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(323) 652-9451 - LABecause my finger is ever tapped to the thumping pulse of civil procedure in our fine state, it only took me slightly over a month to realize there’s a new and improved way to lose your right to a trial by jury. Still, I’m guessing that this will be news to some, hence the post.
Senate Bill 1021 was apparently signed and has already been made effective in at least some California counties (at least San Francisco and Los Angeles). This amends Code of Civil Procedure Section 631 to provide that, where the deadline to post jury fees had been 25 days before trial, a party now risks waiving the right to jury trial unless he/she/it posts $150 in nonrefundable fees no later than the initial case management conference (CMC). If there is no CMC held in a case, the deadline becomes 365 days after the complaint is filed. For parties entering a suit after these deadlines have passed, the old 25 day before trial rule applies. Thankfully, Section 631 retains the provision providing a court discretion to grant a jury trial to a party that arguably waived that right though failure to pay.
I can’t pretend to be surprised that the state is looking for new sources of revenue. Forcing parties to post fees sooner and making the fees nonrefundable is one way. It’s getting more and more expensive to sue or be sued (assuming you want a jury). I’m reminded, though, why transactional lawyers are glad to hand off lawsuits to litigators–our practice is so filled with dread-inducing deadlines.
I’ve been embroiled in a multi-week deposition bonanza in a religious discrimination case. Yesterday, though, I experienced a first. We were deposing the plaintiff. Her lawyer is very seasoned. While my co-counsel was conducting the examination, I was astonished to see what looked like plaintiff’s counsel passing subtly passing his client a small, square post-it note with writing on it. I watched a little longer and, lo and behold, the plaintiff, while trying to respond to a question, looked down and read the note!
I called him on it. To my amazement, plaintiff’s lawyer became indignant. “I will counsel my client in any way I see fit,” he announced. “Really,” I said. “Well, don’t pass notes while questions are pending.” A half hour later I saw him do it again. Again, I called him on it. This time he became even more indignant.
I suppose I should do some research to find out if coaching one’s client in deposition by means of written notes could somehow be an approved method of advocacy. If it’s not prohibited, it certainly should be. Who knows what he was writing to her. It was probably just something innocuous, like “slow down” or “just say yes or no.” On the other hand, it could have been substantive information, substituting the lawyer’s own memory for that of the witness.
Either way, depositions are not three-way conversations. They are question and answer sessions designed to uncover facts. I know there are all kinds of competing views on how involved the lawyer representing the witness should be in influencing the testimony, and I’m not above making speaking objections if I feel it’s necessary to protect my client. I’ll also “remind” my client that certain questions ask only for yes or no, or point out that he or she has answered the question. But I draw the line at passing notes back and forth during examination, even if only because it creates an appearance that something shady is afoot.
Like I said, my opponent is a very seasoned employment lawyer. He’s brought his young protege associate along with him to every deposition. I wonder if the protege is going to think it’s ok to pass notes to a deponent. Or if he’ll just assume all defense lawyers are jackasses because I called out his boss on something I think is unethical. My hope is that the young lawyer will think for himself, and decide for himself whether it’s ok to influence evidence gathering this way. Mentors are important and valuable, but not if they carelessly pass on bad habits to impressionable young lawyers who represent the future of our profession.
1. Find a lawyer you trust. This sounds obvious, but it can take some searching to find the right attorney. He or she must be competent in your eyes, or your stress level will increase. Equally important, your lawyer must be able to manage the stress of the suit or, again, your stress level will be worsened.
2. Trust the lawyer you find. Once you find the right lawyer, trust him or her. It is rare that your lawyer will not want and expect you to be truthful with him or her, even if the facts are bad or embarrassing. Your lawyer is in the best position to help you or your company; arm him or her with the true facts.
3. Participate in your case. I have found that individual clients who take an active role in their case experience a feeling of control. It’s not illusory. Your lawyer can only work with the tools and materials made available to him or her. You can do quite a lot, by locating and organizing documents, educating your lawyer about the nuances of your business or the circumstances of the case.
4. Manage your anger, fear or frustration. The stress of being the target of a lawsuit is not dissimilar from other traumatic or stressful events. Experts coach those going through a divorce or enduring a tragedy to use exercise or relaxation techniques, like meditation, to manage the stress. Think of a lawsuit in the same way. One caveat: bear in mind that communications with someone other than a spouse or lawyer about the details of the case can be “discovered” and potentially used against you if you say something damaging. Consult with your lawyer before speaking in any detail about your case with someone who is not your spouse.
5. Try not to direct your anger or frustration at your loved ones. This will only make it worse and potentially cause damage that can be permanent.
6. Try not to direct your anger at your lawyer. Don’t kill the messenger. In most instances, your lawyer is doing the best he or she can to protect your interests.
7. Brace for the long haul, but know it will come to an end. The cliché, “this, too, shall pass,” is true. Every lawsuit will come to an end, and there will be an opportunity for closure and new beginnings.
In his book, Litigation, Professor James McElhaney laments the fact that civil litigators are horrified at the prospect of a blind cross-examination. As a result, he argues, “[e]very year we spend millions of dollars on needless depositions of ‘witnesses’ who have little to say and nothing to add about the cases in which they would never be called to testify anyway.” But we depose them, he suggests, because we’re scared to death of asking a question to which we don’t know the answer.
In Litigation, he provides some suggestions to civil litigators who, despite their best efforts, find themselves in a blind cross-examination situation. One of these, which he terms “Duck facts,” I particularly like.
Duck facts refer to things for which you don’t need proof. “If it looks like a duck and walks like a duck and quacks like a duck, it’s a duck.” The classic example of this is where the witness tries to testify to something that makes no sense at all. McElhaney’s example is pretty good:
“Q. You say Schultze didn’t throw the bowling ball at Malone?
A. No way. He just dropped it. It was an accident.
Q. So Schultze just dropped the bowling ball?
A. That’s right.
Q. And then it just rolled onto Malone’s foot?
A. That’s right.
Q. Uphill?”
For those of us who continue the practice of deposing every conceivable witness, practicing duck facts questions, and looking for duck fact opportunities will surely sharpen our skills. I keep waiting for that case where the client forbids me from conducting any pretrial depositions and forces me to go to trial “cold.” I’ll get to practice my blind cross skills in real-time.
California Assembly Bill 1875 would limit the deposition time to 7 hours, thus mirroring the Federal Rule. There is currently no limitation at all for cases pending in California state court. Is the proposed 7 hour limit a good idea?
My experience tells me that most depositions in many kinds of cases can (and definitely should) be completed in less than 7 hours. That said, I’ve had the issue repeatedly arise in employment discrimination and sexual harassment cases in which the plaintiff’s deposition cannot reasonably be completed in 7 hours. In fact, the plaintiff’s deposition in a sexual harassment case involving multiple instances of conduct allegedly occurring over the course of 3 years could not be reasonably completed in less than 20 hours.
The good news with this California legislation is that it would exempt cases involving employment issues or which are deemed complex. It would provide the parties a choice to opt-out by stipulation. Expert depositions would also be exempt from the limitation.
The stated purpose of the bill is to prevent attorneys from deliberately using the deposition to harass a party or witness or needlessly increasing the litigation costs of a case. I’m not so sure. While I’ve felt that some attorneys could be more organized with their examination and sometimes they seem to dwell on areas that ultimately bear no fruit, it is important that examiners not feel unduly rushed or constricted. I could probably count on one finger or less the number of times I’ve honestly felt that an examiner was dragging out a deposition for a purpose other than legitimate fact gathering. As far as harassment goes, I bet most people find the entire deposition process to be an exercise in harassment. A lawyer intent upon harassing a deponent can do so as easily in 7 hours as 10, so is the law necessary?
On balance, I think members of the bar should think and act like professionals. We should not engage in harassing behavior. Nor should we drag out the length of a deposition unnecessarily. If somebody gets out of line, there are remedies available, including a protective order and/or sanctions. But I’d like to think we can govern ourselves without the need to be overregulated. So let us decide for ourselves how long it takes to complete a deposition.
Oh, and please don’t ask after the first hour how long I think I’ll take for my examination. That is just soooo annoying.
Imagine spending good money, effort and frustration to obtain a judgment only to realize it will cost even more good money, effort and frustration to collect the judgment.
Sometime back I obtained a judgment on behalf of a client against a “serial” restaurateur. I say “serial” because, although he was good at partnering with the right chef, choosing a key location and creating a terrific vibe, the restaurant business is about as fickle as it gets. Inevitably, the chef quits, the location becomes unfashionable and some other joint creates a better vibe. This was the case with our defendant–let’s call him “Tony.”
As soon as we got our judgment against Tony, I recorded an abstract in every county in California, hired an investigator to profile his assets and set a judgment debtor examination. The investigator identified a couple of bank accounts, nothing else. I had to practically hire Jason Bourne to stake out Tony and serve him with the summons for the judgment debtor examination.* I did the exam (at the end of which I had the judge order Tony to give me the contents of his pockets, $128 in wrinkled bills). The judge also granted my request to levy Tony’s Omega watch and Vespa scooter.
I then started the form-and-delay-laden process of trying to levy his bank accounts. Being in the restaurant business, Tony habitually drained his checking account and had no savings. When I subpoenaed him to bring his bank records to the judgment debtor examination (a practice I HIGHLY recommend), the records revealed that Tony almost constantly maintains a negative balance . We tried a couple of times just the same, and collected less than nothing on each try.
I sat down and had a heart-to-heart with our client. Fortunately, it had not been particularly difficult or expensive to obtain the judgment. Tony had failed to make payments on a promissory note and did not contest the lawsuit, leading to a simple default judgment. The problem was, it looked like it was going to cost our client a lot to collect. Tony was not anyone’s “employee,” so garnishing his wages was not an option. He had “arrangements’ with investors who could loosely be called partners, but no partnership agreements exist, so we could not get a charging order. A till tap was another option but, again, expensive. There are ways to get to Tony** but, again, it wasn’t going to be easy or, more importantly, cheap. So, with the client, we explored a third option: patience.
Time is on our client’s side. Simple interest on a judgment accrues at a rate of 10%. Finding an investment with a constant 10% return is challenging. If Tony was not broke our client might have collected right away. But, assuming he did not immediately spend the money, could our client find an investment with a 10% return? Tony might have a bright future. He does have a knack for creating a hip vibe, which can carry a restaurant pretty far in Los Angeles. Even if he never kicks ass, though, he might in five years or so get a steady job where he collects a regular paycheck that we can garnish his wages. If it takes 10 or more years, the client simply needs to renew the judgment. It’s not immediate and it’s not sexy, but it might just get our client his money back with some decent post-judgment interest.
*Yes, I do occasionally resort to hyperbole.
**Broken kneecaps being one.
This is a cautionary tale. I now get so many Nigerian scam invitations by email that it’s hard to remember a time when they weren’t so common. I get one or two every day. But a while back, before they were so ubiquitous, I came pretty close to falling for one.
Any lawyer who is or has been a junior partner at a BigLaw firm knows what it’s like to be hungry for business. The prospect of single-handedly bagging a big institutional client is just too attractive to pass up. It can cloud your judgment. I woke up one morning and checked my Blackberry or iPhone (can’t remember which at the time) and saw that I had an email from a company headquartered in China. I couldn’t tell from the email what their business was, but the email was professionally, if stiffly, written and devoid of obvious grammatical defects.
With some variation, most of us are now familiar with the fictional come on: they’re a foreign company that is owed a sizeable, but not unreasonable, amount of money by an American customer. They’re looking for counsel to assist in collecting the sum. It is anticipated the customer will ultimately pay what’s owed, but litigation may be required and, besides, they need to have counsel in the United States to handle commercial issues which arise from time to time. Most important for my purposes, the email said right up front that they were prepared to pay a retainer. Would I please contact them?
Looking back, the “it’s too good to be true” light was blinking all along, but, remember, I was hungry for a big institutional client. Of course I responded, asking for details, trying to set a call, etc. I looked up the company on the internet and the website looked legit and exactly like what I expected the website of an Asian fabricator and exporter of miscellaneous nuts and screws and other parts would look like. The kind of solid, reliable, bill-paying institutional client every young commercial litigation partner wants in his or her book of business.
Within a day, I had an exchange of correspondence, scheduled a call and agreed upon rates and terms of engagement, including a $10,000 or $15,000 retainer (can’t remember now). I had also performed an internet search on the American customer/defendant. Here, again, the website looked like the legitimate website of a legitimate middle market American company that purchases metal nuts and screws and other parts from a Chinese supplier and incorporates them into shelving and dividers that are sold to other larger companies for use in their warehouse facilities. Nothing sexy, but by all accounts a legitimate, going concern.
Looking back, I should have been more attuned to the little hints along the way. The name of my contact, for example, vacillated between “Kevin” or “Kelvin” in the emails. While it took several tries to have a successful telephone call, I was ultimately passed by a Chinese-sounding receptionist/operator to a man who identified himself as “Kelvin.” He was brief and slightly difficult to understand, but sounded like the real-deal. We advanced the ball and there was good news from the client’s perspective: the American customer had agreed to pay what they owed (around $273,000, I believe), but I would facilitate the transaction, acting as an escrow of sorts. The check would be sent to me. I would deposit it in the firm’s client trust account, retain the retainer amount (again $10,000 or $15,000) and wire the balance to my new client. I would then be “on retainer” and prepared to handle their North American litigation needs which were sure to arise in the future.
I became sure that something was awry about a week after the initial contact, but before the check arrived from the American customer. I received another, completely separate, email from a different Asian company also looking for representation in a similar collections-type situation. I looked this “new” company up on the internet and, you guessed it, they also sold screws and nuts and other little parts. In fact, although the company had a different name and contact information, everything else about the website was identical to my new “client.”
At this point, I just wanted to see how it played out. I never in a million years would have gone through with the scam, but I was curious how these things are done. At what point do they realize their “mark” has caught on and throw in the towel?
At about the expected time, I received a Federal Express envelope from the correct address in New Jersey containing a completely legitimate-looking cover letter, complete with “wet” signature and a check drawn on the corporate account, payable to my law firm, for $273,000. Still curious, I placed a call to New Jersey, to the person who purportedly signed the letter. I was amazed when the call went through and still more amazed when the person who answered was a mature woman with what seemed to be an authentic New Jersey accent who was willing to talk with me, not just about the details of the check, but also about her day and plans for the weekend (it was a Friday afternoon). I sent the “client” an email reporting that I had received the check, was depositing it, and would wire the money as soon as the customer’s check had cleared. (“Kelvin” had suggested I wire the funds as soon as I received the check, but he didn’t press too hard on this point, probably concerned I would smell a rat.)
I asked our office manager to deposit the check in our client trust account. When she came back I asked, “Any problems?” “Nope,” she said (I had not yet told her I suspected a scam). A few minutes before close of business, though, she came back into my office. She was ghost white. She’d received a call from Wells Fargo and, surprise, it turned out the check was fraudulent.
I took her through the details leading to the check, including my phone calls with China and New Jersey. She was intrigued, but looked at me strangely, as if to say, “You weren’t really going through with this?” I also called the local FBI field office. Because it was late on a Friday I had to leave a message. No one called me back.
I’ve since read that lawyers–big firm lawyers and solos–have been stung badly by these scams over the years. They give in to the fictitious client’s request to wire the funds before the incoming check has cleared–only to learn later that the check wasn’t real. What I found most astounding about the experience myself was how coordinated and detailed the props and communications were.
In an August 3rd profile of high-end family law practitioners Daniel Jaffe and Bruce Clemens, the Los Angeles Daily Journal quoted these lawyers as citing five important areas for litigators:
“A lawyer has to know people, know financial issues, know the law, know how to try a case and know how to settle a case. . . It seems obvious, but there are very few lawyers who have high skill levels in all five. If you don’t have all five and the other side does, your client is at a disadvantage.”
Does your lawyer have all five? I like to think I’m solid on four of them, but complex financial issues–for which an accountant would be required anyway–may not be my forte. Of course I don’t practice family law.
In a recent post on My Shingle, legal blogging rock star Carolyn Elefant laments the demise of the solo physician. Among her chief concerns are an anticipated lack of physicians available to care for patients in rural settings and an erosion of physician autonomy. However, she suggests that both the legal profession and legal blogging face similar concerns. She writes:
The same concerns that flow from the gradual extinction-by acquisition of solo doctors in the medical profession are evident in both law-related blogging and broader legal profession.
I’m not sure I agree that this is a valid concern on either front. Is there really a risk of large-scale migration from would-be solo practitioners to law firms? Doubtful. While many students enter law school with an expectation of at least starting their profession at a law firm, the news I read suggests that firms are actually hiring fewer new lawyers, meaning more are, by choice or necessity, opening a solo practice. Those same news reports warn that, even if the economy shows signs of long-term improvement, law firm economics have changed permanently, particularly with respect to the practice of staffing cases with newer, untrained lawyers at high rates. We are unlikely to witness a mass exodus of solos in favor of law firm life any time soon, simply because there is a shrinking demand for them.
Additionally, from my admittedly unschooled understanding of the overhead of running a medical practice, I hold the opinion that it is increasingly easier for lawyers to start and maintain a solo law practice, while it is increasingly difficult to start and maintain a medical practice. While I presently practice in a Big Law environment, replete with layers of infrastructure, there is no question in my mind that technology has made it easier than ever before for a lawyer to open and effectively operate a solo law practice. A computer, printer/scanner, some key software and a place to work is about all that’s really required for a bare bones practice. (Though this presumes the practitioner has both clients and skills.)
I presume that the infrastructure required for even the most spartan medical office (not to mention the cost of purchasing an ongoing practice) has, if anything, become more expensive with advances in technology. I know my own health care providers always have several pieces of squeaky-clean, cutting-edge machinery, each of which probably costs more than my car. As Ms. Elefant correctly points out, while the costs of medical school and other expenses continue to rise, the amount health insurers pay for procedures has remained constant, if not declined, making it more and more expensive to be a solo physician. It’s no mystery solo doctors are fleeing to hospitals and group practices.
I share her view that our profession benefits from solo and independent lawyers, and would definitely lament any sign of their demise. But, unless I misunderstand Ms. Elefant’s argument, I don’t see sufficient similarities between maintaining a solo medical practice and a solo law practice to make me concerned that solo lawyers will become scarce anytime soon.
Are quality independent law bloggers becoming extinct? I’m not sure I share this concern, either. Purely by virtue of her tenure in the blawg community, I trust Ms. Elefant both when she describes the “independent voice” that characterized legal blogs a decade ago and when she suggests that group blogs lack the spark or edge of the early legal blogs. My feeling, however, is that the business of practicing law has changed so substantially due to the explosion of technological tools and the recent turbulent years of the economy (What’s that overused catch phrase? Oh yeah, “the New Normal.”) that what was considered edgy a decade ago really is “normal” now. Perhaps the “New Normal” should morph into “What are we supposed to do now?” or “Where Do We Go From Here?”
I suspect also that, beyond the proliferation of group and corporate-sponsored blogs which might not have the same spark and edge of early solo-written blogs, there is still a strong community of independent voices out there who write what they personally think, without the group dynamic or corporate “dilution” effect. They might just be harder to hear amidst the louder noise around them.
Ms. Elefant’s underlying message is valid. Our profession and clients need solo and independent lawyers, and the legal blogosphere benefits from ample solo and independent voices. The question is, do we really need to worry?
[youtube https://www.youtube.com/watch?v=r2EirLJqghA?rel=0&w=420&h=315]
I wrote last about credibility in the context of preserving one’s reputation for honesty. I doubt many lawyers will argue with the importance of reputation. However, at a more granular level, there are more subtle ways of losing credibility than being untruthful with the opposition, a judge or your client. I’m thinking here about the tendency in our profession to exaggerate or overuse hyperbole in correspondence, briefs or argument.
Yes, “this bag weighs a ton” is more colorful, immediate and powerful, than merely, “this bag is heavy.” But it’s a slippery slope. As I write this, however, it occurs to me that the risk may actually be less about preserving credibility, and more about simply being a better advocate. The goal in our writing and argument should be less about telling a judge, jury or opposition that a course of conduct was malicious or–another good one–heinous. Our goal should be to drive the point home using the facts themselves. Show, don’t tell, as I hear in my sleep from all those fiction workshops. Describe the facts which lead us to conclude on our own that the conduct was malicious or heinous. If done properly, you can leave out the hyperbole and adjectives entirely.*
Back to the heavy bag, saying it “weighed a ton” is more powerful than simply “heavy,” but “the bag weighed 300 lbs.” or “plaintiff could not lift the bag without assistance” is more compelling still. We trust this statement, not because someone else has concluded for us that the bag was “heavy” (a relative term), but because most of us can infer from our own weight that 300 lbs. is heavy. Describe the facts precisely and well; if the bag truly was heavy, we’ll know it.
I know when I receive a letter or a brief with hyperbole or exaggeration my first thought is not, “Wow, we’re in trouble.” Typically the opposite. This is because I know that if my client and I have something to worry about there won’t be any need to cloak the facts in fiery adjectives or other nonesense. Again, if the facts are good or bad enough, they’ll speak for themselves.
I suspect it’s because judges are so inundated with exaggeration on a daily basis that they often seem at their wits-end during law and motion calendar. There’s only so much of it one can take without growing tired and cynical. I’ve never sat as a judge, but I sometimes imagine what they must be thinking, in their black robes presiding over lawyers bickering over interrogatory responses like little children: “Somebody is really paying these people several hundred dollars an hour for this?”
Exaggeration in the courtroom is not dissimilar from crying wolf. The first time we hear a lawyer suggest a defendant was calculating or heartless it might carry some impact. But, like the gun in the first scene of a play, hyperbole and adjectives generate an expectation. If the lawyer doesn’t deliver the goods by the end of the show, the audience is going to want a refund. And they’ll deserve it.
*An exception being adjectives that are specifically drawn from applicable jury instructions. If the instruction requires the jury to conclude conduct was “malicious” to impose punitive damages, then a lawyer should use the term itself. But don’t just conclude the conduct was “malicious,” describe the conduct in such a way, with facts, that no sane person could reach any other conclusion.
