If It Can Happen To Erin Andrews . . . It Can Happen To You

This week, Erin Andrews was awarded $55 million by a Tennessee jury in her peeping tom lawsuit.  The lawsuit was against the owner of the Nashville Marriott at Vanderbilt University where she was staying, as well as against Michael David Barrett, the man who videotaped her nude in her hotel room and posted the video online.  The jury found Mr. Barrett 51% responsible and the hotel 49% responsible.  But now that Ms. Andrews prevailed in court, what are the chances she will collect on the award?


Erin Andrews

According to Dan Eaton, an attorney and San Diego State ethics professor, it depends.  In a March 8, 2016 post on CNBC.com titled Will Erin Andrews really get $55 million?, Mr. Eaton explains that different states have different laws regarding whether a defendant is responsible only for the share attributed to him/her/it or whether the defendant can be held responsible for every defendant’s share — which is called “joint and several liability.”  Wilson Elser, a large international law firm, published a survey of joint and several liability in each of the 50 states, which also includes a discussion of the legal concept.

In addition to post-trial motions and a possible appeal, Mr. Eaton discusses the fact that Mr. Barrett is likely “judgment proof,” such that Ms. Andrews would not be able to collect anything from him.  The owner of the local Marriott, however, might be different depending on the owner’s holdings and/or the hotel’s insurance policy, and whether the owner files for bankruptcy.

It is important to consider all issues when deciding whether to file a lawsuit, including whether the monetary judgment you are seeking is collectable.  Obtaining a handsome verdict is great, but collecting on that verdict can be challenging.  After all, if it can happen to Erin Andrews . . . it can happen to you.


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Attorney Tip #13 – Know Your Stuff or Get Help

There are many areas of the law, and no lawyer is an expert in all of them.  So before you offer legal advice and/or services that venture into an area of the law that is not within your expertise, be sure you know your stuff or get help.

irs-logoImagine you are defending a client in a breach of contract action where your client refused to close a corporate stock exchange agreement because the opposing shareholder challenged your client’s intended corporate tax strategy with respect to a land transaction.  Specifically, imagine the opposing shareholder alleged that your client’s “tax strategy” amounted to tax evasion or tax fraud.  And suppose you are a general practitioner and know little if anything about federal corporate tax law. Your next steps could implicate your client in a tax evasion or fraud scheme – an outcome you may not realize could result.

It is important for all attorneys to know the limits of their expertise.  There is no shame in admitting that a certain area of the law is outside of your expertise or experience.  Federal corporate tax law, for example, is a highly specialized area of the law involving interpretation of the IRS Code, which is voluminous, technical, and quite different from the interpretation of common law.

When a legal issue that is outside your expertise and experience arises — seek out, consult, and possibly bring in an expert in that area of the law.  Not only are you ethically obligated to do so, but you could save yourself a boatload of trouble in the long run.

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Cameras In The Courtroom – Take Three

Illinois has just joined a number of state courts — including Connecticut, Florida, Iowa, Kansas and Missouri — that allow news cameras in their courtrooms.  According to a February 23, 2016 article in the Chicago Daily Law Bulletin, titled Supreme Court gives final OK to cameras, Illinois’ highest court has decided that the Court’s four-year old experimental program is now “permanent.”

Chief Justice Rita Garman Illinois Supreme Court

Chief Justice Rita Garman
Illinois Supreme Court

In a press release issued on Monday, the Court announced the “permanent Policy for Extended Media Coverage (EMC) in the Circuit Courts of Illinois.”  Citing the success of the pilot program and “the Court’s continued goal of promoting greater transparency, accountability, and accessibility to the court system,” the Court will now permit each circuit court to implement EMC.

‘At every level of the judicial system, we do the people’s work, and the people have an interest in observing how the judicial process functions,’ Chief Justice Garman said. ‘We are pleased with the success of the pilot project and with the great cooperation we have received from the media. It is time to make EMC more widely available.’

We have advocated for cameras in the courtroom in a number of previous posts, believing that transparency of the judicial system benefits legal consumers and the judicial system alike.  We applaud the Illinois Supreme Court, and other courts, for letting the cameras in.  Judge Judy and Divorce Court are entertaining, but being able to watch actual court proceedings demystifies the process – and, more importantly, holds it accountable as well.

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RIP Justice Scalia

U.S. Supreme Court Justice Antonin Scalia passed away on February 13, 2016.  As arguably the most staunchly conservative jurist on the Court, his opinions often drew ire from opponents.  But what is now emerging is a more intimate look at the man, the employer and the lawyer.

Justice Antonin Scalia

Justice Antonin Scalia

A number of his previous law clerks are speaking out about the man behind the persona.  In the February 15, 2016 The Guardian article, titled Antonin Scalia: liberal clerks reflect on the man they knew and admired, these clerks spoke highly of Justice Scalia:

Tara Kole:

He was a great boss and a wonderful mentor. I think you can tell a lot about a person by the way they treat the people who work for them, and Justice Scalia was always kind, respectful, willing – and even excited – to engage in discussion and debate, whether or not you agreed with him.

Gil Seinfeld

On the one hand, he was unfailingly good to me as a boss and as a person. We spent significant chunks of time arguing back and forth about an issue, sometimes spread out across a few days. I cannot emphasize enough what an incredible experience this was for me, and it was all contingent on the fact that he treated me with respect. He made me feel that he valued my opinion and was taking my arguments seriously and was attempting to address them head on.

While these sentiments speak highly of Justice Scalia, the boss, it is Mr. Seinfeld’s further observation that piqued our interest.  Mr. Seinfeld recounts when Justice Scalia spoke to his mother’s middle school class, and a student asked the Justice if he ever regretted any of his opinions.

I have seen other judges field this question and show obvious reluctance to admit error or reflect on missteps. Justice Scalia could not have been more direct and forthcoming, and I think it taught the students the valuable lesson that everyone, including a supreme court justice, makes mistakes – perhaps even important ones – and there is no shame in saying so.

Justice Scalia was indeed a brilliant and complex man, and while we may not have always agreed with his opinions, he was an excellent example of a lawyer who loved the law and who could admit when he erred.  RIP Justice Scalia.

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Evaluation of the North Carolina State Bar

Something is rotten in the state of North Carolina . . . or at least in the State Bar (“Bar”). Former North Carolina Supreme Court Justice Bob Orr has called for a full independent review of the Bar, which is the entity that licenses and disciplines lawyers in North Carolina.

NCStateBarAccording to a February 6, 2015 article in The News & Observer titled, “Former NC Supreme Court justice calls for review of state bar,” Orr’s actions come as part of Chief Justice Mark Martin’s mandate to review the state’s justice system for professionalism. It also comes on the heels of the Bar’s aggressive prosecution of three criminal defense attorneys who represented death row inmates alleging prosecutorial misconduct.

The state bar as an organization has grown exponentially in size – in the number of staffers, the number of members, the number of prosecutors.  It’s become very insular and very insulated.

These strong words from former Justice Orr form the basis of his suggested inquiry.  He goes on to explain that bar attorneys fall into two “extreme camps,” one that supports defense attorneys and another — mostly made up of former prosecutors — that supports prosecutors and opposes defense attorneys exposing misconduct and other justice system problems.  He expressed concern over the possible misuse of the Bar’s disciplinary process as part of the antagonism between these opposing groups.

The ability to use the bar disciplinary process as a tool, a weapon, so to speak, is pretty powerful.

We applaud Chief Justice Martin and former Justice Orr for their efforts to examine and reform the North Carolina State Bar.  Agencies that are made up of the very professionals they police should be subject to oversight, or at least evaluation by an objective outside body.  We hope all state bar licensing and disciplining entities take heed and follow North Carolina’s example.



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Lawyers Are Members of a Privileged Class?

Shockingly those words were actually uttered by a New York lawyer during a meeting with who he thought was a potential client.  The lawyer boasted that “they don’t send the lawyers to jail because we run the country,” that lawyers are “members of a privileged class in this country,” and that lawyers “make the laws and when we do so, we do it in a way that is advantageous to the lawyers.”

Global_Witness_official_logo.svgThis past Sunday, 60 Minutes reported on Global Witness’ investigation of certain New York lawyers’ willingness to engage a potential client seeking to launder illegal foreign funds in the U.S.  The client was really an undercover member of Global Witness, a U.K. based non-profit that “fights for [global] justice” by exposing “environmental and human rights abuses . . . driven by the exploitation of natural resources and corruption.”  In a two-part series, Anonymous I and Anonymous II, 60 Minutes’ Steve Kroft gives viewers a front row seat in these consultations via the undercover Global Witness representative’s body camera.

Of the 13 law firms approached, only one lawyer refused to get involved.  Fifteen lawyers from 12 law firms engaged in the conversation and offered potential strategies.  One was the president of the American Bar Association.

While the exposure of a series of lawyers that appeared willing to undertake the requested representation was alarming, we also found the attitude expressed in the quotes above troubling.  To the extent any lawyer thinks of themselves as a “member of a privileged class,” who won’t get sent to jail because lawyers “run this country,” we find that incredibly disturbing.  Lawyers are bound by ethical rules, which if followed would prohibit this type of thinking and behavior.

We applaud Global Witness for all of its work and especially for its investigation and exposure of these U.S. lawyers.  We hope that lawyers across this country view the 60 Minutes broadcast, and that it sends chills down their spines.

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Federal Criminal Sentencing Reform

As our loyal readers well know, we generally do not blog about criminal matters unless something truly remarkable compels us to do so.  Judge Stefan Underhill’s call to reform federal sentencing is one of those remarkable matters.

website-seal_1Judge Underhill, who sits on the U.S. District Court in Bridgeport, Connecticut, recently wrote an article in The New York Times titled “Did the Man I Sentenced to 18 Years Deserve It?  In the article, the judge recounts sentencing a gang enforcer to 18 years in prison for killing a potential witness.  His post-arrest behavior, however, ran counter to his crime — informing the police about a stash house, confessing to the murder, and testifying for the prosecution as a star witness.  Although Judge Underhill handed down a lengthier sentence than that requested by the prosecutor, he struggled with the decision:

He had committed horrible crimes, but he also seemed to be making an unusually sincere effort to atone for them. So which man was I sentencing? The murderer or the remorseful cooperator?

Six years later, the judge met with the prisoner and discovered that he had turned his life around — he had secured a job at the prison industries factory and been promoted to supervisor, had recommendations from prison employees for jobs when he got out of prison, received certificates for attending classes, and had a girlfriend and a daughter with whom he was planning a future.

The tragedy of mass incarceration has recently focused much attention on the need to reform three-strikes laws, mandatory minimums and the federal-sentencing guidelines, which often direct judges to impose excessive sentences. We also need a mechanism for judges to re-evaluate the sentences they’ve imposed.

Unable to find a way to shorten the man’s sentence, Judge Underhill outlined the idea for sentence reduction legislation for prisoners who exhibit “extraordinarily good conduct” and rehabilitation.  The “second-look review” would require support from the warden once at least half of the sentence was served.

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Civil Justice System Reform

How do you change the deeply ingrained culture of the American civil justice system? According to Rebecca Love Kourlis by: polling the American public; engaging in focus groups and conversations with judges, lawyers, and court administrators; and reporting the results.

UnknownMs. Kourlis is a former justice of the Colorado Supreme Court and current executive director of the Institute for the Advancement of the American Legal System (IAALS).  She recently wrote an article for The New Normal section of the abajournal.com titled “10 ways to reform the civil justice system by changing the culture of the courts.”  In it she cites to a survey that quantifies the public’s perception of the courts:

Americans believe that the courts are political (61 percent), inefficient (52 percent), and intimidating (44 percent). As a result, courts are seen as a last resort rather than a preferred method of resolving disputes (54 percent).

She further distills the results of the focus group conversations into the following ten action items:

1. We need go back to our professional roots. Law needs to be a civil and collegial profession first and foremost. . . .

2. We need to be guided by justice. The focus should be on justice, not on winning at any cost. . . .

3. We need to dig deep, earlier. Lawyers need to develop deep understandings of their cases early in the process and purposefully tailor plans for those cases rather than conduct rote discovery and motions practice and allow plans to emerge over time.

4. We need a new approach to discovery. Most of the surveys across the country identify abusive discovery as one of the primary sources of burgeoning costs. . . . We need to eliminate “scorched earth discovery,” or discovery as a tool of gamesmanship.

5. We need engaged judges. Judges need to be engaged, accessible, and guided by service. . . . Discovery motions should be resolved simply and quickly; dispositive motions should not be allowed to languish; and continuances of deadlines or court dates should be a rarity.

6. We need courts to take ownership. The courts need to be accessible, relevant, available to serve, and responsible for providing procedural fairness in every case. . . .

7. We need efficiency up the court ladder. We need to use everyone within the court structure more effectively and efficiently. . . .

8. We need smart use of technology. We need to use technology for efficiency, effectiveness, and clarity—in the courts, in law practice, and in ensuring that the system is accessible for nonlawyers. . . .

9. We need to value our court system. As lawyers and judges, we need to fight for appropriate budgets for the courts and fight to defend the courts. . . .

10. We need to realign incentives. We need to focus on the incentives driving lawyers and judges and work to align them with our goals for improvement of the system as a whole. . . .

LPR applauds Ms. Kourlis and IAALS for their work to reform the civil justice system.  We hope judges, lawyers and court administrators across the country take heed.

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Attorney Tip #12 – Simplicity and Clear Communication

There is a breed of lawyer that writes long-winded filings to the court, thinking that the length and complexity of his/her words will impress and win over the judge.  Roya Behnia does not agree.  Ms. Behnia, recent senior vice president, general counsel and corporate secretary of Pall Corporation, wrote “Simplicity bias: Lessons for lawyers from industrial design” for the abajournal.com‘s The New Normal section.  In the article, she imparts her legal writing learning curve:

SimplicityWhen I was a young lawyer, I was asked to draft an important brief for a major client. After days of research, I wrote my masterpiece (really a tome) that would anticipate and destroy any possible avenue the plaintiff would have for evading summary judgment. . . . When I met with [the partner]. . . what became obvious was that unnecessary complexity didn’t serve the needs of our clients who came to us for forceful but clear advocacy. In drafting my epic brief, I forgot to adapt to the intended audience, . . . In losing the judge, I would lose the client.

Ms. Behnia raises an important point that all attorneys should consider.  Verbose filings often lose the reader — clients and judges alike — and are rarely persuasive.  Effective legal writing is most often simple and clear.

And that point can be carried forward to all attorney/client interactions, which should also be simple and clear.

In the New Normal, the lessons of good industrial design teach us to keep in mind how the client experiences the delivery of legal services. That means taking the noise of complexity out of our interactions and changing how we require clients to interact with us in a legal process that usually is designed for our ease as lawyers rather than the client’s.

We applaud Ms. Behnia and The New Normal for stepping back and viewing the legal profession through the eyes of the legal consumer.  Hopefully they have persuaded numerous attorneys to do the same.


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The Chief Justice Chides Lawyers and Judges

We start the new year with a review of Chief Justice Roberts’ 2015 Year-End Report on the Federal Judiciary, which is the subject of a December 31, 2015 article in The Washington Post, titled Roberts urges lawyers, judges to help improve ‘contentious’ federal system. According to the Post, the Chief Justice called for lawyers to cooperate with one another and for judges to be more hands-on, noting that the legal system has become “too expensive, time-consuming and contentious.”


Chief Justice Roberts

In his report, Roberts addressed the 2015 amendments to the Federal Rules of Civil Procedure and his hope that the new version of the rules would eviscerate attorney gamesmanship and speed up cases:

I am hardly the first to urge that we must engineer a change in our legal culture that places a premium on the public’s interest in speedy, fair, and efficient justice. But I am motivated to address the subject now because the 2015 civil rules amendments provide a concrete opportunity for actually getting something done.

*     *     *

The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case.

*     *     *

Most [attorneys] will readily agree — in the abstract — that they have an obligation to their clients, and to the justice system, to avoid antagonistic tactics, wasteful procedural maneuvers, and teetering brinksmanship. . . . I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics.

The Chief Justice also wrote about the role of judges early in cases to move matters along:

A well-timed scowl from a trial judge can go a long way in moving things along crisply.

In this new year, we at LPR hope that these new amendments speak to all attorneys and judges in federal and state cases.  The antagonistic and dilatory tactics of which Chief Justice Roberts speaks only serve to drag out legal matters, raise legal fees, and erode the public’s confidence in the legal system.  Hopefully those who serve legal consumers will heed the Chief Judge’s admonition.

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