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War Stories

One of my favorite moments in the law came when we ran First Interstate Bank out of cash. Jay Koslofsky, another attorney, and I represented a class made up of tenants and former tenants of the Acorn Housing development in West Oakland. Conditions there were some of the worst any of us had ever seen. The case was hotly contested and went on for years. Finally came pay day. Our clients lined up outside the office and filed in, one by one, to collect their settlement checks, all drawn on First Interstate. Many of them then went directly to the bank to get cash. If the client had no bank account, one of us (usually me) went with the client to the bank to vouch for the client’s identity and for the check. I watched many times as the teller counted out hundred-dollar bills and spread them, fan-like, on the counter in front of the client’s appreciative eyes. If the client was a woman, she might scoop up the bills, roll them tight, and slip them into a safe place inside her blouse. Men were not so smart, sticking great visible wads in their rear pants pockets. Shortly after noon on Friday, a vice-president at the bank called Jay’s office. “Don’t send any more clients. The bank has run out of cash. We won’t have any more until the truck comes on Monday.” The clients had many unkind words to say about First Interstate. We lawyers sympathized, but later on we celebrated. We’d run the bank out of cash! Tenant law practice doesn’t get any better than that.

***

My copyright client Arthur Court is a prolific and brilliant designer. Now with an impressive mane of white hair and bushy eyebrows, he can look back over decades of creating beautiful objects for the home and the table. His cast aluminum serving ware pieces with nature motifs grace the display cases of the most glittering names in retail marketing. They also wind up in sand molds in grungy back-alley garages in Mexico, where local artisans make knockoffs. Shady operators in the U.S. import them and sell them via the Internet at half the price of the originals. I brought suit against one of these bootleggers, who had had the good sense to obtain liability insurance. The mediation took place in the conference room of a major law firm in San Francisco. The conference table must have been 18 feet long. On that table, we arrayed more than a dozen of Arthur’s original pieces, and next to them the knockoffs, side by side. The comparison was devastating. There was no doubt about liability. The case settled in less than two hours. Copyright law doesn’t get much cleaner than that.

***

My client Assetmark wanted to register the mark EWealthManager for a financial advisory service. The Trademark Office rejected the mark as “merely descriptive” on the grounds that the mere addition of the “E” prefix to an otherwise merely descriptive (and therefore not registrable) mark was insufficient to make it registrable. I filed briefs and counterbriefs, which took years. Things don’t move very fast in the Trademark Office; the usual reply time for correspondence is six months. Four and a half years after the initial filing, the application was dead. But meanwhile, anyone else who had the idea of registering that mark was warned off by the pending Trademark Office controversy. Five years and a day after the initial filing, I filed a new application to register the same mark for my client, citing a section of the Trademark Act that makes “merely descriptive” marks registrable if the owner can prove five years’ exclusive use. Registration granted.

***

One of my cases went on for seven years. It began when my client, Howard Williams, was resident manager of an apartment building. He caught a thief trying to steal a fire extinguisher, chased the thief down the stairs, tripped, fell, and injured his knee. He filed a workers’ compensation claim with the building owner, Richard Thomas, who replied that he had no workers’ comp insurance. Williams then came to see me. I filed a personal injury lawsuit. The owner then fired Howard as manager, and filed suit to evict him. I defended the eviction and kept Howard and his wife in the apartment for another 18 months. I filed another suit against the owner on account of the retaliatory firing and harassment. On the trial date in that case, the owner and his lawyer failed to appear. I took an uncontested judgment in the amount of $525,000. The owner then moved to set the judgment aside, lost, took an appeal, lost, appealed to the Supreme Court, lost, made another motion in the trial court, lost that, took another appeal, lost, applied again to the Supreme Court, and lost again. Finally, after seven years, I got his certified check in the mail for the judgment, plus ten per cent compound interest over four years. Howard’s wife baked a cake for me, to celebrate the check. Unfortunately, my client was able to enjoy the money for only a couple of years before illness claimed him. But he died with the satisfaction of knowing that he won that marathon case.

***

My fondest memory from the First District Court of Appeals in San Francisco also involved Howard William’s case. The architecture of the court chamber makes it very clear who is boss. The judges sit up high and the litigants and their counsel plead from below. The lawyer for the appellant, Richard Thomas, made a short opening statement, summarizing his brief. Then the three judges, one after the other, administered an unmerciful verbal beating. A friend of mine who spent practically all his time in that chamber later told me it was the worst clobbering he had ever seen the judges give an attorney. They were blunt, they were sarcastic, they were devastating, and they left the lawyer speechless. I would have felt sorry for him if he had come on a better cause. When the judges were done with him, they turned to me and asked, “Do you wish to address the court, counsel?” I rose and replied, “Not unless the court has questions to ask.” And I sat down. The most successful oral arguments are the ones where you don’t have to say a word.

***

In another case for Arthur Court, the copyright infringer was not a shady fly-by-night operator but a reputable servingware firm who had purchased container-loads of the infringing items from a high-quality supplier in China. The Mexico artisans have a long tradition of creating beautiful handicrafts, but they’re no match for some of the Chinese factories, who not only have centuries of handicraft tradition, but also modern high-pressure injection molding equipment. In this case, fought against a major San Francisco / Silicon Valley IP firm, the defendant ended up sending three tons of knockoff goods to the smelter, and the factory surrendered the molds to my client for destruction.

***

My client, a reserved and deeply religious African-American woman in her 50s, had been employed as a clerk in the accounting department of a major national corporation in downtown San Francisco. One day her supervisor, critical of a paperwork assignment she had done, called her the n-word. She experienced chest pains, went to the hospital, was diagnosed with a myocardial infarct (heart attack), spent ten days in intensive care, and then was rated medically disabled for life. She hired an attorney who, apparently intimidated by her mega-employer, let the case lapse. The matter came to me as a legal malpractice case. Thanks to expert testimony by the outstanding cardiologist, the (late) Dr. Carlos Sledge of Oakland, we were able to establish that the racial insult was the probable cause of her heart attack, and from then on it was a matter not of whether, but how much.

***

When minors are plaintiffs in a suit for damages, and there is a settlement, the minors’ money must go, by law, into a trust account, to be paid to the plaintiff on his or her 18th birthday. In the Acorn tenant class action litigation, there were dozens of minors, and thus dozens of trust accounts at First Interstate. Then First Interstate was taken over by Wells Fargo. One day years later I got a call from a minor in the case, now 18, who had gone to the bank to withdraw his money and been stonewalled. The teller said she had no record of his account. I spoke to the branch manager, who said the bank had no paperwork for any of the trust accounts. I became so upset that the manager called the security guard, who hovered over my client and me while I fumed at the edge of eruption. The manager punted the matter to a Wells officer in Portland Oregon, in charge of trust accounts, who said that all the paperwork regarding the accounts had been lost in the merger. After threatening the bank with major litigation and the attendant headlines — “WELLS ‘LOSES’ TRUST FUNDS BELONGING TO AFRICAN-AMERICAN CHILDREN’ — we arrived at a modus operandi. I had in my files a printout from my database showing the amounts deposited for each minor. If I vouched for the person, the bank would pay the amount deposited with interest. After three hours in the bank and on the phone, my client got his money. But the worst was yet to come. A week later, riding his bicycle in the yard of McClymonds high school, where he had been a star football player, my client was shot to death by a still unknown assailant. His name: Khadafy Washington. His mother founded the Khadafy Foundation for Nonviolence in his memory and as a resource for the families of so many other young lives lost to violence.

***

One of my most painful moments in the law came during a jury trial against a law office which had fired all five of its African-American clerical employees, and no others, within a space of six weeks. On the last day of testimony, the managing attorney of the firm testified, out of the blue, that one of my clients had embezzled funds from the petty cash account, with the complicity of the others. That testimony, which my clients could not convincingly rebut, sank the case. We had procedural grounds for trying to exclude the testimony, but it would have made no difference. We had lost the moral high ground. I learned to be much more hard-nosed in questioning potential clients before accepting a case.

***

Not all copyright cases end up with a satisfying settlement. I’ve had several where the defendants pulled out their empty pockets, closed up shop, changed their business name, took the infringing goods off the table and sold them under the table, or just plain disappeared. The copyright owner ends up paying my fees but getting no compensation, like the hunter who sees the rabbit pop down its hole. The worst loss I had in an intellectual property case came before Judge Susan Illston of the federal court in San Francisco. I represented, pro bono, a national nonprofit organization in trademark litigation against one of its former chapters, which had broken with the national organization but continued to use its name. The opposing counsel, also pro bono, was a woman the same age as the judge, president of the Intellectual Property section of the State Bar, and partner in one of the biggest law firms in the U.S. At the conclusion of the one-week bench trial, I was convinced that we had resoundingly thrashed the defendants. But Illston thought otherwise. Tenant cases can also end up dry. I took a group of tenants through a successful jury trial against a landlord, but ended up with nothing as the defendant declared bankruptcy. In another case, my clients were a sympathetic young couple — a physician and a limo driver — with a baby. Because they had originally come from Arab countries, the landlord — who was trying to evict them so as to sell the property vacant — began harassing them as “terrorists” and trying to incite the neighbors against them. My clients took video of the landlord insulting them and making obscene gestures at them. As the trial date approached, the landlord and his wife and kids were seen packing their furniture and goods, and disappeared, abandoning the property.

***

For several years, the word among letter carriers in the East Bay was, if you get bit by a dog, call Marty. Under California law, the owner of a dog is strictly liable for its bites. The plaintiff does not have to prove that the owner was negligent, only that the dog belonged to the defendant and the dog bit the plaintiff and the plaintiff suffered injury. Dog bites are a nasty injury not only physically, but emotionally. Victims frequently develop symptoms of PTSD. Merely hearing a dog bark or seeing a dog off leash can cause severe anxiety reactions months after the injury. Although most of these cases were of modest size, they could be interesting. In one case, I learned more about varicose veins than I ever thought possible. The postal workers were happy with the settlements and the fees paid my rent. Then I remarried, and my new wife moved in, together with her dog. He’s a nice dog, loves to chase tennis balls, but when the letter carrier came to the door, the dog went ballistic. The carrier issued an orange-colored “dog card” for our house, which is also my office. Word travels fast. I got no calls for a dog bite case for several years. However, my cat once brought me a good personal injury case. This cat, when younger, was very social. She would saunter in front of the house, meow at people, let little children pet her, and purr at the slightest provocation. She developed quite a fan club in the neighborhood. One day I was pulling weeds in the front yard when a young woman wearing a neck brace stopped to pet the cat. I asked a few questions, and I had a new client. There’s a deep philosophical lesson in there somewhere. Or maybe not.

 

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