Alaska Law Blog

The news will come as no surprise to regular readers of the Alaska Law Blog (either one of you). Atkinson Conway & Gagnon lawyer Jerome Juday is now officially an award-winning bad writer. Juday was the winner in the second annual 49 Writers.com Ode To A Dead Salmon bad writing contest.

49 Writers.com is the project of Alaska based professional writers. Their Ode To A Dead Salmon contest is a tongue-in-cheek endeavor to celebrate Alaska-centric writing. Their website explains that the contest stemmed from a comment that Alaska writer Nancy Lord made about not wanting her writing to “mine the same Alaska myths” by continuing to pen “odes to dead salmon.” So 49 Writers.com set up a contest for bad writing about Alaska.

Juday’s winning entry was entitled Russian River Campground, 5:15 a.m. It was based on the eternal love triangle of a man, a woman and fish.

“I’m honored to be declared the winner,” Juday told Alaska Law Blog editors. “It’s not easy to explain, however. I’m not sure everyone believes me when I say that I had to work hard at writing that badly.”

For his efforts, Juday won a Ray Troll T-shirt. Since Juday’s legal training obviously contributed to his bad writing skills, the firm Management Committee has declared the T-shirt to be the spoils of the legal profession. As such, it will be rotated on a weekly basis amongst all the firm’s shareholders. Each shareholder is expected to honor the fiduciary duty owed to fellow shareholders by laundering the T-shirt before passing it to the next person.

Atkinson, Conway & Gagnon is pleased to announce that several of the attorneys of the firm have once again been named for listing in the upcoming edition of Best Lawyers In America.

Bruce E. Gagnon has been listed as a Best Lawyer since 1983. For the 2011 edition, Mr. Gagnon is listed in the categories of alternative dispute resolution, bet-the-company litigation, commercial litigation, corporate law, professional malpractice law, real estate law, and securities law.

Robert J. Dickson is once again listed as a Best Lawyer in the category of health care law. Mr. Dickson has been listed as a Best Lawyer since 1995.

Patrick B. Gilmore is listed in the categories of appellate law, bankruptcy and creditor-debtor rights law, bet-the-company litigation,and commercial litigation. Mr. Gilmore has held the Best Lawyer designation since 2005.

Jerome H. Juday has been listed as a Best Lawyer in the category of corporate law since 2007.

According to Steven Naifeh, Editor-In-Chief, "selection to Best Lawyers is based on an exhaustive and rigorous peer-review survey comprising more than 3.1 million confidential evaluations by the top attorneys in the country. Because no fee or purchase is required, being listed in Best Lawyers is considered a singular honor. Our annual advertisement-free publication has been described by The American Lawyer as 'the most respected referral list of attorneys in practice.'"

I was commuting to work on the Chester Creek bike trail last week when a guy on a sharp looking red bike passed going the other way. Now passing other cyclists is nothing out of the ordinary. But this guy was riding a fixed gear bike, just as I was. We recognized our common bond at the last possible moment, exchanging sidelong glances.

Fixies are all over the West Coast and the urban fixed gear trend is nothing new. Yet in Anchorage -- out here on the far reaches of the Empire beyond even the Dagobah System -- you just don’t see that many fixies. I’d guess that maybe you could find a few dozen or so if you scoured through all the alleys of Spenard and looked behind the dumpsters in the U-Med District. (I’m not including the singlespeed jobs that aren’t fixed.)

Yes, I know fixed gear bikes involve a learning curve for handling the inertia challenge. You have to actually think while riding a fixed gear, planning ahead for the next intersection or hill or obstacle. You have to remember there ain’t no coasting on a fixie and stopping one that is up to speed requires at least a modicum of skill. Most of the uninitiated, I suppose, view fixies as dangerous and utterly lacking in social utility, like the lawn darts of the cycling world.

So I got to wondering: How would the law treat a fixed gear cyclist? What will happen in the legal arena when one of our brave little band of Anchorage fixie riders gets wrapped around the hood ornament of some knucklehead who is turning right on red while looking left and talking on a cell phone?

There is not much precedent out there addressing the legal aspects of fixed gear riding. I searched WestlawNext for “fixie” and “fixed gear bike.” I came up with no court cases at all using those words in the cycling sense. I found one report of an arbitration case in Portland, Oregon that involved a fixed gear cyclist who was struck by a car turning left. The cyclist lost the arbitration since he was riding at dusk without a light. He also made some damaging admissions about the accident on his blog and in a Craigslist posting. (A good illustration of the Internet as litigation tool.) The arbitration report nevertheless gratuitously noted that the plaintiff was operating a bicycle “with no coaster brake or hand operated brake.”

I figure our injured Anchorage hero is going to end up in the realm of ordinary negligence cases with allocation of fault rules being applied. I suppose the over-caffeinated insurance defense lawyer for the knucklehead driver could try to argue assumption of the risk -- that riding fixed is so depraved as to be a deemed to be the equivalent of voluntary consent to getting run over. But Alaska long ago rejected the tort principles behind implied assumption of the risk, along with all the other fine distinctions tied into the old common law doctrine of contributory negligence. (Last call for last clear chance!) And, Alaska’s more recent embrace of pure several liability and allocation of fault should eliminate whatever vestiges of non-contractual assumption of risk might remain.

More promising from a defense standpoint would be negligence per se. Negligence per se is based on a violation of a standard of conduct established by statute. Under negligence per se, the person who violates the statute is presumed to have acted negligently. So if the cynical, hard-bitten defense lawyer in our case can find some statute that the injured fixie aficionado violated, then the lawyer might be able to get the Honorable Judge Learned Blackbottom to tell the jury: “You must find the plaintiff was negligent and allocate some percentage of fault to him if you find his negligence caused his injuries.”

And there is at least one piece of legislation that could apply. Section 9.38.100(B) of the Anchorage Municipal Code says:

Every bicycle shall be equipped with a brake which will enable its driver to stop the bicycle within 20 feet from a speed of ten mph on dry, level, clean pavement.

(Contrast this with the more enlightened provision of the D.C. Municipal Regulations that carves out a specific exception for fixed gear bicycles. In D.C., fixies are not required to have a brake so long as the operator "shall be able to stop the bicycle using the pedals.")

So, if our injured hero is a purist and rides fixed without any brakes, then the defense might have a shot at a negligence per se instruction. Even so, the exact meaning of “brake” in the ordinance can be debated, as I believe it has been debated in some traffic courts Outside. And of course, negligence per se does not mean our damaged hero is thrown out of court entirely and can recover nothing from the knucklehead behind the wheel. It just means our hero’s recovery is going to be reduced by the percentage of fault the jury must allocate to him for riding without a brake. (If I’m the poor fellow who gets run over, though, negligence per se won’t apply; my fixie has an actual front brake.)

One more thing the dastardly defense attorney may argue is that riding fixed is negligence as a matter of law. This is like negligence per se, except there is no statute defining it. In a very small number of cases not involving statutory violations, the Alaska Supreme Court has ruled negligence is just so darn obvious the trial judge must direct a verdict of negligence. These cases have all involved either rear-end collisions or Kim Farnsworth’s seatbelt. According the court, the trailing driver involved in a rear end collision is negligent as a matter of law and the judge has to instruct the jury to so find. In Ms. Farnsworth's case, the court said the jury had to allocate fault to the driver who collided with the vehicle she was riding in, even though she claimed she would have escaped injury with a proper functioning seatbelt.

Since our hypothetical fixie accident doesn’t involve either a rear-end collision or Ms. Farnsworth’s seatbelt, I don’t think negligence as a matter of law should apply. In fact, I'd refudiate it if I was the judge. But I suppose it’s still open to the ever aggressive defense lawyer to argue for a new entrant in this category -- that riding a fixed gear bike is just so far out on the fringes of an ordered society that the law ought to automatically make the rider negligent just for doing so. I don’t see that working even with old Judge Blackbottom, but I concede some more far-fetched legal arguments have succeeded.

My research on WestlawNext also turned up a motion in limine that a plaintiff's lawyer in California filed in a fixie case. This motion asked the judge to keep out any mention of the fact that the plaintiff was riding a fixed gear bike at the time of the accident. The theory was that the kind of bike had nothing to do with the accident and was irrelevant. Although I could not discern all the details of this particular case from the summary of the motion I read, I'm skeptical of the motion's chances for success. One ordinarily expects that all the aspects of a particular accident will come in when comparative fault is at issue. Unless the cyclist was just innocently stopped at the street corner when he was run over, standing next to a priest, a widow and a couple of Girl Scouts selling cookies, all waiting for the light to change, then I'd expect old Judge Blackbottom to give this a quick: "Motion 'nied counsel, move on."

In the end, I think that our hero will be able to get to the jury on his claim against the knucklehead driver. The jury will have to retire to the back room to allocate fault amongst the participants in the accident. But I’m not sure that I should take all that much comfort from this likely outcome. I mean, I would like to think our brave hero would be found blameless, but you just have to wonder what an Anchorage jury would do with the case. Are twelve ordinary Anchorage citizens going to relate more to the driver with the cell phone or to the dazzling urbanite roaming the streets on a fixed gear bike?

(By the way, I’ve been thinking about naming my fixie “Mrs. Palsgraf,” but then you were probably able to foresee that.)

This is still a free country, so long as you stay out of Arizona or have your immigration papers in order. Freedom of contract is one the central principles of American law that is even recognized in the Constitution (in a kinda, sorta way). But this does not mean that you can put any damn thing into a contract and expect to be able to enforce it.

We’ve touched on this theme before, but a recent Ninth Circuit decision underscores the point. In Narayan v. EGL, Inc. three guys in California who drove delivery trucks for EGL, a Texas based company, sued for overtime compensation, reimbursement of business expenses, and other obligations California law says employers have to pay. EGL stiff-armed the drivers by pointing out that the contracts the guys signed said they were independent contractors, not employees. The contracts also said that Texas law governed their relationship.

Amazingly enough, the trial judge – apparently another platinum level member of the Adam Smith fan club -- accepted EGL’s position. He ruled that Texas law applied and shackled the drivers with the distainful servitude of being mere independent contractors.

The Ninth Circuit reversed on appeal, as well it should have. The Nines said that Texas law applied only to claims arising out of the contract itself, not ones based on statutes. Since the drivers' claim did not depend on interpreting any contract provision or even require a contract to exist, the appeals court said the provisions of Texas law didn’t matter. California law was what was important, and under California law it was a question of fact whether the drivers were actually employees or independent contractors.

(At the start of the opinion, I was thinking the Court of Appeals was going to get into a nuanced discussion of the exotic choice of laws notion, renvoi. Alas, the court skipped the discussion whilst going straight for a renvoi result.)

So EGL is going to face a jury on the drivers' claims. And while it’s understandable that EGL would take a flyer on putting these clauses into its contracts, you have to wonder about why it pushed things so far. I mean, regardless of what the contract says, you can’t really expect to avoid applying California labor law to folks working for a living in California, now can you? If EGL’s contractual sleight-of-hand had worked then you’d find Scrooge Industries Inc. and its like always electing to apply Somalia maritime law to its employment contracts, just to avoid those pesky U.S. statutes about overtime, minimum wage, child labor and such.

It does not happen often. Usually judicial decorum and hidebound notions of professionalism prevent it. But every once in a great while, an appellate court takes a swipe at a lawyer. No matter what a lawyer does or fails to do in arguing a case, appellate judges usually let it pass without comment. So it was a bit jarring – but nonetheless refreshing -- to find Chief Judge Alex Kozinski of the Ninth Circuit upbraiding a D.C. intellectual property law firm in a recent opinion.

The case was Toyota Motor Sales v. Tabari. It seems Mr. and Ms. Tabari made a living by brokering the sale of Lexus automobiles. They practiced their trade through that series of tubes we all know so well as the Wonderful World Wide Web. Their websites were named “buy-a-lexus.com” and “buyorleasealexus.com”. Toyota wanted to stop the Tabaris from including “lexus” in their domain names. So it sued them for trademark infringement.

Now, anyone familiar with Chief Judge Kozinski’s views on the First Amendment and trademarks ought to know how this one was likely to come out. The Honorable Judge Kozinski is on record as a stalwart defender of free speech and as a guy who looks skeptically at any broad application of intellectual property rights. In an interview he gave to the libertarian magazine Reason a few years back, the Chief Judge said: “Owners of copyrights and other intellectual property rights are very grabby. They think they own everything, or they think they invented everything.”

And sure enough the opinion Judge Kozinski wrote in Toyota Motor Sales v. Tabari found that the injunction the District Court issued in Toyota’s favor had to be dissolved. The opinion held that trial judge applied the wrong law to the facts and sent the case back for a new determination.

There are several interesting aspects to the opinion, but the one that particularly caught my eye was footnote 12 that took Toyota’s counsel to task over how the right to jury trial issue had been handled. (Cast your mind way, way back to law school and the protection for the right to jury trial established in the Beacon Theatres case.) Chief Judge Kozinski said, in effect, that Toyota’s counsel went a step beyond cagey in arguing this issue:

Toyota artfully maneuvered to obscure this factual overlap [bearing on the Beacon Theatres issue] before trial and again on appeal . . . Toyota evidently hoped that the district court would not notice the careful parsing of its language, and that the Tabaris (who are defending this case pro se) would not call it to the court’s attention. Toyota is playing the same game on appeal . . . Toyota is only telling half the story by talking about only half of the relevant claims; Toyota admitted as much in its motion for summary judgment. Such selective memory exceeds the bounds of zealous advocacy.

Yes, I know Judge Kozinski softened his rebuke by using the name of the party rather than the names of the lawyers or the law firm. But the rebuke of Toyota’s counsel is unmistakable. Even this softened language was too much for Senior Circuit Judge Fernandez, who wrote a concurrence to say that “I am unable to join in the gratuitous slap at counsel for Toyota in the majority opinion, which I see as entirely unnecessary to our decision or even to the upholding of the marmoreal surface of the law.”

(Kudos to Judge Fernandez or his over-educated clerks on the use of the obscure word marmoreal. I admit I had to look it up in the dictionary. I thought at first that it might mean “of or related to the family of the hoary marmot.”)

Chief Judge Kozinski even took a sort of backhanded swing at the trial judge. Judge Kozinski’s opinion said that “many of the district court’s errors seem to be the result of unevenly-matched lawyering, as Toyota appears to have taken advantage of the fact that Tabaris appeared pro se.” I took this statement as implying that the trial judge himself was the one who was over matched. I mean, any pro se litigant who can recognize -- let alone cogently argue -- a Beacon Theatres issue is doing better than a lot of lawyers could do.

But Judge Kozinski had a solution for the uneven lawyering as well. In the very last sentence of the opinion, he wrote: “To avoid similar problems on remand, the district court might consider contacting members of the bar to determine if any would be willing to represent the Tabaris at a reduced rate or on a volunteer basis.”

You know, I was with the Chief Judge all the way up to the end there. I support Chief Judge Kozinski in calling out lawyers when they engage in bad or sloppy lawyering. This sort of criticism does not happen often enough. Lawyers need to know that their shortcomings and hijinks are noticed.

The last sentence of the opinion, though, just made me laugh. It is all well and good to promote pro bono service to the needy public. But, I cannot imagine a District Court Judge having nothing better to do than to hunt up a free lawyer for a car dealer who does not want to have to pay for legal counsel to defend his business. And I would think the idea of having a meddling government official (albeit a judge) step in to decide what is in the best interests of independent business owners would run against the libertarian grain.

Several attorneys at Atkinson, Conway & Gagnon have been again selected for listing as Alaska "Super Lawyers." The listing was in the fall 2009 edition of Washington Law & Politics magazine.

Bruce E. Gagnon was once again given the distinction of being named as one of the Top 10 lawyers in the state. He was also individually listed as a Super Lawyer in the category of general litigation. Mr. Gagnon has practiced law with the firm since 1970. He has long been recognized as a leading attorney in Alaska on business transactions and commercial litigation. Mr. Gagnon was the first Alaska lawyer to be elected to the prestigious American Law Institute.

Robert J. Dickson was listed in as an Alaska Super Lawyer in the category of general litigation. Mr. Dickson has practiced law with the firm for more than 38 years. His practice includes construction law and health care law, with an emphasis on medical malpractice defense. Mr. Dickson has written extensively on construction law issues and often has been a speaker at construction law seminars.

Patrick B. Gilmore was selected for listing as an Alaska Super Lawyer in general litigation. Mr. Gilmore -- who was the recipient of the Alaska Bar Association's Professionalism Award in 2008 -- has practiced law for 33 years. His practice includes banking, creditor's rights, lender liability, professional liability and general commercial litigation.

Jerome H. Juday was listed as an Alaska Super Lawyer for the second time in the areas of business/corporate law. Mr. Juday has been a member of the Alaska bar since 1982. His practice emphasizes business transactions, commercial litigation and professional liability defense. He currently serves as the chair of the Alaska Bar Association's Committee on the Rules of Professional Conduct.

The merit-based process used for the selection of Super Lawyers involves peer nominations, a blue ribbon panel review, and independent research of candidates. The lawyers achieving the Super Lawyer designation are limited to only five percent of all attorneys in Alaska.

Smarter fellows than I have observed that the rules of evidence are a systematic effort to keep the truth from seeping into the courtroom. As one of the authors of the Notable British Trials series observed way back in 1933, the “law of evidence has been built up by generations of judges distrustful of the capacity of juries.” The evidence rules are the law’s way of saying that the trial judge is the only one in the courtroom with a lick of common sense.

Obviously this thesis overstates things a smidge. But I fear that the Alaska Supreme Court’s recent decision in Mueller v. Buscemi demonstrates that there is actually something to this view. (And, yes, I admit that I only read the opinion because I thought it might involve wacky Steve Buscemi or the Coen Brothers. Sadly, it does not and the entertainment value of the decision is vastly reduced.)

The Mueller case involved a simple slip and fall in a parking lot outside a commercial building. (Warning: Gravity In The Area!) The plaintiff rolled snake eyes in front of the jury on her claim against the building owner. The plaintiff blamed the adverse outcome on the trial judge not allowing in evidence of other accidents. Specifically, the trial court kept the plaintiff from giving the jury evidence that a pregnant woman fell in front of the building two weeks before the plaintiff’s accident; that on the same day as the plaintiff’s accident another woman complained about falling in front of the building; and that on the same day as the plaintiff’s accident, a guy fell and hurt his knee in front of the building.

Citing the established evidence rule, the Supreme Court said that the plaintiff was entitled to bring this evidence in only if she showed the other falls occurred “under substantially similar circumstances.” This she failed to do, according to the court, because the plaintiff fell in the back parking lot and the other falls happened in the front of the building. As such, the other falls “are not necessarily probative of the conditions that existed in the building’s rear parking lot.”

Hmmmm . . . It seems fairly obvious from the opinion that the presentation of plaintiff’s case was lacking. In other words, the plaintiff may have deservedly lost at trial.

Yet, in the rush to confirm the outcome, the Supreme Court gave an exceedingly tight interpretation to the evidence rules. I mean, you have to wonder about the science underlying the Supreme Court’s microclimatic application of the law of evidence. We’ve got people falling like ten pins outside this building. But the jury is not entitled to know about this because perhaps it might have snowed more in the front of this building than the back?

How close do the other accidents have to be to the exact spot where the plaintiff took a tumble to meet the requirements of the evidence rules? Ten yards? Ten feet? Ten inches? It just seems like the court is using the blunt edge of the evidence rules to cut things too finely.

Also, as we know from our prior discussion of slip and fall cases, negligence requires proof of more than just something bad happening. You have to show that the defendant had time to find out about a dangerous condition and correct it. Wouldn’t multiple prior gravitational adventures in the front of the building be pertinent to the question of the owner’s notice of dangerous conditions surrounding the building? If the owner had heeded the prior incidents, a sanding crew could have been called in to check all of the exterior areas. The evidence should have come in for the jury to decide how much bearing it had on the case.

One hopes that the next time evidence of “similar accidents” comes into play, the Mueller court’s cramped interpretation of the evidence rules won’t be followed too closely. The Alaska courts ought to trust in the common sense of jurors to be able to, among other things, understand the difference between the front and back of a building.

In a recent decision, Mat-Su Regional Medical Center, LLC v. Burkhead, the Alaska Supreme Court held that a patient could not assign their personal injury claim for recovery of her medical expenses to her health-care provider.

In Burkhead, a patient received medical services at a hospital after an automobile accident. During her treatment, she signed two “Consent: Authorization, Assignment, and Acknowledgment” forms in which she ostensibly assigned to the hospital “all rights to or claims for payment against third parties” for the reasonable value of medical services rendered. The hospital subsequently attempted to intervene in the patient’s personal injury lawsuit and filed its own suit against the tortfeasor. In both cases, the hospital sought to recover the expenses it incurred in treating the patient from the tortfeasor directly and pursuant to the patient’s purported assignment.

The Alaska Supreme Court held that the patient’s purported assignment of her personal injury claim to the hospital was not valid. The court explained that

the assignment of personal injury claims is socially problematic given the potential for overreaching when injured assignees bargain away some or all of their rights under the equivalent of at least economic, if not physical or mental, duress. Any benefits potentially derived by expanding the remedies available to mandatory providers of emergency services would seem to be outweighed by the risk that the routine collection of such assignments from emergency room patients would increase the potential for duress and decrease the likelihood of a fully informed assignment.

Id. at 5. As such, and because health-care providers had the ability under Alaska law to file a lien against any recovery by the patient from the tortfeasor, the court refused to recognize the assignment of the patient’s personal injury claim to the hospital:

Given that our legislature has provided an effective, albeit limited, lien remedy, the social ramifications of allowing such assignments, and health care providers' continued ability to collect from their own patients as creditors, we think it should be for the legislature to decide whether to recognize assignments of patients' personal injury claims.

Id. at 6.

The Alaska Supreme Court’s decision may have unintended consequences for the subrogation rights of insurers and health-care providers in Alaska. Litigants may attempt to rely on Burkhead to argue that unless a statute expressly assigns all or part of a personal injury claim to the insurer, employer or other entity, any contractual assignment of that right will not be valid.

The Burkhead ruling may also have an impact in legal malpractice cases. The Alaska Supreme Court has not squarely held that a legal malpractice claim may be assigned. It, however, did not disapprove of the practice in Continental Ins. Co. v. Bayless & Roberts, Inc., 608 P.2d 281, 286 (Alaska 1980) and Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 758 (Alaska 1992) superseded by statute on a different issue as stated in Petrolane Inc. v. Robles, 154 P.3d 1014 (Alaska 2007).

In holding that a patient could not assign her personal injury claim to a health-care provider, the Burkhead court, however, noted that it has “long recognized a ‘general rule of non-assignability of claims for personal injury’ under Alaska law” and that [t]he majority of jurisdictions around the country have similarly declined to recognize the validity of assignments of tort claims for personal injury….” The court’s general disapproval of assignment of personal injury claims could support the argument that the assignment of a legal malpractice claims is not valid, given that a legal malpractice claim is a type of personal injury claim.

Every profession has its toolbox of near essentials. For a lawyer, I think a good craw is just about indispensable. Even though humans don’t actually have “craws” (with the possible exception of Don Rickles), a figurative craw is most useful for the practice of law. You need a place to jam the stuff that just rubs you the wrong way. You’ve got to store the things you just can’t quite digest so that you can pull them out, poke at them a bit, and turn them over as over as you look to make sense of them.

Something that has been stuck in my craw for awhile now has been the Alaska Supreme Court’s decision in Roeland v. Trucano. This came down in late August, and yes, it’s been wedged tightly in my craw ever since.

The facts of the whole dispute are a bit convoluted. Two folks from Belgium held a right of first refusal on a piece of real property located in Juneau. (Belgians in Juneau? Who knew?) The Trucano guys who gave that right of first refusal made a deal to sell a 25% interest in the property to a fellow named Coates. In exchange, Coates was going to give Trucano a 25% interest in the souvenir shop he was going to put on the property, as well as interests in other businesses that he might someday open in the future in Juneau. (I kid you not, the deal was that vague and open-ended.)

Trucano duly sent this off to the Belgians to match if they wanted to under their right of first refusal. The Belgians were confused by the thing, as well they might be, since they didn’t have any plans to put souvenir shops on the property or anywhere else in Juneau. To cloud the matter more, the offer was presented to the Belgians as being the equivalent of $7 million in cash, although it’s not clear at all how one would work the math out on that. The Belgians told Trucano the proposal was not a real deal they had to match.

Trucano went ahead with the transaction and transferred the property to a new LLC to complete the development. Trucano held onto 75% of the new LLC. But instead of giving 25% to Coates -- as he told the Belgians was going to happen -- he gave only 12.5% to Coates. The other 12.5% went to a Ketchikan couple named Jethani. How and when the Jethanis came into the picture is unclear; all the opinion says about these folks is that “Jethani is a business partner with Coates in Ketchikan.”

The Belgians challenged the deal and lost. On appeal to the Supreme Court, they lost again. The Supremies said the offer passed to the Belgians was sufficiently definite and detailed and that the transfer into the new LLC did not change things. Trucano still kept control with his 75% interest, just as he said he would, he just did so in the LLC context. But when it came to the Jethanis – whom the Belgians had apparently never heard anything about -- the Supremes just glided right over it. Even though it was clear the Belgians were never offered the 12.5% interest in the property that ended up with the Jethanis for whatever amounts the Jethanis paid, the Great Ones just let that inconvenient fact float away in a bubble. The fact that Trucano kept 75% as originally proposed, and that Coates somehow stayed in there as well, seemed to be close enough. In essence what the Courtus Maximus decided was that the 25% interest Coates was supposedly getting could be divvied up any which way and it did not matter. (Yet, both the trial court and the appellate court characterized the LLC creation as an integral part of the original offer itself, which one would have thought was supposed to have been given to the Belgians.)

The Biggie Court went on to point out that the Belgians still retained their right of first refusal as to Trucano 75% interest. So that when and if Trucano wants to sell out to someone else, the Belgians will have the privilege of getting into a business partnership with a bunch of folks they’ve never met, either Coates and the Jethanis and whoever picks up their interest in the future.

I find this outcome a mite hard to square with the way rights of first refusal are usually understood to work, which is why I’ve got a irritated craw at the moment. Regardless of the oddball nature of the offer transmitted to the Belgians at the start, I can’t see how you can change the participants to add the Jethanis to the deal without allowing the Belgians the chance to buy that same interest for the same amount. Also, one of the functions of rights of first refusal is to keep a lid on who you get into business with, and the Bigs pushed that completely off the rails in this deal.

Anyway, the lesson I take away from the case is that you don’t want the Alaska Supreme Court writing your business deal for you. They just might twist it up in one way or another that you don’t like. It is far better to put more of an effort into writing your deal at the front end. Spell out in the agreement what sort offer you have to match on the property. Set out in unmistakeable English that you can ignore stuff in any offer that an accountant applying usual accounting methods cannot translate into actual dollars and cents. Be explicit that any change in the proposal, including even a change in a minority interest, requires a re-tender to the holder of the right of first refusal. Maybe if you do all that, you will stand a fighting chance of having the deal play out the way you expect.

Now, where did I put that craw floss I had around here?

It has happened without anyone much noticing. The year end has snuck up on us here at the worldwide headquarters of the Alaska Law Blog, and we are completely unprepared. It might be that we have been too busy actually practicing law these days to spend any time blogging about it. Or it might be that we’ve frittered away too much time staring out the window at Russia over the way there. (No wait! That might actually be the Mat Su Valley across the Inlet. Does Vladimir Putin even wear Carhartts?)

But regardless of the cause for our lassitude (and no, I don’t mean a collie dog with a chip on its shoulder), we have been unable to compile our annual list of Alaska law highlights for the year. (OK, so we only actually did that once.) Since Gov. Palin resigned there hasn’t been all that much of note going on anyway. The replacement unit, Gov. Parnell, has conducted himself in a much more level-headed manner, albeit a tad on the boring side. It’s probably just a coincidence that the replacement unit is a lawyer himself.

So we have to confess that the Features Desk here at the Alaska Law Blog has fallen down on the job and cannot produce the annual list. To make amends to our reader out there, I’ve compiled a list of other people’s law-related lists. Hey, I know it’s filching. But in the law business this is an accepted practice. Original thinking usually means your motion will be denied or your case dismissed.

Besides the only real Alaska law highlight that occurred this year was the passing of Überlitigant Daniel DeNardo. Mr. DeNardo was a fixture in the Anchorage law library and he always good for at least five lawsuits every year, sometimes as many as ten or twelve. More often than not, the judge who last threw out one of his cases would be named as a defendant in the next one, as a part of an ever broadening consipiracy in Mr. DeNardo’s view. (It was kind of like a reverse Ponzi scheme.) Mr. DeNardo’s death has no doubt freed up a large amount of judicial resources in the Alaska Court System. So perhaps one of the trial court judges might be joining the unemployment line. (Shocked at the possibility? Don’t be, it’s happened elsewhere.)

Anyway, if you want to be entertained by year end lists, here are handful to check out:

The Weirdest Legal Cases of 2009 (Heavy emphasis on sex and lizard poo.)

The 10 Most Infamous Lawyers of 2009 (Heavy emphasis on -- what else -- Ponzi schemes and other violations of the securities laws.)

8 Outrageous Lawsuits (Personal favorite: the Hooters waitress who sued because she thought she had won a car in a sales contest at work. The prize turned out to be a Star Wars action figure: a toy Yoda. Her lawyer got her a good settlement.)

Beautiful Massachusetts Lawyers of 2009 (Proof that lawyers are good for more than just starting an argument.)

25 Reasons Hollywood Needed Lawyers In 2009 (Celebrities!)

The 16 Most Entertaining Law Blogs (This list is actually from earlier this year. The reason I like it is that several of the blawgs listed are now canceled or are no longer updated. So perhaps there's hope the Alaska Law Blog can make this list next year.)

The Alaska Law Blog is completely apolitical. We withhold our campaign contributions from the left and the right in equal measure. We have no agenda, save that which advances the cause of unmuddied legal thinking in the Last Frontier.

But sometimes, . . . sometimes the political circus overwhelms our studied apathy. The announcement yesterday on former Governor Sarah Palin's new book, Going Rogue: An American Life, and the frenzy thereby unleashed, have overtopped the restraints we have erected. The book hasn't even been released for the public to read yet and still every media outlet and blog is abuzz over it.

At the risk of being labeled partisan, we offer the following recycled poetry for your consideration:

Yesterday, broadcast out on the air,
I met the Governor who isn't there.
She isn't there again today,
I wish, I wish she'd stay away.

(Apologies to the late Hughes Mearns.)

But wait, you say. This blog post is not only politically charged, it has nothing to do with the law. It should not be allowed to sully the revered pages of the Alaska Law Blog!

You are wrong my friend. This book by the Governor-Who-Is-Not-There has yielded its co-author a handsome monetary advance. The upwelling tizzy over it will sell a great many copies and lead to a gutpile of royalties. (The book is already tops on Amazon's bestseller list.) With these earnings, the Governor-Who-Is-Not-There will be able to now pay a very large outstanding bill that she owes to the fine Alaska attorneys who successfully fended off the ethics complaints made against her. So there is a connection to the law after all.

And, even though the hullabaloo over this book is going to get very tiresome, anything that provides for the payment of large outstanding legal bills is, as a general rule, something that we at the Alaska Law Blog favor.

Under Alaska Civil Rule 68, a litigant who beats their offer of judgment at trial can recover additional attorney’s fees and costs. On Friday, September 25, 2009, the Alaska Supreme Court ruled that an offer of judgment must be reasonable and good faith in both timing and amount before the penal provisions of Civil Rule 68 can be imposed. In Beal v. McGuire
, an offer of judgment for $1 was held to not be a bona fide attempt to settle the case because of its small amount and timing. The offer of judgment was served thirty days after the litigation was started.

The Alaska Supreme Court’s ruling will limit the utility of offers of judgment, and will cause greater uncertainty, and litigation, over the effectiveness of offers of judgment. For example, is an offer of judgment for defense costs a bona fide effort of settlement? When is an offer of judgment made in good faith, and how is that good faith to be determined? Those issues will now have to be decided by the courts, apparently on a case by case basis.

Most troubling about the Supreme Court’s decision is that it apparently requires that some meaningful amount of money must be offered in order for an offer of judgment to be valid. No longer can offers of judgment for $1 or likely even $100 be made. Thus, even in cases where a claim has no validity, and which will be summarily dismissed, an offer of judgment will be valid only if a meaningful amount of money for a worthless claim is offered. This may have the perverse effect of promoting additional litigation, rather than reducing it, as litigants will no longer be faced with the risk of an award of enhanced fees and costs under Civil Rule 68.