May 13, 2015

[New Blog Post] Updated: The Brady Case Still Lawyering Up

... the legal framework for the Tom Brady case...

The collective bargaining agreement (CBA) between the NFL and the NFLPA, the Constitution and Bylaws of the NFL, and to some extent, the Official Playing Rules of the NFL are in play... see Rule 2.

One of the parties to the CBA - the NFL, the employer, hired a criminal attorney, Ted Wells, to investigate Tom Brady.  Here is a link to the report produced by Wells.  While reviewing the report, keep in mind my post on Attorney-Client Fee Agreements.

Do yourself a favor and read through the executive summary of the report.  It's extremely thorough and good.  Way better than any incident report filed by a law enforcement agency.  It is not even a close call whether it is more probable than not that Brady knew about the balls. As the report says, a "contrary conclusion requires the acceptance of an implausible number of communications and events as benign coincidences."

Although Brady didn't give up his cell phone, the ball boys - Jastremski (Equipment Manager) and Jim McNally (Official Locker Room Attendant) did.

The text messages between these geniuses is powerful evidence. Tom Brady's agent / lawyer - Don Yee, guaranteed Brady would appeal. He has, and has retained Jeffrey L. Kessler. Yee had said "the discipline was ridiculous and had no legitimate basis."

Jonathan Vilma said he would "tell Brady to fight the emotion of defending himself publicly, lawyer up and begin to devise a plan to beat the NFL ..."

According to SB Nation, Brady's legal team was enough to convince one of Adam's Schefter's sources that the suspension will be overturned.
"Brady's team is unreal," the source said. Talented big name lawyers: Yess, Kessler, etc. Prediction=won't miss a game."
Below are some relevant parts of the CBA.

Section 1. Governing Law: To the extent that federal law does not govern the implementation of this Agreement, this Agreement shall be construed and interpreted under, and shall be governed by, the laws applicable to contracts made and performed in the State of New York

APPENDIX A
NFL PLAYER CONTRACT

15. INTEGRITY OF GAME. Player recognizes the detriment to the League and professional football that would result from impairment of public confidence ... Commissioner will have the right, but only after giving Player the opportunity for a hearing at which he may be represented by counsel of his choice, to fine Player in a reasonable amount; to suspend Player for a period certain or indefinitely

19. DISPUTES. During the term of any collective bargaining agreement, any dispute between Player and Club involving the interpretation or application of any provision of the NFL collective bargaining agreement or this contract will be submitted to final and binding arbitration ...

May 8, 2015

Commercial Truck Sales: Transfer of Ownership - Passing Title

The term "ownership" generally refers to possession of title and the ability to convey that title to another.  The UCC says when title passes in the sale of a truck or trailer from the seller to the buyer.

U.C.C. §§ 2-401(2) and (3) provide:

(2) Unless otherwise explicitly agreed title passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery of the goods, despite any reservation of a security interest and even though a document of title is to be delivered at a different time or place; and in particular and despite any reservation of a security interest by the bill of lading.

(a) if the contract requires or authorizes the seller to send the goods to the buyer but does not require him to deliver them at destination, title passes to the buyer at the time and place of shipment; but
(b) if the contract requires delivery at destination, title passes on tender there.

(b) if the contract requires delivery at destination, title passes on tender there.

(3) Unless otherwise explicitly agreed where delivery is to be made without moving the goods,

(a) if the seller is to deliver a document of title, title passes at the time when and the place where he delivers such documents; or
(b) if the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.


(b) if the goods are at the time of contracting already identified and no documents are to be delivered, title passes at the time and place of contracting.

Although preferable and most likely required under any lender's or dealer's policy, it is not necessary for there to be a transfer of the certificate of title for title to pass, nor must the purchase price be paid.  To determine when a transfer of ownership takes place, the most important element is the intention of the parties demonstrated by their actions with respect to the transaction.

August 18, 2014

All-in-One DUI Law Office Food Truck / Banana Stand

"There it is, dude," read the text  from my friend, "Across from Metro. Another dream stolen. All-in-one DUI law office and taco stand.  Left line for payments. Right line for sticky's, notarized Tahls and '2 for 1' burritos."

Great idea: Reminds me of the Bluth Banana Stand in Arrested Development


June 20, 2014

Don Sterling Always Lawyering Up

Another issue comes to mind In Re the Donald Sterling case:

If Don is judicially determined to be mentally unfit to serve as the family trustee, could that decision have an effect on whether he had the capacity to make the attorney-client fee contracts between him and his lawyers?

Are those attorney-client contracts voidable and subject to rescission?

There is a rebuttable presumption which affects the burden of proof that a person is of unsound mind if the person is substantially unable to manage his or her own financial resources.

Isn't that the reason the doctors gave for Don being unfit to be co-trustee of The Sterling Family Trust?
"In my opinion he is substantially unable to manage his finances and resist fraud and undue influence, and is no longer competent to act as trustee of his trust," concluded Dr. James E. Spar, who is affiliated with the division of geriatric psychiatry at UCLA.
If Don is willing to sue his wife and the NBA, do you think he'd be shy about litigating against his lawyers?

June 16, 2014

Attorney-Client Fee Agreements

To understand the Donald T. Sterling case, look at it from the point of view of an attorney-client fee agreement.

There are two basic agreements:  litigation on a hourly basis and non-litigation on an hourly basis. Either way, the lawyer, and his business partners, can make serious money with the right client and the right case.

According to the State Bar website when drafting an attorney-client fee agreement:

An attorney should err on the side of inclusion when enumerating standard rates, fees and charges. In an hourly case, fixed or minimum charges for specific functions should be clearly set forth in the agreement to avoid misleading the client. For example, most firms have a minimum billing unit; some charge a minimum time for a telephone call, letter, or court appearance; others charge flat fees for the use of standardized documents developed over the years, or for specific tasks.

                        Senior partners-------------------------/hour
                        Partners---------------------------------/hour
                        Associates------------------------------/hour
                        Paralegals-------------------------------/hour
                        Law clerks------------------------------/hour

Costs and expenses that are passed through should be enumerated in enough detail to avoid misunderstanding.  Charges passed through other than “at cost” should be detailed to avoid omitting a “standard rate, fee or charge.” Caution should be exercised in “marking up” or “surcharging” costs, as some authorities consider such practices unethical. Caution should also be exercised in charging for items that would be considered general office overhead.

Think about Maxwell Belcher's hourly rate. He's earned it. Combine that when he and his partner and a law clerk discuss the case, after they take a conference call from Don.  When Don calls the firm, they probably get at least 2 Associates, a Paralegal and a Partner on the line: assemble the team.

Time is charged in minimum units of one-tenth (. 1) of an hour. The following have higher minimum charges:

                        Telephone calls:        
                        Letters:                    
                        Other:

The costs and expenses commonly include, service of process charges, filing fees, court and deposition reporters' fees, jury fees, notary fees, deposition costs, long distance telephone charges, messenger and other delivery fees, postage, photocopying and other reproduction costs, travel costs including parking, mileage, transportation, meals and hotel costs, investigation expenses, consultants' fees, expert witness, professional, mediator, arbitrator and/or special master fees and other similar items. Except for the items listed below, all costs and expenses will be charged at Attorney’s cost.

In-office photocopying                           /page
Facsimile charges                                  /page
Mileage                                                 /mile
Other:                                                                      


The latest news is that Sterling has hired private investigators.  Consider a typical provision in a standard attorney-client fee agreement.  Don calls in ... the team assembles for the conference call.  Don wants to hire a private investigator. They decide to hire 4 separate firms.

Experts, Consultants and Investigators.  To aid in the preparation or presentation of Client’s case, it may become necessary to hire expert witnesses, consultants or investigators. Client agrees to pay such fees and charges.  Attorney will select any expert witnesses, consultants or investigators to be hired, and Client will be informed of persons chosen and their charges.

June 4, 2014

Lawyer Videos

Two remarkable lawyer videos:

One is (allegedly) an advertisement:



The other is (allegedly) from a Florida courtroom:




May 30, 2014

Notes on Sterling's response to the NBA

II - The Commissioner Has Not Established a Violation of the NBA Constitution

I love how Sterling's lawyer distills the entire event into a simple sentence:
"A jealous rant to a lover never intended to be published cannot offend NBA rules."
I  Because the Conversation that V. Stivano Illegally Recorded Invades Sterling's Rights ... Cannot Be Used For Any Purpose, These Proceedings Must Be Terminated.

A person's privacy may be invaded when another person is found in violation of Penal Code section 632(a). V. Stiviano may have been in violation of California law. However, she has not been arrested or charged. She may become a defendant in a misdemeanor case. But to my knowledge the case hasn't been referred to the LA City Attorney's Office.

Her eavesdropping could also make her liable for damages if Donald T. Sterling were to sue her for invasion of privacy under the California Constitution.

While Sterling may have a right to expect that his private, confidential communications will not be recorded, his expectation of privacy under the circumstances must be reasonable.

The man was having an extra-martial affair. In most people's view, even in our enlightened society, those particular circumstances would tend to diminish one's expectation of privacy.

It's highly doubtful that any court would allow a litigant to invoke his Constitutional right to privacy to protect hate speech that took place during a conversation between an 80-year old married man and his much younger paramour.

There are so many other flawed arguments in that beautifully crafted pleading.

Oh, man, I wonder how much that thing cost?!

Looks like the problem is solved for now, though. Ballmer is prepared to peel off 2 off his stack of 20 billion.