When I was in law school, the only type of lawyer I was interested in being was a litigator. I wanted to go to court, I wanted to take depositions, I wanted to try cases. Well, civil practice tends to be broader than all that and, as fate would have it, I got to law school right after the 80s and at a time that the legal system was trying to invent ways to combat the excesses of the prior decade. All hail the advent of mediation and arbitration!
I've written about both of these procedures before (you can check out the earlier postings on www.kaijacobs.blogspot.com - I even posted a pretty picture of Miami just before a hurricane for effect), so don't get nervous that I've run out of material and I'm going to start repeating myself. To the contrary, I'm about to let you know that there is yet another mechanism becoming popular that's designed to settle cases and limit my courtroom time - mediation while your case is on appeal.
In both state and federal courts, there are mechanisms now in place to ensure that you attend mediation both at the trial level and if you find your case on appeal. Mediation on appeal has all of the great advantages that clients like - it forces open and frank discussion about the issues, it requires negotiation to see if there is a bottom line result that ends a lawsuit, it cuts down on attorneys' fees and costs if successful, it puts litigation behind the parties and it could save everyone months or years of time. This is a great invention for you litigants. It's a forced opportunity to come out of your shell and try to get to an end result.
It also means that I have to take off my advocate hat and put on my negotiator hat. It fits weirdly, but I'm getting used to it.
Have a great weekend everyone.
Friday, February 27, 2009
Wednesday, February 25, 2009
Deposed!
Last week, I met with a client who had never been sued before. Not surprisingly, he was angered by the lawsuit's allegations, the potential exposure for money damages, the lost opportunities caused by having to sit with me instead of running his business and a whole host of other emotions - none of them good. We were preparing for his deposition which, for those of you unfamiliar with the term, is the questioning of a witness or party under oath and one of the three big days in a litigant's lawsuit (the other two are mediation and trial).
You can imagine how happy he was to know that he would spend a few hours being questioned (sometimes very pointedly) about the merits of his lawsuit by opposing counsel. As is common in this scenario, clients like to play lawyer or, at least, legal tactician. There are about 100 or so rules you can give your client for handling a deposition ("Answer yes or no whenever possible" or "Don't guess at an answer. Say you don't know"). None of them include what clients seem often inclined to do - try to outsmart the other lawyer or bully him by a being a bigger jerk than he expects he will be confronting at deposition.
If you ever find yourself in this situation, please don't try to be a bigger ass than the other guy or try to be trickier than he/she is. It's entirely possible if not likely that you are smarter than he/she is. It's also a certainty that you know the events about which you are testifying better than he/she does. It is, however, a certainty that the lawyer asking you questions has been trained to do this and can ask the questions better than you can answer them within the confines of the rules governing litigation. Trust me. I have never met a client who came out of a deposition with a stronger case because he tried to outsmart the other lawyer or put him in his place because he thought the other guy was being snotty. Never.
You can imagine how happy he was to know that he would spend a few hours being questioned (sometimes very pointedly) about the merits of his lawsuit by opposing counsel. As is common in this scenario, clients like to play lawyer or, at least, legal tactician. There are about 100 or so rules you can give your client for handling a deposition ("Answer yes or no whenever possible" or "Don't guess at an answer. Say you don't know"). None of them include what clients seem often inclined to do - try to outsmart the other lawyer or bully him by a being a bigger jerk than he expects he will be confronting at deposition.
If you ever find yourself in this situation, please don't try to be a bigger ass than the other guy or try to be trickier than he/she is. It's entirely possible if not likely that you are smarter than he/she is. It's also a certainty that you know the events about which you are testifying better than he/she does. It is, however, a certainty that the lawyer asking you questions has been trained to do this and can ask the questions better than you can answer them within the confines of the rules governing litigation. Trust me. I have never met a client who came out of a deposition with a stronger case because he tried to outsmart the other lawyer or put him in his place because he thought the other guy was being snotty. Never.
Tuesday, February 24, 2009
Really? We needed a law for this?
Every now and again you come across something you can't really believe someone needed to turn into a law. Sure, I send out those e-mails every now and again about absurd laws on the books around the country. But, I was looking for something else yesterday when I came across this:
877.04 Tattooing prohibited; penalty.--
(1) It is unlawful for any person to tattoo the body of any human being; except that tattooing may be performed by a person licensed to practice medicine or dentistry under chapters 458 and 459 or chapter 466, or by a person under his or her general supervision as defined by the Board of Medicine.
(2) Any person who violates the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(3) No body of a minor shall be tattooed without the written notarized consent of the parent or legal guardian.
I don't even know where to start with this one. Tattooing was such a widespread epidemic that we needed a law to limit its performance to persons with a license? And does anyone ever go to the dentist for a tattoo? Then, of course, there's the really disturbing matter of tattooing your kids. I also like that your decision to permanently ink another's body illegally will only earn you a second degree misdemeanor. Pretty small price to pay for leaving something that lasts a lifetime.
I figured we could all use a laugh. It's Tuesday, after all.
877.04 Tattooing prohibited; penalty.--
(1) It is unlawful for any person to tattoo the body of any human being; except that tattooing may be performed by a person licensed to practice medicine or dentistry under chapters 458 and 459 or chapter 466, or by a person under his or her general supervision as defined by the Board of Medicine.
(2) Any person who violates the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
(3) No body of a minor shall be tattooed without the written notarized consent of the parent or legal guardian.
I don't even know where to start with this one. Tattooing was such a widespread epidemic that we needed a law to limit its performance to persons with a license? And does anyone ever go to the dentist for a tattoo? Then, of course, there's the really disturbing matter of tattooing your kids. I also like that your decision to permanently ink another's body illegally will only earn you a second degree misdemeanor. Pretty small price to pay for leaving something that lasts a lifetime.
I figured we could all use a laugh. It's Tuesday, after all.
Wednesday, February 18, 2009
New Trial Setting And Another Request
Happy Tuesday, everyone. I just want to let you all know that the case you all provided your thoughts on is now set for trial on March 16. Apparently, all of the criminal cases ahead of us on the trial calendar are going to be tried. Not much I can do about that. I promise to let you know the outcome as soon as the jury comes back.
I also have another request. As a lawyer, I am a service provider and, as a service provider, I am only as useful as the feedback the clients provide. So, I am looking to you for feed back. Specifically, I am looking to hear from those of you who are not actually clients. I would be interested to know when was the last time you hired an attorney, for what reason and were you pleased with the experience? What was the thing you liked the most? What was the thing you liked the least?
I am trying to re-tool my practice to meet the needs of the people I actually serve and know. I can only do that if I hear from you. So, tell me what you think!!
I also have another request. As a lawyer, I am a service provider and, as a service provider, I am only as useful as the feedback the clients provide. So, I am looking to you for feed back. Specifically, I am looking to hear from those of you who are not actually clients. I would be interested to know when was the last time you hired an attorney, for what reason and were you pleased with the experience? What was the thing you liked the most? What was the thing you liked the least?
I am trying to re-tool my practice to meet the needs of the people I actually serve and know. I can only do that if I hear from you. So, tell me what you think!!
Friday, February 13, 2009
Patience, patience
It's been a few days. I was waiting to update you all on the issue I recently presented to you by telling you how the trial turned out. Looks like that's going to have to wait a few days. The Court has three criminal cases (which, under the constitutional right to speedy trial, have to be tried first) ahead of us. So, as soon as I have a trial date set, I'll alert you and we'll see who accurately predicted the outcome.
In the meantime, we can talk about internal policies. I know, fascinating stuff. But, as most of you are the owners of or employed in some kind of business, you might actually need to know some of this. About three weeks ago, there was a situation in which someone I know (who is not a client) wanted sue Bank A because the bank screwed up some checks, deposits and payments. The theory this "someone" wanted to assert was premised on the idea that Bank A has several internal policies and the mistakes it made violated these policies. Accordingly, the Bank is liable.
This is not the first time someone has come up with this as grounds to sue. Banks, privately held small business and publicly traded multi-national corporations have policies and policy manuals spelling out what is expected of employees and how to do things the corporate way. That's all fine, well and good, but it is not the law and the law is the only avenue you have to redress a wrong. While policies are good practice and, in some instances, having a particular policy enforced can create certain legal rights, the simple failure to follow an internally created policy is not a basis to impose liability.
No, the "someone" I know will need to actually have a lawyer crack a book and examine the law to determine whether the banks actions give rise to liability. The policies and the failure to maintain them, although not a basis for relief in and of themselves, can be introduced as evidence and serve as proof that the law was not followed.
Lesson: failure to follow internal corporate policies may be evidence of wrongdoing but do not give rise to a right to sue all by themselves.
Have a great weekend.
In the meantime, we can talk about internal policies. I know, fascinating stuff. But, as most of you are the owners of or employed in some kind of business, you might actually need to know some of this. About three weeks ago, there was a situation in which someone I know (who is not a client) wanted sue Bank A because the bank screwed up some checks, deposits and payments. The theory this "someone" wanted to assert was premised on the idea that Bank A has several internal policies and the mistakes it made violated these policies. Accordingly, the Bank is liable.
This is not the first time someone has come up with this as grounds to sue. Banks, privately held small business and publicly traded multi-national corporations have policies and policy manuals spelling out what is expected of employees and how to do things the corporate way. That's all fine, well and good, but it is not the law and the law is the only avenue you have to redress a wrong. While policies are good practice and, in some instances, having a particular policy enforced can create certain legal rights, the simple failure to follow an internally created policy is not a basis to impose liability.
No, the "someone" I know will need to actually have a lawyer crack a book and examine the law to determine whether the banks actions give rise to liability. The policies and the failure to maintain them, although not a basis for relief in and of themselves, can be introduced as evidence and serve as proof that the law was not followed.
Lesson: failure to follow internal corporate policies may be evidence of wrongdoing but do not give rise to a right to sue all by themselves.
Have a great weekend.
Tuesday, February 3, 2009
Thank You - And On Another Note.....
Thank you, thank you all for the comments and input you gave in response to yesterday's trial scenario. So it's clear, I do not represent Enterprise (as many of you tried to guess). I intentionally withheld the identity of the party I'm representing. I actually represent the insurance company that has been asked to cover the accident.
If anyone was wondering how the responses came out, it was a dead even split. Half of you would have found no coverage. You guys stuck to the strict language of the documents and seemed pretty peeved that these guys were not wise smart enough to get a hotel room for the night. The other half who found coverage seemed to hang your hat on the fact that the renter had implied permission to give the car to his less drunk brother. Some of you also were moved by the fact that someone was killed and that someone should be made to pay for that.
I really do appreciate the time and thought you all put into this. It really and truly is invaluable to my trial preparation. It's very enlightening to hear what people outside the case think of it.
Now- on another but related note - jury service. About once a month or so, I get a call from a friend or family member (you people know who you are), asking how to get out of jury service. I tell them all the same thing: don't try and you can't. Everyone tells me the same thing in response - I have to work, my boss will be mad, I'll lose my job.
I agree that jury service can be inconvenient. I was in the middle of preparing for two trials at the same time last year when I was called to serve. Fortunately, my juror number was never actually selected, so I was never put on an actual jury. But I at least knew that I would keep my job if I was called.
That's right, you're not the only person in the world who fears for his or her job. Apparently, there are a number of less than understanding employers who seem to think that their private personal gain overrides your legal and constitutional obligation to serve on a jury. The federal courts of this country do not look favorably on these folks. In fact, a January 23, 2009 decision handed down in DC required an employer to pay back wages, reinstatement and attorneys' fees to the employee who got canned for his jury service. This is the law of the land and you can bet that in an economy like this, if you unload your receptionist for sitting on a jury, you will pay for it...eventually.
More fun stuff tomorrow.
If anyone was wondering how the responses came out, it was a dead even split. Half of you would have found no coverage. You guys stuck to the strict language of the documents and seemed pretty peeved that these guys were not wise smart enough to get a hotel room for the night. The other half who found coverage seemed to hang your hat on the fact that the renter had implied permission to give the car to his less drunk brother. Some of you also were moved by the fact that someone was killed and that someone should be made to pay for that.
I really do appreciate the time and thought you all put into this. It really and truly is invaluable to my trial preparation. It's very enlightening to hear what people outside the case think of it.
Now- on another but related note - jury service. About once a month or so, I get a call from a friend or family member (you people know who you are), asking how to get out of jury service. I tell them all the same thing: don't try and you can't. Everyone tells me the same thing in response - I have to work, my boss will be mad, I'll lose my job.
I agree that jury service can be inconvenient. I was in the middle of preparing for two trials at the same time last year when I was called to serve. Fortunately, my juror number was never actually selected, so I was never put on an actual jury. But I at least knew that I would keep my job if I was called.
That's right, you're not the only person in the world who fears for his or her job. Apparently, there are a number of less than understanding employers who seem to think that their private personal gain overrides your legal and constitutional obligation to serve on a jury. The federal courts of this country do not look favorably on these folks. In fact, a January 23, 2009 decision handed down in DC required an employer to pay back wages, reinstatement and attorneys' fees to the employee who got canned for his jury service. This is the law of the land and you can bet that in an economy like this, if you unload your receptionist for sitting on a jury, you will pay for it...eventually.
More fun stuff tomorrow.
Monday, February 2, 2009
Today, I need your help
Ok, I know most of you have come to rely on these e-mails of mine as a source of trivia and occasionally useful advice. Today, I need to do something different. Today, I am asking for your opinions and your thoughts. Now, when the shock wears off, get up off the floor and read on.
I have a trial coming up and I have an issue that the jury will need to resolve. It has never been decided in Florida before now so, needless to say, this is a big deal for everyone involved. I am going to throw this scenario out to you - the panoply of possible jurors of varying personal, ethnic, educational, marital and religious backgrounds - to see what your collective wisdom and experience comes up with. Here we go.
On December 16, 2006, Bill comes to Miami to visit his brother, Ed. At the airport, Bill rents a car from Enterprise. At the counter, the Enterprise rep asks Bill if anyone else will be driving the car. Bill advises that no one else will drive the car and the car rental agreement is filled out to state "no other drivers allowed" on the first page. Incidentally, if Bill did want to add another driver, he would need to bring that person to the rental counter, that additional driver would need to present a valid driver's license and Bill would be charged another $10 a day for the extra driver. When Bill is taken out to the rental car, another Enterprise employee reviews the contract with him and confirms that no one else will drive the car. This time, Bill is asked to sign the contract next to the language that provides that there will be no other drivers allowed.
Once Bill has the rental car, he picks up his brother, Ed, and they head out for a night on the town. They drive the rental car to see a Miami Heat game, to South Beach and then to a club downtown until 6:00 a.m. By this point, Bill is exhausted and has been drinking to the point that he believes he should not be driving a car. So, he gives the keys to his brother and tells him to drive because he's a local and knows the roads better. Ed takes the keys, drives the car in the wrong direction, gets on to the wrong highway and gets into an accident.
Ed calls his insurance company and asks for coverage. His insurance policy will cover Ed's use of a car he does not own if he had the owner's permission to drive the car or reasonably believed he had the owner's permission to drive the car.
So, here are my questions to you? 1) Is Ed covered under his auto insurance policy for driving the rental car without Enterprise's permission; 2) Was having his brother's permission enough?; 3) Do your considerations change if I tell you that Ed ended up killing a single mother of two small children in the accident?
Please, let me know what you guys think.
I have a trial coming up and I have an issue that the jury will need to resolve. It has never been decided in Florida before now so, needless to say, this is a big deal for everyone involved. I am going to throw this scenario out to you - the panoply of possible jurors of varying personal, ethnic, educational, marital and religious backgrounds - to see what your collective wisdom and experience comes up with. Here we go.
On December 16, 2006, Bill comes to Miami to visit his brother, Ed. At the airport, Bill rents a car from Enterprise. At the counter, the Enterprise rep asks Bill if anyone else will be driving the car. Bill advises that no one else will drive the car and the car rental agreement is filled out to state "no other drivers allowed" on the first page. Incidentally, if Bill did want to add another driver, he would need to bring that person to the rental counter, that additional driver would need to present a valid driver's license and Bill would be charged another $10 a day for the extra driver. When Bill is taken out to the rental car, another Enterprise employee reviews the contract with him and confirms that no one else will drive the car. This time, Bill is asked to sign the contract next to the language that provides that there will be no other drivers allowed.
Once Bill has the rental car, he picks up his brother, Ed, and they head out for a night on the town. They drive the rental car to see a Miami Heat game, to South Beach and then to a club downtown until 6:00 a.m. By this point, Bill is exhausted and has been drinking to the point that he believes he should not be driving a car. So, he gives the keys to his brother and tells him to drive because he's a local and knows the roads better. Ed takes the keys, drives the car in the wrong direction, gets on to the wrong highway and gets into an accident.
Ed calls his insurance company and asks for coverage. His insurance policy will cover Ed's use of a car he does not own if he had the owner's permission to drive the car or reasonably believed he had the owner's permission to drive the car.
So, here are my questions to you? 1) Is Ed covered under his auto insurance policy for driving the rental car without Enterprise's permission; 2) Was having his brother's permission enough?; 3) Do your considerations change if I tell you that Ed ended up killing a single mother of two small children in the accident?
Please, let me know what you guys think.
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