Passive Aggression: Juror research limited to “passive” means, while clients can’t just scrub own online records

paul2Social media provide possible sources for lawyers of the public or semi-private thoughts of clients, opponents, witnesses, and even jurors.  This can be a goldmine for witness impeachment or an opponent’s admissions, but it can also be an ethical trap for the lawyer who is too aggressive.  And lawyers need to be especially careful before advising clients to clean up their online act to avoid spoliation of evidence.

Long before Google, there was Paul Drake, Perry Mason’s private detective extraordinaire, who could find out anything about anyone, in an instant, then deliver it to court at precisely the right moment.  In real life, Paul wouldn’t have been able to find nearly so much, or so fast, and he would have spent most of his time in jail because you can’t cut that many legal corners, even if you work for a lawyer.

Lawyers need (or want) lots of information about people for all sorts of reasons, including background on opponents and witnesses, who are generally considered to be fair game, within broad legal boundaries.  [This isn't true just for lawyers -- any business or nosy neighbor might want lots of data, too.]  You can, for example, use some types of criminal convictions to imply a witness or opponent is untrustworthy.  And you can also use relevant prior statements to discredit inconsistent statements now.

How the lawyer obtains that information often raises legal and ethical issues, however.  Opponents in litigation are subject to all sorts of discovery, from themselves, their company or employer, and beyond — but there are limits because discovery is so often abused.  Non-party witnesses get more protection, but are still subject to investigation. Continue reading

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More Is Rarely Better: Spending more for lawyers only guarantees a bigger bill

_MG_6608An otherwise political debate about differences in how laws are unevenly enforced for the one percent versus the rest of us became distracted by suggestions that people who can afford to pay more for their lawyers get better lawyering as a result.  (The argument broke out in the New Republic of all places.)

There are many people who cannot afford any lawyer at all, so they end up in jail or suffering through a cruel divorce, for example, for no reason.  Our legal system needs to do something about that or else the public will no longer respect the system.  Even as its actions disrespect many civilians, our legal system craves respect, while it makes the equally serious mistakes of taking the right to respect for granted or demanding respect (often backed up with threats of retribution against the unimpressed majority).

And there are also many people and businesses who can afford at least some sort of lawyer, just not the overpriced or unlimited kind.  Their modest means may be their salvation:  Spending more on lawyers is not guaranteed to yield better results, and may backfire.  Once you get past the threshold to cover the necessities, there is no positive correlation between the total fee or hourly rate a lawyer bills a client and the net result or quality of the lawyer’s performance, let alone efficiency or effectiveness.  Indeed, with hourly billing, incompetent or wasteful lawyers are rewarded for their incompetence and inexperience, unless the client objects. Continue reading

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Jury Duty: Judge jails lawyer for complaining that jury duty conflicted with client duty

There are several common “types” for judges — so common that they are frequently portrayed quite accurately on TV and in movies.  You’ve jury dutygot your passive, cerebral, experienced judge — the ones who never yell or make snide remarks.  Then you’ve got your angry, hostile judges, always taking a shot at the lawyers, parties, and some witnesses — these bullies tend to be intellectually insecure, so they like to throw their weight around, even if it undermines public respect.  I’ve even seen judges who seem to be so lonely that they prolong every proceeding with their stories and jokes — a captive audience always has to laugh and can’t just walk out.  And then there are judges with a  political agenda, often because they must be elected to office or who hope to get promoted to a higher court, who bend with the political wind and look for the best quotes just in case the press is around.

Most judges are in-between.  Here’s a story about a judge who jailed and fined an in-house lawyer who complained to the judge about being left on a jury because the trial would interfere with her professional duties to her client.  Apparently the judge informed the jurors that any work-related excuse would be rejected.  Actually, I’ve never seen any court where a job-related excuse wasn’t at least considered, although routine job issues, especially with larger employers or government agencies, usually won’t do it. Continue reading

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eBandAids: California Bar prescribes higher bills to “fix” firms’ e-discovery incompetence

band-aidThe legal profession tends to lag behind the rest of the business and professional world when it comes to understanding and embracing technology.  Usually it’s the demands of the junior — more technically adroit — staff who may move things along.  Or, some firms respond to clients whose needs, or expectations, are more advanced.  (In one firm I know, some partners argued against wasting money on computers for lawyers in part because the firm made more money billing by the hour by dragging out things like editing.  So they made partners buy their own computers, since the older partners had no intention of learning how to use them.)

These days the combination of the explosion of electronic data with the expense and inefficiency of discovery in litigation has caused an exponential increase in the cost of litigation, while often producing little or nothing of value.  Usually it seems that there is very little learned through discovery — parties just go through the motions.  Some firms blame this on the rules and their ethical and professional obligations, while everyone knows that, for firms billing by the hour, discovery is the cash cow (but it also crushes parties without deep pockets).  This money angle explains why most firms do all their discovery review in-house, rather than subcontract it to vendors, and why firms insist that they must review every piece of data on the off chance some of it may be privileged or sensitive — even if there’s little or no chance of that. Continue reading

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Blame the Clients: Law firm lays off new law grads just before graduation

comm_2012_0618.inside05Before a doctor practices on real people, they have to take lots of academic courses, but they also get quite a bit of practical, “clinical” experience, starting with cadavers and moving up to living people under close supervision.   Lawyers, on the other hand, regularly attend law school, get their law license, and experimenting on real people with no such supervision or training.

Many good lawyers, and many bad ones, too, get their training in the actual handling of real legal matters on the job, often at client expense.  Hourly rates for people straight out of law school, even before they get a license to practice, can be hundreds of dollars per hour.  Since they’re under lots of billing pressure, these folks can bill over $50,000 per month in many metropolitan areas.  Their firms assume that, as long as the clients don’t complain, this is all fine with them.  Actually this is a common complaint among clients who pay attention, e.g., not only to the fees billed by these junior folks, but also the time wasted by other more senior staff, and paralegals, to chat with junior associates, review their work, and redo projects they do poorly. Continue reading

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Fat Fees: Beware of flat fee deals with too much fat

Fat_pancake_gamesFor companies, government agencies, and a few individuals who use lawyers in bulk, it may make sense to pay wholesale, and not retail hourly rates, by hiring your own lawyers as employees.  This makes more sense for steady work where the internal demand is more predictable — like providing compliance with government regulations if you’re in the government contracting business.

Doing litigation in-house tends to be trickier because it’s less predictable, so you can add staff for a big case, then have nothing to do but fire them when the case settles or ends.  You can work around these spikes in demand the same way many law firms do, e.g., with temps or contract lawyers and paralegals, plus outside vendors for e-discovery, say — again with the financial advantage of paying wholesale rather than marked up retail the way many law firms do.  (Unless you do a ton of in-house litigation, what you’re still missing is the experience of an outside lawyer with real trial experience, in that particular court, etc.) Continue reading

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Off The Cuff: Retired judge gets reprimand for allegedly sexist remarks about sexism

Bullet-Cuff-Links-4Lawyers are the foot soldiers in the legal system — the boots on the ground in modern cliche.  (Clients are the prisoners of war.)  Trial judges might be the lower-ranking officers, while legislators (and higher ranking judges) are the generals.  For things to go smoothly — and public respect to be maintained — everyone in the chain of command needs to know and execute their role.

One incompetent, greedy, unethical, egotistical, or hostile link can damage all the other lawyers and clients in the same unit, and undermine others up and down the chain of command.  Faulty links higher up the chain of command can spread their taint much further.  These days, a political movement to alter a state’s laws or entire federal legal system for political reasons can undermine the entire state (or the whole country), from the legislature, executive, and supreme court on down. Continue reading

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Client Baggage: Sometimes other clients can help you deal with lawyers, sometimes not

luggageSometimes civilians who have experience dealing with lawyers can give other civilians useful advice about finding and dealing with lawyers.  Other times, however, the civilian’s personal story (or rant) just shows how far off track you can go with a lawyer, either because the lawyer’s not the right fit for you situation, or just not a very good lawyer to deal with, or the client’s own baggage has gotten in the way of a lawyer trying to help.

Client baggage includes an unwillingness to trust the lawyer or follow his or her advice, but also a constant fear that the lawyer is going to overcharge the client — with the client’s own attempts to micromanage the fee just making it higher.  Client baggage can also include relatives or business associates who contradict the lawyer, business partners or other lawyers who are pulling in different directions, or a client who doesn’t understand the lawyer with a lawyer who does not see that problem.

Some lawyers have baggage too, including an inability to be efficient and a tendency to overlawyer the situation — make everything revolve around legal issues, even when the legal issues are minor or imaginary.  Some lawyers don’t communicate well, by explaining themselves well or by not listening to the client.  And some lawyers are just so greedy that they overcharge for unnecessary or even bad advice. Continue reading

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Immaterial Fact: Bar approves some lying in settlement negotiations

worlds-best-coffeeEthics restrictions on lawyers preclude them from engaging in the sort of misleading or sneaky practices that are common in the business world, for example.  A lawyer is not, for example, supposed to speak directly with a non-lawyer opponent except through their lawyer.  And the lawyer isn’t supposed to lie or threaten, even in every day situations, let alone court. This would come as a surprise to many non-lawyers who see lawyers engaged in all sorts of tricky, slick activities to bend the truth.  Bending the truth is fine, as long as you don’t break it.  Lawyers are supposed to be professionals who put the legal system before their personal interests and even the interests of their clients.

Unfortunately, there are many lawyers who forget these restrictions, or never understood them in the first place, so they conduct the practice of law using the same tools as anyone else would, like the proverbial used car salesperson.  For lawyers caught between the rules and higher aspirations of the law and the best interests of their clients, especially when confronted with a lawyer who’s not following the rules, trying to comply with the rules can be a handicap for their client.  Clients have a hard time reconciling these lofty aspirations from an idealized world with the practical problems of paying for a lawyer who’s getting outfoxed by a sleazier lawyer.  In the real world, it’s always the lowest common denominator that has the practical advantage. Continue reading

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Stage Fright: Lawyer’s attempt to call in sick for argument backfires

microphoneFor any occupation involving public speaking, stage fright is an occupational hazard.  Sure it’s common with actors, politicians, and speakers, but it’s also common with lawyers.  The public generally assumes that lawyers must all have public speaking skills, something they presumably learn in law school or in the course of practicing law, which isn’t true.

In law school, there might be some help making oral arguments in moot court or a clinical education course, but most lawyers are untrained.  Some lawyers never do much speaking to large groups, while others make their living based on how they do before judges and juries, or perhaps in corporate boardrooms.  This lack of meaningful training explains why many lawyers perform poorly on their feet, much to the surprise of their clients who just assumed that any experienced lawyer must know how to speak in public. Continue reading

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