A CIVILITY PROBLEM CAN IMPACT AN ATTORNEY’S FEES MOTION Karton v. Ari Design (2021) 61 Cal.App.5th 734 holds that a trial court can consider a prevailing party’s incivility in ruling on a motion for attorney’s fees. (Id. at p. 738.) In that matter, Karton, an attorney, and his wife had a dispute with a remodeling contractor over whether the contractor owed them $35,096, as the couple contended, or $13,000, as the contractor claimed. The Kartons…
DON’T RECORD CELL OR CORDLESS COMMUNICATIONS WITHOUT CONSENT Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183, which holds that no party or nonparty can intentionally record a covered telephone communication without consent, impacts all aspects of the legal system, criminal and civil, because recording phone calls occurs in all aspects of life. As an added benefit, LoanMe also provides an in-depth tutorial on how to interpret a statute. The issue in LoanMe was whether Penal Code section 632.7 applies to all parties to a communication transmitted between a cellular or cordless telephone and another telephone, prohibiting those parties from recording the communication without the consent of all participants, or whether that…
SUING CLIENTS FOR FEES PURSUANT TO WRITTEN AGREEMENTS Suing a former client for unpaid fees is an unfortunate but occasionally necessary part of the practice of law. Pech v. Morgan (2021) 61 Cal.App.5th 841 clarifies the standard for such suits when a valid and enforceable fee agreement exists as contrasted when the attorney’s services have been performed pursuant to an oral understanding. Pech observes that the existing legal standard in Bus. and Prof. Code sec. 6148 for collecting unpaid legal fees applies…
HOW TO ANALYZE THE STRENGTHS AND WEAKNESSES OF A CASE Attorneys know the strengths of their respective cases; the weaknesses, however, are sometimes overlooked. To evaluate and identify the factual and legal strengths and weaknesses of a case, create a table, with one column for the elements of the cause of action or defense, a second column for the testimonial evidence that corresponds to that element or defense and a third column for the supporting exhibits. The elements are obtained from the applicable code, approved instructions or common law and…
A MEDIATION CHECKLIST There are tactical and ethical considerations involving mediations. The following discussion emphasizes both aspects. Talk to the client about mediation and its benefits and negatives. The ABA’s Section of Litigation, in Guideline 3.1.1, provides that “A lawyer should consider and should discuss with the client, promptly after retention in a dispute, and thereafter, possible alternatives to conventional litigation, including settlement.” Clients should also be told about the risks of litigation, including trial, mediation costs and the financial advantages and disadvantages…
ELEVENTH ANNUAL YEAR-END REVIEW The overarching subject of this year’s Mediation Messages and Arbitration Insights was the Coronavirus, which has impacted every aspect of our lives – personal and professional – although, as always, a wide variety of subjects involving arbitration, evidence, settlement, video conferencing and unfair competition was also covered. The following are summaries of all of this year’s Messages and Insights. (Complete versions may be found on my website, www.marcusmediation.com.) THE CORONAVIRUS Mediation Message no. 167 (“The New Normal”) The full extent of the virus on our lives probably won’t be known for years to come, but certain lesser…
By Michael Marcus Arbitration
A WITNESS DECLARATION EVIDENCE PRIMER This discussion addresses some of the more common issues in lay witness declarations: A lay witness must have personal knowledge of the matter which he or she is declaring about. (See Evid. Code sec. 702, subd. (a).) If the witness did not experience (in other words, hear or see) the matter, it should not be discussed. Unfortunately, that is not often what occurs. Even if the declarant has personal knowledge…
By Michael Marcus Arbitration
ARBITRATORS, WITHOUT SPECIFIC AUTHORITY, CANNOT ORDER THIRD PARTY DISCOVERY Aixtron, Inc. v. Veeco Instruments Inc. (July 16, 2020) 2020 DJDAR 7407; 2020 Cal. App. LEXIS 667 (Aixtron) impacts arbitration discovery, both intended and unintended: The intended, obvious aspects are its holdings that an arbitrator does not have the authority to order nonparty or third party discovery under the California Arbitration Act (CAA) and the Federal Arbitration Act (FAA), unless the parties have conferred that authority…
By Michael Marcus Arbitration
ARBITRATION OF NONSIGNATORIES – UPDATED Arbitration Insight no. 27 (May 2018) discussed the application of Garcia v. Pexco, LLC (2017) 11 Cal.App.5th 782 and Benaroya v. Willis (2018) 23 Cal.App.5th 462 on nonsignatories to an arbitration agreement. Garcia holds that equitable estoppel and agency are exceptions to the general rule that “one must be a party to an arbitration agreement to be bound by it or invoke it.” (Id. at pp. 785-786, 788.) Under the…
THANKSGIVING REFLECTIONS Thanksgiving is an appropriate time to count our blessings, particularly this year – one that none of us will ever forget. It has been overwhelming, and even catastrophic, in so many ways for so many people. I only speak for myself and my loved ones, but I hope I can also speak for many of you who receive these thoughts. When the pandemic started, I was not truly aware of its scope or…