Judicial Activism and Balls and Strikes

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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

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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

Spillane Trial Group Obtains Securities Fraud Win for Investment Group

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We have handled a number of matters for clients of prominent entertainment lawyer Michael Barnes, named Variety Dealmaker of the Year in 2010 in connection with the Miramax acquisition.  This year, Barnes and an investment group he lead became clients of the firm.  Merely two weeks before trial, we were asked to step in to try a securities fraud action against James Roberts, promoter of a produce venture in which Barnes’ group were the major investors.  The case was tried as an adversary proceeding for non-dischargeability in Roberts’ bankruptcy case.
 
At trial, we presented compelling evidence that Mr. Roberts was desperate to earn management fees funded by our client’s investments, and that he was willing to procure those investments through lies, concealments and wildly unfounded financial projections.  read more

Effective Cross-Examinations at Trial

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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

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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