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A new California law restricts an employer’s right to seek access to existing or prospective employees’ social media accounts.
The law, Chapter 2.5 of Part 3 of Division 2 of the Labor Code (commencing with Section 980), defines “social media” for purposes of the new law to mean “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”
Under the new law, employers cannot request existing or prospective employees to disclose either a username or password, to access a personal social media account in the presence of the employer, or to divulge any personal social media. It is also unlawful to retaliate against an employee or applicant for refusing such a request.
Important exceptions to the law are (1) where divulging social media is “reasonably believed” to be relevent to an investigation of an employee’s violation of law or allegations of employee misconduct; and (2) if done for the purpose of accessing an employer-issued electronic device.
In case this term is foreign to you, a “running objection” is sometimes offered by a party taking a deposition (or during a hearing or trial) when it appears that they are going to repeatedly encounter the same or similar objection. Here’s an example of how it would arise:
Examining Attorney: “Why did your supervisor finally decide you should receive discipline?”
Defending Attorney: “Objection, calls for speculation, lacks foundation.”
Examining Attorney: “Counsel, why don’t we just agree you’ll have a running objection, so you don’t have to keep interrupting?”
Defending Attorney: “Thanks for the offer, but I would prefer to address each question separately.”
There are probably a wide variety of reasons why attorneys offer running objections. I’ve even done it. First, on the surface they would seem to streamline the deposition process, saving both time and money, since each individual objection consumes time and transcript space. Why not give/take a running objection and cut down on the interruptions, shorten the deposition and transcript?
But I almost never accept the offer if I’m attending or defending a deposition. Why? First, while I’m not interested in impeding the search for truth, I don’t view my job at a deposition to include making the examining attorney’s job an easy one. If he/she asks a crappy question, it’s his/her fault, not mine. If this results in repeated or even frequent objections, then he/she should hone his/her deposition skills. It’s not my goal to interrupt the examiner’s flow–which is inevitable every time I make an objection–but it is an incidental benefit of objecting to protect the record. If the examiner want’s to reduce the incidence of these interruptions, he/she should ask proper questions.
Second, the principal purpose of making an objection is to preserve the objection so the judge can later consider it and make a ruling if the deposition transcript is used at trial (or as evidence in another capacity, say in support of a motion for summary judgment). The examiner has a choice, upon receiving the objection. He/she can push forward (assuming there has been no instruction to the witness not to answer) and require the witness to respond. Or, he/she can consider the objection, conclude it may have some merit and rephrase the question. The benefit to me, as the attorney representing the witness, is that my witness will potentially get a proper question. This is important where the objection to the question is that it is vague and ambiguous. While such an objection may not be ultimately sustained by a trial judge, it might prompt the examiner to rephrase the question so that my witness is responding to a question that is less vague, less ambiguous.
Finally, it can be cumbersome to obtain a ruling on a running objection. For example, in the context of an all day deposition, imagine I accept the offer of a running objection at 11 am, which ends up on page 45 of the transcript. The examiner continues to ask objectionable questions for the remainder of the day, but I stay mum based on the running objection. Later, the case proceeds to trial or a motion for summary judgment is filed, and a bad, objectionable question from late in the day is about to see the light of day. I want to obtain a ruling on the objection, but it becomes a cumbersome exercise, as I have to point the court back to a much earlier part of the transcript, where I obtained a running objection.
This is not to say that running objections are a bad idea. I just prefer, if I am defending a deposition, to deal with each question individually. If you do agree to a running objection, be sure to remain vigilant. If a question is objectionable for an additional reason not addressed by the running objection, it is important to raise the additional objection or risk waiver.
An illustration that’s closer to home. A little over a year ago, I had to seek an emergency continuance of a trial because I had been diagnosed with a detached retina which required immediate surgery and a month of recovery. One of my colleagues, knowing our judge well, said he thought there was only a “50/50” chance the judge would grant the continuance. This meant he thought there was a 50% chance the trial would not be continued!
I’m not sure how I could have simultaneously undergone invasive eye surgery and made an opening statement, but you can imagine how important it was to me that the judge grant my application for a continuance. Not only did I explain in my declaration, step by step, how my vision had rapidly deteriorated over the last few days causing me to insist on an emergency appointment with my doctor, I also attached a doctor’s note (which I had to basically dictate to his assistant) and a series of articles from the internet discussing my condition, how emergency surgery is required to avoid almost certain blindness, and how my head would need to be positioned face down during the recovery period. Fortunately, the judge granted the requested continuance, my surgery was successful and I won the trial! The point is to never assume the judge understands and will adopt your position just because you say she should–it’s crucial to explain why.
As I said before, it seems to me that most depositions in most kinds of cases should be reasonably capable of completion in 7 hours or less. This is probably a radical overgeneralization, but it’s been my experience that most witnesses don’t have more than 7 hours of relevant testimony in them. For those other cases and witnesses, in which it will be hard to finish in that time, here are 5 strategies that should help:
1. Give yourself more time to prepare. Like everything in litigation, preparation is the key to success. If you typically spent a day preparing for an all-day deposition without the time limitation, spend a day and a half preparing now. If you generally eschew using deposition outlines in favor of a “come what may” approach, consider making at least a rough outline of topics you absolutely must cover. The alternative is to risk running short of time without having covered crucial topics. The argument against using an outline is that, using an outline causes us not to listen carefully to responses; this can be overcome with effort.
2. Don’t be wed to a chronological or other artificial order of topics–get what you absolutely need first. Speaking personally, I generally have an order I use over and over in taking depositions. It is one that follows logically from how I see the case. This can be a problem, though, when time is limited. Then I have to prioritize based on order of importance, rather than imposing a chronological or other more familiar order of topics. If, for example, there’s an especially important affirmative defense available, I reorder my examination in order to cover what I need to invoke that defense at the beginning, even if it doesn’t seem to make sense. (This has the collateral benefit of “throwing off” opposing counsel who expected you to begin at the beginning. It’s fun to see them look confused.)
3. Make a record that will support a motion for more time, if that becomes necessary. You may need more than 7 hours regardless how you prepare and how smoothly the depo goes. If this is the case, begin early creating a solid record to support judicial relief from the limit. The new section, CCP 2025.209(a) includes this language: “The court shall allow additional time, beyond any limits imposed by this section, if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination.” There’s a lot of room here. Either “witness XYZ cannot be ‘fairly examine[d]’ in 7 hours because . . ., ” or “as demonstrated in the transcript of the first session of her deposition, XYZ [or her lawyer] impeded and delayed the examination by . . . ” Videotape of the depo may help illustrate evasive responses, long delays or lengthy, meritless or talking objections. In one case, we relied heavily on the videographer’s time-keeping records to show long delays.
4. Resist the tendency to fight opposing counsel on the record. As a reminder, taking a deposition need not be a contact sport. This is especially true if you’re trying to get useful testimony and don’t have enough time. Unreasonable objections or instructions not to respond should basically be ignored until after the deposition, when it’s time to “meet and confer” prior to filing a motion to compel responses to questions and/or a motion for more time. Focus, don’t get distracted!
5. Go off the record whenever there’s going to be “dead air.” If you hand a witness a document that will take a few minutes (or more) to read, go off the record while the witness reads it. The same is true if you need to re-group or review your notes or a document between questions. Just take a break.
I hope these help. Good luck.
Cal. Code of Civ. Proc. 2025.290 becomes effective Jan. 1, 2013.
The California Supreme Court will decide whether the terms of a franchise agreement, or the franchisor’s conduct at-odds with that agreement, govern for purposes of whether the franchisor can face liability for (mis-)treatment of a franchisee’s employee.
The issue is simpler than it sounds, but an opinion could have wide-ranging implications for franchisors doing business in California. In Patterson v. Domino’s Pizza, a 16 year-old employee of a Domino’s franchise sued, not only the franchisee and its manager, but also Domino’s, for alleged sexual harassment, retaliation and constructive wrongful termination. The franchisee petitioned for bankruptcy protection and Domino’s obtained summary judgment on the grounds that the operative franchise agreement placed sole responsibility for recruiting, hiring, training and supervising employees on the franchisee, such that the franchisee was an independent contractor for liability purposes.
In June, 2012, the California Court of Appeal for the Second District issued and certified for publication an opinion that reversed the summary judgment in Domino’s favor. In a nutshell, the Court of Appeal looked well outside the terms of the franchise agreement, focusing instead on the course of conduct between Domino’s and its franchisee. Among the items of evidence cited by the court was Domino’s specific hiring requirements applicable to all franchisees, including rules about qualifications, appearance standards and required training software programs. The court also pointed to testimony from the franchisee owner about Domino’s practices, including specific direction to fire certain franchisee employees (including the alleged harasser) and tactics, including “mystery shoppers,” designed to exert control over individual franchise stores. Triable issues remained, the Court of Appeal concluded, whether “there was a lack of local franchisee management independence” which could render Domino’s liable.
Accepting Domino’s petition for review, the Supreme Court has ordered the parties to limit analysis to the question whether Domino’s is entitled to summary judgment on plaintiff’s claim that it is vicariously liable for tortious conduct by a supervising employee of the franchisee.
If the Supreme Court’s opinion is unfavorable to Domino’s, it could change in a very material way the degree of control franchisors maintain over their franchisee’s employment practices. If it results in a shifting of responsibility to the franchisor, I imagine it will increase franchise purchase costs, trigger different or additional insurance provisions, with corresponding cost increases, and overall make franchise arrangements less appealing in our golden state.
Each year I’m faced with the decision which, if any, industry conferences to attend. A shortage of time and money dictates that I cannot go to every conference I would like to attend. Even if I could cobble together enough money to attend more conferences, my time is severely constrained and every hour spent at a conference is an hour that cannot be spent working for a client.
I’ve attended Defense Research Institute (DRI) conferences just about every year I’ve practiced, even though I’ve migrated committees from Young Lawyers, to Products Liability, to Commercial Litigation, to the Labor & Employment conference. I’ve found these are well-organized and pretty useful. I would recommend a DRI conference to colleagues.
A couple of weeks back, though, I attended a completely different kind of conference, which was an exponentially better use of my time. I’m not going to discuss the specifics, because I was a guest and, unlike DRI or ABA, this industry group doesn’t maintain a website, publications and huge membership. But it is precisely because of this concentrated scale that the meetings were so productive.
First, actual membership in the group is limited to in-house general counsel or legal staff members of companies in industries that routinely face the same or similar employment issues. Actual members can bring guests who are outsiders, but membership will never be available to us “outhouse” lawyer. This alone sets it apart from large industry or bar association conferences. There are no sponsors or exhibitors. More importantly, the conference does not become a “feeding frenzy” where hundreds of outside lawyers showboat or compete for the time and attention of a handful of in-house counsel. There may be some marketing component to the conference, but it is low-key–limited to maybe buying someone dinner–and definitely not the focus or sole reason to attend.
Second, the group is smaller, but it is also comprised of industry leaders. Sure, war stories are traded, but they tended to be fresh, relevant and real. Because of the tighter group size, it permitted the agenda to be loose and unstructured in a way that permits the group to spend more time on topical topics.
Another advantage of the limited group size was that the actual members (and some of the guests) knew each other pretty well. I observed that this led to a candidacy of the discussion that I would never expect to see at a larger group function. Anyone who’s tried to build a better mousetrap by committee knows that familiarity breeds comfort which tends to lead to better end product. That’s what it looked like to me, anyway.
It was a good experience; I hope I am invited back. I would surely counsel anyone lucky enough to be invited to attend one of these smaller, more concentrated industry conferences to jump at the chance.
Ok, these are actually two separate “secrets.” Think of the extra as a bonus. As you’ll see, however, these are related and flow from the universal truth that pretty much every client likes to think and feel that he/she/it is the only client in your professional life and the only one you care about.
The first is: Be Responsive. Whether you communicate with your clients by telephone, email or even text messages, immediacy or ASAP is the name of the game. Obviously, if you can take a phone call (without violating the second “secret” of this post below) that is best. If you can’t or your client initiates contact by email, I like to follow the rule of responding within 2 hours. If it is not possible to respond substantively within 2 hours (very often the case), I like the approach of responding with an email that (1) acknowledges receipt of the client’s communication; and (2) promises to get the answer and/or provide a substantive response within 24 hours. The important corollary to this policy is not to forget to follow-up with the substantive response within a day. If you can make this a pattern, and follow it, it helps to lead clients blissfully believe they are you only–or at least most important–client.
Second: Be Present. For some reason, I find it easy to shut off the world around me when I am with my 4-year-old daughter. I like to think I’m completely present with her. This helps me feel like, even though I work a lot and can’t spend as much time with her as I’d like, at least the time we spend together is high quality time.
I try to apply this same principle to time spent with clients, albeit for different reasons. It’s not that my clients are adorable now and will some day grow up and become, if not less adorable, at least less available. Instead, I try to put myself in my client’s shoes. Anyone who pays a few hundred dollars an hour for my time deserves my complete attention. That’s what I would expect, and that’s what my client should expect. This means in most instances I do not, when with a client, answer my phone, check the stock market, read and respond to email concerning other matters, or use my iPhone to check the paltry stats on my blog. In fact, I’m not adverse to leaving my phone in the car or turning off the ringer when I know my undivided attention will be appreciated. The only exception is when I’m with a client and there’s down time and the client starts checking his or her own email.
I’ll admit it’s challenging to apply both of these habits. In other words, it can be hard to quickly respond to calls, emails or text messages when I’ve elected to shut off or ignore my phone to be present with a client. But it’s important, and if practiced with care, is bound to engender client trust.
There may be barriers to proper preparation of a client for deposition or trial testimony. The biggest is usually the client. Clients who are not often involved in litigation have a difficult time understanding the need for serious testimony preparation. It’s time-consuming, expensive, repetitive, exhausting and generally irritating. After all, these clients reason, I’m just going to be asked to tell the truth, right? How hard can it be?
Reluctant clients need to understand the importance of adequate preparation. A deposition that goes bad, if it’s an important witness, can be a game-changing event in a case. Fortunately, many clients will heed our advice and take testimony preparation seriously.
Experienced lawyers differ on timing and methodology of testimony preparation. I recently heard a “rule of thumb” of 2 hours of preparation for every anticipated hour of testimony. This might work as a general guideline, though we seldom know beforehand how long a deposition is going to last. I prefer allowing lots and lots of time for preparation, and scaling back the actual time spent based on the client/witness progresses. Some clients/witnesses are naturally good at the process, others are not so good. I like to think I know how to improve those who are not so good, and I’ve also developed various methods, which I might share later, for helping increase a client’s comfort level in giving his or her testimony. Typically, practice alone—using credible mock deposition or cross-examination questions—makes a client more comfortable. When a client or other witness is comfortable and relaxed, he or she not only gives better testimony, but he or she feels better about the process. This, in turn, tends to build client trust in my skills.
Our conduct in defending the deposition itself can also engender (or erode) trust. Our clients need to know we’re there, alert and in control throughout the deposition. Effectively maintaining control of the process, strategic objecting, etc. are subjects for other posts. However, in addition to being alert, I think it’s important to maintain and convey a sense of calm throughout the deposition, even if opposing counsel is nasty or taunting. I’m of the mind that it is preferable to terminate a deposition that has become uncivil (and seek a protective order), rather than subjecting my client to angry arguments between the lawyers. It is rare, I’ve found, that a heated argument among counsel during a deposition will accomplish much beyond unnerving my client and leading to potentially harmful testimony.
Many of us give little thought to invoices we send to our clients. Invoices are utilitarian and serve an important purpose, at least in a for-profit law practice. Beyond being a routine request to be compensated for work performed, however, we tend not to give invoices much serious thought. This can be a mistake.
We should expect that clients will examine with a critical eye everything they receive from their lawyer, whether it is an email, a copy of some work product, or a periodic invoice. They may look for different things. For example, a sophisticated General Counsel expects to see high quality legal analysis and skilled advocacy, while less experienced clients may limit their evaluation to whether what they receive looks professional and is free of grammatical or typographical errors. But every time we transmit written material to a client we invite critical scrutiny of our skills and professionalism. It is unavoidable.
With this in mind, we should begin to view our invoices, not as a purely utilitarian demand for payment, but as a kind of brochure advertising the quality of our services. Changes in the way we present our request to be paid can enhance our clients’ trust, not only in our abilities as professional advocates, but also in the fulfillment of our ethical obligation as fiduciaries.
I can think of two billing habits that, if done thoughtfully and consistently, should enhance client trust. The first coincides with most clients’ chief concern, second only to quality of representation: how much we actually charge. Similar to my earlier “secret” #1 (Be Honest), it is no secret that, just as we owe clients a duty of candor, we only bill for work we perform at a rate that is reasonable. That is obvious. That is Ethics 101, right?
Billing that enhances client trust—the “secret” that is the subject of this post—goes beyond Ethics 101 and enters the more nebulous realm of added value. I’m not a legal services pricing specialist (a vocation the ABA Journal predicts will soon be a BigLaw fixture), and I try not to over think this stuff. Instead, I try to follow this golden rule: put myself in the shoes of a client reading my invoice and ask what would I be comfortable seeing and paying if it were me?
There is one absolute truism that seems to resonate with just about any client that is not a Fortune 1000 or larger company: they hate, hate, hate to be charged for telephone calls between the lawyer and the client. Particularly irritating are billing entries for such telephone calls that last 18 minutes (i.e., .3) or less. Only clients who work for giant companies that are basically in the business of being sued (i.e., insurance companies, large California employers) can stomach seeing this on an invoice. Everyone else likes to think they can pick up the phone and ask their lawyer a question—or just shoot the shit—without seeing a $100 (or more) charge for it. I get this. However many times we might tell a client “I don’t have anything to sell other than my time,” it is guaranteed to rankle most clients when they are charged for a short phone call with their lawyer. Sorry.
Now. Don’t squander an opportunity here. While I would reduce (or eliminate) the instances you actually bill clients for short phone calls with them, I would continue to ALWAYS record such calls on the invoice, just mark them “no charge,” or something similar. This engenders trust. It says to the client, “I am committed to you, I know you want to talk to me without seeing a bill for it and I am willing to go that extra mile for you!”
The second billing habit that can lead to greater client trust relates to how we describe the work we perform. Just like Tupperware parties, three martini lunches and hiring of first year associates, the days of the simple “For Services Rendered” billing entry are long gone. But I would argue it’s not enough just to describe a task. For billing entries to contribute to building client trust, they should not only describe the task but briefly explain, in crisp, clear terms, why the task was necessary. I think this is particularly important when the task was somehow occasioned by the opposition. For example, don’t write “Telephone conference with opposing counsel re discovery,” when an equally honest entry would be “Telephone conference with opposing counsel re their request for additional time to respond to pending discovery.”
I also eschew legalese when drafting billing entries for nonlawyer clients. This sends the message: “I want you to understand what you’re paying for. I’m not trying to trick you with fancy legal talk.” Again, this is calculated to gain trust.
I recognize these “secrets” are not brain surgery, or even secret. But they were things it took me some time to figure out and I hope you find them helpful to your practice.
This is probably the easiest step outside lawyers can take to gain client trust. Whether we represent a corporate defendant in a business or employment dispute, or an individual accused of a crime, every kind of client appreciates being kept up to date. I try to resist the temptation to think that a hearing or filing was too trivial to inform the client. This is especially important with clients for whom lawsuits are not a normal occurrence. Unlike litigation veterans, these newbies are not yet numbed to the sturm und drang of a lawsuit, and like to feel involved at every turn.
Also, I find that if I make it a point to keep my client informed of just about everything that goes on, every development, I am far less likely to let something major slip by–say, the filing of a dispositive motion or a settlement overture–without alerting the client. I’ve found surprises tend to be disfavored.
Unless a case is in front of a judge with some kind of “rocket docket,” there will typically be periods in the life of a case when it gets quiet. Even when this happens, most clients still like to know you’re not asleep at the wheel. One way to let your client know you’re still in the game is to drop a note (i.e., email or even a letter) giving them an “update.” Even if the update is nothing more than a reminder of the next anticipated event in the case, coupled with a brief explanation of its significance, it lets the client know you’re still on the job. A nice way to raise the goodwill quotient is to record the update as a “no charge.” Just an idea.
