Anyone can do it

While dealing with law and legal stuff is problematic for most folks, I've learned that if you can get over your fear of law (because it's only as scary as you make it out to be), the world is your oyster.  Basically,  just go with your gut when it comes to law and legal things.

Funny thing is when I work with legal newbies, I tell everyone to go with their gut.  What does "go with your gut" mean?  It means to to do what you think you should do.  Heck, I've spent 50 years developing my gut and as my wife can attest, it is sizable enough to instill confidence in anyone!

In any event, I'm talking to this guy about how to write a motion and he's totally freaked out because he's never even been in a law library.  So, I start with the basics and share that there are five (5) documents associated with any motion (noticed or ex parte).

1. Notice of Motion (says: "Hello everybody, I'm writing a motion)
2. Motion (says: This is the motion I just told you about that I am writing)
3. Declaration (says: This is what happened (i.e. the facts of the case))
4. Points and Authorities (says: This is what happened as it relates to the law)
5. Proposed Order (says: This is what I want the judge to do)

Typically, the first two (Notice of Motion and Motion) are combined into one document.  So, wanting to show guy examples of each of the above documents I walk over to our civil practice section of the library.  While I am normally a big fan of California Civil Practice: Procedure (Thomson Reuters), I start with California Forms of Pleading and Practice (Lexis).  Of course, he can't find what we needs so we saddle up to AmJur Pleading and Practice Forms Annotated (Thomson Reuters), find what he does need and simply modified it to our jurisdiction (which, in this case, is/was California).

The thing with law and legal research things is that it's easy enough to do.  Of course, it's easy for me to do - which brings us to the moral of this story.  If you're in a bind and need something law and legal, do NOT rely on the Internet or fiddle around on your own until you're about to pop.  Instead, head on over to your local county law library and let the professional Librarian(s) help direct you to where you need to go to get done what you need to get done.

Thus sayeth the Librarian

Have you ever read the Bible? Whether you have or have not, let me clue you into a pertinent fact. When the text says, "Thus sayeth [the prophet] or [the Lord]," that's the time you should pay attention.  Like the prophets of old, your modern law Librarians are as close to a prophet as most people are ever to come across.  Dang, but everything we say is scripture and should be taken down verbatim!

For example, the other day an oldish woman came in the library.  Seems she was looking to create an estate planning packet including a pour over will, a living trust and powers of attorney (financial and health care).  For the record, while most all law libraries have resources related to estate planning, not all resources are created the same and some are better than others.

Anyway, I started with California Wills & Trusts Forms (Lexis). She says it's too complex.  I then show her Drafting California Revocable Trusts (CEB), California Will Drafting (CEB) and California Powers of Attorney and Health Care Directives (CEB).  

Still, too complex, says she.  Throwing a Hail Mary, I led her over to Am Jr Pleading and Practice Forms Annotated (Thomson Reuters).  Says she, "don't you have anything that is easier?!"  Yes, there is one or two titles that will get you to first base, says I, but I would not suggest using it as your only resource. Demanding that I show it to her, I hand her Living Wills & Powers of Attorney for California and Quick & Legal Will Book (both by Nolo Press).

Sadly, she was happy with that and declared that she had everything she needed and would supplement her trust with what she could find on the Internet.  With a heavy heart, I muttered, "Thus sayeth the Librarian,....you really, really don't want to do that"  but off she went happy with her second string resources.

Months later, children of the woman came in looking to see what they could do because (their words) the probate judge had just struck down the woman's trust and invalidated her "living" will sending her entire estate through probate.  Oops.  I don't like saying I told you so, but....

I guess the moral to this story is (if moral there be), if your local county law Librarian thinks it important to tell/show you something, you'd best heed their warning lest you become an example of what others should not be doing.  

Thus sayeth the Librarian.

Can't Win for Losing

It is a strange day when I don't see a lawsuit where someone isn't doing something stupid that then causes them grief for untold years to come.

Take the case I read the other day, Goodrich v. Sierra Vista Regional Medical Center.  Seems Doctor was hired.  When her original contract expired, it was decided not to retain Doctor and Doctor was let go. Doctor didn't like that and filed a writ of administrative mandate contesting her termination (but didn't bother to show up to the hearing).  When Doctor's writ was denied, she filed five motions in quick succession contesting the denial and each motion was denied (i.e. Doctor didn't win).

Sierra Vista petitioned to have Doctor declared a vexatious litigator under CCP 391(b)(2) and was denied (i.e. Sierra Vista lost).  Not to be outdone, Doctor then filed one more motion to overturn the original denial.  I guess it's like that one Monty Python skit where the extremely fat guy eat and eats and then pops when he eats that one last dinner mint.  Anyway, Sierra Vista again petitioned to have Doctor declared a vexatious litigator and this time Sierra won.  Huzzah!

The problem with being declared a vexatious litigator is that if it wasn't a pain just to have to jump through a bunch of hoops hoping to win your lawsuit (or defend against one), now you get to deal with a whole 'nother bunch of hoops, like:

• Under CCP 391.7, in addition to other relief, the court, on its own motion or the motion of any party, enter an order prohibiting a vexatious litigant from filing any new litigation in California in pro per without first obtaining permission from the presiding judge.  A vexations litigant who disobeys this order may be punished for contempt of court.

What this means is that if you're a vexatious litigant, you can't sue anyone without permission. That's ANYONE in the action you started or any future litigation in the entire state.  Really sucks - particularly if someone finds out about your status and they start to piss you off; you can't go after them in court unless you get permission from the court to file a lawsuit.  Like being in kindergarten and having to ask to go to the bathroom.  What a pain.

• Under CCP 391.7(b), the presiding judge can require a vexatious litigant, prior to filing any litigation, to provide security to cover costs the defendant(s) may incur.

What this means is that before you can file any litigation in the state against anyone, a vexatious litigant has to post a bond to cover costs that a perspective defendant might incur.  So, if the defense might incur $1,000,000 in costs, you have to post a bond to cover that amount (whether they actually incur all those costs, or not). 

• Under CCP 391.7(c), the court clerk can refuse any litigation a vexatious litigant tries to file subject to obtaining a pre-filing order from a presiding judge to permit said filings.

What this means is that a clerk and completely ignore your attempts to file any legal documents in any future action (either related or unrelated to the matter you were originally labeled a vexatious litigant).  You could have written the best legal complaint ever written but if you're on that vexatious litigant list, you're screwed until you get permission from a judge to file a lawsuit.

• Under CCP 391.8(b), a person declared a vexatious litigant can file a motion to be removed from the vexatious litigant list. If their motion is denied, they can't file another application for twelve (12) months.

What this means is that you don't have to be a vexatious litigant forever.  You can ask the court to be removed from the Official Vexatious Litigant list.  If, however, you've pissed off enough people with your insistent litigation, you're request will probably be ignored and you won't be able to file another request for ONE WHOLE YEAR!

Bottom line, if you're one of those persons who are easily offended or hold onto grudges for a long time, stay away from the litigation arena.  I mean, stop before you leap because even if you can, it doesn't mean you should and you're probably best served to avoid the legal system altogether. I'm just sayin.

Calm Down

For the most part, I really dig being a Librarian.  The part(s) that I don't like is when people take their frustrations out on the Librarian (in this case, me). 

Take, for example, the young lady who came in the other day.  Seems young lady was a paralegal student.  I don't know what her life is like in class but what I do know is that she was a raging, uh....maniac. Yeah, that's a word (not the first one that popped in my head, but it will do).

In any event, there is a term that I use when I teach the "how" of legal research: RANGE.  RANGE is the distance between two points.  RANGE is also the key to finding resources in a law library (because rarely do you see what you need on the spine of the book).  

For example, say you were using Words and Phrases and were looking for case law on Custodial Interrogation.  I would, of course, reach for volume 10B because on the spine of volume 10B it reads Cruel Beating to Cystotomy.  Because "Custodial Interrogation" is within the RANGE (i.e. starts with "Cus") of Cruel Beating to Cystotomy, volume 10B is the book I want to use.  Round about logic but I hope you get the gist.  Thus, unless you know how the alphabet works (i.e. A, B, C, D,....) and how RANGE is applied, you're not going to find squat.

In young lady's case, she wanted to know how to find information related to Easement by Necessity in American Jurisprudence, 2d. So, we cheated a bit and started looking in the index.  We still have to deal with RANGE and the alphabet so, starting with "E," we looked for "Easement" then under  "N" for "Necessity."  The Index said to go to Easement section 27.  

Off to Easement section 27 we went and found her answer and that should have been the end of it ("should" being the operative word). Young women, however, became "upset" that I was saying the alphabet out loud and explaining the "how" of legal research and RANGE and in mere seconds was stomping around, threatening lawsuits, and all that jazz.  Jeesh, some people's kids.

The thing is, Librarians are pretty cool cats.  We know what we're doing and are more than willing to help you learn what we know (and "how" to do it).  What is not all that cool is when people bring their frustrations to the library.  Here's a suggestion.  If you need help, your local county law Librarian is the person to talk to.  Just, please, leave your baggage outside.

Word of the Month for May 2016: Latent

There used to be a time when I was surprised about stuff. Graft, corruption, greed - few things surprise me, anymore.  Take, for example, the story about the latest Parmesan Cheese scandal.  

Seems the FDA recently conducted a raid on Castle Cheese, Inc.  Seems "someone" tipped the FDA onto the fact that Castle Cheese was using wood pulp in its 100% Parmesan Cheese product and passing it off as 100% Parmesan Cheese (and not mentioning that part about using wood pulp).  Turns out the FDA discovered that Castle Cheese was, in fact, adding more than 4% wood pulp to its 100% Parmesan Cheese resulting in a guilty plea by Castle Cheese President, Michelle Myrter, who is facing a $100,000 fine and up to a year in prison.  OK, who came up with the name "Myrter." Personally, that sounds faker than a wooden nickel but that's the story and the FDA is sticking to it.

The problem is that consumers don't know that makers of Parmesan Cheese use wood pulp as a filler in their product. While 2-4% is legal:

Essential Everyday 100% Grated Parmesan Cheese, from Jewel-Osco, was 8.8 percent cellulose, while Wal-Mart Stores Inc.’s Great Value 100% Grated Parmesan Cheese registered 7.8 percent, according to test results. Whole Foods 365 brand didn’t list cellulose as an ingredient on the label, but still tested at 0.3 percent. Kraft had 3.8 percent.

While we all need fiber in our diets, it would still be nice if producers actually included what kind of fiber we are eating on the product labels.  Of course, all of this leads us to our word of the month: LATENT.  According to Black's Law Dictionary, LATENT means concealed; dormant (a latent defect).  While LATENT is generally associated with construction defect issues, it has also (more recently) be attributed to consumer laws.  Some great resources where you locate information about consumer laws include:

• Consumer Warranty Law (NCLC)
• Consumer Law Pleadings (NCLC)
• American Law of Products Liability (Thomson Reuters)
• Owen & Davis Products Liability (Thomson Reuters)

Yep, there are a whole lot of unscrupulous people out there in producer land.  Good thing there are hard working law Librarians available to help you identify your rights under the law so you can get things moving.