Ten Years of Honoring Champions of Justice

By Professors Anne Bloom and John T. Nockleby

As law professors, we've noted how frequently first-year law students mistake good lawyering with being unpleasant toward one’s adversaries. They are often surprised to learn that litigators who routinely oppose each other in court can be quite friendly and not uncommonly have the highest regard for each other.

Loyola Law School created its Civil Justice Program in 2005 to both facilitate a better public understanding of the civil justice system and to honor its finest practitioners. Each year, the program holds a Tribute to the Champions of Justice dinner to recognize lawyers who make significant contributions to the civil justice system through their professional excellence, technical proficiency and uncompromising integrity. Tonight, it will soon host its 10th-annual installment of the honors.

The list of past honorees reads like a who's who list of the Southern California trial bar. Past recipients include: 2013 – Paul R. Fine ’72, founding partner, Daniels, Fine, Israel, Schonbuch & Lebovits, LLP and Christine D. Spagnoli ’86, partner, Greene Broillet & Wheeler, LLP; 2012 – Gary M. Paul ’74; Waters, Kraus & Paul, LLP and David J. O’Keefe, Bonne, Bridges, Mueller, O'Keefe & Nichols; 2011 – Michael J. Bidart, Shernoff Bidart Echeverria Bentley LLP and Donna M. Melby, Paul Hastings LLP; 2010 – Samuel A. "Skip" Keesal Jr., Keesal, Young & Logan and Brian Panish, Panish Shea & Boyle; 2009 – Bob Baker, Baker Keener & Nahra LLP and Gretchen Nelson, Kreindler & Kreindler LLP; 2008 – Raymond Boucher, Khorrami Boucher, LLP and John Collins, founding partner of Collins, Collins, Muir & Stewart LLP; 2007 – Thomas Jerome Nolan, Skadden Arps Slate Meagher & Flom LLP and Mark P. Robinson Jr., Robinson Calcagnie Robinson Shapiro Davis, Inc.; 2006 – Bruce A. Broillet, Greene Broillet & Wheeler, LLP and Edith Matthai, Robie & Matthai, A Professional Corporation; 2005 – James J. Brosnahan Jr., Morrison & Foerster LLP- San Francisco and Thomas V. Girardi ’64, Girardi | Keese.

This year is the 10th anniversary of Loyola's annual tribute. To mark the anniversary, the dinner will honor the previously named Champions of Justice, plus announce two new ones: Louis H. "Duke" DeHaas of La Follette, Johnson, DeHaas, Fesler & Ames and William Shernoff of Shernoff, Bidart, Echeverria & Bentley LLP. The dinner will be held on Thursday, Oct. 30 at the Beverly Hilton.

Expression is the Better Part of Valor: Discretion and Good Faith in Entertainment Contracts

By Professor F. Jay Dougherty

It is not unusual for contracts in the entertainment industry to contain provisions leaving performance of an act to one party’s discretion. Often the other party’s attorney will request that such a provision also expressly require good faith. Sometimes, “good faith” is expressly added to the contractual language—after all, the client will act honestly in exercising its discretion. In the past, however, negotiators might reject the request, arguing that good faith and fair dealing is implied in all contracts anyway. In recent years, some courts have moved away from implying an obligation of good faith in a matter left to a party’s discretion. Other courts have implied the good faith obligation, even where a matter of subjective creative judgement is involved. Volatility and uncertainty in connection with implied covenants of good faith suggest that attorneys should be careful to draft such provisions clearly, leaving no ambiguity as to the intent of the parties.

In Third Story Music v. Waits[1], the plaintiff (“TSM”) had entered into an exclusive recording artist agreement with acclaimed singer-songwriter Tom Waits in the 1970’s, and had later transferred its rights under that agreement to Elektra/Asylum Records, a label in the Warner Communications family of record companies (“Warner”). Under the agreements, TSM would produce Waits’ records, and Warner would have the exclusive right to exploit and license those records. The agreement between TSM and Warner also specifically said that Warner “may at [Warner’s] election refrain from any or all of the foregoing.” TSM was to receive a percentage of amounts earned by Warner from the records, and a substantial advance for each album.

In 1993, an affiliate of TSM attempted to obtain a license from Warner to compile and exploit an album of some of the Waits recordings. Warner itself had no objection, but before it would agree to issue the license, it sought Waits’ approval, which he refused to give (assertedly to maximize the value of his later recordings made after the expiration of his agreement with TSM). When Warner refused to issue the license, TSM sued for damages for breach of the implied convenant of good faith and fair dealing. Warner demurred, asserting that the contract language expressly permitting it to refrain from licensing precluded application of the implied covenant. The demurrer was sustained, and affirmed on appeal.

Who Will Police the Police?

By Professor Priscilla Ocen

This op-ed originally appeared in the Los Angeles Daily Journal on Sept. 22.

In August, Ferguson, Mo. — a small, predominately black suburb of St. Louis — erupted in protest after the shooting death of Michael Brown, an unarmed black teenager, by a white police officer. Following the shooting, Brown’s body lay prone on the street for hours, visible to neighbors and passersby as a gruesome reminder of the violent end to his young life. Brown’s death at the hands of police, however, was only one of many this summer. In New York, Eric Garner, another unarmed black man, was killed after he was placed a chokehold by members of the New York Police Department. In Los Angeles, Ezell Ford, an unarmed, mentally disabled black man, was shot and killed by members of the Los Angeles Police Department.

The deaths of Brown, Garner and Ford are not isolated incidents. According to the FBI, police officers, on average, kill over 400 people per year in what were determined to be “justifiable homicides.” This figure, however, likely underrepresents the number of police killings as it only includes self reported data from less than 10 percent of police departments and only those killings that have been deemed justified. Nevertheless, it is clear that the burden of deaths in police custody has fallen disproportionately on African-Americans. Annually, nearly a quarter of the 400 killings involve African-Americans. This means that African-Americans are killed by police almost twice a week in the United States. Indeed, in a recent report by Mother Jones magazine, it was found that blacks are roughly four times as likely as whites to die during arrest or while in police custody.

While the killing of African-Americans by law enforcement officers is a tragically common event, criminal penalties for police officers accused of killing African-Americans are startlingly uncommon. In one study of 21 high-profile shootings of unarmed African-Americans, only three officers were successfully prosecuted. As both St. Louis County and federal officials investigate the shooting death of Michael Brown, what kind of outcome should we expect if a criminal case is ultimately filed?