The Trivial-Defect Doctrine: Where It Came From. How to Beat It.

The “trivial-defect doctrine” is the defense strategy of choice in sidewalk trip-and-fall lawsuits. It is a formidable weapon because it allows a judge to determine that the sidewalk defect that caused the plaintiff’s fall was “trivial” and therefore not actionable as a matter of law instead of submitting the question of a defendant’s negligence to a jury. In essence, the court holds that the defect at issue was so trifling that, as a matter of law, it was reasonable for the defendant to allow the defect to go unrepaired.

Six Tips for Effective Writ Practice

A “writ” is an order issued by the reviewing court to an inferior tribunal, typically the superior court, directing it to do something (mandate) or forbidding it from doing something (prohibition). Article 6, section 10 of the California Constitution defines the relief available by writs as “extraordinary.” Likewise, the cases refer to these writs as “extraordinary writs” and note that, “. . . writ relief is deemed ‘extraordinary.'” Science Applications International Corp. v. Superior Court, 39 Cal.App.4th 1095, 1100, 46 Cal.Rptr.2d 332, 334 (1995).

When Arbitration Becomes Impossible: When are parties excused from an agreement to arbitrate?

Arbitration deters claims because it is expensive. Someone who wants to file a civil lawsuit has to hire a lawyer and may have to pay the costs of depositions and experts. But the costs of having a forum to hear the case are usually nominal. In arbitration, the costs of the lawyer and discovery are the same (unless no discovery is permitted) but the forum costs money – often a lot of money. And that does not even count the cost of the arbitrator. The filing fee for the American Arbitration Association in a standard commercial case is computed as a percentage of the amount at issue, and can amount to thousands of dollars. Arbitrators are typically practicing lawyers or retired judges who charge $400 to $750 per hour.

What is wrong with the LA Checker Cab decision?

Ehrlich Firm submits depublication request to California Supreme Court concerning LA Checker Cab Co-Op, Inc. v. First Specialty Ins. Co. on behalf of Consumer Attorneys Association of California.

The insurance industry is claiming that the decision in LA Checker Cab categorically eliminates insurance coverage in California for all claims based on negligent hiring or negligent supervision. But the decision, which was drafted by the court with the expectation that it would be unpublished, only devoted a single paragraph to this issue, and resolved it in a way that was contrary to established California Supreme Court precedent.

The court’s failure to resolve the issue correctly appears to have resulted from incomplete briefing it received. The appellant failed to file a reply brief to respond to the insurer’s arguments, and failed to present any oral argument.

More detailed arguments pointing out the flaws in the opinion are explained in the depublication request submitted by the Ehrlich Law Firm on behalf of CAOC to the California Supreme Court.

Read LA Checker Cab Depublication Request (.pdf)

Review of WestlawNext, new upgrade from Westlaw

On February 1, 2010, West rolled out its new, updated version of Westlaw, called WestlawNext (“WLN”). West is sparing no expense to market the new product, with ads in airports and high-traffic web sites. In addition, whenever you sign on to Westlaw (now called Standard Westlaw) you see a prominent invitation at the right of the screen to take a video tour of WLN. Basically, the promotional video touts three major improvements: (1) new search algorithms that make it easier to find what you are looking for, (2) a new updated interface that makes it easier to build effective searches, and (3) new ways to organize and store the results of your research in folders created and stored within WLN.

After viewing the videos, I was interested in learning more. I emailed my Westlaw rep and asked her for more information. She sent me a temporary password, good for a week, which gave me full access to WLN. I didn’t really have time to use the new product extensively that week. But in the brief time I used it I was impressed enough to want to know what it would cost to switch. The news didn’t make me happy: A straight switch-over would increase my monthly Westlaw bill by about 20%, and would require a new 3-year commitment. So I dropped one of the databases that I seldom used, which brought the cost down a bit, and signed up for the new product. Here is my report.