What Legal Consumers Can Learn From Apple

Posted on May 10, 2014 by The Legal Reformer

A jury recently awarded Apple just shy of $120 million in its latest patent infringement lawsuit against Samsung.  In the first lawsuit, Apple was awarded $1.1 billion.  But as Jay Yarow of the Business Insider implies in his article, Samsung’s Lawyer Absolutely Crushes Apple, perhaps Apple should be looking at the “bigger picture.”

Apple SAMSUNGSpecifically, Mr. Yarow is talking about the fact that although Apple has received two monetary awards, it has not recovered any of that money because the cases are being appealed.  And, Mr. Yarow ponders whether Apple looks bad being the aggressor.  John Quinn, Samsung’s attorney posits that Apple has “nothing to show for the hundreds of millions of dollars they’ve spent,” speaking, we presume, about the legal fees, expert fees, litigation fees, and court costs.

Legal consumers should learn from the Apple litigation.  Just because one wins a monetary award from a judge or jury doesn’t mean it is collectible.  The other party may appeal, resulting in a new trial or reduced award, or the other party may be “judgement proof,” meaning they have insufficient or nonexistent assets to pay the judgment.  And, as we have said many times before in this blog, litigation is expensive, time-consuming and emotionally draining.  While Apple may be engaging in litigation on principle, legal consumers should weigh the money, time and effort litigation requires versus the probability of little or no monetary return.

You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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It’s Not Just The Lawyers And Judges . . .

Posted on May 3, 2014 by The Legal Reformer

When we blog about the legal system needing reform, we tend to focus on issues involving lawyers and judges, but the whole system needs reform.  Illustrating this is the revocation of a New Jersey psychologist’s license after being found to have influenced children in alleged parental sexual assault cases resulting in the loss of parental rights. Here’s a link to the news of the revocation:

http://www.youtube.com/watch?v=_GCk8vn5Tms

Marsha Kleinman, of Highland Park, New Jersey, was a well-regarded child psychologist who served in a number of custody cases.  In 2003, Ms. Kleinman was involved in a divorce and custody case involving a three-year old girl.  According to the court’s 86-page order revoking her license, although Ms. Kleinman was appointed as the treating psychologist, she engaged in a pattern of suggestive forensic analysis of the little girl, convincing her that her father had sexually abused her.  The father’s parental rights were progressively eliminated, beginning with supervised visits and ending with the loss of any visitation.

In 2012, a New Jersey court found that Ms. Kleinman “engaged in gross and repeated malpractice, which damaged and endangered the welfare of [the girl] and threatened [the girl’s] relationship with her father.”  Using strong language to describe Ms. Kleinman and her actions, including misleading the court, the judge revoked Ms. Kleinman’s psychology license, ordered her to pay $60,000 in civil penalties, and ordered her to pay the costs of investigating her conduct, including expert and attorney fees and other costs.

Although not lawyers, psychologists in family law cases (and other experts in other types of cases) can have a huge impact on the outcomes because by definition they espouse opinions that most judges, lawyers and jurors lack training to evaluate.  Where these experts act with integrity and the utmost of professionalism, they are to be applauded. But, just like lawyers, the temptation to “follow the money” – the “right” opinions can result in repeat and voluminous business – is great for many experts.  And, in cases where expert opinion can make the difference between winning and losing, these experts wield tremendous power over the litigants and the outcomes.

This aspect of the legal system needs reform as well.

You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Can Judges Reduce Litigation Costs?

Posted on April 26, 2014 by The Legal Reformer

It’s a familiar scenario – a lawsuit on the evening of trial suddenly settles after years of litigation and seemingly innumerable dollars spent preparing the case.  Most clients wonder whether anything could have been done along the way to settle the case earlier and avoid the enormous fees and years of uncertainty.  In an April 24, 2014 article titled “10 Things Judges Can Do To Help Business Litigation Be More Efficient And Less Expensive,” Patrick Lamb of Valorem Law Group proposes that judges may be able to reduce litigation costs.

Prefacing his thoughts with the disclaimer that he has never been a judge or clerked for one and has no knowledge of the issues judges confront, Mr. Lamb proposes the following 10 things judges could do to reduce costs:

  1. Accelerate the end – adopt a faster case track.
  2. Require senior trial lawyer involvement – senior lawyers can often reach agreements junior lawyers cannot.
  3. In business to business cases, get the businesspeople involved – businesspeople are more interested in the outcome than the process of getting more information before settlement.
  4. Identify and decide key issues first – find and decide the key issues that impedes resolution.
  5. Guard against too much process at the expense of practical outcomes – lawyers like the process, but clients want quick results.
  6. Standardize rules in ways that drive efficiency – eliminate redundant work like numbering exhibits for depositions and renumbering them for trial.
  7. Limit discovery – limit written discovery (interrogatories, document requests and requests to admit) unless there is a compelling reason for more.
  8. Master e-discovery cost drivers – judges should understand electronic discovery and the enormity of information it generates or have someone who understands the process and can address the issues and costs.
  9. Reduce the briefing – judges should allow one-page letters or phone calls for certain issues that do not need to be fully briefed.
  10. Decide quickly – all delays increase costs, and the one-page letters or phone calls could provide fast decisions and save fees.

Mr. Lamb states that litigation costs are increasing because of e-discovery, and that the court rules were written before e-discovery existed:

Litigants, even sophisticated companies, often find themselves caught in tangled mess of barbed wire, caught amongst outrageous expense and discovery complexity, rules that were mostly drafted in an age before electronic information was commonplace and lawyers who seek to turn every misstep into a fight to the death or a sanctionable offense no matter how small the consequence [to] the particular case.

The system is indeed broken, and while judges may be able to limit litigation costs as Mr. Lamb suggests, they would be but one part of mending a system that needs to be reformed.

You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field. Call LPR today for a free consultation – (301) 351-7970.

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One Judge’s Take on “The Secret Life of Judges” and Judicial Bias

Posted on April 18, 2014 by The Legal Reformer

In 2006, former Chief Judge of the U.S. Court of Appeals for the Second Circuit, Dennis Jacobs delivered a lecture at Fordham Law School titled “The Secret Life of Judges.”  In his lecture, Judge Jacobs described “the judicial mentality,” as “a habit of mind that . . . amounts to a serious and secret bias.”

This lecture is about bias, the judge’s inbred preference for outcomes controlled by proceduralism, the adversary system, hearings and experts, representation by lawyers, ramified complexity of doctrines and rules, multiple prongs, and all things that need and use lawyers, enrich them, and empower them . . . .

He noted that judges have an internal bias for attorney-based procedures and solutions and believe that the adversarial system yields the best results.  But Judge Jacobs acknowledged that judicial bias in favor of legal complexity often fails to consider the transaction costs for litigants in the “ceaseless turning of the legal machine.”

Considering how many of us [judges] conscientiously think hard about the economic consequences of the outcomes we adopt, it seems strange that our cases reflect an almost complete disregard and ignorance of the costs, uncertainties, and delays inflicted by the judicial process itself.

Admitting that “judges tend to assume that the adversary process assures a fair fight and a just outcome,” he noted that “adversariness” does not assure fairness.  He opined that a problem might be the lawyers’ (including judges) lack of respect for non-lawyers.

In the end, Judge Jacob questioned how to correct judicial bias and raise the legal profession, which he described as  a monopoly that is self-regulating.  He posed the following response:

Judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust . . .

This is one judge’s opinion.  Would other judges agree?

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“Is Your Lawyer’s Bill Too High?”

Posted on April 12, 2014 by The Legal Reformer

We have written about HALT.org (Help Abolish Legal Tyranny) in previous posts and its work for transparency in attorney discipline and reporting on state bar associations’ secrecy in the handling of attorney ethics complaints.  HALT also has a number of self-help brochures on its website.  Of particular interest is HALT’s Is Your Lawyer’s Bill Too High?  How to Avoid (and Resolve) Fee Disputes.

Questioning an attorney about your bill isn’t easy, but you should not pay inaccurate or inflated charges. If you think your lawyer is charging too much, you’re not alone. State and local bar associations across the country consistently report that fee disputes are among the most frequent complaints they receive against attorneys. This brochure contains a lot of useful information about interacting with an attorney on billing procedures and fee disputes.

The brochure addresses three types of fee arrangements (flat fee, contingent fee, and hourly fee) and offers ways to avoid fee disputes (find the right lawyer, discuss fees in advance of retention, and get a signed fee agreement).  HALT also advises consumers to confront billing problems immediately, since the issue could be “a simple math error or an unintentional mistake on a bill.”  According to HALT, addressing billing issues promptly allows the attorney to resolve the issue and can salvage and fortify the attorney/client relationship.

HALT also details “Sources of Fee Disagreements”:

  • Overstaffing – Too many lawyers to a case or project just to fulfill billable hour quotas.
  • Uncompensated staff turnover – If you discover that the lawyer handling your case has moved on, you shouldn’t have to pay extra to reeducate a new lawyer about your legal matter.
  • Unnecessary research – If you are being billed for research in an area the firm already claims expertise in, question it.
  • Redundant expert witnesses and consultants – Don’t hesitate to ask why more than one (or two) expert witnesses are needed, if that’s what your lawyer proposes.
  • Uncontrolled expenses – Keep a lid on expenses by asking the lawyer to anticipate in advance what expenses will run and by including a stipulation in your agreement that you cannot be charged over the estimate without prior written approval.
  • Excessive overhead costs – Clients should challenge charges that obviously cover a firm’s routine overhead.
  • Deluxe travel and entertainment – Specify what air class you believe is appropriate. . . Make clear in advance what you will not pay for. Some examples include in-room movies, bar bills, any expense over $5 without a receipt, and laundry and dry cleaning.
  • Bill padding or overbilling – Unfortunately, some lawyers intentionally try to rip off clients by padding their bills. . . . if your lawyer charged you for more phone call conversations in a month than you have actually participated in, you need to challenge it. You should also raise questions if you are being charged at your lawyer’s hourly rate for work that is obviously clerical, or for items that seem vague.

The HALT brochure raises real-world billing issues and possible resolutions.  Legal consumers should take note.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Judge’s “Cautionary Tale” About Online Legal Forms

Posted on April 5, 2014 by The Legal Reformer

Last week the Supreme Court of Florida issued an opinion interpreting a will prepared using an online form.  The opinion specifically addressed how property acquired after the will was signed was to be distributed in the absence of a residuary clause (a catch-all provision) in the will.  Even though it appeared that the deceased had intended for the after acquired property to pass in accordance with the will, the Court ruled that the after acquired property must pass to the heirs as if there were no will.

imagesThe deceased, Ann Aldrich, prepared and executed a will using an E-Z Legal Form in 2004 leaving all of her property, which was itemized, to her sister and further providing if her sister predeceased her, the property was to be distributed to her brother.  Ms. Aldrich’s sister died three years later and left Ms. Aldrich land and cash.  Then Ms. Aldrich prepared a handwritten note intending for it to be an addendum to her will, leaving the newly inherited property and cash to her brother.  The “addendum” was signed only by one witness, which was ineffective under Florida law.

When Ms. Aldrich died, her nieces contested the will and the “addendum,” arguing that the will failed to include a residuary clause that would have included the after acquired property in the bequeath to Ms. Aldrich’s brother, and therefore it should be distributed under Florida intestate law, which would include them.  Ms. Aldrich’s brother argued, among other things, that Ms. Aldrich’s intent was clear that he should receive the after acquired property and cash.

The Court, supported by a brief filed by the Real Property Probate and Trust Law Section of The Florida Bar, ruled for the nieces, finding that while the will was a clear indication that Ms. Aldrich intended to leave all of the listed property to her brother, the will made no mention of the after acquired property.  And since there was no residuary clause or a general bequest in the will and the “addendum” was ineffective, Florida law required that the after acquired property be distributed according to Florida intestate law.

One justice, writing a concurring opinion, believed this to be a cautionary tale, stating that the phrase “penny-wise and pound-foolish” came to mind.

In a case such as this, which involved a substantial sum of money, the time, effort, and expense of extensive litigation undertaken in order to prove a testator’s true intent after the testator’s death can necessitate the expenditure of much more substantial amounts in attorney’s fees than was avoided during the testator’s life by the use of a pre-printed form. I therefore take this opportunity to highlight a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.

Legal consumers should take note.  Caution and foresight are essential for those who choose not to engage an attorney when entering the legal arena.  This case is but one example of how a seeming simple legal matter can be more complicated than perceived.

You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Should Clients Start Acting Like Consumers?

Posted on March 29, 2014 by The Legal Reformer

On this blog, we often refer to clients as legal consumers.  Clients who are paying for services provided by attorneys are consumers of legal services.  Hence the term “legal consumers.”  Inherent in that terminology is the concept that the legal industry is indeed a marketplace.  Perhaps it should be approached as one.

Document2The medical field has begun a trend that has existed in the legal field for some time.   The March 2014 edition of the AARP Bulletin reports on doctors bidding for surgeries in an article titled Now You Can Get Bids for Surgery. According to the article, there is a website called MediBid.com where doctors and facilities can bid for patient services.  The article notes that MediBid advises patients to research the doctors bidding on services just as they would any potential new provider.

Of particular interest is what MediBid’s chief financial officer, Chris Hobbs, said about the benefit of patients acting like consumers:

When patients start to behave like consumers, prices come down.

Can the same be said of the legal arena?  When clients start to behave like consumers, will legal prices come down?  We believe so.

While there are a number of bidding sites for legal services, and there have been for some time (see Susan Cartier Liebel’s post Will Legal Services Bidding Sites Gain (Real) Traction?), it has not become commonplace.  But regardless of whether clients use bidding sites to obtain cost conscious legal services or employ other methods, perhaps there is wisdom in Mr. Hobbs’ statement.

Perhaps when clients think like consumers, they will approach the legal arena in a capitalist frame of mind, constantly assessing the cost/benefit of the legal matter and all steps along the way.  And perhaps by thinking like consumers, clients will be better equipped to interact with their attorneys on a more level playing field.  And a level playing field is key to a positive and mutually beneficial attorney/client relationship.

You’ve got options. The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field. Call LPR today for a free consultation – (301) 351-7970.

 

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“Rake” TV Show – Surprisingly Accurate

Posted on March 21, 2014 by The Legal Reformer

One of LPR’s followers suggested we watch last week’s episode of Rake, a new legal drama on Fox.  In last Friday’s episode, “Staple Holes,” the lead character, Keegan Dean, leaves his solo practice to join his best friend’s white shoe law firm.  Pacing the sidewalk in front of the new firm’s offices, Keegan rationalizes joining the firm with the help of his long-time assistant, despite anticipating it to be “the worst, most soul-sucking experience of [his] life.”

RAKEWhile Keegan is a somewhat lovable mess of a character, he is a brilliant lawyer who is particularly skilled at the art of cross-examination.  On his first day at the firm, Keegan is assigned as fourth chair on the firm’s long-running corporate trial.  When the lead counsel (Keegan’s best friend) is hesitant about conducting the cross-examination of a key witness, Keegan is asked to do it the following day.  Without any preparation, and after a night of debauchery, Keegan goes on a fishing expedition on cross-examination and ultimately cracks the witness and the case.  Returning to the firm with champagne in hand to celebrate his wrapping up the case in such short order, Keegan is greeted with disdain for having wiped out the firm’s financial budget.  The managing partner chastises Keegan because the firm was relying on the revenue the case would generate slugging along for the remainder of the year.  How realistic is this storyline?  Surprisingly accurate.

The episode raises a number of real-life issues that seem better suited for the make-believe world of TV:

  • Although it is unbelievable that a senior partner in a white shoe law firm would have performance anxiety about conducting a trial, it happens more than one would expect. Because of the tendency of most high value cases (multi-millions and billions) to resolve outside of court, many high-priced lawyers have rarely seen the inside of a courtroom and many lack extensive courtroom experience.
  • That there are four (or more) lawyers appearing in court for the firm’s client is often routine in large cases.
  • After the lead attorney asks the judge to reconvene the next day because he is unprepared to cross-examine the witness, the judge questions why four lawyers billing $600/hour aren’t prepared, but then recesses for the day.  While judges will often chastise attorneys for not being prepared, usually they force the attorney to go on.
  • Truly skilled trial attorneys can successfully try a case with little preparation.
  • Law firms are businesses that operate on budgets, and when a case resolves earlier than expected, that’s a bad thing for the firm’s bottom line, and firms try to avoid it. It is in the law firm’s best interest for matters to slog on, as illustrated by the firm’s response to Keegan’s “good news.”

The Rake episode hit on two major issues facing legal consumers.  Attorney competence and over billing.  With respect to competence, you cannot judge attorneys by their appearance.  As illustrated by the show, the well dressed attorney was nowhere near as competent in the courtroom as the disheveled Keegan.  Not all lawyers have the same skills or skill levels, regardless of what their website bios say or how they appear.

As for billings (when cases are not on contingency), the simple fact is that law firms make more money the longer client matters remain active.  For some lawyers, that inherent conflict of interest compromises their ability to put their client’s best interests first. Legal consumers should understand this temptation and remain engaged in their cases to be in a better position to see the signs.

Sometimes TV shows about lawyers and law firms are a lot of fluff and detached from the real law firm world.  This episode of Rake is not.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Finally . . . A Legal Reality Show!

Posted on March 13, 2014 by The Legal Reformer

For some time we have been lamenting around the water cooler that there is no reality show to educate legal consumers by showcasing different legal situations and ways to resolve them, much like the show The Doctors.  What a great resource a legal reality show would be for legal consumers — being able to learn about the law and the legal process, and perhaps one’s own legal issue, by watching legal matters play out on TV.

LegalizerWell now, finally, there is a legal reality show in the works.  According to the americanbar.org website, GRB Entertainment, a Los Angeles production company, is working on a show that is based on the BBC show The Legalizer.  The Legalizer is billed by the BBC as a “consumer series in which barrister Gary Bell QC helps claimants as they take their cases through the small claims court.”  Although the first episode was long and at times repetitive and hard to watch, we learned quite a bit about pursuing a claim in The Royal Court of Justice.  Hopefully GRB’s show will be instructive and gripping.

Jean Shi, GRB’s Vice President of Development, stated that the yet-to-be named show will have a host who will discuss legal options with individuals and guide them through the legal process.  She described the show as educating the participants on their options rather than giving legal advice:

The host will look at the whole picture and advise individuals on their rights and legal options and what steps they must take to get justice.

The show sounds promising.  Even if one has or will hire an attorney to handle a legal matter, legal consumers should be as educated as possible so they can understand the process and their lawyer’s advice in order to make informed decisions.  LPR applauds GRB for providing this much-needed service.  We’ll be watching!

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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Legal Consumer Tip #6 – Contract Terms Are Binding

Posted on March 7, 2014 by The Legal Reformer

Read all contract terms — you will be bound to them.

While this oft-stated advice seems simple enough, many legal consumers don’t read all contract terms before signing, and even fewer stop to think about how the terms will play out in different circumstances.  It is important to understand that when an unaccounted-for circumstance presents itself after the contract is signed, it’s almost always too late to alter the terms without mutual consent.

image-1The father of a law school student recently learned this lesson the hard way when the New Jersey appellate court ruled against him in an opinion dated February 20, 2014.  The father had entered into a divorce agreement with his ex-wife that provided each pay one half of their daughter’s “post-college higher education costs” defined as tuition, room and board, books and school fees, with certain conditions.  When the daughter, who was estranged from her father, enrolled in a top-tier law school, with no financial aid available, the father sought to nullify his obligation to pay under the contract.

Legal consumers should note the reasoning in the Court’s opinion as it dismantles the father’s arguments one-by-one, interpreting the language of the divorce agreement and comparing it to the father’s arguments.  For example, the father argued that the daughter’s enrolling in law school three years after college relieved him of his obligation to pay because the agreement afforded her only two years.  The Court disagreed, explaining that the “hiatus (1-2 years)” language in the agreement was “neither as rigid as father contends,” nor was it a condition to the father’s obligation.

The Court’s ruling on the father’s third argument illustrates the need to think long-term when entering into a contract.  The father contended that the agreement should be interpreted as implying that he would not be obligated to pay if he and his daughter were estranged.  The Court noted that they were estranged when the father signed the contract, and that if he wanted a relationship to be a condition of his obligation to pay, that term could and should have been included in the agreement.  The Court’s rulings on the father’s two other arguments are also instructive.

The bottom line: Legal consumers should ask themselves before signing on the dotted line how each term of a contract will operate in the future and whether there are any circumstances that would require different language or additional terms.  Contracts are binding, so read carefully and consider what could happen down the road.

You’ve got options.  The Center for Legal Practice Reform can help you navigate the attorney/client relationship and level the playing field.  Call LPR today for a free consultation – (301) 351-7970.

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