Legally Speaking: And the Winner Is ...

John G. Browning May 28, 2009, 10:33am

As "Legally Speaking" readers know, I periodically recognize some of the legal system's oddities with our very own version of the Oscars or Emmys of the entertainment world � the Justie. Awards.

While we're not even halfway through the year, there are already some early contenders jockeying for position.

The "Life's Little Ironies" distinction has a couple of possibilities. One of the fastest growing areas in the legal profession involves vendors who provide technology to assist lawyers with electronic discovery and computer forensics. In fact, keeping track of the mountains of digital information that pile up on hard drives and backup tapes is a multibillion dollar a year industry.

Pasadena, Calif.�based Guidance Software is one of the larger companies that specialize in software for scouring networks for such digital evidence. So, you would expect such a company to be more than up to the task of searching its own electronic files, wouldn't you? Well, maybe not.

After Guidance was slapped with a wrongful termination lawsuit from Cassondra Todd, its former marketing director, Guidance was ordered to turn over certain electronic records of its own. But despite orders from an arbitrator overseeing the case, Guidance bungled the production of its own records and failed to turn over critical emails and other files.

The arbitrator sanctioned Guidance for what he characterized as "game-playing" and what certain experts claimed was a failure to perform up to "commonly accepted standards within the e-discovery field." Ouch!

As if being a computer forensics firm that can't produce its own digital files isn't bad enough, how about when a mock trial leads to very real litigation?

This May, at the National High School Mock Trial Championships in Atlanta, the make-believe legal scenarios gave way to real-life legal drama when an Orthodox Jewish school filed a discrimination claim over the event's scheduling.

The Maimonides School of Brookline, Mass., learned that the competition's finals fell on a Saturday; since the school's students don't compete on the Sabbath, administrators with the Orthodox institution went to event organizers seeking to adjust the schedule to accommodate the students' religious needs.

After the request was rebuffed, parents of team members "lawyered up," and went to the Justice Department with a religious discrimination claim. The fracas led to a member of the board of the State Bar of Georgia resigning in protest, and to Fulton County Chief Judge Doris Downs threatening to ban the competition from the courthouse if the schedule wasn't changed to accommodate the Jewish students.

Event organizers ultimately relented, prompting the team's coach Dave Fredette (an assistant district attorney and rabbi) to observe that the students now see how "the law can help guarantee an individual's legal rights."

On a more lighthearted note, other individuals remind us why one category might be called "unconventional solutions for legal problems".

When Yvonne Morris of Salt Lake City, Utah, chased and caught a man suspected of breaking into a co-worker's car, she had a problem holding him until police arrived. So she grabbed what she could � the man's underwear � and pulled.

Subdued by the wedgie, the suspect was eventually booked by police on charges of vehicle burglary and possession of stolen property. Rumor has it he entered his "not guilty" plea in a very high-pitched voice. Meanwhile, eastern Idaho Judge Peter McDermott proved that there are many uses indeed for duct tape.

When felony theft suspect (and former state mental hospital patient) Nicklas Frasure made repeated verbal outbursts in court and ignored the judge's orders to restrain himself, Judge McDermott ordered bailiffs to silence Frasure using a conveniently handy roll of duct tape.

If there's an award for "Art Imitating Life," real estate agents Melinda and Scott Tamkin just might win it. The couple recently filed a multimillion dollar lawsuit for defamation and invasion of privacy against Sarah Goldfinger, a writer and producer for the hit CBS drama "CSI."

The Tamkins claim that after Goldfinger was unsuccessful in her attempt to purchase a Los Angeles home from a client of theirs in 2005, the writer/producer exacted a unique form of revenge. According to the lawsuit, Goldfinger wrote an episode of the program set in Las Vegas featuring a real estate agent named "Melinda" who dies under suspicious circumstances while her boozing, porn-addicted mortgage broker/husband "Scott" is the prime suspect.

The Tamkins' attorney, Anthony Glassman, claims that Goldfinger gave the characters the name "Tamkin" in the original version of the screenplay, and even helped cast actors who physically resembled the real-life couple. The Tamkins claim that the notoriety has hurt their real estate business, damaging them to the tune of $6 million in damages.

Finally, U.S. Magistrate Judge Wallace Dixon of the Middle District of North Carolina has got to be a leading contender for "Golf Nut of the Year" honors. Judge Dixon recently got a lot of attention in the legal blogosphere with his decision recommending the dismissal of a lawsuit brought by Andrew Giuliani (son of former New York mayor Rudy Giuliani) against Duke University for kicking him off its golf team. Young Giuliani, 23, had sued Duke in 2008, claiming that the school breached a contract with him when he was dropped from the team; Duke, meanwhile, maintained the move was prompted by Giuliani assaulting a teammate, failing to obey coaches, and violating "the rules and the spirit of the game of golf."

However, what's creating the buzz is not Judge Dixon's May 19 opinion itself, but the way in which he expressed his ruling. Judge Dixon's 12-page opinion is replete with golf references (I counted at least 10) and even a quote from everyone's favorite groundskeeper, Bill Murray's character Carl Spackler from the movie "Caddyshack." Judge Dixon begins by describing how Giuliani "tees up his case," and then quickly progresses to critiquing the plaintiff's arguments, noting that Giuliani's analysis "slices far from the fairway."

Dixon characterizes the plaintiff's unwieldy attempt to shift to a different argument as being "like trying to change clubs after hitting the golf ball," and Giuliani's breach of contract theory as "a swing and a miss." Elsewhere the whimsical jurist opines that the plaintiff "needs a sand wedge to get out of the hazard;" that Giuliani "attempts to take a mulligan with this argument" only to have "this shot also land in the drink;" that Giuliani "also shanks" his claim of tortious interference with a contract; that he tries unsuccessfully "to get around the slow play" of yet another claim; and that his final claim "can be disposed of with a hole-in-one sentence: no valid contract means no declaratory judgment."

Yes, it looks like this was one lawsuit that landed in the rough and wasn't up to par (sorry, I couldn't resist). As if being lampooned by the late Chris Farley on "Saturday Night Live" wasn't enough humiliation for Andrew Giuliani, he can now add another line to his resume � dissed and dismissed by a federal judge.

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