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
Category Archives: Bet-the-Company Litigation
Business Litigation in Bankruptcy Court
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
Anti-SLAPP Motions: a Powerful Tool for Media Defendants
Actor Frank Sivero sued Fox over his claim that “The Simpsons” character “Louie” was based upon Sivero’s character Frankie Carbone in “Goodfellas.” Sivero’s case was thrown out of court by a California state judge. (See “Fox Gets $250M ‘Simpsons’ Lawsuit From ‘Goodfellas’ Actor Tossed.”) No jury heard his claim. Nor was he defeated by a motion for summary judgment, a traditional pretrial motion to dismiss a claim that should be rejected if there is any triable dispute of fact for a jury to resolve. Instead, Sivero’s claim was dismissed pursuant to an “anti-SLAPP” motion, a powerful procedural device that was originally intended to benefit public interest groups, but has become the courtroom weapon of choice for media companies. read more
Case Evaluation: Critical Factors One Cannot Find in Law Books
My clients are usually entrepreneurs who founded a successful company and then find themselves dealing with their first lawsuit. In the initial intake meeting, clients are focused on explaining the facts of the case, asking what law would apply and evaluating likely results. These are fine and necessary subjects. However, I find it necessary to steer the conversation toward factors that cannot be found in law books, but which I have learned in nearly thirty years trying cases.
Clients conditioned to an “L.A. Law” view of the trial process – the popular 1980’s lawyer show in which new cases were discussed in one episode and tried in the next – want to drive right down to the courthouse be found right or wrong. read more
Clinton Emailgate: Full Disclosure Beats Suppression of Information
The controversy over the emails Hillary Clinton maintained on a personal server while Secretary of State recently obtained new legs with disclosure that fifteen emails produced by Sidney Blumenthal, a former Clinton aide, emails which included Clinton, were not produced by her. (See “State Department Says Hillary Clinton’s Email Disclosure Was Incomplete.”)
The controversy started when documents produced in connection with ongoing investigations concerning the attacks on the American embassy in Benghazi, Libya, reflected an absence of emails from any state department account for Hillary Clinton, but instead emails to and from her personal email account. After discussions between the State Department and Mrs. read more
Law, Politics and Business Trials – the Myth of the McDonald’s Coffee Spill Case
I attend a numbering of professional networking and bar events. At one recent event a speaker representing foreign clients discussed his clients’ desire to negotiate arbitration clauses to avoid the U.S. court system, which they view as exemplified by the “McDonald’s coffee spill” case.
I encourage clients to negotiate arbitration clauses where they wish to assure a private and more nimble resolution to business disputes. (See “Jay Spillane Delivers Update on Business Arbitration to ProVisors’ Valley LLP Group.”) But, the idea that a case over spilt coffee teaches negative lessons about the U.S. court system has me diving head first into the fraught intersection of law and politics. read more
Lessons from Little League: Keep Your Feet in the Batter’s Box and Swing
Last season my youngest son, at age six, played Farm Division in Little League. In Farm Division the coach lobs a few soft pitches to the batter. If the batter does not hit safely, the ball is put on a tee and the batter swings until hitting a fair ball. Every batter reaches base safely, even in the (unlikely) event that the first baseman catches the fielder’s throw and steps on first base before the batter.
Apparently Little League felt that boys who were reaching the World Series in their final year were getting too large and mature. So they changed the age cutoff for determining division placement. read more
The Snore of the Century: Mayweather-Pacquiao Promoters v. Streaming Services
The promoters of the recent Mayweather-Pacquiao boxing match took one on the chin for raking in big dollars promoting the “Fight of the Century,” which instead was a technically masterful but tedious defensive performance by Mayweather, marred by reports that Pacquiao was fighting with an undisclosed injury. Not content with being knocked on the canvas for the quality of the fight, the promoters are sticking their chins out for another knockdown punch by threatening to sue those who pushed bootlegged streams of the fight, possibly including streaming apps Periscope and Meerkat.
Copyright owners have spent decades and millions of dollars taking technology companies to court over alleged facilitation of infringement through technology, with choppy results. read more
Advances in E-Discovery Allow Smaller Firms to Successfully Litigate Cases Once Only Handled by Their Larger Counterparts
In almost any lawsuit, after the initial pleadings are filed, and before the trial, the parties engage in an extended period known as “discovery,” where each side demands and receives information about the other side and its case. In business cases parties typically ask for all of the contracts, communications and financial information that pertain to the issues in dispute. Businesses are generally quite reluctant to share internal business information with any third party, especially a litigation opponent. However, the law favors broad pretrial disclosure of information that has any potential relevance, and thus the volume of information exchanged in the discovery process could be great. read more
New Issues Surrounding Arbitration Clauses: What Every Lawyer Should Know
ProVisors’ Orange County Legal Affinity Group participated in an April 2 lunchtime presentation “New Issues Surrounding Arbitration Clauses: What Every Lawyer Should Know,” delivered by Jay Spillane. Many arbitration clauses currently in use have not been updated for years, Spillane explained. Any lawyers using such clauses in their own or clients’ contracts should take another look at “old-school” clauses similar to this: “Any disputes arising under or related to this agreement will be resolved by binding arbitration before the American Arbitration Association.” Instead, Spillane urged, lawyers should consider a host of other matters that have been litigated since that now outdated language first came into use. read more