Wednesday, March 22, 2017

Litigation "Life Lesson" from Trump's Travel Ban

By Walter Whitman Moore

Trump would have won in the litigation over his travel ban if different judges had been assigned to his case. The Chief Justice of the United States Court of Appeals for the Ninth Circuit and four of his colleagues issued a dissenting opinion in which they argued that the Court of Appeals erred by refusing to let President Trump enforce his travel ban. 

On the Ides of March, the five justices filed a 26-page dissenting opinion, explaining why they believe the Court should have reconsidered "this case en banc for the purpose of vacating the panel's opinion." They summarized their position as follows:
The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).
You can read their entire opinion by clicking here.

The litigation "life lesson" for you is that there is always an irreducible element of risk in litigation. No matter how strong or weak you think your case is, the outcome may depend not on the facts, the law, or the lawyers, but on the judges and justices assigned to your case. That is one reason that parties sometimes opt to submit their disputes to arbitration, where both sides pick the decision-maker.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is

Wednesday, March 15, 2017

Lowering the Bar

By Walter Whitman Moore

Some people think it's just too darn hard to get a license to sue in California. Exhibit A is an article in the San Francisco Chronicle entitled, "California bar exam’s passing score should be lowered, critics say." These critics point out that just 43% of the people who took the bar exam in November passed. 

Now, if you were among the 57% who shelled out for three years of law school without passing the bar, you might think you were a victim of educational malpractice. After all, as we learned from The Paper Chase, law school is supposed to take students with skulls full of mush and teach them to think like lawyers:

Judging from the test results, more than half of California's law school students graduate with their mush intact, unable to think like lawyers. However, the law school deans who gladly accepted tens of thousands of dollars in tuition from each of the failed 57% wannabe lawyers for three years say the problem isn't their professors' failure to teach. Instead, the deans say, the test is just too difficult. Their solution is lower standards. According to the article, the deans of 20 California law schools wrote to the California Supreme Court, asking for the minimum passing grade to be lowered “unless or until we have strong justification for the benefits of California’s approach.”

Since when do we lower standards in this country? Do we really need dumber lawyers? And why stop with law? I bet plenty of people fail to pass their medical boards. Why not just say that 90% of each test group will pass? Ditto for pilots, engineers, architects, and rocket scientists. What could possibly go wrong? Everything. Everything could go wrong. Law is complicated. When your life, liberty, property, income and/or reputation are on the line, you want a lawyer smart enough to understand the fine distinctions on which your fate might depend.

The article points out that other states have lower standards for lawyers. So what? How does that justify lowering ours? California has higher standards than other states for air quality, too. We like our air clean and our lawyers smart -- so sue us.

There was a great line in Martha, Inc., a made-for-TV movie about Martha Stewart, starring Cybill Shepherd. Stewart is standing in the aisle of a K-Mart, examining the products on the shelves with disdain. She says something to the effect that K-Mart is going to have to increase the thread count, and a K-Mart executive responds by saying something about how expensive that would be. Stewart then tells the K-Mart executive, "You don't understand. I'm not here to lower myself to your standards. I'm here to raise you to mine."

The appropriate solution here isn't easier tests, but better education. Rather than urging the Supreme Court to adopt an easier test, the deans of California's law schools should focus their attention on producing graduates who can think like lawyers.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is