Best Client Call of the Week

Stressed businessman strangling himselfMany attorneys find it to be a quaint concept, or pretend not to understand, but at Morris & Stone we will only represent a client if we are on the right side, which we define as the party who should win if justice is done.

We learned long ago that the practice of law is far more enjoyable if you are fighting for justice, as opposed to being a partner in crime with a client who is attempting to avoid paying a valid debt, trying to prevent competition, or whatever.

So with that policy in mind, here is how the best client call of the week went:

“Ring ring.”

“Morris and Stone, this is Aaron Morris, how can I help you?”

(It’s a funny thing, but about half the time, if the person is calling to speak to me, they’ll respond, “is Aaron Morris available?” Many people just can’t engage their brains that quickly. But I digress.)

“Are you the defamation attorneys?”

“Yes, we handle defamation cases. What’s going on?”

“Well, do you represent plaintiffs or defendants?”

“We represent whoever is in the right; whoever deserves to win.”

“Oh, you won’t be able to help me then.”

“Click.”

It’s good to have a realistic sense of your case.

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Whoever vs. Whomever

OK, I had to check. Here is how GrammarBook.com explains it:

To determine whether to use whoever or whomever, the he/him rule applies:

he = whoever
him = whomever

Rule 1. The presence of whoever or whomever indicates a dependent clause. Use whoever or whomever to agree with the verb in that dependent clause, regardless of the rest of the sentence.

Examples:
Give it to whoever/whomever asks for it first.
He asks for it first. Therefore, whoever is correct.

We will hire whoever/whomever you recommend.
You recommend him. Therefore, whomever is correct.

We will hire whoever/whomever is most qualified.
He is most qualified. Therefore, whoever is correct.

Rule 2. When the entire whoever/whomever clause is the subject of the verb that follows the clause, look inside the clause to determine whether to use whoever or whomever.

Examples:
Whoever is elected will serve a four-year term.
Whoever is the subject of is elected. The clause whoever is elected is the subject of will serve.

Whomever you elect will serve a four-year term.
Whomever is the object of elect. Whomever you elect is the subject of will serve.

A word to the wise: Whomever is even more of a vogue word than whom. Many use it indiscriminately to sound cultured, figuring that no one will know any better.

Did I get it right?

Of course it’s a “self-serving declaration”! Why else would I file it?!

Frustrated Male Judge With Gavel And BookIf you lose a motion and rail against the stupidity of the judge, that’s just viewed as sour grapes. But today I was in court for a hearing, and it was the case BEFORE mine that raised my hackles, so I can rant with impunity. (And yes I won my motion, so this also isn’t indirect sour grapes either.)

I mostly hear this refrain from opposing counsel, but judges sometimes make the same stupid remark. That remark is referring to a declaration as “self-serving”, and arguing that it should be disregarded on that basis. If you are filing declarations that aren’t self-serving, you are doing something horribly wrong.

Let me give you the facts of the case in questions so you’ll see what I’m talking about.

The case was a landlord/tenant dispute. From what I gleaned from the oral argument (which the court allowed to go on for almost an hour – wasn’t this all discussed in the briefs?), the landlord is suing for unpaid rent, and the tenant is claiming breach of the warranty of habitability. But I also gleaned that this is no garden-variety rental being discussed. The home is 18,000 square feet, and the monthly utility bills exceed $11,000. (I feel a lot better about my electric bill now.)

The landlord threw in a cause of action for fraud, claiming that tenant never intended to pay the rent (even though it was mentioned that the tenant had paid more than $250,000 in rent during his tenancy).

Counsel for tenant knew that landlord would never be able to marshal any evidence to support the fraud claim, so he sought summary adjudication on that claim. Isn’t that what motions for summary judgment are for; to call the bluff of the other side and make them put their cards on the table to see if they can establish a triable issue of fact?

So, landlord had claimed that tenant entered into the lease, not intending to pay the rent. Well that’s pretty easily refuted. Tenant filed a declaration, stating that he did intend to pay the rent, as evidenced by the fact that up until the moment sewage started flooding his home, he had always paid his rent (the aforesaid $250,000).

Landlord had no response. He did not file a single declaration or offer any evidence that would create a triable issue.

In his tentative ruling, the judge denied the Motion for Summary Adjudication on the fraud claim, stating that the declaration proffered by tenant was self-serving. He cited Code Civ. Proc. § 437c(e), which provides:

If a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the summary judgment, except that summary judgment may be denied in the discretion of the court, where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact; or where a material fact is an individual’s state of mind, or lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof.

Admittedly, the wording of section 437c(e) seems to support the rejection of a self-serving declaration under these facts, but in my never to be humble opinion, that section was meant to attack affirmative motions, as opposed to defensive motions.

For example, if a plaintiff was suing for intentional infliction of emotional distress, and brought a motion for summary judgment supported by his own declaration stating that he was really, really emotionally distressed, there isn’t much the defendant can offer in response. Section 437c(e) recognizes this fact, and gives the judge some wiggle room.

But here, the burden is on landlord to show the fraud. The ONLY evidence tenant will EVER be able to offer about his state of mind is testimony about his state of mind. If landlord has no evidence sufficient to create a triable issue of fact as to the fraud claim, then why let it proceed to trial?

The Ninth Circuit had a true “duh” moment when it recently realized that declarations are predictably self-serving, and should not be disregarded on that basis.

In the case of Nigro v. Sears, Roebuck and Co., No. 12-57262 (9th Cir. 2015), the plaintiff was an employee suing Sears for disability discrimination. Sears brought a motion for summary judgment, claiming that Nigro could not show a causal relationship between his termination and his disability. Nigro opposed the motion with only his own declaration, stating, in essence, that he was specifically told that he was being terminated because of his disability.

The trial court granted the motion for summary judgment, holding that Nigro’s declaration could be disregarded because it was “uncorroborated and self-serving”, and therefore there was no material issue of fact.

What?! Do judges think before they write this stuff? So I’m called into the boss’s office, and told that I’m being fired because he is sick and tired of my disability. The only two witnesses to that conversation are me and the boss. But I can’t defeat a motion for summary judgment, because when I file a declaration, it will be self-serving and should be disregarded (unless the boss is kind enough to corroborate what occurred).

The Ninth Circuit slapped its collective head and held that “declarations are often self-serving, and this is properly so because the party submitting it would use the declaration to support his or her position.” (Citing S.E.C. v. Phan, 500 F.3d 895, 909 (9th Cir. 2007), meaning that the court had already slapped its forehead some eight years earlier, but apparently the District Court had not heard it).

So, the next time you find yourself about to type or say the words, “self-serving declaration”, pause a few to consider the absurdity of that statement.

Judge resigns amid allegations she retaliated after rebuffed Facebook request, exhibited paranoia

A Florida judge has resigned before the resolution of ethics charges alleging she “repeatedly expressed paranoia” and exhibited “inexplicable” and “disruptive” behavior.

Judge Linda Schoonover of the Seminole-Brevard circuit court plans to retire Aug. 31,

Source: www.abajournal.com

The fascinating part of this tragic story is the Facebook incident.

The judge was presiding over a divorce action, and sent a Facebook friend request to the wife. The wife, understandably concerned that she would get a friend request from the judge on her case, asked her attorney what she should do. Her attorney advised her to ignore the friend request.

The judge was not pleased. She allegedly retaliated against the wife by ordering a very unfavorable, and inexplicable, division of the marital assets.

I’m reminded of that scene from Fatal Attraction, where the character played by Glenn Close says, “I will NOT be ignored,” before later boiling the bunny.

Be careful who you fail to friend.

See on Scoop.itCalifornia SLAPP Law

Best Client Call of the Week

Frustrated woman making a phone callMy websites all have contact forms, so that prospective clients can email me a question. The forms require that the prospective client provide an email address and/or a telephone number. How else would I contact them?

So, I received an email from a visitor to one of my websites (let’s call her Jane), and I promptly responded.

The next day, I received another email from the website from Jane, asking the same questions again. I responded again, apologizing that she had not received my earlier response.

On day three I received two emails from Jane, and they made clear that Jane was not pleased that I was ignoring her emails. Jane had never provided her telephone number, so I had no means to contact her other than through the email address she was providing each time. I was sure my email was probably ending up in her spam filter for whatever reason, but I responded each time.

Finally Jane called, and she was hopping mad that she had written me so many times and received no response. I explained that I had responded to every one of her emails, and read back her email address.

“Oh, that’s a fake email address. I always use that when I fill out contact forms. I don’t want to get spammed,” she said.

How to Write Like a Pro in a New Content Niche

Here’s how to pivot your style and approach to write informative, engaging content in a new niche – Content Marketing Institute.

Source: contentmarketinginstitute.com

I want to share this great, very detailed article on creating content for a niche. Although not specific to law firm marketing, the concepts are the same.

One thing you should be doing is to monitor the most popular articles on your own blogs, in order to provide more of that sort of content. In this article, you’ll learn how to do the same for other blogs, in order to increase your awareness even further.

If you want to take your firm to new levels with an effective content marketing plan, be sure to read my Niche Marketing Roadmap series.

See on Scoop.itLaw Firm Marketing

Best Client Call of the Week

angry callerA gentleman called about a case, wherein the amount in controversy was about $1,500 – a clear candidate for small claims court.

“Well, this isn’t a case I would be able to represent you on because it wouldn’t make economic sense to hire me for a $1,500 case, but I’m happy to give you my thoughts on how you could pursue this in small claims court,” I said.

We often get calls about cases that are best handled in small claims court, so I’ve created a web page that walks callers through the process of suing in that court. When I get these types of calls I’ll take a few minutes to give the caller some tips on how to calculate the damages and what evidence to present, and then I send them to the web page.

This caller was taking advantage of my kind nature, asking very specific questions about how “I” was going to handle the case; which witnesses I would call, which documents I would use. In each instance, I told him that “I” wasn’t going to handle the case, because the legal fees would far exceed the amount he was seeking to recover. In all, during the course of the conversation, I told him about six times that it would not be economically feasible to hire me to represent him given the amount in controversy.

He grew a bit curt when I repeated the refrain for the sixth time that I would not handle the case.

“Why do you keep saying that? Why wouldn’t it make economic sense?”, he asked.

“Because this is a case that should be pursued in small claims court, and individuals cannot be represented by an attorney in small claims court. For me to represent you, I’d have to file a full-blown action in the Superior Court, with written discovery, depositions, possible motions, etcetera,” I responded. “You avoid all that in small claims court. Also, there is no basis to recovery your attorney fees, so you’d be spending far more on me that you would be seeking to recover. It wouldn’t make sense to spend all that money on legal representation for $1,500!”

“But what if I wanted you to represent me? What would it cost?”

Well, I’m $495 an hour, and I require a $10,000 deposit to start.”

“Why the f**k would I pay you $10,000 to get $1,500! Are you out of your f**king mind?”

Click.

Using the Internet to Educate (and Intimidate) the Opposition

schoolI will say up front that I have no empirical data to show you regarding this strategy, but it came up in a case I just handled, and I wanted to share it with you. As I will discuss in a moment, on a number of occasions opposing counsel has quoted my articles back to me, so I know they are reading them, which leads me to believe this strategy could be very effective.

Here’s how it came about. I was representing a client who was being sued for allegedly failing to disclose a permitting issue with the house he had sold. The real estate broker was also a defendant, and she was represented by separate counsel. I won’t bore you with all the details of why the plaintiffs’ claims lacked merit, but suffice to say there would have been no problem if the plaintiffs had simply purchased the home and lived in it. They had the undisclosed intent to tear down the residence and develop two homes in its place, and it was only because of this drastic redevelopment plan that the alleged issue with the permit arose.

Plaintiffs’ Complaint contain two causes of action for fraud, and a third cause of action for negligent misrepresentation. Plaintiffs had also demanded a jury trial.

I had had no luck educating opposing counsel during the litigation process, but I was hopeful that with the reality of the trial, I might finally be able to get them to pay attention to the facts. I devoted significant time to the trial brief, which included numerous references to the deposition testimony of the plaintiffs and the exhibits. After reading my trial brief, I believe it finally became apparent to opposing counsel and/or his clients that they would never be able to prove the intentional misrepresentation. They not only dismissed the two causes of action for fraud before the trial commenced, they also waived jury trial.

Intimidating opposing counselThis brings us to the point of this article. We were therefore left with the decision of whether we wanted to pick up the jury. The judge allowed defense counsel to adjourn to the jury room to discuss the issue. The broker defendant was adamant that we should go along with dismissing the jury, based entirely on what she had seen on opposing counsel’s website. Like me, opposing counsel likes to pontificate on-line about various trial strategies, and he had posted several videos about how he prevails in jury trials. He had apparently gone on and on about how he can manipulate a jury by telling a good story, and in doing so make the jurors ignore the law. Based on these videos posted by plaintiffs’ counsel, the broker wanted to waive the jury.

I pointed out to the broker and her counsel that it was this same plaintiffs’ counsel who was requesting that the jury be waived. Obviously, whatever Svengali influence he felt he could use on jurors, he had come to the conclusion his clients were not best served by a jury in this case. He had decided he had a better chance of winning with a bench trial and, if we agreed, we were only giving him what he wanted.

Attorney Intimidation

The broker was undeterred. Opposing counsel’s videos had so convinced her that he was an expert with jurors, that she didn’t want him to be allowed anywhere near a jury. She even said, referring to me and her own counsel, “No offense, but I didn’t see any videos from you about how good you are with juries.” This statement was especially telling, because it indicated that she was attributing special expertise to opposing counsel based on the fact that he had posted videos on the subject, and we hadn’t.

Ultimately, we did decide not to use a jury for other reasons. The plaintiffs had rolled over and conceded to the government agency in question that my client had failed to get a necessary permit some 25 years earlier. It wasn’t true, but the plaintiffs were basically taking the position that they never would have been able to move forward with their construction plans unless they conceded the point. They contended that fighting about the existence of the permit would have taken more time and effort than just conceding the point and moving on. Crazy, I know. There was no permit issue, but according to plaintiffs the defendants should be held liable for somehow failing to disclose that the agency might think there was a permit issue.

Nonetheless, the case might have had jury appeal, because the plaintiffs did spend about a million bucks getting the agency to approve their plan, so I felt the case was best decided by a judge. A jury might ignore the law and split the baby. It turned out to be a brilliant decision for the defense, not only because it greatly streamlined the trial, but the judge stuck to the law and found in favor of defendants. Indeed, he ruled from the bench immediately following the presentation of the evidence. I frankly don’t know why plaintiffs’ counsel decided at the last moment not to use a jury; I think if plaintiffs had any chance of winning, it was only with a jury.

intimidating attorneyBut the lesson I learned from this experience is that the information you post on the Internet can be used to educate and even intimidate the other side. Even if opposing counsel doesn’t buy into whatever it is you’re selling, the opposing party may not be sophisticated enough to recognize any posturing for what it is.

Of course, the flip-side of this coin is make sure your writings are not giving anything away. On multiple occasions I have had opposing counsel attempt to use things I’ve published on the Internet against me. In all cases the attempts have been unsuccessful, but they served to highlight the fact that the opposition is reading my articles.

In one case, I had written about the inefficiencies of some large firms, and how their goal is to bill for all the services they can perform on a matter as opposed to the services they need to perform. I gave a list of the conduct that typifies this sort of behavior, such as demurring to answers, and bringing motions to compel after every discovery response. It happened that I was bringing a completely righteous motion to compel in the case, and opposing counsel cited to my article to claim that I was engaging in the very behavior that I criticized. My motion was granted and the argument fell flat on its face because it only served to illustrate that my philosophy is to only bring a motion to compel when absolutely necessary.

In another case I was, with the client’s permission, blogging about a case as it progressed. I changed many details of the case and didn’t use any names, so no third-party would know of which case I was speaking, but the opposition obviously knew I was discussing the current case. I represented the defendant, and plaintiff’s counsel had floated the idea of a possible walk away settlement. However, when I wrote in a blog post that the plaintiff would “rue the day he filed this action against my client,” opposing counsel wrote to say that there would be no settlement.

I wish I could say that this had been my evil plan all along, but the amazing result was completely unintended. To paraphrase Bill Murray from Groundhog Day, opposing counsel began to “drive angry”. He and his client were apparently so upset by the "rue the day" remark, that they failed to properly prepare the case, and instead came to trial with no other strategy than to use a my words against my client, in order to somehow make the defendant look callous. The court, of course, excluded my article as irrelevant, and the plaintiff was left with no viable strategy. During my cross-examination of the plaintiff, the court took a recess and called counsel into chambers. He turned to plaintiff’s counsel and said “defense counsel is methodically cutting your client to pieces.” The judge recommended that we have further settlement discussions. We ended up with a large stipulated judgment on our cross-complaint, even though my client had previously been willing to walk away. Plaintiff did, in fact, rue the day.

Karate KidAs you can see, you should always consider in the back of your mind, when posting articles on the Internet, whether you are giving too much information to the other side. But with that said, here's the way I look at it. I may be giving a trial strategy to the opposition, but I liken it to the final scene in the original Karate Kid movie. (Why would you ever remake such a classic?) Daniel-san, badly injured during a competition, prepares to execute the Crane technique, which Miyagi had taught him. We are to assume that this is the first time this move has been seen at a competition, because as you can see from the accompanying picture, his posture telegraphs that he’s about to use the Crane, but Daniel’s opponent is caught completely off guard. Once used, however, everyone who saw the Crane now knows that move. When I write about a winning strategy I have employed, on the one hand I’m giving it away, but like Miyagi and the Crane, it’s probably save to assume that I know a counter move to my own strategy. And as I learned from this case, your stories and boasts may well scare the opposition to death.

Flat Fee Arrangements Promote a Winning Practice

The Practice of Law - Fee AgreementsFlat fee arrangements are amazingly liberating.

Most of my fellow litigators won’t take a case on a flat fee, either because they are concerned that they will grossly underestimate the time the case is going to take and end up with an effective hourly rate of $25, or simply because they think they’ll make more on a straight hourly basis.

I acknolwedge that some cases just do not lend themselves to a flat fee because of the unknown factors, but when you have a case with a reasonably predictable time factor, a flat fee is a fantastic way to go, not because it earns you more (although it can), but because it allows you to do more.

This may be counterintuitive to some, and probably blaphemous to attorneys that are only in it for the money, but I’m in it to win and a flat fee gives me greater freedom to do what I need to do to win.

Say you have a case that is crying out for a demurrer. On a straight hourly arrangement, your discussion with the client goes something like this:

You:  “I really think we should bring a demurrer. The third cause of action for breach of contract fails to allege performance, and here they really can’t honestly allege performance, so I think that will get rid of that cause of action.”

Client:  “So if you bring this motion the case is over?”

You:  “No, it will just get rid of that one cause of action if we prevail.”

Client:  “How much will the motion cost?”

You:  “With the motion, the reply and going to court, I can probably do it all in ten hours, so $4,500.”

Client: “So I pay you $4,500 and the motion may not work and even if it does it doesn’t end the action it just gets rid of one cause of action?”

And what the client is thinking is: “Damn attorneys, he’s just trying to run up the bill.”

With a flat fee, all those conversations are eliminated. If I think a demurrer is needed, I bring it. If I think more discovery is needed, I propound it.

And this isn’t pure altruism. Yes, I do this to win, but being free to do everything I want to do on a case may allow me to prevail on the action much more quickly, making the flat fee a winning bet for me financially.

A few tips for flat fees: Continue reading

Lawyer App of the Month – Jotbox

Jotbox app

It always seems to happen in the shower.

I come up with a brilliant strategy for one of my cases or remember something that needs to be calendared. (I read once that there is actually some scientific basis for epiphanies in the shower, having to do with ions or something.) I need to get the idea down as quickly as possible before the thought is lost, and I need to make sure I will see whatever reminder I create.

I always have my phone with me (well, not actually in the shower), so I could create a reminder or enter the idea into Evernote, but that assumes I will hear the reminder tone or remember to look at Evernote before the deadline occurs.

Enter Jotbox. I may not check my voice mail or see all the text messages that come to me, but I am always good about checking my email. With Jotbox, I just dictate a quick message on my iPhone, and with a single click the typed message goes off to my email. I also have the options to scribble a message on the screen, or even snap a photo (a picture of an empty shampoo bottle, perhaps, to remind me to buy more).

When I arrive at the office and check my email, I can then deal appropriately with all the reminders.

Incidentally, if you want, you can use your Evernote email address. Instead of showing up in your email, they will show up in Evernote.

I found Jotbox while checking out a similar program called MeMail. The latter program does not have all the same features, and is $2.99, whereas Jotbox is just 99 cents.

Better Call Saul!