Blawger to publish book soon.
Prolific blawger Evan Schaeffer is about to publish a book entitled Deposition Checklists and Strategies. If it is as good as his posts and podcasts on depositions it should be a great addition to your library.
Advertising: Bad for the Tort System
Well it is about time I came up with something a bit controversial. I think advertising is bad for the tort system. There is no doubt that advertising works very well for personal injury attorneys. It is so succesful at getting clients in the door that the attorneys have to hire staff just to sort the wheat from the chaffe. I even have a 3/4 inch space in a column in the phone book stating that I do personal injury work and have 28 years experience. Although, I am told that that is a waste of money -- the serious people have full page color phone book ads and are on TV and radio. And, they are absolutely right. But I just can't go that extra mile.
While the advertising is great for individual lawyers it has the effect of poisoning the jury pool. It plays right into the insurance industry's campaign to make trial lawyers look like ambulance chasers. This summer or the year before at the Washington State Trial Lawyers Association summer convention, David Ball reportedly hit on this topic and told the crowd that in the public's eye "they had no credibility" due in large part to advertising.
So, we have become victims of our own success. This percolated to the top of my brain today because of two articles that I read recently. The first was an op-ed piece in the New York Times by a law professor. The subject was ATLA's name change which the professor opined would not help. In the article he stated:
The problem for the lawyers is that the genius of the tort system - its' capacity to marshall the entrepeneurial energies of the bar - is also it's greatest public relations liability.
I also ran across an article in the Providence Business News. (Isn't the internet wonderful - how else would someone in the Northwest read the Providence Business News). The article was about the fact that the insurance industry is involved in litigation five times as much as other industries. In explaining that this had nothing to do with the personal injury side of the business, the author stated:
Personal-injury lawsuits have been in decline for more than a decade, following the famous 1994 case in which a jury awarded millions of dollars to a McDonald’s customer who was seriously burned by hot coffee, Padwa said.
That and other highly publicized personal-injury awards resulted in a backlash, so that today, many people refrain from pursuing legitimate claims for fear they won’t get justice, he said.
So the next time we ask the public to come see us with their case because we are in "The Million Dollar Club" think of how many jurors will be poisoned.
Make It Easy for the Judge
Over the years I have had the opportunity to sit many times as an arbitrator in all kinds of cases. If you get the opportunity to do the same I would highly recommend it. It gives you a tremendous insight into what judges experience when they are hearing and subsequently deciding a case.
The best thing I have taken away from that experience is this concept: “Make it easy for the judge.” The judge after all has a job to do. Whether he or she is deciding evidentiary motions during a jury trial or deciding the facts in a bench trial, the judge is engaged in mental effort. The easier you can make it for the judge the more likely you are to receive favorable rulings and judgments. Judges are human and humans, for the most part, will look for ways to make their jobs easier. Make sure you are the one that provides the easiest way.
Here is one example. In your memorandum supporting your motion or in your trial memorandum in a bench trial, try working into the memorandum the draft of the court’s ruling that you want supported with reasons. For instance, in a bench trial try concluding your memorandum with something along these lines:
After hearing the evidence in this case the Plaintiff believes that the court should make the following findings of fact:
1. Fact one ….. The court should so find because …
2. Fact two …. The court should so find because …
And should make the following conclusions of law:
1. Conclusion one…This conclusion is based on …
2. Conclusion two …This conclusion is based on ….
Now the court may or may not rule in your favor but you will have gone a long way towards defining the court’s focus in the case and hopefully leading the court your way. You can imagine that your “findings of fact” will in fact become the judges check list as she or he decides the case.
Law Blogs for Conservatives and Liberals
A new law blog has just come on the scene. Tortellini is a new blog dedcated to fighting the tort reform movement and left leaning politics. For those who are all for the tort reform movement you might want to check out Overlawyered. This juxtaposition of blogs was pointed out recently by RiskProf.
Your duty is to the client, not cocounsel!
On Thursday of this week the Washington State Supreme Court issued an opinion on a case of interest to the legal profession. The case was Mazon v. Krafchick (2006). Mr. Mazon and Mr. Krafchick were two attorneys who partnered up on an electrocution case. They divided up their responsibilities. Mr. Mazon was to draft the complaint and Mr. Krafchick was to file and serve the same. Mr. Mazon drafted the complaint and Mr. Krafchick filed the suit. It was on the eve of the statute of limitations. Once the suit was filed, under Washington rules, the statute of limitations would have been tolled 90 days for service of process. Unfortunately Mr. Krafchick served the suit one day past the statute of limitations and of course the case was subsequently dismissed. Mr. Krafchick’s paralegal was in charge of seeing that the complaint was served and apparently told Mr. Krafchick that it had been served timely when in actuality it had not.
The client sued both attorneys for malpractice. The suit was settled by the attorney’s malpractice carrier which happened to be the same company for both attorneys. The total payout was $1.3 million dollars of which $1,250,000 was assigned to Mr. Krafchick and $50,000 was assigned to Mr. Mazon.
Mr. Mazon then sued Mr. Krafchick for the lost contingency fee on the case ($325,000), his insurance deductible and the $50,000. The Supreme Court upheld the trial court’s dismissal of the case on summary judgment.
The Supreme Court ruled that the attorneys had no duty to each other only to the client. They stated:
Thus, the court rejected Mazon's claim on the basis that recovering damages for a prospective contingency fee lost through a misfeasance of cocounsel assumes the duty to conduct the lawsuit in a manner that does not diminish or eliminate the fee each expects to collect. We agree a duty to protect prospective fees would create potential impermissible conflicts with the duty of loyalty the attorneys owe their clients.
As cocounsel, both attorneys owe an undivided duty of loyalty to the client. The decisions about how to pursue a case must be based on the client's best inerest, not the attorneys'. The undivided duty of loyalty means that each attorney owes a duty to pursue the case in the client's best interest, even if that means not completing the case and forgoing a potential contingency fee.
Great New Trial Blog
Just this month David Swanner and others launched "Trial Lawyer Resource Center: Trial Tips and Techniques From a Group of the Nation's Leading Trial Lawyers." Looks spectacular.
