My mission as a personal injury trial lawyer is to make a difference for my clients and to maximize a recovery for them.
I discovered in the first years of my professional work that on occasion I had knowledge and insight that could benefit others that should not be buried in courthouse files. By sharing it I could help others and make a difference, above and beyond helping a client.
In every lawyer’s practice there comes a time when s/he has immersed themselves in an issue, studied an opponent’s criticism, and argued the pros and cons before a judge and usually with a judge. At that point in time that lawyer is an expert on the issue.
The gift of a learned profession is its intellectual vibrancy and commitment to the common good. There is no better way to celebrate that than by taking an extra step, after briefing and arguing a topic, by publishing your work and scholarship for the benefit of others.
I went to law school to make a difference and publishing law review articles was one way to do that. Publishing a law review is a rare feat for any practicing lawyer and I strongly recommend the experience. For me it has been gratifying to see the power of an idea become a reality and a vehicle for change more than once.
Here is my story how five law review articles came to be written and published.
Expungement of an arrest record of an innocent person
By the time I came to California in 1972 I had some criminal law experience. I had tried 18 criminal cases in Michigan state court, represented a dozen defendants in federal criminal cases and had represented witnesses before Grand Juries.
After leaving Melvin Belli’s firm with Bob Lieff in 1972, I defended one of the Grateful Dead’s chemists in a federal LSD manufacturing and money laundering prosecution in San Francisco before the infamous Samuel Conti. “Orange Sunshine” LSD was the star of the show, along with Timothy Leary, a legendary advocate for mind-expanding recreational drugs, who was brought to San Francisco to testify by co-counsel Michael Kennedy a very gifted lawyer and renown champion of San Francisco’s Mitchell Brothers.
Research in the LSD case was the genesis for a law review article on arrest record expungement in the University of San Francisco Law Review: Arrest Record Expungement in California: The Polishing of Sterling, 9 University of San Francisco Law Review 299 (1974). The premise was straight forward. If you were innocent, i.e., never prosecuted, your arrest record should be expunged.
My article was noted by Justice Stanley Mosk in the unanimous decision he authored for the California Supreme Court in Loder v. Municipal Court, 17 C.3d 859, 868 (1976).
It has been a long time coming but recently California instituted a procedure for the expungement of criminal records of innocent people.
Judicial review of Grand Jury indictments through a preliminary hearing
In my first criminal defense in Santa Clara County I appeared before Judge James Scott, the presiding criminal judge, and demanded a preliminary hearing for my client who had been indicted by a Grand Jury.
A preliminary hearing is a valuable opportunity to require a prosecutor to produce witnesses to support a prosecution and allows a defendant to test the strength of that evidence by cross-examination. It has been the common practice when a criminal case is initiated with a complaint filed by the District Attorney.
Judge Scott laughed as he denied what he thought was a preposterous innovation in California law to allow a preliminary hearing in the case of a criminal case that was started with an indictment by a Grand Jury.
Actually, my motion was not all that creative since preliminary hearings were available after indictment in Michigan. My goal in making the motion was to push the envelope in defending my client. What surprised me was that Scott smirked as he denied my motion, but that didn’t last long. My work in that case became the basis for an article that changed California law.
In 1974 I published in the Hastings Law Journal at article that I co-authored with Sheldon Portman, the Santa Clara County Public Defender, whom I met in the founding of California Attorneys for Criminal Justice. In Grand Jury Indictment Versus Prosecution by Information – An Equal Protection – Due Process Issue, 25 Hastings Law Journal 977 we advocated for preliminary hearings not just after the filing of a complaint but also when a criminal case was initiated by a Grand Jury. The premise was that Grand Juries are readily manipulated to reach any decision a prosecuting district attorney desires and subjecting the Grand Jury witnesses to cross-examination was a necessary requirement to assure a fair and equitable process.
Justice Stanly Mosk, a University of Chicago graduate who befriended me at alumni and bar functions, cited our article in Johnson v. Superior Court, 15 C.3d 248, 269 (1975) (Mosk, J., concurring).
Judge Scott no doubt choked in 1978 when the California Supreme Court adopted our proposal and mandated that an accused defendant was entitled to a preliminary hearing in cases of an indictment by a Grand Jury. See Hawkins v. Superior Court, 22 C.3d 584 (1978). After this decision, I chided Justice Mosk for ignoring our article in the Hawkins opinion even though it had shown the way for this change in California law.
In 1980 I stopped by the Stanford Law School Library near my home in Palo Alto to do some cite checking and was told that local lawyers had to pay a fee to use the facilities. I asked if that applied to scholars and was asked how I qualified. I asked to be introduced to the head librarian who came to the front desk. I asked her to join me at a display case in the hall featuring articles on civil rights.
On display in the glass case were Arrest Record Expungement in California and Grand Jury Indictment Versus Prosecution by Information – An Equal Protection – Due Process Issue. That earned me a year long pass to the Stanford Law Library. I wish cell phones had existed back then. That was a scene to be photographed for sure.
Requiring an insurance company that collected premiums to pay judgments against its insured
In the mid-1970s I had joined the law firm of Jim Boccardo in its San Francisco office. The firm represented seamen who were members of the National Maritime Union. Many of the firm’s clients had won Jones Act judgments that were uncollectible because of a loophole in New York insurance law.
I took on the American Club of Marine Insurance in New York in federal court in San Francisco to collect those judgments. I lost that case and was not able to collect from the insurance company, even though the shipping company had paid its insurance premiums and there was coverage.
The American Club of maritime insurers won the lawsuit because of a loophole in New York law allowing it to profit at the expense of American merchant seamen injured on board ship.
This was a problem that needed to be addressed and the law needed to be changed. I discussed the issue with a former professor, the famous Grant Gilmore, a legal legend at the University of Chicago, whose book on admiralty four years out of Yale Law School won Harvard’s Ames Award.
The article I published in the Brooklyn Law Review explained how a defect in New York law allowed an insurance company, after collecting premiums, to escape paying a judgment against its insured because the insured was bankrupt. Admiralty, Federalism and the New York Direct Action Statute: Seaman’s Rights to Enforce Jones Act Judgments, 49 Brooklyn Law Review 1979 (1983).
Hon. Bill Passannate, who represented Greenwich Village in the New York Assembly, liked my proposal and as Speaker Pro Tem introduced a bill to change New York law as I had suggested in my article. His letter to me is framed in my office.
Privacy in banking records
In 1976 the U.S. Supreme Court ruled in United States v. Miller, 425 U.S. 435 that the holder of a checking account had no Fourth Amendment right against an unreasonable seizure of cancelled checks. That made page one news across the United States. In other words, the bank, and not the account holder, owned the cancelled checks. In my view this decision was not good public policy. The New York Times agreed.
I knew something about the topic as a result of the Grateful Dead “Orange Sunshine” LSD case. I had researched IRS special agents using “vest pocket” subpoenas to gain access to banking records without a warrant, so I gathered my research on the topic and the result was a law review article in the Southwestern University Law Review. Privacy, Banking Records and the Supreme Court: A Before and After Look at Miller, 10 Southwestern University Law Review 13 (1978).
Consumer’s rights when changing a contingency fee lawyer
The Boccardo Law Firm where I practiced from 1976 to 1987 routinely accepted clients who had fired an under-performing first lawyer. When those cases were concluded there always was a claim by the discharged lawyer to be paid attorneys’ fees for the work performed before discharge.
A major headache in resolving those claims was a 1972 decision by the California Supreme Court in Fracasee v. Brent which held that a discharged lawyer could claim the reasonable value of the lawyer’s work by suing the former client. That decision by Justice Burke followed traditional contract law and concluded that the discharged lawyer could sue the former client for the reasonable value of the services provided. That approach promoted unnecessary litigation and ignored a far better way to resolve the dispute.
After briefing the topic I decided that it merited publication. At that time The State Bar of California published a monthly bar journal. In Consumers’ Rights in the Legal Marketplace, 54 California State Bar Journal 314 (1979) I opined that that Fracasee was wrongly decided and that holding that the former lawyer could sue the client ignored the reality that the real dispute was not between the lawyer and client but between the first and second lawyer who should be the only parties involved in resolving their differences. Why involve the client as a consumer of legal services in useless litigation? That 1979 proposal has now become the common practice in California.
If I can do it, so can you.