January 2005 E-Newsletter - San Diego County Public Law Library

Heads up: A Procedural Can of Worms Sometimes it seems that the legislature's right hand doesn't know what the left hand is doing. Here is a good example. Code of Civil Procedure section 1005, subdivision (b) sets deadlines for filing and serving motion notices and opposition or reply papers in civil cases. Two new statutes from the 2004 session of the Legislature have been passed both affecting the same underlying statute -- but in different ways. They conflict with each other, and they have different effective dates. Which version controls? Before the amendments, Code of Civil Procedure section 1005, subdivision (b) said moving and supporting papers had to be served and filed 21 calendar days before the hearing. Opposition papers were due 10 calendar days before the hearing, and reply papers were due 5 days before the hearing. (Extra time had to be added to the initial period if service were effected by mail.) The first enacted change ( A. B. 3078) was filed with the Secretary of State on July 16, 2004. (Stats. 2004, ch. 171.) Section 3 of this amendment changes the deadlines from 21 calendar days, 10 calendar days, and 5 calendar days (the 21/10/5 calendar day rule) to 16 court days, nine court days, and 5 court days (the 16/9/5 court day rule.) The changes appear to be minor, but in some instances they could snag people who do everything at the last moment by making their papers one day late, if they follow the wrong version of the statute. The second amendatory provision ( A.B. 3081) was filed with the Secretary of State just four days after A.B. 3078, but it has a delayed operative date of July 1, 2005. (Stats. 2004, ch. 182.) Section 64 of this amendment essentially preserves or re-adopts the 21/10/5 calendar day rule of Code of Civil Procedure section 1005, subdivision (b), as it existed prior to any of the statutory changes. So, what happens in 2005? Which version controls? There are two different amendments, both affecting the same underlying statute -- but in different ways. When two statutes that were enacted during the same legislative session conflict with each other, the later-enacted (or higher-numbered chapter) usually prevails over the earlier-enacted statute bearing a lower chapter number. (Gov. Code, §9605.) By that standard, chapter 182 should prevail over chapter 171 and the rule should be 21/10/5 calendar days. But chapter 182 doesn't take effect until halfway through 2005. Does that mean that chapter 171 will become operative for the first six months of the year? Will the 16/9/5 court day rule come into play from January through June, only to revert to the 21/10/5 calendar day rule on July 1, 2005? We won't presume to say for sure, but that seems to be at least one arguable possibility. Our best recommendation is to do everything one day early and not become the test case to find out the official appellate answer to this procedural conundrum. Don't say we failed to give you the heads up to this puzzle, if not a sure bet solution. (Thanks to library regular Dave Sholis for alerting us to this conflict and to Reference Librarian Michael Kaye for the research).

Saying Sorry without Incurring Liability Some interesting studies are finding that a sincere apology can head of litigation, especially in the realm of medical malpractice. However, you need to be careful when offering an apology as some of it could be used against you in court. California's Evidence Code section 1160 allows a person involved in an accident to express sympathy to the other party without such expression being admissible against the person in court ("I'm sorry you are in pain.") This law won't shield people who say, "I'm sorry, it's all my fault" as that is an admission against interest and admissible in court. An excellent article (in .pdf format) comparing various "apology laws" through the nation is Legislating Apology: The Pros and Cons.

Can Telemarketers Call Your Cell Phone? By now you have registered your home phone with the National Do Not Call Registry and hopefully you also remembered to register your cell phone too. There is an email circulating now which says telemarketers will soon be able to get your cell phone number from a wireless 411 directory and that you should register your cell phone with the Do Not Call Registry by Jan. 1, 2005. Is that true? Partly. Here are the facts: Six national wireless companies (AllTel, AT&T Wireless, Cingular, Nextel, Sprint PCS, and T-Mobile) have banded together and hired a company called Qsent to produce a comprehensive directory of cell phone customer names and phone numbers that would be made available to directory assistance providers (i.e. 411 services). Qsent's database would allow people to dial 411 and get someone's cell number in addition to their "land line" number. Qsent says being included in this wireless 411 database is strictly "opt-in" and the phone numbers of wireless customers who do not opt-in will not be included. They also promise that the listings will not be included in printed phone directories, distributed in other printed form, made available via the Internet or sold to telemarketers. However, some consumers are doubtful that the wireless companies will uphold their promises and so there is some legislation pending addressing this 411 project. Bottom line, go ahead and register all your phone numbers at via the Do Not Call Registry registry. It can't hurt. There is no deadline for registration and the ban on telemarketers lasts five years from the date you register your number.

MCLE Programs for January For those of you whose last name starts with N-Z, it's time to get your MCLE credits in order. The Law Library is offering up to 28.5 hours of free participatory MCLE credit to members of the Law Library. On the schedule are: 13 hours of ethics, 5 hours of substance abuse, 5 hours of elimination of bias, and 5.5 hours of general credit. The schedule is posted on our website. Attendees are welcome to bring a sack lunch to the sessions (food and drink are not usually allowed in the library, but special exceptions are made for these events). Pre-registration is required. Contact the Law Library's downtown location at (619) 531-3900 to register. Once you have registered, you must check in at least ten (10) minutes prior to the session. If you do not check in at least ten (10) minutes before the session begins, your spot will be released and made available to walk-ins.

Brief Briefing We often get asked what types of briefs we have available in the Law Library. Here is a summary of what we have available: U.S. Supreme Court briefs beginning with 1979/80 have briefs by docket number for both argued and unargued cases (microfiche), 9th Circuit briefs from 1988-1996 (microfiche), California Supreme Court briefs and Appellate Court briefs in hard copy from 1979 to 1995, California Supreme Court briefs after 1995- ongoing receipt (microfiche) , and electronic access to California Appellate and Supreme Court from 1995 to date available via Briefserve.com. Briefs from Briefserve.com are free if you access them within our library. You can download them to a disk free of charge or print them here for .20 cents a page. However, if you access Briefserve.com from outside the library, they will charge you $25 per brief with a $50 minimum.

Got a Gripe? Posting on Web Can Lead To Lawsuits In the past when consumers were dissatisfied with the products or services of a company, they would tell their friends and family via word-of-mouth. With the widespread use of the Internet, unhappy consumers can now air their grievances to the entire online community via "gripe sites." However, those setting up and running gripe sites can and are getting sued by companies for either trademark infringment or cybersquatting. Allegations that consumers are diluting the company's trademark, damaging a company's business, and confusing potential customers are usually shot down by courts who agree with the defense's free speech arguments. The 9th circuit has consistently thrown out these types of allegations and upheld the rights of consumers to air their grievances electronically. The lead 9th circuit case in this area is Bally Total Fitness v. Faber, 29 F. Supp. 2d 1161 (C.D. Cal 1998), which involved a former customer of the Bally workout facility expressing his displeasure with the company via his website www.ballysucks.net.

New East County Branch Hours Our East County branch (located in the El Cajon courthouse), will undergo a renovation starting January 3rd, 2005. New hours at this location will be 9 a.m. to 4 p.m. Monday through Friday.

January 2005 Links Here are some sites to start your new year off right! Spamusement.com- This is a very funny site that takes some of the strange subject headings in spam e-mail and interprets them into primitive cartoons. A nice way to recycle spam for its amusement value. U.S. States Trustee Program- For all you bankrupcty attorneys out there, this is the home site for the for the agency responsible for overseeing the administration of bankruptcy cases and private trustees. It's a very basic page but has a lot of good info including reference materials for trustees, listings of trustees, guidelines, policies and decisions. Internet Archive- An online library that collects and catalogs old web pages. If you have ever been pursuing litigation against a company and found info on their own website to use against them, only to revisit the page a day later and find all that info gone, you'll appreciate this site. It's search engine is called the Wayback Machine and has been used by attorneys to point out web pages as they existed in the past. Can you use this stuff in court? You can (at least in Illinois). An Illinois magistrate judge recently held that archived copies of websites are not hearsay. Practice tip: If you are going to offer the pages a website into evidence, be sure to authenticate the documents. See an example of how to use authenticated web sites in litigation in Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal. App. 4th 322. National Criminal Justice Reference Service- This is a "federally funded resource offering justice and substance abuse information to support research, policy, and program development worldwide." The reference topics you'll find here include Corrections, Courts, International, Juvenile Justice, Law Enforcement, Victims of Crime, Statistics, and more. By registering (for free), you can also receive regular e-mail updates of new content as well as access to other agency information.

Federal Criminal Records Now Available on PACER As many of you know, PACER is a database that lets you electronically search civil and bankruptcy cases filed in federal court. However, beginning November 1, 2004, all criminal case file documents available to the public at a courthouse also will be available via PACER. While this will make searching for criminal convictions in the federal realm much easier, there are some criminal documents that won't be available on PACER. Excluded documents include unexecuted warrants, presentence reports, supervision violation reports, the statement of reasons that is part of a criminal judgment, juvenile records, financial affidavits submitted seeking court-appointed counsel, ex parte requests for expert or investigative services at court expense, and sealed documents. Courts maintain the discretion to seal any document.

Reference Question of the Month- Comparing Legal Databases Q: My firm is thinking of subscribing to a legal database other than Westlaw or Lexis. Aren't there cheaper ones out there? What's the difference? A: For this question we turned to reference librarian Sheila Corman who teaches our class "Doing Legal Research on the Internet." She looked at what each database offered and has made some observations about the "best fit." The numbers in parenthesis let you know the years available for a particular source. Some of these services require a subscription for usage. ( Note: The comments on functionality and rankings are the opinion of the author and do not represent the official viewpoint of the San Diego County Public Law Library. SDCPLL remains officially neutral and recommends that users make their own determination as to what best suits their individual needs.) Versuslaw.com- This database has U.S. Supreme Court decisions (1900-), 9th Circuit decisions (1941-), California Supreme Court (1930-), California Appellate Courts (1944-), and some district court decisions for the Eastern (1998-) and Northern (2000-) divisions in California. Also has unannotated U.S. Code and statutes for 42 states. Has some info regarding Indian Tribal Courts, but none for California. The searching function isn't great. You can search only one jurisdiction at a time. Results are shown in no order. User must put them in order. No forms or court rules either. Overall, you can find the same info online free. Fastcase.com- Supreme Court opinions (1790-) and Federal Reporter citations (1924-). Case law from individual states begins in 1950 for most states. Can search simultaneous jurisdictions. Searchable by keyword and citation but not party name. Also no forms, court rules, or full text articles. Not bad but still not one of the best. Findlaw.com- owned by the same people who own Westlaw, this is their free version. However, it's not the easiest to use. You have to really dig down to find areas for cases and codes among the other miscellaneous information. Coverage varies by jurisdiction and you can only search one jurisdiction at a time. Codes are unannotated. No way to check and see if cases are still valid. Uses free websites to provide much of the information. Has links to forms which are usually government produced and mounted on the web for free (such as judicial council forms). Has some law-related articles written by various law firms. In sum, this site probably the third best one. RUNNER UP: LexisOne.com- this is free version of Lexis. All states' supreme and appellate court opinions for the past five years only. Federal appellate cases also for the past five years only. No Federal District Court cases. Often prompts you to access more information, but a fee is charged to view other cases and information. Fee is from $1-15 per case. Searchable by keyword or citation. No state codes or court rules unless they are available for free on the Internet. Must search each jurisdiction separately. Can Shepardize for a fee. Some free forms available and also some fill-in-the blank forms available for an additional fee. Good user interface- very clean and uncluttered. THE WINNER: Loislaw.com- Most comprehensive. All State and Federal court cases since they were published, all states and U.S. statutes (unannotated), all states and federal regulations, California court forms (fillable for both state and local forms), all California rules, California Attorney General opinions, and links to secondary materials (law journals, websites, etc.) Searching is menu driven and very simple to use. By searching "Type of Law" searching several jurisdictions at a time is possible. Searching by "Jurisdiction" provides access to other materials for that jurisdiction (court rules, etc.) Can search by keyword, party name, justice, lower court, citation, docket number date. Cases loaded within 24 hours of decision. However, no access for verifying if a case is still good law. Of all the lower cost services, I've found this to be the best. Taking our own advice to heart, we offer this database free for patron use at all locations of the Law Library. No matter which database you choose, you will still need to Shepardize your cases and you can also do that free at the Law Library. Hope this helps!

We hope you've enjoyed our newsletter. We're hard at work on the next edition. In the meantime, please visit us online at: http://www.sdcpll.org/. And come see us in person at one of our locations. For locations and hours please click here: http://www.sdcpll.org/location.htm. For more information contact: Amy Hale-Janeke, Reference Librarian/ Head of Media Relations, at ahale@sdcll.org.