expert on sustainable energy, adding that this must include a commitment to keeping global average temperatures down.

Findings released in November 2004 by the Arctic Council - which comprises Canada, Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States - showed that the annual average amount of sea ice in the Arctic has decreased about 8% in 30 years.

In the past 50 years, average yearly temperatures in Alaska and Siberia have increased by about 2° Celsius to minus 15° C.

The United States is the only country in the Arctic region that has not signed the Kyoto Protocol. Russia ratified the UN-sponsored accord to combat global warming in November 2004.

My question is very self-centered. Should I be looking at moving to a location that will have a cooler climate while I can still sell my house? San Diego Real Estate is certainly going to take a dive if the average temperature here rises by 10 degrees.

Wednesday, May 03, 2006

Criminalizing Status, Illegal Immigration, and Extortion or Exploitation

The debate over the pending illegal immigration has reached a fever pitch in the Latino community. Rather than challenging the proponents of immigration reform by pointing out the contribution of the illegal immigrant community, California has witnessed demonstrations that nearly turned into riots.

To be sure, the present state of immigration policy in the United States encourages undocumented border crossings by illegal immigrants. The immigrants need to work, and to work they drive a burgeoning forged document industry, which they then show to unscrupulous employers who themselves -- dishonest people that they are -- proceed to exploit the illegal employees by failing honor the obligations imposed by the labor laws. In turn, we San Diego Employment Lawyers enforce the California labor code, and money that would otherwise go into capital improvements, increased wages, health benefits, and the benefits of honest competition go to pay attorneys fees and liquidated damages.

Immigration policy in the United States is entirely without reason, the talented persons that should be recruited from throughout the world and are required to wait patiently for their chance at the lottery take a back seat to family members of citizens. The illegal immigrants trump both the family member immigrants and the lottery players -- they simply break the law and walk across the line.

Meanwhile, without the immigrants California will not have its agriculture. It will not have its offices cleaned.

Monday, May 01, 2006

Fuel Prices Out of Control. My Prediction: more demands for reimbursement by employees.

With fuel prices spiraling out of control, more California employees will likely be availing themselves of the protection of Labor Code section 2802, which requires an employer to reimburse the employees for expenditures incurred in the performance of their duties.

Labor Code 2802. (a) An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties, or of his or her
obedience to the directions of the employer, even though unlawful,
unless the employee, at the time of obeying the directions, believed
them to be unlawful.
(b) All awards made by a court or by the Division of Labor
Standards Enforcement for reimbursement of necessary expenditures
under this section shall carry interest at the same rate as judgments
in civil actions. Interest shall accrue from the date on which the
employee incurred the necessary expenditure or loss.
(c) For purposes of this section, the term "necessary expenditures
or losses" shall include all reasonable costs, including, but not
limited to, attorney's fees incurred by the employee enforcing the
rights granted by this section.

It is surprising to me how many employees accept an assignment to drive across town without requesting reimbursement for that expense. Those employees have a right to reimbursement for those expenditures.

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