Thursday, December 27, 2007
I have not yet analyzed the full opinion, which I plan to do over the weekend, but in reading it today one thing stood out. A majority of the court (five of the seven) appears to hold that the right to a trial by jury is not a fundamental right in Ohio, at least as applied to civil cases.
It strikes me as amazing that five judges could sign off on something as outrageous as that. As pointed out in the dissent, the right to a trial by jury is so enshrined in the law that it is actually mentioned in the Declaration of Independence as being one of the reasons why we broke away from England. We couldn't abide by King George's abrogation of the right to trial by jury in some cases. How can that not be a fundamental right?
Since the court held that a fundamental right was not implicated, the statute was analyzed only under rational basis instead of strict scrutiny. The dissent thought it was unconstitutional under either analysis, but the majority says that the statute is rationally related to a legitimate state interest (that interest was stated as being bringing new businesses to Ohio and keeping businesses that are there) and is, therefore, constitutional.
I will undoubtedly post more, together with a link to the decision, after I take the time to digest it further.
Monday, December 10, 2007
They reached these opposite conclusions through some very tortured analysis of the English language. It seems that a person who trades the firearm and receives the drugs is using the firearm to get drugs, the same way that other people use money to get groceries. On the other hand, the person who receives the firearm and gives the drugs cannot be said to have used the firearm under any possible normal usage of the word uses.
Does this remind anyone of the whole "it depends on what the meaning of the word is is" debacle?
Personally, I don't think either person should be eligible for the mandatory sentence under the circumstances of a trade. I think the reasonable interpretation of the word uses in these cases should be that the person uses the firearm as a firearm, not as a medium of exchange. It is interesting how far the court will go sometimes to reach a result.
Sunday, November 11, 2007
If you haven't yet had an opportunity to take a look at The Complete Lawyer, you should. You can access it at http://www.thecompletelawyer.com .
Wednesday, November 7, 2007
The theory of these sites is simple, you create a page that lists information about you and your practice, then you invite colleagues to join. As people link to your page (and you link to theirs) your network builds. It's a way to communicate, build business, and learn from others.
Built into the system are messages (like e-mail) and forums (like group e-mail systems). This particular site, being new, is still being built so some features are not yet available. Still, it's worth checking out. You can take a look at my page and perhaps send me an invitation to yours to help our networks grow.
Monday, November 5, 2007
Who would sit on the review board? You guessed it - doctors. Talk about the fox guarding the hen house.
Now, I have no problem with states that require an affidavit from a doctor certifying the merits of the case, so long as the plaintiff can choose the doctor. That approach seems reasonable. But, when you move to an "independent" board (likely one appointed by the governor), you open up the process to politics. Is a pro-insurance governor going to appoint people to the board who will take a dim view of any medical malpractice case? On the flip side, will a pro-consumer governor (if any actually exist) appoint board members who will certify everything? This is not a good approach.
The fact is, the rules in place in Kentucky (and most everywhere else) are already capable of achieving the stated goal of Governor Fletcher's plan - to eliminate the frivolous lawsuit. There are the provisions of Rule 11, plus the added pleading requirement that a plaintiff obtain a pre-filing certification that the case has merit.
No, I am afraid this is just another attempt to permit the insurance companies to achieve their goal of writing policies while eliminating the risk that they might have to pay out on claims.
On a related note - readers who have been around for a year or so will recall my interest in tort reform in Ohio. That was occasioned by the fact that I was involved in a pharmacy misfill case up there. That case is now over, but my interest in the Ohio attempt at tort reform (caps on punitive and non-economic damages) survives. I am awaiting a decision from the Ohio Supreme Court in the Arbino case. That case was argued in April, so one would think a decision would be forthcoming soon.
Tuesday, October 30, 2007
The article was silent about the ethics of this type of arrangement. I can see many issues - are you obligated to tell the client about the arrangement (if not, why not) - can you mark up the fees you pay to the Indian attorney? - are you being deceitful if you file the work as your own (see the previous posts on the topic of 'ghost lawyering?'
Personally, I don't care much for this type of arrangement. I think that if a client hires me to do a job, then they should get me and the staff that is under my immediate control, not someone halfway around the world who may, or may not, be familiar with the laws and rules under which we operate here. While I am sure that the law schools in India do a great job of educating their graduates on general principles of law, there is no substitute for the experience of practicing in a jurisdiction. I think the quality of work would suffer. I think that clients would choose another lawyer if informed of the arrangement and I think there is a duty to inform them.
I am going to post an opinion poll. Chime in and let me know your thoughts on the ethics of outsourcing.
Tuesday, October 23, 2007
The basic problem hasn't been that the failing mortgages are "sub-prime." The problem has been that the mortgage industry has consistently made loans in excess of the value of the property. This has been litigated time and again, but it never seems to make the press. The mortgage brokers work with appraisers to get the property valued so that the loan can close. That value may be far in excess of the fair market value of the property. When it is it becomes impossible for the debtor to sell the property in the event the payment becomes too much. The debtor simply can't sell the property for enough to obtain a release of the loan.
What the House bill does is permit a bankruptcy court to cram down the mortgage to the value of the property. This would result in two things - first, the debtor could possibly then sell the property and pay off the mortgage - second, the debtor could perhaps obtain financing on the realistic value and remain in the property.
Now, this probably doesn't go far enough, but it's a start. I don't think it goes far enough because it requires a bankruptcy filing in order to cram down the amount of the loan. Congress should pass a law making it possible to cram down the loan outside of the bankruptcy process. If you ask our congress people they will tell you that the threat of bankruptcy will make the mortgage lender more willing to work with the debtor, pre-bankruptcy, but I don't see that happening. When someone is struggling to pay the debt load on a property, or is behind, it becomes an adversarial process fairly quickly. If a debtor is unable, or unwilling, to file bankruptcy he would have no better bargaining position under the proposed law than he has under the old law.
Still, it is a step in the right direction. Please write your congressman and ask for support for this bill. The bill numbers for each version are - House : HR3609IH Senate: S2136IS
Saturday, October 20, 2007
I am currently developing a marketing plan. In this month's ABA Journal there was an article that gave tips for marketing a small law firm. I am happy to report that I was already following most of those tips.
Perhaps the biggest marketing item on the agenda is that I am writing a column for the Wilson Post, the newspaper with the highest circulation in Wilson County, Tennessee. That column will focus on legal news that is of interest to the lay person, such as rights under the Federal Fair Debt Collections Practices Act, credit reporting laws, consumer protection laws, landlord/tenant, criminal law and the like. The column should be available online and I will post a link here when it is. The first appearance will be Wednesday, November 7, 2007.
I also have a long list of topics to blog about, compiled during my absence. There have been some interesting developments in lawyer marketing online and I have some cases that pose novel legal questions that make for interesting discussion.
My most major project right now is moving into the house that I leased in Wilson County. That gets accomplished at the end of this month.
Saturday, September 29, 2007
Thursday, September 13, 2007
Thursday, August 30, 2007
Monday, August 27, 2007
As a profession, we should resist this urge to specialize. We may make more money, but it's about more than that.
Wednesday, August 15, 2007
Today the CA6 came out with its first decision regarding pleadings since the Supreme Court's decision in Bell Atlantic v. Twombly. This provides those of us who practice in the Federal District Courts that make up the CA6 (Tennessee, Kentucky, Ohio and Michigan) with the first insight into how the CA6 believes pleadings are effected by Twombly.
The case is Lindsay v. Yates, N0. 06-4430, an appeal from a decision of the Northern District of Ohio. The District Court had dismissed the complaint for failure to plead facts sufficient to establish each element of a primar facie case of racial discrimination. Although the dismissal was pursuant to Federal Rule 12(c), the standard is the same as that for dismissal under 12(b)(6) and arguably Twombly applies. The CA6 had this to say about Twombly, and it's heightened pleading requirements:
Swierkiewicz was discussed extensively by the dissent in the Supreme Court’s recent decision in Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S. Ct. 1955 (2007). Twombly addressed requirements for pleading an antitrust claim under § 1 of the Sherman Act. The dissent argued that the Twombly majority had devised a “new pleading rule” that called into question the continued vitality of Swierkiewicz. 127 S. Ct. at 1974 (Stevens, J., dissenting). Because the Supreme Court majority distinguished Swierkiewicz and nowhere expressed an intent to overturn it, we have no basis for concluding that Swierkiewicz is no longer good law. Moreover, although this case does not present the question of if, or exactly how, Twombly has changed the pleading requirements of Federal Rule of Civil Procedure 8(a), we note that in Erickson v. Pardus, __ U.S. __, 127 S. Ct. 2197 (2007), decided after Twombly, the Supreme Court reaffirmed that Rule 8(a) “requires only a short and plain statement of the claim showing that the pleader is entitled to relief.” Id. At 2200 (internal quotation marks omitted) (concluding that the petitioner had stated an Eighth Amendment claim where he alleged that prison officials had endangered his life by removing him from hepatitis C medication shortly after he began a year-long treatment regimen, that he was still in need of the treatment, and that prison officials continued to deny him treatment). In any event, for the reasons described infra, we conclude that the Lindsays have pleaded sufficient facts giving rise to a “reasonably founded hope that the discovery process will reveal relevant evidence” to support their claims. Twombly, 127 S. Ct. at 1967 (internal quotation marks omitted).
From this, it seems that the CA6 is willing to provide somewhat less scrutiny to complaints than many think is required by Twombly. They place reliance upon the Erickson case, decided after Twombly, in which the Supreme Court appeared to utilize the old pleading rules, thus the complaint in the instant case was upheld.
I imagine that this is just the first of many cases in which the CA6, and the other circuits, will struggle to define what the exact requirements actually are. Perhaps the Supreme Court will clarify in the upcoming term, or at the very least, the term after that.
Friday, August 10, 2007
I suppose a big part of our business still favors style over substance. However, there is a cure. A company called Regus has developed a series of "Virtual Offices." These offer you a physical location, usually downtown or in other business friendly locations. For a low price, around $200.00, you get a local phone number, someone to answer that phone, voice mail, mail forwarding and two days a month of time you can actually use the office. Need it more? There is a package that gives you five days a month. And it appears that you can, for additional fees, get time in meeting rooms, etc, on a first come, first served basis.
This would seem to be a perfect place to have to meet clients, conduct depositions and do other tasks that normally require a physical location. I am toying with the idea of getting into one of their buildings in the downtown Nashville area.
The article didn't mention whether anyone had looked at the ethics of these arrangements. At first blush, I think it's ok. It would probably be best if you disclose to the clients what the arrangement is. It might be considered deceitful if you hold out that "This is my office" leading people to believe that you are renting the (expensive) space on a full time basis. And some states have rules regarding lawyers sharing office space with non-lawyers, requiring special action to preserve client confidences, etc. Still, overall, I think it should be ok and that perhaps the various boards should look at the rules and revise them a bit to better fit the modern way of doing business.
I have not yet decided to go this route, but I am considering it. I get quite a few inquiries from Tennessee, but not a lot of conversions. There could be many reasons for this, but one might be not having an office to get the clients into for meetings and to discuss their legal matters. An office with Regus might help that along.
The ABA Article can be read at:
Tuesday, August 7, 2007
Last May, the ABA issued an opinion that might be of help to attorneys who practice in Model Rule States. The opinion states that ghost lawyering is permissible under the ABA Model Rules, so long as local rules do not prohibit the practice.
The article goes on to discuss the concept of attorneys who draft documents that are filed by other attorneys. This is of particular interest to me, as the largest part of my practice consists of doing exactly that. The article quotes New York University law professor Stephen Gillers, an expert on legal ethics, as saying that lawyers who draft pleadings and briefs for other lawyers don't violate the ethics rules, since the filing attorney takes responsibility for the work. One would hope that Professor Gillers opinion would carry weight with any Board of Professional Responsibility that examines the issue.
Basically, it comes down to this - as lawyers we need to consult the rules of the jurisdiction to make sure that we're on the right side of the (blurry and sometimes shifting) line. My personal opinion is that there is nothing wrong with the practice. Certainly not with respect to my practice of authoring documents that other lawyers file, but also not with respect to the pro se litigants. It is our duty as lawyers to help those in need of legal services. Ghost lawyering for a pro se filer can, in some circumstances, enable someone to put their case before a court when otherwise they would not be able to. To my way of thinking, that is a good thing.
I am going to use a feature of the new blog hosting site I am using and put up an opinion poll on Ghost Lawyering to see what people think of it. You can read the ABA Journal article online at http://www.abajournal.com/magazine/scary_parts_of_ghostwriting/. The article contains a link to the New Jersey decision sanctioning the attorney who engaged in ghost lawyering for the pro se litigant, then vote in the poll on the left hand side of this page to make your opinion known.
Sunday, August 5, 2007
The current issue of the Tennessee Bar Journal can be read online. The article appears at: http://www.tba.org/Journal_Current/tbj-2007_08.html. If you have any trouble accessing it, drop me a note and I will see about getting permission to e-mail it to you.
As the article points out, attorneys and the courts are going to be struggling with Twombly for quite some time. The good news is that Twombly isn't constitutionally based. It was decided only under the Federal Rules of Civil Procedure. That being the case, it doesn't apply to state courts, even those whose Rule 8 is identical to Federal Rule 8, although it does have some persuasive value and you can bet that defendants will be citing Twombly in state court motions to dismiss.
If anyone out there has seen Twombly raised in a state court action, I'd like to hear about it, so drop me a note or post a comment here.
Saturday, August 4, 2007
Technology, the cell phones, PDA's, laptops and all the widely available wireless access is making it possible for lawyers to work anywhere. Look at my practice. Right now I am living in Ohio, yet handling a small number of matters in Tennessee. The fact that I can have a Tennessee local phone that rings in my home office in Ohio, together with the ability to easily travel back and forth (I am a licensed pilot), with a little creativity on scheduling things in Tennessee so I can accomplish a lot with a fewer number of trip cycles, it is certainly possible to have that kind of practice. Whether it can withstand building up to any sizable volume is an open question. With volume may come an increased number of trips that would make it easier just to live there than here.
Yet, still, the lure of being able to do it this way is attractive and I think that eventually you are going to see growing numbers of lawyers abandoning the traditional practice office for their own versions of the "virtual office." Already we see growth in the business of providing temporary counsel, some even work from home, with companies like Counsel on Call entering the marketplace.
You can read the ABA Journal article at http://www.abajournal.com/magazine/switching_to_house_calls/
Friday, August 3, 2007
In the article, they described a situation wherein the prosecutor kept an individual, who had been charged with rape, in jail for nine months. Under the law of that state, that was the period that a prosecutor had to obtain an indictment. In that case, the prosecutor could not obtain an indictment due to some evidentiary problems (basically, the article says the guy didn't do it).
The prosecutor basically became judge, jury and executioner, stating that he would at least keep the guy off the streets for nine months.
Wow, what an abuse of power. It simply isn't the prosecutor's role to make decisions like that. The role of the prosecutor, at least pre-trial, should be to make an evaluation of the evidence to see if the state has a case. I won't go so far as to say that the prosecutor should resolve all doubt in favor of the defendant, but he or she should, in my opinion, at least make certain that an innocent person isn't being charged. Proof of actual innocence should require the prosecutor to release a defendant from confinement.
I actually saw a similar situation in an Ohio county (in which I currently reside). I had a reason to go to the courthouse with a local attorney when he encountered the prosecutor on a criminal matter that he was involved with. A deal had been cut for no jail time, but the prosecutor was resisting bringing the matter to the court for sentencing, which would result in the defendant's release. The prosecutor stated his position that he wanted to keep the defendant in jail for as long as possible to punish her for what she had done.
Pardon me, but I thought the judge made those decisions. Having decided that the defendant deserved probation for the crime, as the prosecutor did when he agreed to the deal, the matter of whether or not that was acceptable should have been left to the judge. The prosecutor, in my opinion, abused the power of his office by slowing the defendant's release.
As we left the courthouse, I told the attorney of my opinion and also that he should consider making a motion to set the sentencing. His response was that if he did that, the prosecutor wouldn't deal with him anymore. I also find that to be repugnant and a violation of the defense attorney's duty to represent the best interest of his client.
So, the question is - what kind of system has evolved here? It seems a bit out of control. It seems like the rule is now guilty until proved innocent. Occasionally, as happened in the Duke Lacrosse case, prosecutors get punished for stepping over the line, but real reform won't come until we, as either a society or we, lawyers, as a profession, get the will to force changes.
I am now stepping off the soapbox.
This is of interest to me since I recently placed my name in the pool for accepting some appointed criminal work in some Tennessee counties. I have, in the past, done quite a bit of criminal trial work and want to get back into it. My "second chair" activities outside the state of Tennessee don't generally involve criminal work.
Thursday, August 2, 2007
The reason for this is that this hosting service will integrate better with Google Apps for Domains, which is what I am using to run my web site and office, as well as with Google Analytics and Google Adwords. It may take a while to get the content built up over here, but I think the benefits will outweigh the pain of making the move.