Archive for October, 2015

27
Oct

As the jurisdiction of small claims court has increased (now up to $10,000), attorneys are called on more frequently to assist on appeal.  (Ground rule – attorneys are not permitted to assist at the original trial, only on appeal.)

In Dorsey v. Superior Court (Oct. 22, 2015) __ Cal.App.4th __, “The small claims court dispute [ ] arose out of a condominium lease, which contain[ed] a prevailing party attorney fee provision.  [The trial court] entered judgment in favor of the tenants [ ] against the landlord [ ] in the principal amount of $1,560.”

This is where it gets interesting.  “After judgment, [the tenant] sought $11,497.50 in attorney fees as the prevailing parties under the attorney fee provision in the lease.  [The landlord] opposed the motion, asserting Code of Civil Procedure section 116.780(c) trumped the contractual attorney fees provision, limiting any award to $150.  The superior court awarded Crosier $10,373.”

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Fort Sumter

Explained the court, “Small claims court exists so people with meritorious claims for small amounts may have those claims adjudicated without spending more on attorney fees than the claims are worth.”

Note – English law has recognized “small claims” jurisdiction for at least five centuries.  As the court discussed, “The small claims court system has been refined over hundreds of years with recurring attention from the courts, legal commentators, and the Legislature.”  It’s not like California invented small claims court.

Continued the court, “Section 116.780(c) reflects a legislative determination that a small claims appeal should require no more than minimal attorney time.  The small claims appeal procedure was intended to be integral to the legislative scheme for expeditious and cost-effective resolution of small claims.

“Therefore, as we explain, section 116.780(c) must be construed to override contractual attorney fee provisions and limit the attorney fee award here to $150.”

The court also discussed the unusual procedure of the case.  “The superior court’s judgment on a small claims appeal is ‘final and not appealable’ … However, if law is to be made settling a significant issue of small claims procedure, ‘the appellate courts must have jurisdiction to entertain petitions for extraordinary review in appropriate circumstances.’  Writ relief is appropriate here to review this significant issue in small claims law and to ensure uniform interpretation of the governing statutes.”

Bottom line – The court can award attorney’s fees up to $150.00 in small claims court.  Dorsey v. Superior Court (Oct. 22, 2015) __ Cal.App.4th __

Category : Case law | Developments | Blog
19
Oct

In 1927, Prof. William Holdsworth delivered four lectures on legal history to American audiences, which lectures were collected in Some Lessons from Our Legal History (The Macmillan Company 1928).  Holdsworth, a law professor at Oxford, held “the oldest University Chair in English law in the world,” a chair first held by William Blackstone in 1758.

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Read his remarkable analysis of Lord Mansfield’s 1772 decision in Sommersett’s Case.

“As the history of the writ of Habeas Corpus shows, Parliament and the common lawyers were careful to guard the principle of the thirty-ninth clause of the Great Charter, that a man could not be imprisoned except by due process of law.  That in effect meant that any restraint of liberty must be proved to be legally justified, and that all restraints which could not be thus justified, were illegal.

“That this principle so stated, and safeguarded by the writ of Habeas Corpus, was a better protection to liberty than any number of abstract declarations of right, can be seen by the famous Sommersett’s Case in which the idea that the status of slavery was recognized by English law was finally given its quietus.

Lord Mansfield

“In the eighteenth century the slave trade was a lucrative business, in which many had an interest … Lord Mansfield [ ] decided that … Harrison, in Elizabeth’s reign, had correctly stated the law when he said that ‘if any [slaves] come hither from other realms, so soon as they set foot on land they become as free in condition as their masters.’

“The fact that Lord Mansfield refused to follow the commonly received view of the merchants, and was induced to give a decision opposed to that view, after hearing an argument based mainly on the mediaeval law as to villeinage, probably surprised many of his contemporaries as much as an opposite decision would have surprised us.

“But I think the decision was largely due to maintenance of the view, that any interference with liberty must be justified by law.  There was legal warrant for recognizing the status of a villein: there was none for recognizing the status of a slave.

“As Lord Mansfield said at the close of his judgment, ‘Whatever inconveniences may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.’”

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That’s right – in 1772, Lord Mansfield declared that slavery was not recognized by English law.  Even more, the case came up on a writ of Habeas Corpus.

From Wikipedia: “Mansfield is best known for his judgment in Somersett’s Case on the legality of keeping slaves in England.  The English had been involved in the slave trade since 1553, and by 1768, ships registered in Liverpool, Bristol and London carried more than half the slaves shipped in the world.

“James Somersett was a slave owned by Charles Stewart, an American customs officer who sailed to Britain for business, landing on 10 November 1769.  A few days later Somersett attempted to escape.  He was recaptured [ ] and imprisoned on the ship Ann and Mary, owned by Captain John Knowles and bound for the British colony of Jamaica.  Stewart intended to sell him there.

somersett_j

“However, three people claiming to be Somersett’s godparents [ ] made an application before the Court of King’s Bench for a writ of habeas corpus, and Captain Knowles was ordered to produce Somersett before the Court of King’s Bench, which would determine whether his imprisonment was legal … As a result of Mansfield’s decision, between 14,000 and 15,000 slaves were immediately freed in England.”

Explained Holdsworth, “Sommersett’s Case, decided on a writ of Habeas Corpus, is an excellent example of the fact that the principle of personal liberty is assumed; and that, in practice, its ambit depends upon the scope and application of the remedy for its infringement.”

“In later days it has sometimes been necessary to suspend the right to get a writ of Habeas Corpus; but this can only be done by an act, not of the executive, but of the Legislature; and in England it is not possible by a single act of the executive or the Legislature to suspend all constitutional guarantees, or to proclaim a state of siege.”

William Searle Holdsworth, Some Lessons from Our Legal History (The Macmillan Company 1928)

Category : Legal history | Blog
9
Oct

Roscoe Pound, dean of Harvard Law School, was an influential legal scholar with a large body of writings.  Some say he later contradicted himself; perhaps, but his earlier writings offer deep insight into the American legal system.

(Pound was born in 1870, and was raised in Nebraska.  His chief academic training was as a botanist, and he received a PhD in botany.  Nebraska, and many other midwestern states, were ravaged by locusts in the late 1870s.  Consider how such events transformed the young botanist.)

Roscoe-pound-annual-dinner-1940

Here is Pound in full power, writing in 1923:

●    On 19th Century law in America

“The truth that more and more since the sixteenth century and universally in the nineteenth century the end of law was conceived in terns of the maximum of individual self-assertion.  This end was to be attained through a politico-legal ordering of society in which coercive social control was reduced to its lowest terms.”

●    Aka, “frontier justice.”

“Self assertion is one of the fundamental instincts or, if you will, one of the fundamental desires of men … The conception of law as a necessary evil, the doctrine that each rule of law must be justified by showing that it promotes a maximum of individual self-assertion, the doctrine of a minimum of law, restricted to what is demonstrably necessary to the realization of freedom as an idea, are protests against which … eighteenth-century thinking had seemed to lead.”

●    Law and Society

“We cannot develop the utmost that is in human powers in a mad scramble in which values are lost by friction and waste.  We must have a certain ordering of human activities that puts limits to human action, that assigns each to do things in order to protect existing values and to further the creation of new ones.  How far this ordering shall go must depend on the civilization of the time and place, on the values to be conserved and the means at hand to create new ones.”

●    What is Law?

“There is no universal body of legal institutions and legal rules for all civilizations.  Instead there is a universal idea, namely, human civilization.  ‘Different in its details,’ [Kohler] says, law ‘is alike in the fundamental quest, that is, the furthering of civilization through a forcible ordering of things … a relation which takes on a different content with the infinite variety in the conditions of human cultivation’” …

“But law is not only a means toward civilization, it is a product of civilization.  We must look at it, therefore, in three ways: as to the past as a product of civilization, as to the present as a means of maintaining civilization, as to the future as a means of furthering civilization.”

●    Rural America

“In rural, pioneer, agricultural America of the forepart of the last century, there was no occasion to limit the contracts a labourer could make as to taking his pay in goods.  To have done so would have been arbitrary.

“In urban, industrial America of the twentieth century, on the other hand, a regime of abstract freedom of contract between employer and employee often led to a destruction of values.  It led to sacrifice of the social interest in the human life of the individual worker.  Hence it was not unreasonable to put limits upon what employer and employee might contract.”

●    How Society Maintains Order

“There must be some system that does this.  It may be done by political or politico military machinery, as in the extreme case of Sparta; by tradition and stratified society resting on authority, as in the Middle Ages; by free competition, as we sought to do in the nineteenth century, or by an economic regime, as today.”

“In any event it is the place of the law to uphold that system so that civilization may he maintained  … A change of attitude in legal thinking throughout the world, which marks twentieth century jurisprudence, rests on recognition of the social interest in the individual life as something broader and more inclusive than individual self-assertion.”

Roscoe Pound, Interpretations of Legal History (Macmillan Company 1923)

Category : Legal history | Blog
2
Oct

Prof. Andrew McClurg is the author of an excellent guide to the first year of law school.  Below are short excerpts relating to mental health issues that can affect law students.

Self-Doubt

Law school is the undisputed champion of causing talented people, people who have achieved at a high level their entire lives, to almost instantly begin questioning their self-worth.  As one student put it, “It seems that law school is designed to make the student feel unsure of himself and inadequate.”

“Cognitive distortion” is a psychological term used to describe a condition that occurs when a person internalizes neutral or mildly negative external stimuli as signs of severe personal failure.  Law school establishes optimal conditions for this to occur.

Everything a student does is judged and it never seems good enough.  Every word uttered in law school classes is critically scrutinized.  Professors often critique student classroom comments even when they wholeheartedly agree with them.  It’s the nature of the Socratic beast.  Some students shrug it off, but many take it personally and let it diminish their self-image.

Depression

Law students also suffer disproportionately higher rates of depression than the general population and other graduate students.  On depression scales, 17-40 percent of law students in the second University of Arizona study mentioned above were found to suffer from much higher rates than exist among the general population.

A 2000 study of University of Michigan law students found that more than half of law students showed symptoms suggestive of clinical depression by the end of their first year and that these high levels remained throughout their law school careers.

Comparing the law students’ scores on the Center for Epidemiologic Studies Depression Scale to scores for other groups subject to extreme stress yielded somewhat startling results.

The 50 percent of law students who scored above the depression cutoff compared to rates of:

●    30-45 percent for unemployed people
●    30-45 percent for people testing HIV-positive two weeks after they received notice
●    50 percent for people experiencing the death of a spouse or marital separation in the past year
●    50-60 percent for persons being treated for substance abuse, and
●    50-70 percent for homeless people.

This isn’t to suggest, of course, that being a law student is as bad as the listed traumatic events, but law school can strongly push the brain’s depression buttons.

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As with anxiety, the gloominess pattern continues after graduation.  A Johns Hopkins University study found that lawyers ranked fifth in the overall prevalence of depression out of 105 occupations.  When the data were adjusted to focus on the association between depression and the particular occupation by taking into account non-occupational factors contributing to depression, lawyers moved into first place.

The study of Arizona and Washington lawyers mentioned above found that 21 percent of male lawyers and 16 percent of female lawyers exceeded the clinical cut-off measure for depression, significantly higher than depression rates found in the general population.

1L of a Ride: A Well-Traveled Professor’s Roadmap to Success in the First Year of Law School (2nd Ed.) by Andrew McClurg

Category : Legal Education | Blog