Where You Sue (or Get Sued) Matters

You may have a choice of courts in which to file your California personal injury or business claim.

Should you choose state or federal court? Which county or state or judicial district? These choices matter because of differing procedural rules, local procedures, and jury demographics. For example, federal court requires a unanimous jury to reach a verdict (even in a civil case), but only 9 jurors out of 12 are needed to reach a verdict in California state courts. Next to an outright defense verdict, a hung jury is generally the civil defendant’s next best outcome. Since hung juries are more likely in federal court (you only need one hold out juror), a defendant may have a good reason to remove a case from state to federal court.

Defendants benefit from federal court summary judgment procedures.

In U.S. District Court, the shorter notice periods for bringing summary judgment motions generally favor defendants. With four to five weeks from filing to hearing in federal court, plaintiffs may not have a chance to conduct discovery directed at issues and points raised in the motion. In California courts, the opposing party will have at least 60 days before its opposition is due. During this time, the plaintiff may serve written discovery requests and take depositions if needed to shore up the evidence in support of an essential element of plaintiff’s claim. Finally, federal judges have more latitude to grant partial summary judgment concerning discrete issues compared to the narrow grounds for summary adjudication under the California Code of Civil Procedure.

Choosing your jury pool

In state court, jury pools vary from county to county. Rural counties tend to provide more conservative jury pools, which often is reflected in defense verdicts or lower plaintiff’s verdicts. Urban counties generally are more plaintiff-friendly venues. But even within a metropolitan area, jury pools differ from county to county and courthouse to courthouse.

Lawsuit venue rules vary depending on the case

You may have little choice about where to file your action. For example, consumer collection actions can only be filed in the county where the contract was signed or the county where the defendant currently resides. A defendant may have the option to remove a lawsuit to federal court, but the removal petition must be filed within 30 days of service of the complaint. Where there’s a choice, the decision where to file can have a large effect on the ultimate outcome of litigation. Consult with an experienced business or personal injury attorney concerning these strategic decisions. If you are a transactional lawyer, you would be well advised to consult with (or refer your client to) a litigator regarding these strategic litigation calls.

About Newdorf Legal – a California
Business Litigation Law Firm

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

Call David Newdorf at (415) 357-1234 (or e-mail to info(at)newdorf.com) for all of your California complex litigation questions.

S.F. Superior Court’s Closure of One Law & Motion Courtroom Will Lead to Big Changes

Effective October 3, 2011, San Francisco Superior Court is closing one of its two Law and Motion courtrooms due to budget cut backs.

The new Law and Motion judge will be the Hon. Harold E. Kahn, to be located in Department 302 at the Civic Center Courthouse. Judges Peter Busch and Loretta Giorgi, who had been assigned to Law and Motion duties, will be moving on to the Hall of Justice, where they will preside over criminal trials.

The coming 50 percent reduction in judicial staffing will lead to big changes in civil law and motion practice. Just a year or two ago, there were two commissioners handling discovery motions in addition to two Law and Motion judges. The Court elminated the Discovery Departments and shifted that work to the two law and motion judges. Now, Judge Kahn will be handling the work load formerly shared by four judicial officers (with the exception of asbestos cases, which have all been transferred to a new, specialized department).

In the past, a lawyer could schedule a motion in S.F. Superior Court on any date without first reserving the hearing date. That will inevitably change. San Francisco will be forced to follow other Bay Area courts, such as San Mateo and Alameda County, that ration hearing dates. These courts — and no doubt, San Francisco soon — allow only a limited number of motions on each hearing date. In some counties, it takes 60 days to have a demurrer heard. With several rounds of motions and amended complaints, a case can easily plod along for a year or more in the initial pleading phase.

This cutback came after the state Judicial Council provided several million dollars in additional funding in order to stave off even more severe layoffs in San Francisco Superior Court. The state court cutbacks will likely put additional pressure on federal courts as more lawyers decide to go federal if they have that option. For years, the trend had been in favor of state court filing. Many lawyers who could have filed in federal court chose to file employmnent and civil rights cases in Superior Court under California state stautes to avoid federal court.

With these cutbacks, lawyers will need to be more focused and effective advocates to get the attention of an over-worked Law and Motion department. See San Francisco Law and Motion Tips for best practices in this department.

ABOUT NEWDORF LEGAL – A CALIFORNIA
BUSINESS LITIGATION LAW FIRM

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

Call David Newdorf at (415) 357-1234 for all of your California complex litigation questions.

Old Typewriter

I learned to type on an old typewriter.

I watched my mother, a former legal secretary, typing at warp speed. I was about 8 years old, and it fascinated me. She got me a book from the library, “Learn to Touch Type.” And I did, self taught on a Royal, or maybe it was a Remington. “Watch the quick brown fox . . . ” I’ve been typing ever since.

The rhythm of fingers on keys, the heft of the manual carriage return, the bell dinging at the end of the line — these things are comforting and beautiful. Old typewriters are steam punk marvels of office machinery.

Royal Manual Typewriter

I went off to college at Berkeley and typed on semi-antiquated (even then) Royal 440′s at the Daily Californian. (If I got the model wrong, somebody let me know.) We typed our stories one paragraph to a half-page sized sheet of newsprint. That way the editor could easily reorganize the story by shuffling the sheets. I never did that half-sheet thing at other newspapers (computers quickly replaced typewriters), so I don’t know if that was common back in the day.

My IBM Selectric

OK, “Mad Men” fans. The IBM Selectric is about as old as the Draper kids. Meaning, about as old as I am. Look it up on Wikipedia if you want to know old that is. (Selectric, that is, because Newdorf isn’t listed.) When I went to journalism school, I bought an IBM Self Correcting Selectric III with lift-off correcting tape. Now that was space aged. Hit the correction key and it would back up, one character at a time, typing over your mistake. White Out was a thing of the past.

Remember the Tandy TRS 80 (affectionately known as the “Trash 80″)? A kind of lap top of its day, we filed stories from the field on the Trash 80, sticking the pay phone handset into the 1kb/hour modem. Now explain to your kids what a pay phone was. Mercifully, the TRS 80 phased out quickly. Hello-sweetheart-get-me-rewrite was definitely faster.

The Selectric stayed with me, though, and, when I was done with newspapering, the trusty putty-grey beast went with me to law school. I typed the California bar exam on that machine. It sits in the attic now. When I’m no longer around to protect it, my kids will put it out on the corner.

Unless nostalgia saves it. There is some of that for these beautiful machines. Street poets will compose a poem on the spot, banged out on a manual typewriter, for a buck or two. It may not be any good, but you can tell it was handmade. One-of-a-kind, too, unless the bard used carbon paper.

A freshly minted Cal Tech engineer told me recently about the “old fashioned keyboard” he had seen. Yeah, kid. We called them typewriters.

The “Fine Print” In Contracts Does Matter

Few clients care about the contractual boilerplates – until their business dispute hinges on these terms and conditions. Transactional lawyers, businesses and individuals should consider what standard terms are appropriate before a dispute arises. Post-dispute, you need to read the contract closely.

Common Contract Terms That Will Affect Your Dispute

Some examples of terms that will affect your contract dispute:

• The forum selection clause may dictate where you need to hire litigation counsel.
• Look for remedy-related terms such as “limitations of remedies,” “waiver of damages” and “indemnification.”
• Did the parties waive a jury or court trial, and if so, what will that do for the prospect of recovering significant compensatory damages?

Attorney’s Fees Provisions in Contracts

If there is an attorney’s fee provision, think carefully how that will affect the lawsuit. Often an attorney’s fee provision will cause a party to become entrenched in its position and make it difficult to settle a relatively low-value dispute. The party who is convinced he’s right may not mind spending $100,000 in fees on a $50,000 dispute because he expects to recoup them.

Also pay attention to contractual procedures for notice. Many contracts require written notice and an opportunity to cure any claimed breach. Failure to follow these procedures may jeopardize the claim.

California Breach of Contract Law Firm

Newdorf Legal is a California-based law firm with extensive experience litigating breach of contract lawsuits, interference with contract, breach of the implied covenant of good faith and fair dealing, and many other types of business lawsuits. For more information, contact David Newdorf at 415-357-1234 or info(at)newdorf.com.

San Francisco Jail Strip Search Policy Upheld by Courts Based on Record of Contraband Smuggling

September 2010 — A federal appellate court has ruled that San Francisco’s policy of conducting a visual strip search for weapons and drugs before placing new arrestees in the general jail population did not violate the prisoners’ rights.

The 6-5 ruling by a panel of judges of the U.S. Court of Appeals for the Ninth Circuit came in the case of Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir. 2010) (en banc),a class action lawsuit brought on behalf of arrestees who had been strip searched at the San Francisco County Jail from 2002 to 2004.

San Francisco attorney David Newdorf, who represented the City along with attorneys from the San Francisco City Attorney’s Office, said the ruling was a victory for common sense and safety. The County Jail’s policy was to release arrestees without a strip search whenever possible through issuance of a citation or posting of a bail bond, Newdorf said. For safety and security, deputies only strip searched those who were not eligible for immediate release and were going to be housed with other detainees in the general jail population, he said.

Jail Safety Justifies the Searches

“The evidence before the court showed that more than one thousand of items of drugs, weapons and dangerous contraband were smuggled into the County Jail from 2000 to 2003,” Newdorf said. “This decision is a common-sense ruling. Prisons are already dangerous places. Those who are arrested, or whose loved ones are arrested, will be able to rest easier knowing that measures have been taken to prevent inmates from smuggling needles, knives and other dangerous items into the confined jail environment.”

Newdorf, the managing attorney of Newdorf Legal in San Francisco, was a deputy city attorney from 2001 to 2008. He briefed and argued the Bull case in the U.S. District Court and before a three-judge panel of the Ninth Circuit. He assisted the City Attorney’s Office in the March 26, 2009 argument before the en banc 11-judge panel.

Judge Sandra Ikuta, who wrote the majority opinion in Bull, stated:

“The record reveals a pervasive and serious problem with contraband inside San Francisco’s jails, as well as numerous instances in which contraband was found during a search, indicating that arrestees’ use of body cavities as a method of smuggling durgs, weapons, and items used to escape custody is an immediate and troubling problem for San Francisco jail administrators.”

Judge Ikuta concluded that despite the “invasive and embarrassing” nature of a strip search, “San Francisco’s strip search policy was reasonable and therefore did not violate the class members’ Fourth Amendment rights.”

About California Litigation Firm Newdorf Legal

San Francisco-based Newdorf Legal is a firm of trial lawyers that represents companies, executives, investors, government and public officials in litigation. The firm handles disputes related to breach of contract, interference with contract, trade secrets, fraud, unfair business practices, real estate and public entity litigation. For more information, contact David Newdorf at 415-357-1234 or info(at)newdorf.com.

San Francisco Superior Court Law & Motion Tips

Judges Peter Busch and Loretta Giorgi, who preside over the Law and Motion Departments at San Francisco Superior Court, provided useful tips and insights into the working of their courtrooms at a recent seminar. The take-away message: make it easy for the judge to rule in your favor. Be concise; avoid repetition; organize your brief with logical headings; organize the evidence with tabs; provide courtesy copies to chambers; if attacking the pleadings, attach those to your motion.

This is always sound advice, and even more so with the conslidation of courtrooms and judicial staff layoffs.

Here are some noteworthy tidbits from the Bar Association of San Francisco event:

• Demurrers to answers, although permitted, seldom advance a case. Both judges discouraged them.
• There is a backlog of unsorted mail in the clerk’s office. If you want or need the order on your motion filed, bring it to the hearing or bring it in ex parte.
• Don’t file pro forma objections to every sentence of every declaration. Save evidentiary objections for points that matter. According to Judge Busch, parties are not entitled to rulings on every objection. Interestingly, Judge Giorgi said she reviews the objections — not the research attorneys.
• The Court does not have West’s California Reporter — cite to the Official Reporter (Cal. and Cal. App.). Parellel cites are unnecessary.

“We will rule on more summary judgment motions in a month than you will write in a career.” Judge Peter Busch.

• Unless your motion turns on an aspect of the legal standard for a motion — e.g., the shifting burden on summary judgment — you don’t need to recite the standard. The judges can recite that in their sleep.
• The judges need your courtesy copies and will continue the hearing if any courtesy copy is missing. If you want to make sure the hearing goes forward, lodge both your briefs and the other sides briefs.
• Judge Giorgi will often give a pro per litigant a break and continue the hearing if the unrepresented party did not give proper notice to opposing counsel of their intent to appear and contest the tentative ruling. Judge Busch generally will enforce the rule and adopt the tentative if proper notice was not given.
• The judges used to have a bench memo from their clerks for every motion. With staff reductions and conslidation, the judges now handle approximately one-third of the motions from start to finish without a bench memo.

ABOUT NEWDORF LEGAL – A BUSINESS LITIGATION FIRM

Newdorf Legal is the go-to small firm for big problems. When business executives and public officials face complex legal challenges, they turn to David Newdorf for advice and representation. The firm’s lawyers have significant experience in the private and public sectors handling high-profile litigation. Newdorf Legal provides business and public entity clients expert advice and representation in:

• business litigation
• commercial disputes
• California breach of contract lawsuits
• business torts/interference with contract
• real property litigation
• joint venture/partnership issues
• investor lawsuits
• fraud and other civil actions

For a free copy of our informative brochure, “The Top 10 Business Litigation Mistakes . . . and how to avoid them,” contact Newdorf Legal.

Call David Newdorf at (415) 357-1234 for all of your California complex litigation questions.