Tag: Patrick D’Arcy

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ARE YOU A STUBBORN FOOL OR A STUBBORN VISIONARY? by Patrick J. D’Arcy

THE STUBBORN FOOL VS. THE STUBBORN GENIUS

We all know them. We are “them.” Stubborn. Unbending. Unyielding. Arms across your chest with your hands over your ears stubborn. Are you being smart or, well, a jackass? That’s a question that has easy (and not so easy) subparts.

SOME KINDS WORDS FOR THE EMBATTLED DONKEY!

When we think of “stubborn,” the poor donkey comes to mind. (Sorry to you donkey lovers about the “jackass” reference!). Donkeys really get a bad rap. They are fascinating animals. In your stubborn beliefs, you think of a donkey as dumb, legs locked, and refusing to do work. Well, let’s talk about that. A donkey will fight and kill a hyena. Donkeys are smarter than horses, and have a better field of vision. In terms of strength, donkeys are stronger than horses their own size. The locking of the legs is a common trait for donkeys. You know why? Because it is careful where it steps, to avoid a fatal injury. You can’t just force a donkey to walk. He is afraid he’ll get injured. His hoofs are for climbing, and by default, he is careful where he treds. Donkeys are as intelligent as dolphins and dogs, and have excellent memories. Donkeys are very affectionate, but that takes time to develop with them. Donkeys are awesome protectors against predators, such as foxes and wolves. Ok, back to the article.

THE STUBBORN FOOL

These types are easy to spot. Like a sea anemone, they refuse to change. They drive 55 mph when traffic flies by at 85 mph. They refuse to use Google Maps, and instead, get out their 1970’s Thomas Guide for city streets, and through trial and error, find their way on to the correct grid. Or worse, they stop at the gas station expecting to find a fold-out map of the general location of the city, and “wing it” by asking locals. The navigation system in their car is “too complicated.”

You will observe them in their native habitat at home or at work. Whatever you tell them about the latest greatest, they say “No. I’m fine.” You found the answer to a question they had on the internet. “Nah, I know the librarian. I will go see and talk to him, and look for a book on the topic.” “Google? Why? I was born way before that, and I got along just fine without it.”

THE STUBBORN GENIUS.

These types seem like oddities to the conventional thinker. That’s because they are not conventional thinkers. To the stubborn genius, the conventional thinker is the stubborn fool. He’s the guy that invented the navigation system that the stubborn fool refuses to even learn. He invented air conditioning, the Mac, the Iphone, and fiber optics. He’s Thomas Edison. After 2,000 “failures” he got the light bulb to work. The stubborn genius transforms our lives, and his vision eventually our new normal. The stubborn genius is often misunderstood, under attack, and fighting to make change happen to improve our lives, or find a better way of doing things, while fending off attacks from stubborn fools.

YOU CAN BE A MIXTURE OF BOTH.

Stubbornness is not a “bad” thing. It just is. These traits are just traits. You can put whatever label you want on it, but it comes down to behavior. The stubborn fool is closed-minded. But, being “closed-minded” is wisdom if his has direct experience in that area, and knows the pitfalls of what a person proposes to do. You can be “stubborn” because you refuse to eat cottage cheese. Again, this is not “good” or “bad.” It’s a trait or preference, and nobody is harmed by it.

People who are stubborn in the face of danger are fools. Ask the guy that captained the Titanic. He was stubborn as hell. In his mind, the ship was unsinkable. It turns out it was very sinkable, as the metal was not cured properly. The captain let his pride, ego or need for control get the best of him. You can be stubborn by waiving off people’s ideas. Stubbornness must be viewed in context. (I will never, and I mean, never, eat cottage cheese). I am always open to new ideas on just about anything else. However, as noted above, if the idea is on something you have directly seen first-hand, and it was bad, then hold on to your stubbornness. The person advocating it is being stubborn too, but in a foolish way.

CONCLUSION

On the extremes, we can identify foolish and genius stubbornness. The genius perseveres despite the set backs. He has a goal that he is trying to achieve. His behavior stems from being aggressive, confident and a visionary. The stubborn fool is closed-minded, and won’t listen to anything unless he agrees with it. Some of this behavior can be traced to insecurity. Some of it is rational too – like the guy in Office Space who held rigidly to an outdated process to save his job.

Like with all types of behaviors, it is complicated by the personalities, needs, desires and the beliefs of persons, which are as varied as you can imagine. When thinking about this, ask yourself, “In what areas am I being stubborn, and does this hinder or advance me in my career and my life?” Focus on you, and work on your own self-betterment. Keeping an open mind is the anti-thesis of being stubborn. Who knows, you might surprise yourself. I now eat figs and avocados after swearing them off my entire life. I threw away my Thomas Guide too.

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Be Careful When Firing Off That Bad Review Or Fake Review On Yelp Or Google: You Can Be Sued For Defamation. By: Patrick J. D’Arcy, Irvine, Attorney

Thinking of Slinging Mud With A Bad Review On Yelp? Brace Yourself For Nasty Litigation.

Let’s say you go to a restaurant, and the service is terrible. I mean, really bad. It took two hours to get your pizza, it was cold, and the waiter was rude as hell. You decide to leave a 1 star review, and write the following:

“Horrible experience. I hated the place. It took 3 hours to get my pizza, and it had a dozen dead cockroaches in it, and the waiter called me a “jackass,” challenged me to a fight, and then called my wife a whore. I told the manager about it, and she called me an “idiot” and a liar.”

Now, some things you say are pure opinion, and not defamatory. There is no such thing as a defamatory opinion, but there are defamatory facts. Saying you “hated the place” cannot be proven true or false, as it is your opinion. You could have liked it until now. Warning – saying something is “just my opinion” isn’t likely to save you. If you say, “In my opinion, Gary is a liar,” you have admitted facts by implication, which means you defamed him. You can’t save your defamatory statements by calling it your opinion.

Insults vs. Defamation – Insults Can Still Get You Sued

Like everything else, the law has a lot of exceptions. Generally, insults can’t result in any damages, unless you say something outrageous to a young child, or a person with a medical condition, etc. While you could be sued for anything, being sued for an insult can result in the case being dropped. Calling someone a “jackass” is an insult, and doesn’t count as defamation. Things change when you call a woman “a whore” – that is defamation per se (automatic defamation, unless of course, she is, then you have the “truth” defense). Same with calling someone “a liar.” Unless they are a liar, that too is defamation. False facts will get you into trouble. Saying you waited “3 hours” (when it was 2) is a false fact, as are stating that there were “cockroaches” in the pizza. You can be sued for falsely implying something negative: “Isn’t this diner subject to health regulations?” Well it’s a question, and not a statement, the “take away” isn’t good.

The restaurant gets wind of this post, and pulls up the videotape to show you lied, and then sues you for defamation. A good defamation lawyer will get you into instant trouble. Your recourse could be to file an anti-SLAPP motion – a motion that says what you did was essentially free speech on a public issue. That will not hold for false facts and false implications that harm the restaurant. Those will be disputed facts, so you lose the motion. The Court when viewing the evidence essentially gives the win to restaurant for facts in dispute for the purposes of the anti-SLAPP motion. If you win the anti-SLAPP, the case is over and you’re done. You also get your legal fees. In the interim, your hastily posted review has burned you for at least $10K in legal fees.

California Has A One-Year Statute of Limitation For Defamation

If more than one year has elapsed since the post went up, you are in the clear in California (unless it was published in a seldom or archaic journal that is not publicly accessible). They only have one year to bring the defamation claim.

Even though I have experienced terrible service, or even gross shit (such as a waiter coughing and sneezing right on a table with dishes), I do not write bad reviews. The legal trouble – which I could deal with as a trial lawyer – is not worth it. Your bad review could mean two or more years of legal wrangling, plus the potential damage award and the legal fees that pile up. There’s nothing wrong with informing the manager, and then kindly inform them that you are not going on Yelp to make the matter public. You will see a sigh of relief on the manager’s part. Legitimate businesses really want to do the right things, and see you come back as a customer. Bad reviews, especially FAKE ONES inflict damage on a restaurant’s reputation. Rather than “Yelp” them, see if you can calmly tell the manager what happened. I am positive they’ll want to fix the problem. And if you are nice about it, and not there to nuke the place, you’ll get even better service when you show up next time.

Now, are there exceptions? Sure. If I saw restaurant employees spitting in food, I’d sure as hell write a bad review. Otherwise, if you are going to leave a bad review, leave out the person’s name (because you add more plaintiffs against you). When you say “Brenda at The Musty Bucket Of Chicken….,” you have defamed Brenda and the Musty Bucket. That’s two defamation lawsuits. My point is that leave bad reviews for those times when it is really deserved. And, when you mention an employee’s name at the store, understand the emotional trauma you put upon that person. Each day that review is up, she is reminded of what you said, probably got into trouble as well, and feels embarrassed. You have the power to hurt people with bad reviews. Exercise that discretion wisely or you could wind up a defendant in a lawsuit, and calling a guy like me to figure how to get you out of trouble. Or, the restaurant owner will call a guy like me and tell me to sue you.

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Tenants From Hell Warning Signs – by Patrick J. D’Arcy, Attorney

Imagine Having A Tenant Do This To You?

Tenants From Hell Teach You What You Didn’t Know About Landlord-Tenant Law

If you are a landlord, you must be on guard for the “tenants from hell.”  A “tenant from hell” is someone who will make your life a living hell by: 1) not paying the rent; 2) destroying your property; 3) being judgment proof when the Sheriff tosses them out; and 4) costing you a fortune in repair and renovation costs.  For those unacquainted with the an example of a tenant from hell, watch the classic movie, Pacific Heights, with Matt Modine and Melanie Griffith (as inexperienced landlords) getting rolled over by Michael Keaton, a tenant from hell.  Keaton drives a Porsche 911, issues bad rent checks, breeds rats and mice to drive out the other tenants, stages a fake fight with Modine to get him arrested and then kept away with a restraining order so that Keaton can try and kill Griffith while taking the building through legal action against the landlord.

I’ve evicted numerous tenants from hell.  Nearly all of them destroyed the home/apartment before they were evicted.   I recently evicted assholes renting beautiful homes in Turtle Ridge.  They drilled holes in the walls and filled the wall space with water as to claim “mold” injuries. Another just tore everything out of the house, after filing fake bankruptcies, etc.  I crushed them. But, the damage they did was real.

Poor Melanie Griffith.  She is an inexperienced and nice landlord about to be schooled by a professional tenant from hell, and risk losing her building to a Porsche driving “Carter Hayes,” who moved in with a bad check.  And that was just the beginning.

Tenants From Hell Warning Sign – They Are In A Hurry And Put Pressure Upon You To Move In

They are in a HURRY to move in.  There is some “emergency.”  They want you to bypass normal protocols – like waiting to see if the check actually clears.  They may even hand you a forged or fake money order or cashier’s check.  Once in – they are TENANTS.

More Tenants From Hell Warning Signs And Red Flags

  1. They fill out a rental application, but provide fake information and then “blind” you with a large deposit (that usually is backed by a worthless check).
  2. They will give you fake references and a fake landlord to “verify” their previous tenancy.
  3. They will show up nicely dressed and act like they have the pick of any apartment they want.
  4. THEY HAVE BAD CREDIT OR NO CREDIT HISTORY.  If a tenant has “bad” credit (e.g., below 700), then reject them, regardless of their story.  If they have no credit history, then, unless they are young adults, they are likely giving you a fake name.  Reject them too.
  5. They just opened a new bank account.  You can tell by looking at the check number.  Is it a low three digit (like “109”) or worse, a  two digit number?  This is not a full proof test, because they can request the bank to make the starting number a high one, just to lull you into sleep that they’ve had the account a long time.
  6. They ask for you to send them a lease to review – before you’ve approved them and checked out their financial history and references.  This scam entails you giving them a lease.  What they then do is sign it, forge your signature, break into the house after you have left, and then lie to the police and say that you signed a lease with them.  Most police will be wary about ejecting them as squatters with a copy of a “signed” lease.  This is the so-called “Gypsy” scam rampant on the east coast.
  7. Their previous “landlord” is really a family member.  They may say they’ve been living with in-laws, which is why they can’t list a “real” apartment building.
  8. They have no credit cards, and pay only in cash or money orders.
  9. They only lease their vehicles, are currently unemployed, or have almost no verifiable employment history at all.
  10. They must move in right away because they claim their kids are now in the wrong schools.
  11. They claim they don’t have a bank account.  People without bank accounts are weird.  How do you pay normal bills without a bank account?  Even the gas bill needs a check, right?  Those without bank accounts normally are barred from having them – due to bank fraud.

Tenants From Hell Screening Procedures – It Starts With Verifying Their Income, Credit, Savings And Eviction History.

Make them fill out a written application.

  1. Obtain a credit report – and charge them for it.  Tell them (in an application), that the $50 fee is non-refundable, and make them pay you with a separate check.  This will immediately alert you if they have a “new” checking account (or any bank account).  If they have no bank accounts, then it’s possible they cannot get one because of bank fraud from passing bad checks.  Tenants without bank accounts are highly suspicious – legitimate people need bank accounts.  I’d eliminate them from consideration.
  2. Make sure the application states that their filling out the application is NOT an approval of their tenancy, but a preliminary review of their qualifications.  Otherwise, they will lie and said you charged the $50 because you “approved” them.  They will then lie and say that they are moving in now because they already gave notice at their other place, and have nowhere to go.  Stand firm.  Keep it in writing.
  3. Require pay stubs and tax returns.  This will give you great information – and help you verify their previous addresses, their social security number, income, etc.  Tenants without pay stubs are eliminated.  Unemployed tenants are eliminated.  Write down all this information – it will come in handy when you obtain a judgment against them.
  4. Verify their job references.  Call the “boss,” and ask questions that only a boss would know.  Don’t just ask: “Does deadbeat work there at $35,000 per year?”  Instead, ask: “What is his pay?”  “Who is your supervisor?”  “What does he do?”  “How many employees at the company? “Who is the president?”  “What does your company do?”  Ask a bunch of questions.  The more information, the better.  A fake reference will only know the bare minimum – pay, job title, supervisor name.  A real boss will know a lot about the tenant.  Ask them to call you back and see if the caller ID shows it to be a business.
  5. Verify bank accounts.  Ask for bank statements. Don’t have any?  Eliminate them.
  6. Verify retirement accounts.  Don’t have any?  Why?  Nearly everyone has some form of retirement plan.  Unless a young adult, not having any form of retirement account makes me suspicious.
  7. Verify cars.  Leased?  Junk cars?  Most people with money do not drive junk cars.  People without money are high risk tenants.  Remember, you are running a business, not a charity.
  8. Verify previous addresses.  Call the landlords.  Ask specific questions.  This is not a formality.  You could be talking to the tenant from hell’s best friend, and not a real property manager.  Ask for their address.  Ask for their fax number (a good way to catch a fake reference).  Ask them to describe who lived there, the name of the complex, what is across the street from the complex, the amount of the rent, etc.  Fake references will get caught in not knowing small details.
  9. Verify income.  A good rule of thumb – rent shouldn’t be more than 33% of their gross pay.  So, make them prove up their income, and then see if the property is affordable.  Tenants from hell will move into very nice homes, because they have no intention of paying for the rent anyway.  If the rent is $1,500 per month, they better be making $4,500 per month or more.
  10. Check court records.  In Orange County, for example, you can run their names on Case searches, to see if they’ve been sued.   http://www.occourts.org/online-services/case-access/
  11. Run a full background check, which includes court filings against them.  You never know what could turn up.
  12. Check criminal records.  Do you want to rent to a sex offender?  A full criminal records search will be necessary.  Unfortunately, criminal records after seven years do not show up on credit reports.  Go to the FBI sex offender registry, and enter the names of the applicants.  http://www.fbi.gov/scams-safety/registry
  13. Still with me?  If you feel they have passed the screening, California allows you to charge up to 2X the rent as a deposit.  Do not let the deposit be used as last months rent.
  14. If they are late, hit them with a 3-day eviction notice.  Set the rules.  Tell them you evict late paying tenants.  If your lease gives them a grace period (and California law doesn’t require it), make it short, like two days.  Remember, that you cannot evict during the grace period.  And, if the last day of the grace period ends on a weekend or national holiday, it is advanced to the next day.  So, keep the grace period really short.
  15. Do not charge more than 5% as a late fee.  Going beyond that could be construed as an unenforceable penalty.
  16. Do not include late fees in your 3-day notices.  Instead, issue a 3-day notice just for the rent. Issue a separate 3-day notice for the late fees.
  17. Make them do a walk-thru before moving in and before handing them the keys.  Get a written description of the property, and a check list showing how everything is in working order.  Take pictures.  Make them sign a “Mold Addendum” to protect you if they make the house moldy, and then try to sue you for fake mold injuries.  Courts like signed walk-thru forms.  Damage that the tenants caused is their fault, not yours.
  18. Do periodic inspections.  Take a check sheet with you.  If you find damage, make them fix it immediately, or send them a 3-day notice.

Finally, the above is not a guarantee, but it is a great way to protect yourself.  The following is not legal advice but given for informational purposes.  The reader of this information assumes all risk.

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The Law School Scam – You Won’t Know Anything About Being A Lawyer – By Patrick J. D’Arcy

My name is Patrick J. D’Arcy, and I am a trial lawyer in Irvine, California.  After more than a decade of handling cases, jury trials and everyday litigation, I wanted to give an honest perspective to those considering law school, and what litigation (and being a lawyer) is like.  For some, it’s the right call.  For many others, it is a ticket to non-dischargeable student loan debt and years of financial misery.  There’s too many lawyers, and not enough good-paying jobs.  All I’m saying is to make an informed choice.  Law schools are now feeling the pinch, as fewer applicants apply.  The law schools will be forced to market themselves more aggressively, since as a business, they must survive by putting asses in seats.  The law professors working at these law schools have seen the layoffs, and to remain employed, will push the narrative about how law school will open up a veritable choice of great careers.  Without asses in seats, they lose their jobs.  What this tells me is that capitalism works, even if the legal educational system does not.

This blog is my contribution to the marketplace of ideas.  If you have a burning desire to work long hours under great stress, deal with serious issues and solve problems, then the law is for you.   I come from this without an agenda other than to provide you with information from “the inside.”

While I attack the law professors generally, I want to clarify that it is aimed at: 1) those without relevant experience who instead teach; 2) their stubborn adherence to a “learning model” that penalizes and stifles learning through the “Socratic Method,” the time-honored tradition of wasted time through open-ended questions between the “law professor” and the students; 3) and this horrible lie put out by law schools that their primary responsibility is to “teach you to think like a lawyer” rather than to teach how to be a lawyer.

I’ve met great law professors who have real-world experience, and then bring that experience into the classroom.   Then, there are the others: pure academics without real experience who teach to those with even less.   Legal education in its present form – sucks.

Patrick J. D’Arcy’s Blog Is Featured In The University of South Dakota Law Review And Other Websites

Apparently my “contribution” is pissing off law professors (and their cush lifestyle) – in a big way.  Jonathan Van Patten, a law professor at the University of  South Dakota, wrote a law review article (“Skills For Law Students” 61. S.D.L. Rev. 165 (2016)), which prominently quoted my blog, and my criticism (or attack) on legal “education.”  In fact, my blog looks to be the centerpiece of his article.   He never contacted me about being “featured” in his magnum opus (which he admittedly didn’t have to do).   But, it is kind of  weird to not even inform me that I am about to be the subject of discussion in the legal community.   You’d think he would understand that point.  I doubt it had anything to do with an urgent deadline, since law professors don’t look too busy to me.

Law Review Articles Are Mostly Worthless Reading By Academics, For Academics. Trial Lawyers Ignore These Articles (Except To Criticize Them)

Few people read these law review articles, and even fewer people care what is written in them.  Having written hundreds of motions, I can tell you that a law review article being used as persuasive authority in a brief is pretty rare.  Umm, wait a second.  You are a law student applicant, right?  Then, I apologize, I am using terms you won’t know the meanings of.  A “motion” is effectively a request for the Court to “move” on something, such as moving the Court to make an order.  I am now going to tell you something you’ll never learn in law school –  a motion must be by way of notice (there are exceptions), and depending on your state’s rules, heard at least 16 court days later (not calendar days), plus five calendar days more for mailing, two business days for FedEx, and no extra days delay for personal service.  When a motion is filed, a trial lawyer first checks to see if proper notice was given.  If not, then the motion can be temporarily defeated on those grounds.   In response to a motion, the other side files an “opposition,” and then you file a “reply” to that opposition.   Ok, back to the story….

Rarer still (in fact, about as rare as discovering a 10 legged moose) is a Court’s citation to a law review article for any authority at all.  I’d feel ridiculous if, during oral argument, I told the judge about this “great law review article” that is on-point.  Law review articles – like the schools from which they reside – largely take a smattering of cases and concepts from different jurisdictions, and there is a standing rule that you NEVER cite to out of state jurisdiction (since it isn’t binding).  Even then, the judge will be sure to do his own legal research, and figure you to be a dolt if you can’t find at least one case from your state that addresses the issue.

My article was circulated at another law school (Lewis & Clarke).    Here’s a link to this very informative law review article, and you’ll notice that the law professor takes aim at me right out of the gate (starting on the top of page 2).  Van Patten Skills for Law Students_stamped 

The good professor quoted me with an obvious disdain for my thoughts and beliefs (page 2, footnote 6), which he is certainly entitled to do:

“As a trial lawyer, I am constantly reviewing the latest cases (as other lawyers do). We NEVER refer to our casebooks or our lecture notes to help us out. They are irrelevant. To prove what BS the “Socratic Method” is (the main learning device used by law schools), watch how fast these same “law professors” simply give you the information during a condensed bar review session, when they did nothing of the sort during your time in law school. Explain to me how the Socratic Method fosters learning when the “law professor” leads a class filled with students with no background in the subject, and peppers them with open-end questions chock full of wrong answers. All that results is mass confusion. What a huge waste of time. If medical schools worked this way, the doctors would have no practical training. Instead, they put them on rotations, and the professors are practicing surgeons. Not law schools- they put someone in charge who typically couldn’t hack it in court. Law schools are fine with it. They graduate functional idiots who do not know how to draft a complaint, take a deposition, know the rules of evidence, serve a complaint, file motions, etc. I learned all of this for the first time after I graduated. Law school is an extended liberal arts education. I tell you this so you can be aware of the problem you will encounter thinking graduating from law school is enough to start your own practice. When law schools speak of”practical training,” just do what I do and laugh your ass off.”

Be sure to read his criticisms of what I wrote.   I’m trying my best to get at least 200 people to read this article outside of the law school itself.

I can understand why Professor Van Patten is upset.  My blog (and those of other trial attorneys who actually earn a living practicing law) are unmasking legal academia and a threat to their livelihood.  We have crossed over to the other side, and see what is wrong with legal education.  You would think intelligent people such as law professors would just immediately reinvent themselves to address their failings.  Nope.  They have an agenda of self-preservation.

Law Schools Need To Replace Decaying Faculty Without Practical Experience With Trial Lawyers And Judges

Imagine if the law schools actually did something revolutionary, and started hiring trial lawyers to teach Civil Procedure, Torts, Contracts, Real Estate (Property), etc., and fire the law professors who lacked legal skills, teach from stale books, and get their hard-earned pay asking law students such thought provoking questions, “And, what do you think about Stacy’s answer?”  The first thing we’d do is toss your useless casebooks – an archaic invention of old cases cobbled together and put into one book.  About 200 years ago some law professor figured it would be a great idea to assemble cases together from different fields to increase learning.   The world has moved on – we are searching for cases (for our jurisdiction) on line with Lexis, Westlaw, etc.  Next, we will make the law students spend several hours per week working with outside attorneys to learn about the job, under the tutelage of real lawyers.

Imagine this scenario – the law school hires people like me to teach Civil Procedure (which are the rules of litigation in state and federal court, each with their own specific rules), Evidence (something we live and breathe in court), Torts (the personal injury lawyers will line up to teach this), Contracts (litigation attorneys are always suing over breach of contract claims), etc.  You get the idea.  Bringing in trial lawyers and practicing attorneys would create a healthy chaos – the students will be forced to actually learn something.  The typical “law professor” has been out of circulation for many years (or never been in circulation in the first place).  A problem with my approach (although a huge improvement over the current system), is that today’s practicing attorneys will get “stale” in their skills, and start to fall off the wagon.  Rules and procedures change.

Professor Van Patten’s Resume Fails To List Actual Trial Experience

I don’t know Professor Van Patten.  However, when I reviewed his resume, I didn’t see anything about jury trials, cases he won, notable appellate victories, etc., which is something I argued in my blog regarding law professor qualifications.   http://www.usd.edu/faculty-and-staff/Jonathan-VanPatten  Perhaps there is a different resume which lists this stuff? If so, great. Then get on board with me!!

What I did see (and what I ironically complained about in my blog) were articles that law professors churn out like Professor Van Patten’s important work, “Storytelling For Lawyers.”  This title is up there with the movie, Bedtime For Bonzo.  I did mention in my critique that law professors are driven to put out such articles, rather than solve real-world problems facing real lawyers. I will allow the good professor to show me his litigation experience, and I am fairly hopeful he has some. I would think that he does.

Professor Van Patten takes a few pot shots at me (and that’s ok).  But his criticisms are ineffective and ironic.  For instance, he chides me by stating: “Don’t trust a trial lawyer who uses ALL CAPS or snarky quotations to make a point.”  Well, Professor Van Patten, YOU used ALL CAPS throughout your headings to make your points, right?  And if you equate a lack of trust in a trial lawyer with the use of the ALL CAPS approach, then you’ll need to exclude A LOT of lawyers.

If you wrote briefs, you would notice that ALL CAPS is for headings (as you used in your article) or for emphasis.  Besides, the comparison is illogical.  What does ALL CAPS have to do with honesty and knowledge about trial law?  As for using ALL CAPS, we do this ALL THE TIME (just sparingly).  Another thing, Jonathan, your writing style is patterned and predictable.

Jonathan Van Patten says not to “confuse” the “third and fourth years” of medical school and their “four years of residency” with “the first two years of law school.”  Actually, I’m not confused at all.  You are.  You see, there are only three years of law school, so years two and three (not one and two) are for the “advanced” training of the law students.  In medical school, the “advanced training” takes place after the first year as well (but they actually learn how to be doctors).  It’s an analogy that was lost on you.

My Observations (Criticisms) Of Professor Van Patten’s Law Review Article.

More Is Less – Trial And Appellate Courts Want Brevity, Not Long-Winded Articles That Fill Up Space

Point 1:  This law review article is too long, and bores me.  A judge and her clerk (if it were a brief) would be pissed reading this.  A practicing lawyer knows that all briefs have page limits (including rules on font size, spacing and pagination).   Long winded articles (or briefs) are ineffective, unimpressive, and cause the reader to lose focus on the important points.  Excessive footnotes take away from the art of persuasion.  Effective writers know when to scrap arguments for brevity and clarity.  Law professors tend to think that a weighty and lengthy article is impressive, when a busy judge thinks just the opposite.  The attitude of the court system is if it takes you a long time to make your points then you haven’t thought them through.  Of course, there are exceptions, such as the 43 page appellate brief I filed to defend my trial court victory, but that’s because it dealt with 13 witnesses.

Law School Courses Are Not “Foundational,” But A Foundation Of Ignorance

Point 2.  Van Patten argues that first year courses are “foundational.”  Huh?   What the hell does that even mean?  A foundation of ignorance?  Practicing lawyers know to avoid ambiguity in their phrases.  Storytelling For Lawyers, based upon the ambiguous title, could be, for all I know, Professor Van Patten’s attempt to cure lawyer insomnia by presenting a series of really boring cases for required reading at night.  I mean, any time you can get your hands on a toxic tort case where the amount of phenylananline bifurcate 23 diboxyl exceeds 0.1 deciliters per nonliter, and the thousands of pages of data by EPA scientists in dispute with their published results, you are sure to be snoring loudly by page three.  I’m not going to lie, a “good” case will do that and get you off your sleeping meds quickly.    The first-year courses are taught so as to block learning, ok?  The “foundation” is really more like a wall of professionally prescribed ignorance.

Professor Van Patten Cites To A 1965 Study That Legal Education Sucks.

Point 3.  Van Patten cites to a 1965 article stressing the failure of legal education.  He makes my point for me: 50 years is enough time to know when something isn’t working.  The problem is that change will only occur in legal education when the “law professor” agrees to give up his cush lifestyle to benefit the students.  But asking a law professor to sacrifice for the greater good is, well, as the last 50 years has shown, not going to happen.  In 2065, a new “law professor” will write yet another useless law review article citing to Van Patten, and argue that legal education needs revamping.

Watch This Youtube Video Of A Law Professor Speaking To A Law School Graduate Working At A Gas Station.

https://www.youtube.com/watch?v=ZhjhHuMKqgs

We Need Law Review Articles Of Value

What practicing lawyers secretly dread are the undiscovered cases out there that doom their position.  In federal court, I represented a Burger King franchisee in a hotly disputed real estate lease case, where the landlord wanted $450K in damages.  I won the case because – surprise – I didn’t turn to my casebook, call my law professor or review my notes from law school.  Instead, I did what real lawyers do – research on Westlaw and Lexis and found a recently handed down case that destroyed the other side.   Van Patten says about me, “Don’t trust a trial lawyer who uses ALL CAPS or snarky quotation marks to make a point….”  Well, Mr. Van Patten, trust this – I filed Rule 12b(6) (that’s Civil Procedure Rule 12b(6)) challenges and got the owners and four of the six claims against their company dismissed, and then dismissed the case through a seldom used Rule 56 opposition to their motion for summary judgment (a motion to end the case in their favor without the need for a trial).  My clients never even appeared at one hearing.  I never learned any of that shit in law school.  Incredibly, when I started work at Sheppard Mullin in Orange County upon graduation, I didn’t even know what an “opposition” or a “reply” was.  Thanks for your observations, but my clients trust me.  And this isn’t “Rate My Professor” type shit.  These are real world problems that are serious and in need of resolution.  If my clients thought I sucked as a lawyer, you can be damn sure I’d be out of business.  This rule doesn’t apply to law professors – no matter how little information you impart, you get paid and work few hours to do it.  None of this is real world.

Could you have obtained such a result – full dismissal?  My actions saved them $450K in damages and perhaps $400K more in legal fees (including, had the other side won, potentially $500K in attorneys fees added to the $450K they sought).  In other words, the $450K damage claim, had we gone to trial and lost, was really about $1.4 million, and against the owners personally.  Instead, they got out for about $50K in legal fees.  How about the $3.7 million jury verdict I just obtained on a complex stock fraud case where I single-handedly represented 22 plaintiffs, and did the direct, re-direct, cross and 776 examinations for every witness, including the defense expert, a person with 40 years of experience and over 400 trials under his belt?  I got their expert to admit my clients were defrauded.  Do you realistically think that you would stand any chance at all against me if we faced off in open court – assuming you have limited or no trial experience?   While law professors perfect their law review articles, I am working hard figuring out how evidence could be excluded, the missing evidence needed to prove my claims, how to trap witnesses at depositions, what questions not to ask a fact witness, etc.  How many law graduates could handle any part of this with a worthless legal education? And again, in fairness to the professor, if he has “real world” litigation experience, then I completely respect him for it. However, then why is he fighting my suggestions?

Law School Graduates Are Being Ripped Off When They Learn How To Become A Lawyer After Spending $200K On Their Education.

Point 4.  Van Patten cites (correctly, which makes my point again) that law firms (and not law schools) are the training grounds for new lawyers.  Law firms simply charge $350 hour for me (in 2006) to learn on the job.  I spent a fortune on my legal education and was a functional idiot upon graduation.  The top litigation firms give the scut work to the new lawyers, such as tracking down documents, writing memos, and doing basic research, while charging the client a fortune.  Then, that work gets reviewed by a more senior associate (at a higher billing rate).  Besides the firm itself, who actually benefits from this?  Not the customer.  The “law professors” put me (and all graduates) in the embarrassing situation of having to get real questions from clients, and not having any idea how to answer them.  Oh, that’s right, I was still taught “how to think like a lawyer,” just not how to be one.  Got it.  Picture a real world situation – I had to defend a client on federal mail and wire fraud charges, involving millions of dollars.  A conviction on one charge alone could land him a 20 year sentence.  A law school graduate – who holds a doctorate – that cannot do basic legal work is hardly better off than the person seeking the help.  Thinking like lawyer means absolutely nothing when a client looks at you with, “Is any of this registering, or should I go elsewhere?”

Law Schools As Trade Schools? Yes!

Point 5.  I agree with Professor Van Patten that law schools must function more like trade schools.  The three years of “instruction” needs to be three active years of actually learning by doing.  As it stands now, law students sit in the class room, tune out, and listen to a lecture that has no value.

But, Law Schools “Teach You To Think Like A Lawyer,” Right? BULLSHIT. Teach Us Instead To Be Lawyers.

Point 6.   Well, Mr. Van Patten, like those who drink the Kool-Aid of academia for too long, gets back to the tired line, “…law school is ultimately not about information.  It is primarily about how to think like a lawyer.  No lie.”  Actually, that’s the biggest damn lie that law schools put out.  I am not calling Mr. Van Patten a liar.  He is entitled to his opinion.  If this is his belief, well, good for him.  Of course, the disaster that is legal education (cranking out functional idiots without any skills) should be proof that Van Patten is wrong.  But, he doesn’t walk in our shoes.  Instead, as a law professor, he drives from his home, gets to the office twice per week, works six hours (per week) or so teaching courses, and then plans his weekend, with large breaks of time in between.   He, like law professors in general, will work hard a couple a days a semester grading exams, but people doing document review have it much worse, and it’s every day (for lower pay).   The ABA has a rule on teaching loads, so it’s not his fault he must work so few hours per week.  Like I said, it’s a great job!  I don’t recall him addressing this aspect of his working lifestyle in the law review article.

Professor Van Patten Admits That You Won’t Know Much When You Get Your Law Degree – A Doctorate, No Less. Thanks!

Point 7.  Professor Van Patten goes off the rails again, with “It is an important skill to recognize one’s lack of knowledge, to recognize what one does not know and to figure out a way to understand and integrate new information.”    First, as the lovely Marisa Tomei stated so eloquently in My Cousin Vinny (in response to Joe Pesci saying “I’ll learn as I go”), “Learn as you go?”  How do you know what it is that you don’t know.”  That’s right, Marisa.  Checkmate.   I can tell you from first-hand experience, that you won’t know what you don’t know, at least not initially.  In law school, I knew nothing about law and motion practice, the 16 court days advance notice (with five calendar days for mailing, etc.).  When a motion landed on my desk, I was like, “Uh, what do I do?”  I remember reading it a few times (since I learned to “think like a lawyer”), but I was a total dud on what to do in response.  So, I “Googled” “motion” and learned a lot of things.  Then I had senior associates telling me what NOT to do, and finally, a partner, who scrapped all of my work and started over.  Yeah, law school education is so great.

I won’t re-read and analyze this article any further, I have to get back to actual work.

 

 

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Patrick J. D’Arcy – Expertise in Real Estate Law and Real Estate Expert Witness

Patrick J. D’Arcy, an Irvine, California attorney, has substantial real estate  transactional experience, including representing owners of commercial shopping centers, developers, property managers and landlords.  Patrick J. D’Arcy has significant real estate litigation experience too, including representing lenders, owners and real estate brokers, as well as a myriad of real estate properties, from estate homes, shopping malls, airports and Wall Street investment portfolios.  Recently, Patrick J. D’Arcy obtained a full dismissal of a real estate lawsuit involving Burger King CEO’s in federal court, and wiped out a $450,000 damage claim – just on the pleadings.   The federal judge agreed with Mr. D’Arcy’s defenses, and issued a 20 page opinion dismissing the case completely.

Pat’s career in real estate includes many notable landmark properties: the $229 million title insurance policy issued on the Sherman Oaks Galleria in 1989, a $500 million hospital merger, the $2 billion Unocal-Tosco merger of Unocal oil fields, the $500 million merger of Macy’s, Wall Street portfolios of more than $1 billion, the airspace rights for a hotel, assisting the Burbank Airport to condemn land for airport expansion, the sale of the Bullocks Wilshire building to Southwestern Law School, the $90 million transfer of the Wells Fargo building in downtown Los Angeles, the sale of California Plaza, the sale and merger of Harvard and Westlake High Schools into “Harvard-Westlake,” the transfer of the former estate of Judy Garland in Malibu, and the sale and transfer of many properties owned by celebrities, including Paul Allen of Microsoft, John Landis, Steve Martin, Corbin Bernsen, Larry Hagman, Dolph Lundgren, Kenny Loggins, Eric Dickerson (of the Rams), Vidal Sassoon, and many others.

Pat has also drafted many types of real estate contracts, including mergers of businesses, buy-sell agreements, and corporate minutes, bylaws and other matters.

Patrick J. D’Arcy is an expert witness for real estate matters involving BRE licensed salespersons/brokers and title insurance.  Pat has a broker’s license, and was the original pioneer of the controlled-business relationships between title companies and mortgage companies (related to RESPA), and set up and managed these companies in various states, including Ohio, Minnesota, California, Texas and others. Pat created these companies for public companies such as First American, Weyerhauser, Centex and E-Loan.   The largest, in Texas, was projected to do $10 million per year, which Pat formed with himself as the original employee.

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Federal Court – In Published Opinion – Dismissed Entire Case Against Burger King Franchisee

Patrick J. D’Arcy, an Irvine, CA attorney, and his firm, Patrick J. D’Arcy, a Professional Law Corporation, obtained yet another impressive victory in a real estate lawsuit, where Mr. D’Arcy defended against a $450,000 damage claim.  The clients were by two former officers, including its past CEO, and their corporation – various Burger King franchises (REX Investment Company v. SME et al.), Case No. 15-cv-02607-H-JMA.  The plaintiff sued for breach of contract over the lease (and other claims).  The case is now a published federal opinion, making it binding authority in the Ninth Circuit.  Mr. D’Arcy not only got full dismissals of the individuals at the pleading stage, but did the same for the corporation on all but two claims against it.  Then, when the plaintiffs moved for summary judgment, Mr. D’Arcy used a rare procedure – a Rule 56 opposition that seeks to defeat the MSJ, as well as to dismiss the case.  Judge Marilyn Huff agreed with Mr. D’Arcy’s arguments and case law, and threw the case out.  No trial, no damages paid.

https://www.leagle.com/decision/infdco20160830966

Mr. D’Arcy refused all settlement offers, and filed a Rule 12(b)(6) challenge to dismiss the case.  Judge Marilyn Huff, in a 20 page opinion, agreed with Mr. D’Arcy’s arguments, and dismissed both former officers from the case, and eliminated four of the six claims against the lone corporate defendant claimed to be the lessee.

As for the two remaining claims, one is the alternate of the other, meaning only one claim remained after Mr. D’Arcy’s pleading challenges.

Mr. D’Arcy then opposed the landlord’s motion for summary judgment and not only defeated a motion with over 500 pages worth of exhibits, but had the Court dismiss the case against the plaintiff through an expertly written opposition!

The Court’s ruling was published and is now binding authority in the Ninth Circuit, and concerns California law dealing with tenant assignments of commercial leases.  The filings by the firm meticulously researched California law dating back to 1889, and stopped a damage claim for $450,000 in its tracks.  Had the Court not ruled as it did, the client would have been liable for the other side’s attorney’s fees too, making the total damage claim worth about $1 million.

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Firm Defeats Class Action Against Courier Company and Prevails on Appeal

As profiled in the Los Angeles Journal and Law 360, the firm successfully defeated a class action by Chavos & Rau, PC. Judge Perk of the Complex Division ruled that no grounds existed to certify a class action. The plaintiff appealed the decision, and lost.  To show the frivolous nature of the “class action,” the plaintiff dismissed its case the day before a jury was to be selected and did not get anyone to join the class.

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Firm Successfully Defends CEO Against Fraud Claim

Mr. D’Arcy defended a CEO against false claims in excess of $200,000 against him and his luxury vacation home.  Mr. D’Arcy refused all settlement offers over the span of 2 1/2 years, and took the matter to trial.  After taking the deposition of the lead plaintiff (and main liar), the judge mediating the case agreed with Mr. D’Arcy that the plaintiff wasn’t entitled to anything.  Plaintiff dropped their demands down to a token payment immediately before trial.

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12-0 Jury Verdict At Mosk Courthouse, Downtown Los Angeles

The firm defended a client from an $8 million damage claim.  After a seven day jury trial in downtown Los Angeles, the firm obtained a complete defense verdict for one of the defendants, and prevailed on claims of fraud, elder abuse, conversion, breach of contract and others.  As for the other defendant, the firm had nine of twelve claims dismissed by the jury and the remaining claims wiped out in the bankruptcy court.

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Firm Defeats BASTA at Trial With No Payments Made

 

 

REAL CLIENTS, REAL VICTORIES. The firm represented this landlord in a nasty eviction where the tenant hadn’t paid rent for nine months and was evicted  at trial.

Mr. D’Arcy took BASTA to trial against deadbeat tenants that had not paid rent in nine months.  Mr. D’Arcy defeated BASTA’s ridiculous motions for summary judgment, motion for judgment, and then, after a three day trial, evicted them.   The tenants weren’t facing financial hardship as a reason to pay: they were gainfully employed, but enjoyed living for free, even though it put the property at risk of foreclosure. Mr. D’Arcy still evicted the tenants even though the rental unit lacked a certificate of occupancy.  The loser tenants went from smirking and smiling to walking out evicted.  It’s clear that BASTA’s promise of a victory went terribly wrong.