Tuesday, May 14, 2013

Not an April Fools' Column


Today, as usual, my column appears on the first Monday of the month.  Today is a court holiday in celebration of the birth of Cesar Chavez, the great champion of farm worker rights. Today is also April Fools' Day, but this unfortunate coincidence of the sublime and the ridiculous occurring on the same day is of no significance.  I would have preferred we celebrate Chavez's birth on his actual birthday, Sunday, March 31st.  But then we would not have a court holiday this year.  I leave it to others to decide whether or not the trade-off is worth it.  But I endorse the principle that birthdays need not be celebrated on the same date as one's actual birthday.  No disagreement from those whose birthdays occur on Christmas, New Year's, or Super Bowl day. 

          April Fools' Day, the day of practical jokes, is a tradition that goes back centuries.  There is a subtle reference to April Fools' Day in "The Nun's Priest Tale," in Chaucer's The Canterbury Tales.  Do not try, as I once did, to read the tale in the original Middle English.  I could attribute my missing the April Fools' Day reference to my deficient translation skills, but I also missed it in the modern English version.

          The first Monday in April of 1996 was the last time my column appeared on April Fools' Day.  I wrote about a series of troubling current issues that I claimed had been resolved.  "April Fools!"  Get it?  Would it not be interesting to see what I wrote about then, a sort of 17-year-old time capsule?  This brief foray into the past will be illuminating.  And it will save me the trouble of writing a completely new column this month.

          What follows are excerpts from what I wrote in 1996, with an occasional "comment" from the present. 

          The column began with a corny, yet ironic title.  (My titles today are much better.)

GOOD NEWS-READ ALL ABOUT IT!

          "What's the good news?"  This seemingly naive question invariably produces a patronizing yawn from the blas√©.  A typical response is:  "Haven't you heard, darling, there isn't any." 

          If we narrow our inquiry to the judiciary and the legal profession, we get a similar response:  "Haven't you read the advance sheets?" or "Haven't you read the papers?"

          I have, but I don't think I have asked the wrong question.  There's no denying that headlines scream bad news at you.  News items drip with scandal, opprobrium, negation and disapproval.

          If you're like me, you're ready for a change.  There are positive changes afoot and I'm happy to report the following good news:

1.       MONCHARSH OVERRULED.  
          In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, our Supreme Court held that courts must confirm arbitration awards even when the arbitrator commits egregious errors which appear on the face of the award and which cause substantial injustice.  The Supreme Court now sees the wisdom of Justice Joyce Kennard's dissent, and finds it unseemly for courts to be instruments of injustice.  It therefore intends to reverse itself on Moncharsh.  Comment - I wrote the unpublished, routine Moncharsh Court of Appeal opinion, which my colleagues concurred.  The California Supreme Court granted review, and something remarkable happened.  We were affirmed.  But our dicta were reversed (sounds horrible, but "dicta" is plural).  Today, Moncharsh is applied with more flexibility and less fervor and zeal than when it was first decided. 

2.       MORADI-SHALAL OVERRULED. 
          In Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287, our Supreme Court overruled its earlier opinion in Royal Globe Ins. Co. v. Superior Court (1979) 23 Cal.3d 880, which allowed third party bad faith claims against insurance companies.  Our high court has renounced its judicial activism and intends to overrule Moradi-Shalal. 

3.       ASSUMPTION OF THE RISK-A PIECE OF CAKE. 
          In Knight v. Jewett (1992) 3 Cal.4th 296, our Supreme Court offered a scholarly exegesis on the doctrine of assumption of risk and explained its application in light of the doctrine of comparative negligence.  Judges, lawyers and commentators now fully understand the majority, concurring and dissenting opinions.  It is easy to distinguish between primary and secondary assumption of the risk, and there is universal agreement as to what the case means.

4.       THE DISMISSAL OF MOTIONS TO DISMISS. 
          Trial courts are reevaluating their rulings on motions brought to dismiss for failure to prosecute under Code of Civil Procedure section 583.410. 

          Even though cases must be brought to trial with dispatch, trial courts are becoming more understanding when plaintiff's counsel misses the statutory time limits.  In a remarkable unanimity of action, trial courts throughout the state have come to the same realization:  dismissing cases for failure to prosecute only temporarily purges cases from the system.  The malpractice actions that inevitably follow such dismissals clog the trial and appellate courts with even more cases.  The lawyer whose case was dismissed becomes a defendant in an action brought by the former client.  The lawyer's insurance company, who contends there is no coverage, has to defend the bad faith action brought against it by the attorney.  If the former client gets a judgment, there may be even more actions to collect the judgment.

          Trial courts intend to exercise their discretion so as to give lawyers who offer reasonable excuses for delay the opportunity to try their cases on the merits.  Comment - Today an attorney's excusable neglect often saves the bacon.  (See Code Civ. Proc., § 473.)

5.       GOOD FAITH? BAD FAITH? SEARCH ME?  
          In United States v. Leon (1984) 468 U.S. 897, the United States Supreme Court held that an invalid search warrant could be upheld if the police officers serving it have a good faith belief in its validity.  Many court observers have complained that the Leon case emasculated the Fourth Amendment.  The United States Supreme Court is asking itself an important question:  What is the purpose of having the Fourth Amendment if it can so easily be violated?  Although some justices are in favor of its outright abolition, other voices have prevailed.  The signature of a well-meaning magistrate on a defective warrant will no longer be acceptable, no matter how much good faith the cops have.  A new decision disapproving Leon will be out soon.  It will be written by either Judge Scalia or Judge Thomas.  

6.  CIVILITY REIGNS. 
          All members of the bar have come to realize they are members of a noble profession.  They now all take enormous pride in their work, and treat each other with respect and civility.  The request for a continuance or a stipulation on virtually any matter need not be memorialized in writing.  A lawyer's word will suffice.  Therefore, trial courts will no longer be called upon to settle petty disputes over these issues.

7.       NEW DISCOVERY ABOUT DISCOVERY. 
          Discovery statutes actually facilitate discovery.  They are making the exchange of information between counsel pleasurable and easy.  Instead of misusing the discovery law to impede discovery, counsel now readily exchange pertinent information.  Courts no longer are burdened with annoying discovery motions, and discovery referees have become as essential as carbon paper. 

8.       BYE-BYE SANCTIONS. 
          Sanctions are a thing of the past.  Due in large part to items 6 and 7, attorneys rarely ask for them.  Even when they do, courts are loath to grant them.

9.       HARMLESS ERROR IS HARMFUL. 
          Harmless error is being used more sparingly in criminal cases.  That is because courts refuse to use this doctrine as a substitute for rigorous analysis.  Prosecutors refuse to rely on harmless error as a safety net for a well-tried and thoroughly researched case. 

10.     DEPUBLICATION DEPUBLISHED. 
          Our Supreme Court has refused to depublish cases in order to control its case flow.  Comment - Today depublication is rare, and few practitioners would argue it is not appropriate when it does occur.

11.     THREE STRIKES IS OUT. 
          The public thinks the Three Strikes initiative is too draconian.  It is about to replace that law with something different--a life sentence for violent repeaters, instead of for those recidivists who steal a pizza or a carton of cigarettes.  Comment - Looks like there are "changes afoot." 

          I could go on, but this generous sample of good news proves there is more to look forward to than misery and tribulation.  But to be fair, we should acknowledge the bad news.  I have only one item to report:  today's date.

          Comment - So ends my 1996 column.  Unlike that column, this one does not seek to play a joke on the reader.  But because some of my April Fools' Day predictions in 1996 became a reality, there may be cause for cautious optimism about the future.  If I write that funding will soon be restored to the courts so that all citizens will have access to justice, do you think it will happen soon?  But this is no joking matter.  I can only hope that it will before the passage of 17 years.

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