Category Archives: Spillane Articles

ELECTRONICALLY STORED INFORMATION REVISITED

Posted on

Six years ago, I wrote about how facility with electronic discovery allows small litigation firms to have David v. Goliath results against large firms.  https://spillaneplc.com/advances-in-e-discovery-allow-smaller-firms-to-successfully-litigate-cases-once-only-handled-by-their-larger-counterparts/  In 2021, if you or your team have not mastered discovery of electronically stored information (“ESI”), you are not in the game.

Here are some tips for bringing your electronic discovery skills up to date.

  1. Consult with your technologist on production demands.  Parties may specify the way they want ESI produced.  Cal. Civ. Proc. Code § 2031.030(a)(2); FRCP Rule 34(b)(1)(C).  Share your draft production requests with your technologist, or better yet, have a stock paragraph in your form file. 
read more

DEPOSITIONS REVISITED

Posted on

Most business cases settle prior to trial.  For this reason, the near exclusive opportunity to examine witnesses occurs during pretrial depositions.  This is a procedure whereby witnesses who may testify at trial can be required beforehand to answer questions under oath.  Previously these were held in a law firm conference room; often now they occur as a videoconference.  No judge or jury is present

I think when a pretrial deposition is the only available opportunity to examine witnesses for most lawyers, the process is overused.  Too many depositions are taken.  Too many questions are asked.  Too many documents introduced.

There are just a few key objectives in pretrial depositions: 1) find out the witnesses’ answers to the toughest questions, where those answers cannot be known in advance; 2) elicit admissions that can be used in a pretrial motion or as a soundbite at trial; and 3) authenticate how the witness communicated, including emails, text, electronic messages, and social media.  read more

BLACK WIDOW ASSAULTS NEW STUDIO VERTICAL INTEGRATION

Posted on

Scarlett Johansson, who has repeatedly played Marvel’s Avenger character “Black Widow,” has sued Disney for breaching the promise in her contract to play in its new film, entitled “Black Widow,” that Disney would give the film a “wide theatrical release.”  Johansson was promised generous box office bonuses.  Instead, Disney released the film simultaneously in theaters and on its new streaming subscription service, Disney+.

The advent of studio-owned streaming opens a new front in a long history of litigation between talent and studios over how entertainment revenues are shared, particularly where the sharing is impacted by new technology and “vertical integration,” consolidation within major corporations of the means of bringing entertainment to consumers. read more

Zoomigation: Processing Civil Disputes in a Lockdown World

Posted on

Resolving civil disputes in court used to involve a regular series of trips to tall office buildings and courthouses where we all sat close and breathed on one another to take depositions, mediate disputes, appear at hearings and try cases.  Now that we are kicked out of the buildings, must the dispute resolution process grind to a halt?  No, while the “jury is out” on the the conduct of jury trials, much of what we do other than jury trials can be Zoom-ized. 

Here is my report card on resolving civil disputes from one’s living room: “Zoomigation.”

Mediations: A.  In nearly all civil business disputes parties are ordered to attend mediation, a half-day or day devoted to settlement.  read more

A SIMPLE VIEW OF MUSIC COPYRIGHT INFRINGEMENT

Posted on

The legal news wires are “rocking” with headlines in music copyright infringement cases.  The Ninth Circuit, sitting en banc, found for Led Zeppelin in the “Stairway to Heaven” litigation and euthanized the “inverse ratio rule.”  In a connected world of nearly universal access to copyrighted works, a plaintiff must show real plagiarism, not merely plausible similarities.  

Soon thereafter Judge Snyder threw out the jury’s verdict that Katy Perry’s “Dark Horse” copied a bass ostinato from Christian rapper Flame’s “Joyful Noise.”  

For copyright lawyers this news creates the sort of excitement that NFL fans experience over a tie in the last two minutes of the Super Bowl.  read more

SPILLANE WINS NINTH CIRCUIT AFFIRMANCE OF SECURITIES FRAUD JUDGMENT

Posted on

On May 15, 2019 the Ninth Circuit Court of Appeals affirmed a Bankruptcy Appellate Panel decision affirming a Judgment obtained by Spillane Law Group for California Farms Investors, LLC for securities fraud.

Jay Spillane tried the underlying action, California Farms Investors, LLC v. James Roberts, in the United States Bankruptcy Court for the Central District of California.  The defendant promoted an organic lettuce venture through false and misleading statements and without disclosing that the venture was not growing its own lettuce.  California Farms Investors invested $825,000 in the form of secured notes.  The venture purchased lettuce from vendors with rights under the Perishable Agricultural Commodities Act (“PACA”), including the right to hold insiders of entities purchasing agricultural product personally liable for the purchases.  read more

THE LOST ART OF BUSINESS JURY TRIALS: WINNOW EVIDENCE AND PRE-TRY KEY THEMES

Posted on

Trying cases is a lost art in the business world.  Supposedly 95% of business cases settle prior to trial.  That may be so, because I consider 95% of my business law colleagues to be litigators, not trial lawyers: those who exclusively use pleadings, discovery and motions to posture a case for settlement and who have little to no trial experience. 

If a reasonable settlement can be achieved, I advise my clients to take it.  Trying cases is expensive and uncertain.  But if you’re not eager and able to try the case if necessary, how are you going to get the best settlements?  read more

Mini-Opening Statements

Posted on

“Mini-opening statements,” or short opening statements to potential jurors before jury selection (“voir dire”), are a little understood but critical aspect of trial practice.

Parties are often required to submit joint materials before the pretrial conference including a short statement of the case.  See LASC LR 3.25(f)(1).  As a stipulated document, though, it will be sanitized to the point of revealing little about the case other than identification of the parties and claims.  On the day of jury selection, a “panel” or “venire” (“to come,” from the jury summons) of thirty to forty potential jurors will enter the courtroom and sit in the gallery.  read more

Jury De-Selection

Posted on

Trial attorneys have at most four opportunities to speak to a jury: 1) a brief opening statement prior to jury selection (state only and on request); 2) jury selection, or “voir dire” (“to see one say”); 3) opening statement; and 4) closing argument.  The first two are before the jury is selected, and only in the second, jury selection, is one permitted to ask potential jurors questions and hear their answers.  This golden opportunity should not be squandered through ill preparation.

In federal civil practice the judge retains tight control over voir dire and need not allow attorneys to ask questions.  read more

Spillane and Co-Counsel Win 11-1 Defense Verdict in $14 Million Elder Abuse Case

Posted on

Jay Spillane, representing Intervenor Plaintiff Tommie Howard, together with Robert Levinson and Helen Kim Colindres, representing Defendant Meighan Howard, won a defense verdict on an 11-1 vote after a five-week elder abuse jury trial.

Dr. John Howard, represented by Keller Anderle, sued Meighan Howard, his daughter, claiming that a 2012 amended estate plan, which disinherited Meighan Howard’s brother and made valuable irrevocable gifts to Meighan, was procured through elder abuse, breach of fiduciary duty and constructive fraud.  Dr. Howard pointed to evidence that Meighan Howard primarily communicated with estate counsel, exerted a high degree of management over her parents’ affairs and was the beneficiary of highly valuable gifts.  read more