I will miss you, Mr. Bradbury

I was very sad to hear about the recent death of Ray Bradbury.  He was such an amazing source of inspiration to writers everywhere.  I met Mr. Bradbury several times over the years, starting when I attended a writers' conference probably over 35 years ago.  Here is what I wrote after meeting him:

            "I once heard Ray Bradbury speak to a group of writers.  Fortunately, I was one of them.  His subjects were love and writing.  Actually, writing was only a symptom, a by-product, of love. 

            He spoke of passion.  Not in a dry, academic sense as a lecturer speaking to his students.  No, his body jumped with excitement and each sentence he spoke possessed the kernel of a great idea. 

            He told us that we don't create characters and write about their exploits.  Characters, he said, are born, sometimes without any help from the author.  For instance, he claimed Herman Melville didn't create Captain Ahab.  On the contrary, Captain Ahab appeared before Melville and told him about his life's story.  It must be written, Captain Ahab had demanded, with as much force as he had pursued his great white whale.  And it was done! 

            I was stunned.  How often had I thought up the skeleton of a character, pondering on what qualities to give him or her?  Should my character be selfish or kind?  Silly or intellectual?  Like a God, I created them, and many times they existed as the reflection of my image.

            But how many characters, alive with their own personalities, had I ignored because I wanted to be the creator?  I wanted to mold my clay figures, shaping them to my delight.  I had refused to accept their pleas to tell their story.  I then realized how many stories I had not written because I had insisted on being the storyteller.

            Writing was important to me.  I knew that if I too could feel this passion, this desire to see the possibilities in life, like the colors of a rainbow, I would have a story to tell.  But I was not alone.  Ray Bradbury had managed to touch all of us and we were captured in his spell. 

            He also talked about dinosaurs.  He told us a story about one night when he and his wife were walking on the shore near the Long Beach pier.  He gazed at the long deceased carnival rides and exclaimed, "Why, what is that dead dinosaur doing on the beach?"  He said the dinosaur had heard a foghorn, and believing it to be another dinosaur in a world where dinosaurs had disappeared, the dinosaur swam toward the shore, hoping to find a mate.  When this magnificent animal discovered his error, he died of a lonely and broken heart. 

            I was amazed that anyone could see a dinosaur in an old wooden amusement park.  What a passionate man he must be to create such a story!  Now there, I thought to myself, was a man I could love." 

I will miss you, Mr. Bradbury!

Federal Judge Protects First and Fifth Amendments

If you have any interest in the First Amendment, you will be pleased with this new ruling by a federal judge.  If you have any interest in receiving truthful news reports, you will also be glad.  And if you are a reporter, you will be overjoyed!   Judge Katherine Forrest of the Southern District of New York ruled that the indefinite detention provision of the National Defense Authorization Act may violate the First and Fifth Amendments of U.S. Citizens and granted a preliminary injunction barring enforcement of this provision.   These Amendments protect the rights of free speech and due process. 

Now you may wonder why you should care at all because most of you are not terrorists.  But this law would allow the government to indefinitely detain anyone it considers a terrorism suspect anywhere in the world without charge or trial.  One important thing to understand is the scope of this law that it would cover activities that the government considers substantially support terrorists or associated forces.   Such a law may include those who knowingly or unknowingly have a connection to terrorist suspects.  That just may include reporters who are interviewing such people. When you think of the right of this government to pluck out a person anywhere in the world and hold that person indefinitely without charges being brought against him or her and without trial, you may question what happen to our rights as U.S. citizens. 

Interestingly enough, Judge Forrest was appointed by President Obama, a former constitutional law professor, who signed the bill.  She found the law to be overbroad and potentially embrace speech.  In fact, the judge asked the government attorneys five times to acknowledge that journalists would not fall under the scope of the law or that their First Amendment rights would not be impacted.  They couldn't answer the question.  It should be noted that there is no express exemption for journalists. 

I remember when many years ago I started writing letters on behalf of Amnesty International.  One of the biggest sources of oppression by foreign governments was the detention of an individual without charge or trial.  My letters would plead for human rights and point to our legal system, which requires charges being brought against a person and a speedy trial.  Is this a thing of the past? 

This challenge was brought by journalists, scholars and political activists, including journalist Chris Hedges and Noam Chomsky.  It was opposed by a great number of individuals and groups.  They argue that it will have a chilling effect on journalists and may impact other activities, such as giving money for fundraising or participating in an Occupy Movement.  Many of us didn't even know about the scope of this law.  We have to pay attention as our civil liberties are being chiseled away.  I am glad that these plaintiffs took notice and acted.  Now we have to take notice and voice our support.

The government asked Judge Forrest to reconsider her ruling and are considering an appeal.

Watch my Interview on Appellate Tips for Trial Attorneys on Wednesday, May 23, 2012 at 3:00 p.m. at Spreecast.

For those who are wondering where I've been, well, I just recently came back from a two-week trip to Italy.  I then had to sort through over 2,200 photographs, which are now on my photo site atwww.PhotosbyDonna.smugmug.com.  Please, take a look at them.  Don't worry, there are not 2,200 photographs.  I managed to reduce the size to about 300.   After I did that, I had to put aside my job as a photographer and once again returned to being an appellate attorney.

Of recent interest, the California Supreme court recently granted review in one of my cases, City of Lake Forest v. Lake Forest Wellness Center and Collective.  My case is in a "grant and hold" position, meaning that all further briefing is deferred pending a decision in City of Riverside v. Inland Empire Patient's Health & Wellness Center, Inc., Case No. S198638.  If you have been hiding under a rock for the last couple of months, that case involves the question whether cities can absolutely ban medical marijuana collectives and dispensaries.  Our case involved the same issue; however, it will be held pending a decision in the Riverside case, and then it will probably be remanded to the Court of Appeal for a decision consistent with that case.  A grant of review has the effect of depublishing a published Court of Appeal decision, so that all of those patients associations and dispensaries that ran down to the local city's business department cannot use the companion case of City of Lake Forest v. Evergreen Holistic Collective as proof they are entitled to a business license.

For those of you interested in hearing some of my tips to trial lawyers on protecting their appeals at the trial level, tune in to Spreecast on Wednesday, May 23, 2012 at 3:00 p.m., when I will be interviewed by Orange County trial lawyer, Mitch Jackson.  You can watch, or even join in, at http://www.spreecast.com/events/donna-bader.  A more consumer friendly site is SocialTalk.tv.  My Spreecast event will be listed in the upcoming events along with a short intro: http://www.SocialTalk.tv or here: http://socialtalktv.wordpress.com/upcoming-events/.

Preparing for Oral Argument

Law students often ask me how I prepare for oral argument.   The obvious answer is to be fully prepared and knowledgeable about the record but there are other ways of preparing.   A few days before the hearing, I will have a tentative presentation, which I will practice several times so that my presentation is smooth and natural.  Believe it or not, it requires "rehearsals" to appear spontaneous.  I also try to anticipate questions and practice answering them.  In fact, I try to think about the questions that I hope the justices don't ask, and then just assume that is where my case is weak and I need to be ready to address them. 

I also try to focus on getting physically ready for the hearing.  After spending hours looking at the computer and performing last minute research, my neck and beck can get pretty tight.  I try to keep up a regimen of exercise, especially yoga and stretching.  If your muscles are tight, it is hard to be relaxed at the podium.  The day before oral argument, I try not to work too hard, preferring to do something fun to get my mind off the case.  If I can, I will arrange for a deep tissue massage.  What a tremendous boost!  If your muscles are relaxed and stretched, it is hard to tighten them up on short notice.  I feel looser, more relaxed, and even sleep better.  I also do warm-up exercises for my throat, such as singing, so that the words don't stick.  (Fortunately, I limit my singing to the shower.)  Just before my case is called, I will suck on a menthol cough drop, which keeps my throat moist.  (A great tip.)  I read that licorice can also help, so maybe I will try that too.   Just before oral argument, I try to picture my dog Casper, a snowy white American Eskimo, because I know that no matter what happens at oral argument, he will love me just the same.  And yes, I have my little good luck charms.  Not a rabbit's foot, but jewelry or accessories given to me by my boyfriend and grandmother.  So, when I step up to the lectern, I  feel surrounded by love and support.  It may seem silly to some, but it works for me.

New amendments affecting motions for summary adjudication

Without much fanfare, Code of Civil Procedure section 437c was amended effective January 1, 2012.  Prior to these new amendments, a motion for summary adjudication was limited to eliminating causes of action, affirmative defenses, claims for damages, such as punitive damages, and issues of duty.  The primary question in such motions was whether it completely disposed of a cause of action, affirmative defense, or issue of duty. (Code Civ. Proc., § 437c(f).)
            Now attorneys may seek summary adjudication on a legal issue or claim for damages that is not dispositive, especially if it will promote settlement or streamline the trial.   Unfortunately, the new procedure requires cooperation between the attorneys.  First, the motion may be brought only upon stipulation of the parties whose claims or defenses are put at issue and a prior determination and order of the court that the motion "will further the interests of judicial economy, by reducing the time to be consumed in trial, or significantly increase the ability of the parties to resolve the case by settlement."  (Code Civ. Proc., § 437c(s).)
            Before the motion can be filed, the parties are required to submit a joint stipulation to the trial court that clearly sets forth the issue or issues to be adjudicated with a declaration from each stipulating party that the motion will serve the goals noted above.  The trial court is then required to advise the parties whether the motion may be filed, unless the court extends the time for good cause.  If the court declines permission to proceed, the parties may request and the court is required to conduct an informal conference to further evaluate the stipulation, but no new papers may be filed.
            The motion has specific language that must be included in the notice of motion.  (Code Civ. Proc., § 437c(s)(4).  The joint stipulation must be served on all parties to the action, and a nonstipulating party may object within 10 days.  (Code Civ. Proc., § 437c(s)(6).
            I have not heard of anyone using this new procedure but I have read a few comments on it.  Here are my thoughts:
            1.  Bringing the motion does require some cooperation between the attorneys and more work to get the motion filed.  Getting opposing attorneys to do anything "jointly" is difficult in many cases, although with cooperation, the attorneys can agree that a decision on an important issue may promote settlement negotiations.
            2.  Plaintiff's attorneys usually try to avoid the dreaded (and predicted) motion for summary judgment.  Instead, they put their efforts into finding triable issues so the case can be heard by a jury.  This is especially true if they are working on a contingency basis.  Defense attorneys would love to carve off a bit here and there of a plaintiff's case.  For them, these motions are billable events.  Essentially, the motion allows for a mini-court trial and plaintiff's attorneys may prefer to a jury trial on all claims.
            3.  The procedure would seem to avoid a potential motion in limine down the road and closer to trial.  While appellate courts chastise parties and trial courts for using motions in limine as a replacement for motions for summary judgment and adjudication, they are often used in this manner.  One benefit in using this new procedure is that you get a ruling long before trial and it may help with trial preparation or settlement negotiations.
            These new amendments are not permanent, but will be repealed on January 1 2015 unless a later enacted statute deletes or extends that date.  (Code Civ. Proc., § 437c(u).)