One of the issues discussed at the litigation conference in Santa Fe is the effect of the Class Action Fairness Act (CAFA) on new filings in State courts.  Since CAFA makes it much easier for defendants to remove class actions to Federal Courts (by loosening the diversity requirements), it appears that some plaintiffs are choosing to simply file their cases in the Federal Courts in the first place rather than fight a battle over removal.

Notwithstanding CAFA, I think there might still be advantages to filing your case in State court.  For example, consider the situation where your target defendant has previously defended similar charges in Federal Court and ultimately settled the previous litigation.  In such a situation, the defendant may feel more comfortable litigating the issues in State court and may forego removal.  If you choose to file in Federal Court, since you feel you are likely to be removed there anyway, you eliminate any possibility that the defendant might choose State court (all of this assumes, of course, that you feel State court is the forum that you want to be in).

Another advantage might be that you are more comfortable with the requirements for issuance of summons and service of process in State court.  Filing there permits you to use those rules for the initiation of the suit, even though it will get removed to Federal Court when the defendants file their answers.  For example, the Southern District of Ohio (at least the Dayton division) is pretty much requiring either waiver of service under the Federal Rules or personal service, even though service by certified mail should also be available.  In Federal Court, the attorney is responsible for service, but in the Ohio state courts, you simply file the complaint and an Instructions (or praecipe) for service form and the clerk will serve the summons by certified mail. Much easier than in Federal Court.

The point of all this is that you should analyze things first and determine if there is some advantage to initiating the case in State court and not just file in Federal Court under the theory that you might as well file there if you are going to get removed.  There may be definite advantages in initiating in State court.

~Tim

On December 1, 2007, the Federal Rules of Civil Procedure will get a completely new "look and feel" thanks to a project that has been underway for several years.  The goal of the project was to make the Rules more readable and easily understood.  The project made no substantive changes to the rules.

To understand exactly what the project was intended to accomplish, take a look at the two versions of Rule 4, related to the issuance of a summons. The current version reads as follows:

(a) FORM. The summons shall be signed by the clerk, bear the seal of the court, identify the court and the parties, be directed to the defendant, and state the name and address of the plaintiff’s  attorney or, if unrepresented, of the plaintiff. It shall also state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default  against the defendant for the relief demanded in the complaint. The court may allow a summons to be  amended.

The re-stylized version will read as follows:

(a) Contents; Amendments.

(1) Contents. A summons must:

(A) name the court and the parties;
(B) be directed to the defendant;
(C) state the name and address of the plaintiff’s
attorney or — if unrepresented — of the
plaintiff;
(D) state the time within which the defendant
must appear and defend;
(E) notify the defendant that a failure to appear
and defend will result in a default judgment
against the defendant for the relief
demanded in the complaint;
(F) be signed by the clerk; and
(G) bear the court’s seal.

(2) Amendments. The court may permit a
summons to be amended.

As you can see, the substance hasn't changed (i.e. the requirements for a summons are exactly the same), but the appearance makes the rule easier to read and understand.

The committee comments make clear that they intend no substantive changes to the rules, however in places where the wording of the rule was open to interpretation they did consult the case law and attempt to write a rule that complied with the decisions that had been published.  Some word changes were inevitable, which you can safely assume will lead to litigation along the lines of "The old rule said A,the new rule says B, so the meaning has changed."

Still, having read all of the new rules, I think it's a marked improvement over the old version.  The new version takes effect on December 1, 2007, unless Congress blocks them.  As of this writing there is no opposition in Congress.

You can view the new rules at www.uscourts.gov/rules/supct1106/CV_CLEAN.pdf.

~Tim

We were all taught in law school that complaints should be brief.  All that was required under Rule 8 was a plain statement of the cause of action.  Case law interpreting Rule 8 said that the requirement was simple - just put the defendant on notice as to what the cause of action was about sufficiently that the defendant could mount a defense.

That has all changed now with the U.S. Supreme Court's decision in Bell Atlantic v. Twombly, a case that has great ramifications concerning how we draft pleadings (complaints, counterclaims and cross-claims). The Court states:

"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid., a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true."

Under the Bell Atlantic decision, we are now required to plead facts sufficient to show entitlement to relief.  The Court stopped short of setting forth exactly what that would entail, in the average case, but it did stand the normal analysis of what the courts look at when judging 12(b)(6) motions on its end.  In the past, a motion to dismiss under 12(b)(6) was denied unless there was no set of facts which could be proven at trial under which the plaintiff could prevail.  That is no longer the case.  Now, the complaint must contain sufficient facts to establish entitlement to relief.  Likely, that's going to need to be decided on a case by case basis, with the courts spending the next few years grappling with the issue before any clear rules of pleading emerge.  In the meantime, get ready to draft complaints that are heavy in fact, including apparently, ultimate facts such as "The Defendant acted willfully" together with facts that tend to establish the conclusion of willful conduct (i.e. "The Defendant caused a payment coupon to be mailed to the Plaintiff, while acting with full knowledge that the Plaintiff was a Debtor in a Chapter 13 Bankruptcy case.")

Complaints are now going to become lengthy.  I recently drafted a post- Bell Atlantic complaint in a Fair Debt Collection Practices Case that ran to 15 pages. 

What happens if your complaint gets dismissed under Rule 12(b)(6)?  Generally, the court would entertain a motion for leave to amend (or permit amendment as of right under the current Rule 15), but nothing requires the court to do so.  Worst case scenario is that you have to take the dismissal and refile, curing the defects in the complaint in the second filing.  Since an adverse ruling under 12(b)(6) does not operate as an adjudication on the merits, you should always be able to refile.

Cases that would be effected include any that are currently in the pleading stage.  If the defendant has filed an answer, you're safe.  If there is a pending 12(b)(6) motion, get ready to amend.

The old pleading rules have been in effect since the 1930's, without change until Bell Atlantic.  The Court made this change even in the absence of any change in the wording of the rules.  The decision was 7-2.

~Tim

Another tip given by the panel of judges at the ALI-ABA Litigation conference was to write briefs using the full capabilities of your word processor.  For example, consider the following paragraph from one of my current cases:

The traditional factors supporting the granting of a preliminary injunction are met by the facts of this case. Mr. Hawkins is quite likely to succeed on the merits because the letter contains several clear violations of the FDCPA. Permitting the Defendants to continue to send similar letters to other debtors can cause irreparable harm given the fact that many such debtors are on extremely limited budgets and might divert money needed for other essential items into paying off their debt to Kentucky Check Exchange, including the unlawful fees, simply because they fear that Mr. O’Brien is threatening criminal prosecution. There cannot be any possibility of harm to any third parties because all the preliminary injunction requires is that the Defendants act in compliance with law and that they segregate any funds received as a result of their unlawful activities as a presage to restitution at the end of this case. And, finally, beyond doubt the public interest is served by requiring the Defendants to act in full compliance with the law.

Instead of using straight prose, this paragraph could be rewritten using the Table feature of your word processor:

Table 1, below, demonstrates how each of the four factors related to preliminary injunctions is met by the facts of this case.

Table 1. Applying Preliminary Injunction Factors

As demonstrated, the traditional factors supporting the granting of a preliminary injunction are met by the facts of this case. Mr. Hawkins is quite likely to succeed on the merits because the letter contains several clear violations of the FDCPA. Permitting the Defendants to continue to send similar letters to other debtors can cause irreparable harm given the fact that many such debtors are on extremely limited budgets and might divert money needed for other essential items into paying off their debt to Kentucky Check Exchange, including the unlawful fees, simply because they fear that Mr. O’Brien is threatening criminal prosecution. There cannot be any possibility of harm to any third parties because all the preliminary injunction requires is that the Defendants act in compliance with law and that they segregate any funds received as a result of their unlawful activities as a presage to restitution at the end of this case. And, finally, beyond doubt the public interest is served by requiring the Defendants to act in full compliance with the law.

The benefit is that the concept, whether a preliminary injunction is warranted, is made much more clear when you view the factors directly next to the fact that you argue establishes that factor.

Word processors are full of features like this that can be used to make your writing more clear and concise.  When the judge made these remarks, the other three judges on the panel were all shaking their heads in agreement.  I think as we get a generation of lawyers enter practice that were exposed to computers at a younger age, this type of thing will become mainstream.  Until then, some of us will use the new approaches while others won't. I plan to try it out in a few cases to see if I, and the local courts, feel comfortable with it.

~Tim

I am just back from attending the ALI-ABA seminar on Litigation in State and Federal Courts.  I give it my highest recommendation to anyone who regularly tries cases.  I will spend part of the next week writing here about some of the tips that were imparted by the panel, which included several U.S. District Judges.

Tip No. 1 came from a judge sitting on the court for the District of DC.  He was speaking about briefs and indicated that one thing that he liked to see is the use of hyperlinks in the electronically filed briefs.  Basically, if you use hyperlinks, the judge can just click the link and see the case you have just cited.  This works in any court that accepts electronically filed briefs, but not (of course) in paper based courts.

There is one issue that I didn't get a chance to speak to the judge about - which service do they use for legal research - Lexis or Westlaw.  If you provide a Lexis link and the court uses Westlaw, the link won't do them any good and vice versa.

One solution might be to include all cited cases in PDF format as part of the brief, but that would be unwieldy. Best to determine what your court is using and get an account with them.  My bet is that it is Westlaw, but I may be wrong.

~Tim

There was an article in the May ABA Journal about a new strategy of lawyers (mostly tax lawyers and accountants) patenting legal strategies.  Apparently there is now pending a case for infringement of a patent dealing with funding of trusts as a tax strategy.

This underscores how, every once in a while, the Supreme Court makes a very bad (boneheaded, even?) decision that has ramifications far beyond the case at hand.  A few years ago, they held that business methods could be patented.  This has led to a slew of business method patents getting granted and, sooner or later, the lower courts will have to deal with the fallout.

What is a business method patent.  Well, it's a way of doing something that achieves a business goal.  For example, Doubleclick on the Excel icon, enter data, interpret results could be a business method (ok, probably not patentable since it would fail the uniqueness requirement, but, hey, I am not a patent attorney so maybe it is).  In the legal world - cross examine witness, raise reasonable doubt is a process (of course, the inventor is long dead).

Of course, I am exaggerating for effect, but if you look at the patents that have been granted for business processes you see that I am not that far off.  For example, a firm called Cereality claims a patent governing the process of "displaying and mixing competitively branded food products" and adding "a third portion of liquid."  In other words, they have patented putting milk on your cereal.

So, what's the danger in all this?  Well, do you want to get sued and have to pay Cereality every time you put milk on your cereal.  Or do you want your client to have to pay an up front fee to license the method of funding a trust to avoid taxes?  What if the inventor won't license, but requires your client to come to him to draft the necessary paperwork, in essence stealing your client.

Congress has looked at legislation that would abolish the business methods patent, but none has passed yet.  And what of the patents already issued?  If they are abolished is not the inventors property being "taken" for which they are entitled to compensation?

See, a bad decision that leads to consequences and expenses far beyond the case immediately before the Court.  It doesn't happen often, but when it does it often creates a real mess.

~Tim

I was reading in the ABA Journal about an interesting marketing idea for those who are doing estate planning work.  The basic concept is to have a "Tupperware" party at which, instead of selling Tupperware, a lawyer sells estate planning documents such as health care powers of attorney and wills.

Like the traditional Tupperware party, the lawyer works with a party host, who has the party in their home and invites friends and relatives to attend.  The lawyer then gives a short presentation on the need for estate planning and retires to another room, where individuals or couples can come to consult.  The lawyer brings a laptop and drafts the documents on the spot, has them witnessed and/or notarized according to the formalities of the jurisdiction and receives his fee.  The lawyer pays the host for the use of the home (carefully avoiding any fee splitting issues).

This would seem to work well for simple estate planning documents, such as wills and powers of attorney.  If an individual presents a more complex case, the lawyer sets an office consult to take care of them.

While I have no interest in doing estate planning work, beyond the basics if a client presents themselves to me asking for a will, if you are into that type of law and wish to expand your practice, this seems to be an interesting marketing tool. I plan to add it to my toolkit for times when lawyers ask me for marketing advice.

~Tim

I was reading the Kentucky Law Blog the other day and came across an interesting case that deserves watching.  It seems that a local attorney sued Jewish Hospital alleging that 96 patients had picked up infections while patients at the hospital. Eventually, Jewish Hospital won dismissal of all the claims.

After the initial claims were dismissed, the hospital sued the local attorney alleging that he failed to consult with an expert prior to filing his case and that, had he done so, he would have known that his case was without merit.  The gist of the case is that the hospital wants to recover the costs of defense of the original claims.

It will be interesting to watch this one.  Generally, as the blog post points out, we don't have the "loser pays" system in effect in most states, although there are some Federal law causes of actions (such as ERISA suits) that do put a cost and attorney fee shifting schema in place.  There have been good and valid reasons why the loser pays approach has not been adopted.  It tends to have a chilling effect on poor plaintiffs, preventing them from pursuing even meritorious claims for fear of losing and being required to pay substantial sums to the opposing side.  A fair and open society should, and ours has until recently, encourage the airing of disputes in the judicial forum.  This is what keeps such disputes from being handled privately and in manners that lead to breaches of the peace.

This suit is even more onerous when you consider that Kentucky does not have a provision that requires a medical affidavit to be presented to the court prior to filing a medical malpractice case.  It is even possible, under Kentucky law, to prevail on a medical malpractice claim even though you have no expert testimony, so long as the subject matter is something that is within the common knowledge.  I haven't looked at the original case, so I make no comment upon whether the case should have proceeded without experts, but if the hospital's claims against the plaintiffs' attorney are based upon not having hired a pre-trial expert, then they are certainly groundless.

The URL for the Kentucky Law Blog article is:

http://news.lawreader.com/?p=900

~Tim

I have finally achieved completion (sort of) on my law office web site.  It can be viewed at www.lawyerhatton.com.

As readers know, I don't maintain a physical office.  Although I base my operations out of Hendersonville, Tennessee, I am seldom there.  Currently, I am working on cases in Ohio, associated with Les Thompson, an attorney in Dayton (and a darned good one, I might add), which keeps me up here. 

I am looking to expand my Tennessee operations, hence the new web site.

~Tim

I had the pleasure last week to argue the Campbell case before the Sixth Circuit.  For those who have never done it, arguing in front of the Court of Appeals is fun.  This case marks the third time I have appeared before one of the Federal Courts of Appeals.

The first two times were many years ago.  The first was before the Fifth Circuit in a case out of the Eastern District of Texas.  Ken Sheets was my co-counsel and we had lost a Rule 12(b)(6) motion in the trial court and had appealed.  The Fifth Circuit is in New Orleans, which made for an enjoyable trip in addition to the argument.  It was made even more enjoyable a few months later when we received the opinion.  We won a reversal.

Later on, I presented the case of Egan v. Sowders in the Sixth Circuit.  This was an appointment to represent a pro se appellant on a habeas corpus petition. 

Last week, I was arguing the Campbell case.  This case involves police overreacting by searching, handcuffing and generally roughing up a law abiding 70 year old man based solely on an anonymous tip that someone was pointing a gun at passing cars.  It presents some interesting points of constitutional law, made even more interesting by the fact that so many of us seem to be willing to curtail our civil rights in order to gain security, or the illusion of security, in the post terrorist attack world.

My opinion is that we should be careful what we give up.  It will be much more difficult to regain it later on.  To me, that's what the Campbell case is all about.  While it was very much fun to argue it - oral arguments always bring me back to the abstract debates about the law that we engaged in back in law school - I never lose sight of the fact that it is a very serious issue.  Time will tell how the Sixth Circuit rules.

~Tim

I was settled in last night to watch the last three hours of Lost, when much to my surprise I noticed a potential lawsuit right there on the TV.  The local ABC affiliate, which is owned and operated by the same company that owns the local Fox affiliate, ran a promo during almost every commercial break. The content was simple - "Don't miss what everybody will be talking about tomorrow.  Turn over to Fox 45 right now and catch American Idol."

I bet the advertisers who were paying for time on ABC during last night's Lost episodes really loved that.  Talk about not getting what you paid for.

It's even worse when you consider that in Ohio, where I was watching last night, every contract carries an implied duty to act in good faith.  I would submit that, even in the absence of contractual language directly on point, it could be argued that good faith does not include prompting your viewers to change channels.  Aren't advertising rates based, at least in part, on the number of viewers?

Anyway, after I got over the shock, I had to laugh (mostly at myself for not even being able to watch television without turning it into a litigation experience).

~Tim

The Ohio Supreme Court heard argument May 1, 2007 on the Arbino case.  Readers will remember that this case deals with the constitutionality of statutory caps on compensatory and punitive damages in some tort cases in Ohio. I watched the video stream of the argument (rtsp://www.ollserver.state.oh.us/court/2007/2006-1212.rm) from the Ohio Supreme Court web site.

The most interesting moments came early in the Petitioner's presentation, when Chief Justice Moyer questioned counsel regarding the meaning of the term "inviolate." This was in the context of the Ohio Constitution's requirement that the right to a trial by jury be held inviolate. The Chief Justice pointed out that there are many limits placed on the right to a trial by jury. We have summary judgment, directed verdicts, judgment NOV and the like.  He wondered why, if those limits were permissible, the legislature couldn't cap damages without it being a violation of the inviolate right to a trial by jury.

Petitioner's counsel failed to point out that there is a distinct difference between the two scenarios. In the case of directed verdicts and the like, the ruling by the court taking an issue away from the jury is done only after all the evidence has been presented.  The court merely says that, looking at everything in the record, there is no way that reasonable minds could come to but one conclusion.

However, in the case of the legislative caps, the damage issue is being taken from the jury before any evidence is presented (even before any claim arises).  The legislature is saying, in effect, "it doesn't matter what the evidence says, the jury is only permitted to find that the damages" are under the cap. 

That is a huge distinction and it would have been nice to have seen that argument presented.  Overall, though, the case was well argued.  It will be interesting to see what the Court's ultimate opinion turns out to be.

~Tim

This weekend I had an opportunity to examine a law office management suite from Legal-Pro (http://www.legal-pro.com). The suite contains three pieces, primarily aimed at the bankruptcy practitioner, but which are also incredibly useful to those of us whose practice consists mostly of civil litigation.

The two parts of the system that are of most use to non-bankruptcy attorneys are "I've Got Notices" and "Doing Time." I've Got Notices simplifies the process of receiving, sorting and calendaring the notices that we receive when documents are filed in our Federal Court cases. The software basically scans your e-mailbox for a notice, then follows the "free look" link, downloads the document and, if necessary, adds an entry to your calendar. The document is then stored locally, eliminating the need for you to either accomplish that manually or to ever look on PACER (and pay) for the document again. This system is massively useful for attorneys, or firms, whose caseload is such that managing the incoming document flow is a burden (like the average bankruptcy practitioner).

Doing Time is a time and billing system. It has a simple interface and is a snap to get up and running. I was fluent in it within just a few minutes.

After looking at these two pieces of the puzzle (as well as Bankruptcy Pro, which is of lower interest for me as I do not have a bankruptcy practice), I decided to make the move over from my old time and billing system (Time Matters from LexisNexis).

From what I hear, Legal-Pro is pretty responsive to requests for enhancements. As State courts come online with electronic case filing systems, I hope that they will add the ability to use I've Got Notices with them (the only one I know of right now is an e-mail based notice system used by the Ohio Supreme Court). Until then, I plan to use Doing Time extensively, and use I've Got Notices for all my Federal Court work.

~Tim

I subscribe to several of the LISTSERV message groups, where you get copies of every message posted sent to your e-mail. Recently I was struck by noticing a pattern, so for the past couple weeks I did some counting.

It seems that over 50% of the messages are requests for form pleadings. "Has anyone out there got a motion to compel discovery from an employer in a wrongful termination suit?" It seems that almost every pleading I look at is cookie cutter boilerplate language. What happened to all the lawyers out there?

I think the problem is that computers make this sort of thing easier. You can get a copy of something and cut and paste it into your document and you're done. But it makes for lazy lawyers, I think. I used to tell computer programmers who were taking classes from me that the thing that differentiated a good programmer from a bad programmer wasn't the code they write, but whether they understood why the code they wrote worked. It's the ones who understand the why that make all the difference when trying to figure out what is not working.

I think it's the same in the practice of law. Lawyers seldom do any of their own work anymore. Big lawyers have clerks and paralegals who do all the research. Little law firms rely on forms and LISTSERV and the like. But what happens when each of those gets to court? The big lawyer, who hasn't done any of the basic research, would be at a decided disadvantage in an oral argument with a lawyer who had done all the research on a case and understood it forwards, backwards and sideways.

The trap that we are falling into is that the law is becoming not what we used to consider a profession, but just another vocation. I find that sad and I am happy that my practice is one in which I can handle a small number of cases and do almost all of the research and writing on the case myself. I think it gives me an advantage.

By the way, another 25% of the LISTSERV messages are requests for referrals. There is very little actual discussion of the finer points of the law going on out there.

~Tim

It appears that the Tennessee legislature has taken up the topic of medical malpractice "reform." Frequent readers will know of my disdain for the efforts of the insurance companies to limit the awards that juries can make to injured parties (whether in the medical malpractice arena or other torts).

The Tennessee bill changes the name of medical malpractice actions to "health care liability action." It would certainly be a shame if we called it malpractice.

The more substantive changes in the bill is a limit of $250,000.00 for non-economic damages, aggregated against all health care providers who are defendants and $250,000.00 against all health care facilities which are defendants. That is a total limit of $500,000.00 for all non-economics, including punitives. If the total award is over $75,000.00 for future damages, the court may order that they it be paid as periodic payments, rather than lump-sum.

The bill also limits attorney's fees to 40% of the first $50,000.00, 33 1/3% of the next $50,000.00, 25% of the next $500,000.00 and 15% of anything over $600,000.00. And the Plaintiff can, under some circumstances, be ordered to pay the attorney's fees of the defendant.

All in all, this is a worse bill for the injured plaintiffs than the one I have been involved with in Ohio. In that bill, at least the damages cap for punitives was a multiple of the actual damages. The Tennessee bill is an outright $500,000.00 cap. No matter what the injury, you get your actual damages (economic only, meaning that a plaintiff in a low paying job gets less than one in a high paying job for the same injury) plus no more than $500,000.00.

People in Tennessee, write your state representatives. The bill has already passed the Senate. The House takes it up next week.

~Tim

I am experimenting with providing a new "legal news" page to readers. Basically, this is one of the start pages provided by Google Apps for Domains, which is the system that I use to run my web site and e-mail (everything except this blog).

The basic concept is simple -- you visit the page, which is divided into sections. There is one for recent decisions of the US Supreme Court, one for the Kentucky Courts, the Sixth Circuit and the Ohio Supreme Court. Alas, there are not yet RSS feeds for the Tennessee or Indiana courts, at least not that I am aware of (if anyone knows of one, drop me a line).

While the page would be customizable for people with accounts, I haven't gotten that far in my thinking about how I want to do this. It is basically just an experiment. While the content will change frequently, as the RSS feeds are updated, it isn't my work that's doing it -- it's all automatic.

The page can be viewed at http://start.lawyerhatton.com.

If anyone knows of any interesting feeds that could be added to the mix, let me know. I am going to let this run for a while to gauge interest and then make a decision as to whether to devote any substantial effort to it.

~Tim

The ABA Journal recently published an article about the online game Second Life.  The story centered on attorneys who are participating in the Second Life "virtual world" who are providing legal advice to other participants. This advice can concern only online topics, such as buying or selling virtual land, or it can be advice given in an online office setting regarding real-life topics.

What a can of worms this opens.

The issue for lawyers becomes, is this to be considered the practice of law, regulated by various jurisdictions? If it is, then who gets to regulate it? Let's look at an example:

Suppose a Second Life avatar (what they call your visual aspect on the game) appears in your Second Life virtual office and asks you a question about estate planning. You, being licensed in Tennessee, answer using Tennessee law as your guide. The Second Life avatar then goes offline and acts on your advice in real-world California. It turns out that California law conflicts with Tennessee law and the real-life person is damaged by your advice.

Have you committed malpractice? Have you engaged in the unauthorized practice of law in California? Would the California regulators have jurisdiction on you, in Tennessee, to enforce their rules? Is an attorney-client relationship formed? If so, who is the client (the avatar or the real-world person)?

See what a mess this could be?

Let's face it, the practice of law in this country is subject to patchwork regulation. Even in real-life we can run afoul of the regulations. The same scenario I provided as an example above plays out every day in law offices across the country. I have many friends across the country who call me for legal advice. While I am careful to give them broad answers based on general principles and caution them that they need to check with an attorney in their jurisdiction, there is no guarantee that they won't act on something I say to their detriment.

Is this a real concern? In the real world, it has been my experience that most states are similar in law. There aren't vast differences, just different shades. I have long advocated a move to a driver's license approach, where licensing in one jurisdiction permits you to practice in any state. This works as long as attorneys take the time to research and become familiar with the actual law of the jurisdiction. You can't shoot from the hip answering questions from other jurisdictions.

When I first started out in practice, in 1984, I almost immediately picked up a case in Texas? I spent hours researching the law of Texas that applied to the facts. I taught myself what I needed to know in order to handle the case. I appeared pro hac vice in the Federal Court in Texas. Ultimately, I won the appeal to the Fifth Circuit from an adverse decision of the trial court. Multi-jurisdiction practice can be done, if you are careful.

How will all this play out with the new virtual reality? I don't have a clue, but it will be interesting to watch. As the Journal article pointed out, this provides us with an opportunity to revisit the way the profession is regulated. We must be careful not to try to force the old world rules upon the new world.

I would be interested in hearing from people who are actively participating in Second Life and getting their opinions on these topics.

~Tim

I was talking with Ken Sheets, an attorney in Xenia, Ohio with whom readers of my posts are familiar. Ken served as the guinea pig in an experiment I was doing with Google Calendar. Ken runs a very small office, with little in the budget for high end equipment or software. One issue that he struggled with was the ability to electronically access his calendar from outside the office.

He has been running Google Calendar for some months now. Yesterday, he told me that he was recently over at the clerk's office and they were talking about needing to schedule some hearings. So he quickly used the clerk's computer to call up his calendar and told her to go ahead and schedule them on there as necessary. While she was doing that, he went about other business.

That brings to mind what may be the next evolution in the electronic case management systems that are beginning to be used. Electronic case scheduling - where all attorneys in a case make their calendars available online and the clerk's schedule events as necessary.

I am sure there would be some issues that would need to be worked out. Attorneys would need to maintain an updated online calendar at all times. The system would need to be hosted by the court, and secured.

It's way out on the horizon, but I bet we get there eventually.

~Tim

I tried a case last week. I won't say where because I don't want to embarrass anyone. Essentially, the case was simple - a car was surrendered to the bank and sold via a private sale for an amount insufficient to clear the entire loan balance. The bank brought an action against my clients for the deficiency.

The defense was that the bank didn't follow the procedures outlined in the UCC for giving notice of the time, date and place of sale. There were a number of errors in the notice. The bank attacked this by asserting a provision in the UCC that states that the secured party may still recover the deficiency if it can prove that there would have still been a deficiency, and the amount that would have been owed, even had they properly given notice.

This defense on the part of the bank requires basically one thing - proof of the value of the car - what it should have brought at sale.

Opposing counsel called one witness - an employee of the bank who worked in the collections department. She attempted to use that employee to get the black book value of the vehicle into evidence. The problem arose when I objected, simply because she hadn't laid the proper foundation for the admission of the evidence. Things went back and forth, with me objecting each time the witness tried to refer to the black book or testify as to the value of the car. Finally, opposing counsel looked at the judge and asked what she was supposed to do. He, of course, merely shrugged, since it is not his province to assist counsel in proving their case.

When she rested, the case was promptly disposed of on motion for directed verdict.

The point of this story is to pose a question - are they still teaching law students how to lay the foundation for the admission of particular pieces of evidence? One of the things that I always do prior to any trial is look at the evidence I want to get in and make certain that I have a witness who can testify as to the foundation. In my exhibit book, right after each documentary exhibit, I have a notes section. That section contains a reference to the appropriate rule of evidence as well as the questions that I need to ask the witness in order to get the document admitted.

While I don't always find the need to refer to the notes, I at least have them there if I do need them. It is all just part of the preparation for trying a case, that was taught me by the professor teaching trial practice at the University of Dayton School of Law.

Given what I observed in Court last week, I wonder how much of that is being taught now.

~Tim

The U.S. Supreme Court announced its decision in the Philip Morris case today. Readers of this blog will remember this case as being one that impacts tort reform by determining whether there is a constitutional cap on the amount that may be set for punitive damages.

The Court remanded the case on other grounds, sidestepping the issue of whether due process requires caps on punitive damages. Instead, the Court focused upon the issue of whether juries may properly consider the fact that the defendant's actions have caused damages to non-parties to the litigation when setting the amount of punitive damages. In a 5-4 opinion, the Court concluded that they may not.

The Court did not, however, limit the jury from consideration of damage to non-parties in its entirety. Juries may still consider the fact that other people sustained injury when considering the reprehensibility of the defendant's conduce, which is then a factor in the jury deciding the amount of the punitive damages.

The dissenters (Stevens, Ginsburg, Thomas and Scalia) point out that this is actually splitting hairs. They agree that awarding compensatory damages for conduct that injures non-parties would violate due process, there is no such restraint on the awarding of punitive damages. In fact, a State may have a legitimate interest in punishing behavior that damages many people at a rate higher than that which damages only a single individual. An analogy was drawn to the situation in which a murderer who kills a dozen people would be punished with a higher prison sentence than one who kills only one.

So what does all this mean? Well, the first observation is that the cases in which the highest potential for damages exists - class actions - are not effected much by this decision. In a class action, arguable all of the people injured by the defendants conduct are parties (as class members) and the argument that the defendant is being punished for damages to non-parties is lessened (or non-existent depending upon the definition of the class).

Second, the Court explicitly sidestepped the issue of whether due process requires caps on punitive damages in the range of single digit multipliers. This leaves juries free to assess higher amounts of punitive damages, at least until a proper case preserving that issue can be taken up to the Court.

Overall, I think this case turns out to be neutral as far as tort reform is concerned. The defense bar is already spinning it as a victory, but I think that is simply public relations and marketing at work. In my opinion, the dissents were more logically consistent and made better law than the majority opinion. It will be interesting to see if the Court quickly takes another case to further clarify the issue of caps.  Until it does, both sides can continue to argue that the Gore case (see other posts for the cite) either requires single digit caps or does not.

~Tim