Summer Holiday

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LPR will be closed through the end of August for our summer holiday.

The blog will resume after our return in September.

We wish everyone a relaxing and rejuvenative remainder of the summer.

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Should You Pay For Attorney Mistakes?

Patrick Lamb, an attorney and blogger, wrote about attorney mistakes in his August 6, 2015 post on abajournal.com titled “How lawyers can embrace mistakes.”  In his piece, Mr. Lamb suggests that lawyers and law firms should conduct “After Action Assessments,” to evaluate “What Went Well” and what to “Take A Look At.”  He advocates sharing the assessments with colleagues so others can learn from the mistakes.  Two of the commentators, however, raised a host of possible concerns and repercussions, including malpractice concerns with admitting mistakes and ethical issues raised by disclosure requirements.

MISTAKESWhat Mr. Lamb and the commentators do not address is whether attorneys should charge their clients for fixing their mistakes. Imagine a situation where an attorney is handling a contentious divorce and a deal is struck on the couples’ division of property. After the agreement is signed, the attorney realizes that because he failed to include a particular term, the other spouse is able to wiggle out of the agreement and litigation ensues.  Should the attorney disclose the mistake to his client?  Should he charge the client for work that would not have been necessary but for his mistake?

It’s a complicated question for attorneys as it would involve disclosing the mistake to the client, which as Mr. Lamb’s commentators note raises a whole host of issues.  But, if the attorney fails to “admit” the mistake, his non-disclosure and subsequent charges to the client for the litigation in the hypothetical above likely pose ethical issues as well.

Legal consumers who find themselves in such a situation need to consider whether they should pay for their attorneys’ mistakes.  While the simple answer is “no,” unfortunately, sometimes the reality of taking that position is not so simple.

 

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If It Can Happen To Tom Brady . . . It Can Happen To You

Tom Brady learned a hard lesson about forum shopping this week.  He and the NFL Players Association (“NFLPA”) filed a lawsuit on Wednesday in the U.S. District Court for the District of Minnesota over his four game suspension for his alleged role in the under inflation of footballs in the AFC Championship game.  However, the NFL preemptively filed first on Tuesday in the U.S. District Court for the Southern District of New York just after the NFL Commissioner handed down his decision on Brady’s appeal. The judge in Minnesota transferred the case to New York.

Tom Brady

Tom Brady

According to a July 31, 2015 Yahoo! Sports article titled, Brady lawsuit transferred from Minnesota to New York court, Brady and the NFLPA wanted the case in Minnesota because Minnesota Viking player Adrian Peterson had received a favorable ruling from the Minnesota court against the NFL on his suspension. Minnesota Judge Richard Kyle found that the case should go forward in New York given the lack of ties to Minnesota: the NFL is headquartered in New York, the NFLPA is headquartered in Washington, Brady plays in Massachusetts, and both the arbitration and award were held/issued in New York.

[The court] sees little reason for this action to have been commenced in Minnesota at all. . . . [The court] strongly suspects the union filed in Minnesota because it has obtained favorable rulings from this court in the past on behalf of its members.

It is important for legal consumers to understand that while a court must have “jurisdiction” over a matter, “venue” must also be proper.  And, in cases where two courts have jurisdiction and both are proper venues, it can be a race to the courthouse because in that instance, the court in which the case is “first filed” will be granted deference by the other court.

Jurisdiction and venue can be complicated and should be thoroughly considered.  Because if it can happen to Tom Brady and the NFLPA with their team of high-priced lawyers . . . it can happen to you.

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If It Can Happen To Bill Cosby . . . It Can Happen To You

Last week, The New York Times obtained a copy of Bill Cosby’s deposition from a 2005 sexual assault and defamation case that was reportedly subject to a confidentiality agreement.  According to a July 22, 2015 abajournal.com article titled Cosby lawyers blame his accuser for release of his deposition by court reporting service, Mr. Cosby’s attorneys argued in motions practice that the plaintiff in the 2005 case hired the court reporter, and it was the plaintiff’s responsibility to ensure that the court reporter maintained the confidentiality of the deposition transcript.

UnknownBecause the facts surrounding the language of the confidentiality agreement are sketchy at best, we do not know whether plaintiff’s counsel failed to adhere to and properly implement the agreement, or whether defendant’s counsel failed to take steps to ensure that his client’s deposition was secure from disclosure.  But the fact remains that the deposition was disclosed, in its entirety.  For legal consumers — and for all lawyers — this should serve as a cautionary tale.

When properly drafted and implemented, confidentiality agreements (between the parties) and protective orders (sanctioned by the court) can ensure the secure handling of confidential material.  Confidentiality agreements should provide explicit and detailed language regarding the disclosure of discovery, including discovery that is in the possession of a third-party, like a court reporter.  All discovery subject to a confidentiality agreement should be clearly marked with some “CONFIDENTIAL” designation on every page, including the originals and all copies.

The parties should consider seeking a court order protecting the confidential material so that non-parties cannot obtain the documents from the court record or from third-parties.  A copy of the confidentiality agreement and/or protective order, or at least a letter detailing their terms, should be provided to any third-party in possession of confidential documents.  The letter should also include a protocol for ensuring that the third-party does not make an inadvertent disclosure.  And steps should be taken to ensure that the documents are destroyed at case conclusion or remain protected after the litigation ends.

There are many ways to protect confidential material, and each jurisdiction has its own rules and practices.  Legal consumers should be mindful of the dangers of not having a thorough and strategic protection plan.  After all, if it can happen to Bill Cosby . . . it can happen to you.

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How Do Law Firms Hire Attorneys . . . And Why Should You Care?

So, how do law firms hire attorneys?  Well, according to University of Colorado Law School Dean Philip Weiser, law firms seek to hire attorneys based on pedigree: those who went to the best law schools and got the highest grades.  In his July 15, 2015 article posted on abajournal.com titled “How law firms are innovating when it comes to hiring,” he makes the case that this method of hiring often leads to poor results.

images-4Dean Weiser advocates that law firms should change their hiring practices from centering on pedigree.  Among other anecdotes, he cites to Google’s findings that candidates’ GPAs are “worthless as a criteria for hiring.”  Rather, he suggests that a more informed hiring practice could identify the best candidates.  For example, firms could conduct behavioral interviews centering around group projects and writing assignments, or they could use behavioral panel interviews that culminate with an onsite writing assignment “summarizing legal information for a non-lawyer.”

Psychologist Ron Friedman believes that “interviews are a disastrous tool for gauging potential . . . because over 80% of people lie during interviews.”  According to an April 22, 2015 Business Insider article titled, “Psychologist says interviews are a terrible way to hire – here’s what you should do instead,” interviewers’ own biases can affect the process.

‘We automatically jump to all kinds of erroneous assumptions about a candidate from their appearance,’ [Dr. Friedman] says. ‘Studies show we view good looking people as more competent. We perceive tall candidates as having greater leadership potential. And we assume deep-voiced candidates are more trustworthy.’

None of these evaluations are necessarily accurate, of course. ‘But here’s the thing,’ Friedman says. ‘They affect the questions we ask during interviewers. And the way a question is phrased can make all the difference.’

Dr. Friedman, author of The Best Place To Work, suggests that job auditions are better indicators of a candidate’s potential than job interviews.

Instead of asking a job candidate questions for an hour, design a job-relevant assignment that reflects the type of work the applicant will actually do, should they be hired.  

All of this is interesting, but why should you care?  If you’re a law firm partner in charge of hiring, you should seriously consider the perspective presented by these and other professionals to enhance your hiring practices and ultimately your talent pool.

If you’re a legal consumer, dispel yourself of the notion that pedigree is necessarily an indicator of a better attorney.  While a Harvard Law graduate may well be an excellent attorney, an attorney who graduated from a law school you have not heard of may also be an excellent attorney.  A high-ranking law school diploma is no guaranty.

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Judge Sends Kids Away . . . For Refusing To Lunch With Dad

Last month, Michigan Judge Lisa Gorcyca found three children (15, 10 and 9) in contempt of court for refusing to have lunch with their father and sent them to live at Children’s Village until they reconsidered.  The full transcript of the hearing and the interaction between the judge, the children, and the children’s lawyers can be accessed here.

Honorable Lisa Gorcyca

Honorable Lisa Gorcyca

According to the transcript, the judge believed that the mother had alienated the children from the father drawing the comparison to the Charles Manson cult, and that the father was “a great man.”  She chastised the children for refusing her order to have a relationship with their father, ruled they were in contempt of that order, and ordered that they be sent to Children’s Village.

THE COURT:  I don’t know what this is.  I’ve never seen anything like it.  You’re a defiant, contemptuous young man and the court finds both of you in direct contempt. . . . When you are ready to have lunch with your dad, to have dinner with your dad, to be normal human beings, I will review this when your dad tells me you are ready.  Otherwise, you are living in Children’s Village [sic] til you graduate from high school.  That’s the order of the court.  Good bye.

She also ordered that the children could have no contact with the mother or anyone from the mother’s family.

According to the Detroit Free Press, two weeks after she sentenced the children to Children’s Village, the judge released them to spend two weeks in summer camp at the father’s urging.  It is unclear what will happen to the children when summer camp is over.

While it is clear from the transcript that this case has a substantial history, the full facts of which we do not know, this court’s statements and rulings should be a cautionary tale for any legal consumer entering the child custody arena.  Once you submit your custodial issue to the court’s jurisdiction, a judge will decide the custody of your children.  Legal consumers should also note the statements of two of the children’s court appointed attorneys (see page 13, lines 13-15 and page 14, lines 18-21) and note that the children’s attorneys did not object to the judge’s ruling sending the children away.

Family court can be many things . . . good, bad, and sometimes ugly.

 

 

 

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Observing Jury Verdict Grief

Our favorite blogging judge, Judge Richard G. Kopf of the U.S. District Court for the District of Nebraska, has written yet another blog post that caught our attention titled, A grief observed, posted on July 1, 2015 on Herculesandtheumpire.com.  Referencing C.S. Lewis’ book A Grief Observed, Judge Kopf writes about a particularly sympathetic and credible plaintiff (“a lean and tough working man with an amputated leg, over a half million in medical bills, and lasting and horrible disabilities”), the crushing defense verdict he received from the jury, and the impact that likely had on the gentleman’s lawyer.

Judge Richard G. Kopf

Judge Richard G. Kopf

Trying lawsuits is torture on the lawyers, and the pain is searing when the jury goes against you. . . . I could easily turn into a “prick” lawyer making life miserable for my opponents and the judges before whom I appeared. If so, I would revel in their frustration. I would develop an ulcer or some other physical problem that I would ignore but bitch about incessantly. In short, I would be transformed from the loving and kind young man who started law school into a real bastard.

While Judge Kopf thoughtfully considered how the defense verdict affected the lawyer in the case before him, we hope that legal consumers consider how an adverse verdict can affect the litigant.  One of the attorneys who posted a comment, Jon Margolis, provided a poignant perspective.

A good mediator will always point out to the jurors that a settlement is their choice, and that if they do not settle the decision will be left to others. When we take a new case, we point out to the client that we can make no promises–that we do not control the other side, or the judge or the jury; we can try to influence all of them, but we have no control.  Most settlements are driven by the fear of trial–which generally is a good thing.

Trials are a necessary mechanism to decide disputes, but they are often harsh, even cruel.  And sometimes reach unjust results. . .

We have blogged before about the emotional, physical and monetary drain a lawsuit can be.  Legal consumers should also consider the effects of an adverse verdict as well.

 

 

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If It Can Happen To Ellen Pao . . . It Can Happen To You

Ellen Pao, the former BigLaw associate who sued her venture capital firm, Kleiner Perkins Caufield & Byers, for sex-discrimination, now owes the firm its litigation costs and possibly its attorney fees according to the abajournal.com June 19, 2015 article titled Judge says Ellen Pao owes $276K to venture capital firm in sex-discrimination case. Why?  Because sometime before the trial, the firm made her a million dollar settlement offer in the form of an “offer of judgment,” and she lost at trial.  In California, where the lawsuit was pending, Rule 68 governs offers of judgment:

imagesIf the judgment that the offeree finally obtains is not more favorable than the unaccepted offer, the offeree must pay the costs incurred after the offer was made.

Because Ms. Pao did not accept the firm’s million dollar offer, and because she lost at trial, under Rule 68, she must pay the firm’s costs that were incurred after they made the offer.   Citing the disparity between the resources of Ms. Pao and the firm, the judge reportedly reduced the firm’s costs from $972,814 to $276,966.

Offers of judgment can be very effective tools for the defendant in a case, because it puts pressure on the plaintiff to settle.  And, since offers of judgment can be made early in the case, should a defendant prevail, or get a verdict that is less than the offer of judgment, the plaintiff can end up paying most of the defendant’s costs.

If you receive an offer of judgment, take it seriously and critically analyze the strength of your case in light of all the factors that can affect the outcome.  After all, if it can happen to Ellen Pao . . . it can happen to you.

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Watch What You Say . . . The Little Blue Man Might Be Listening

Have you ever noticed while watching TV or movie courtroom scenes when the attorneys sitting at either the plaintiff or defense table covers the microphone with their hands when talking with their clients?  That’s because in most courtrooms there is an audio recording of the proceedings.

blue_manBut what you may not realize is there are often microphones throughout the courtroom, and they may be on even while the court is in recess.  “Shhh, the little blue man is listening!” Often, our founder said that to her clients and to witnesses. In one of the jurisdictions where she practiced, there was a lucite light panel with the outline of a man that was backlit in blue when the court microphones were on.  Hence the reference to the little blue man.

Not heeding this advice was New Jersey family law attorney William Laufer when he reportedly told his opposing counsel during a court recess that the prosecutor was in his pocket: “Whatever I ask he does.”  A June 17, 2015 abajournal.com article titled Courtroom mic, left on during recess, picks up lawyer’s assertion that prosecutor ‘is in my pocket,'” reported on the matter.  As noted in the article, unfortunately for Mr. Laufer, the courtroom microphones were on when he made this statement.  This led to an allegation by an opposing litigant that Mr. Laufer was responsible for the prosecutor not pursuing stalking charges against Mr. Laufer’s client.  Certainly Mr. Laufer was embarrassed, as was the prosecutor who denied the allegation.  Whether there will be professional repercussions is yet to be seen.

So to all legal consumers who might someday find themselves in a courtroom, LPR shares the following tip.  Always remember to be careful what you say . . . the little blue man, or some other audio device, may be listening.

 

 

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Best Practices? Look Across The Pond

This weekend, the ABA hosted the 2015 London Sessions commemorating the 800th anniversary of the Magna Carta, with a series of presentations including a panel discussion titled What can US and UK lawyers learn from each other about best practices?

UKThere were a number of best practices discussed, but of particular interest to LPR was how discovery is handled in the UK.  In the US, discovery is based upon requests in a search for the truth.  The discovery process can take years depending on the court and the size of the case.  In the US, if an attorney fails to request certain relevant documents or information, the opposing attorney has no disclosure obligation.  The result has been blanket requests in an effort to not miss anything and substantial fees to review all of the documents and information produced.

In the UK, attorneys are required to conduct a reasonable search and produce all documents that directly support the positions of both sides.  And they must do so at the outset of the case.

If the US were to adopt the UK’s disclosure practice, the life of lawsuits would be shortened, litigation costs would go down, the “truth” would be more transparent, and perhaps there would be less litigation.  That would be best practices indeed.

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