30 September 2004

Just a couple of slightly off-kilter news items and comments this morning (or what's left of it)…

From all appearances, the command-and-control system in the USAF JAG's office is TU. The JAG (that is, the highest-ranking uniformed lawyer in the USAF) has asked to be relieved of his duties while allegations of improper sexual conduct are investigated. On the one hand, this is definitely the right thing to do. Any senior officer under investigation should take a temporary "leave of absence." However, as the article indicates, there may be some elements of payback involved; and, according to my sources, the scraps of the allegations that have thus far gotten out of the bag are inconsistent with MG Fiscus's character. That's not to say that they're inherently uncreditable—just that the investigators need to proceed with more than ordinary caution, which is a tall order given the caution with which one must proceed in any investigation involving a flag officer.

One of my favorite erstwhile opponents took one in the shorts (at least at the trial-court level) yesterday. Our good buddies in Reston found out that, at least in New York, an adhesive choice-of-forum clause doesn't necessarily divest a small-claims court of subject-matter jurisdiction. This is an issue that I have more than a touch of familiarity with, after the fiasco in Hill v. Gateway that I won in the trial court… and lost on appeal, largely due to the identity of the panel. I've even had specific experience with Virginia choice-of-forum provisions in other consumer contracts (involving a certain large Virginia-based issuer of credit cards whose ads one cannot escape on TV). Basically, what AOL does is bury a choice-of-forum clause in the middle of its TOS, knowing full well that most of those few consumers who will actually read the agreement won't understand the clause. Of course, this is far from unique! It's also far from acceptable.

Last, and probably least (courtesy of Bag & Baggage), is a recent opinion from the California Court of Appeal that has interest only to the civil procedure nerds among us. Since that includes me, we'll just cut to the chase. Basically, the Court held that the California Code of Civil Procedure is about as clear as the assembly instructions for a 1970s manufactured-in-Asia bicycle. The it did something unusual. Really unusual, taking advantage of another Byzantine aspect of civil procedure. Ordinarily, the side that wins an appeal can get reimbursement of its costs of appeal (the filing fee, the reproduction costs for the record and briefs, etc.—but not the attorney's fees). However, the court of appeals—this is pretty universal in US courts—can deny those costs. California's rules, however, contain an unusually worded provision (Rule 27(a)(4)) that allows something else to happen. I can do no better than to quote the opinion:

But as to costs, now for something a little different: We have the discretion under rule 27(a)(4) to award costs in the interest of justice. ("If the interests of justice require it, the court may award or deny costs as it deems proper.") In this case the interests of justice require that we award costs to the losing party.

There are two reasons. First, counsel for Quest practically would have had to have a PhD in appellate procedure not to have made the mistake he did in filing too late. He did what was intuitive: When the trial court entered a minute order requiring his adversary to prepare a formal order, he waited for counsel to do what the trial court had ordered them to do.

Second, and most dispositively, counsel for Icode were quite naughty (we will purposely use a word with less sting in it than might otherwise be appropriate), in obviously deliberately ignoring the trial court's August 29, 2002 minute order requiring them to submit a formal order of dismissal. It is interesting that, given the deadline on the July 15 order was 180 days, a reasonably responsive compliance by Icode's counsel with the trial judge's direct order to them might have saved this appeal….

True, as we have shown above, the August 29 order was invalid. Even so, counsel did disobey it, and we, for our part, have the power in this little way to express disapproval of their lie-in-wait tactic. Yes, the tactic worked: The case against their defendant is either going to Virginia or going nowhere, so verily they have their reward. But for that bit of scofflawery they shall pay appellant's costs in this appeal, which is now, rather reluctantly, dismissed.

Quest Int'l v. Icode, Inc., No. G032276, slip op. at 36–37 (Sep. 22, 2004). "Quite naughty" indeed. And, yet again, we're back to Virginia. <SARCASM> Gee, you don't think that maybe Virginia courts have a reputation as unreceptive to claims made against Virginia defendants by outsiders, do you? </SARCASM>