Rogers & Tartaro Business Litigation Blog : New York and Connecticut Business Litigation Lawyer & Attorney : Rogers & Tartaro Law Firm : Commercial Litigation : Westchester County NY, Fairfield County CT

A recent verdict in Pennsylvania awarded plaintiffs $6.2 million for age discrimination. This was before attorneys’ fees and possible enhancements. The New Jersey Employment Blog summed up the key “take-away” for employers exceedingly well:

“Downsizings are difficult on many levels. Companies need to be sure that their age-related analysis of the impact of the employees selected is done fairly and honestly, and not merely to justify management's desire to get rid of age-protected employees.”

Law.com mentions another interesting aspect of this case. There were several pre-trial motions in which the parties battled over whether managers’ comments should be admitted as evidence. Some were considered hearsay, having been overheard in hallway conversation, others were comments made in a deposition. According to Law.com, the defendants won some and lost some. But, apparently, the ones they lost were costly.

Sometimes, comments are unfairly taken out of context or distorted. Nonetheless, there is little excuse for straying from a strictly professional approach when discussing age, downsizing and other sensitive issues.

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As I’ve said before, I am not an economist but occasionally play one on this blog (though I’m always conscious of my amateur status in the field).

Imagine my pleasure, therefore, of attending the informal “seminar” conducted by a REAL economist, Nicholas Perna, at the Ridgefield Chamber’s “Rise & Shine” breakfast earlier this week. Dr. Perna was able to side-step ideology and talk “real” economics, not only in an understandable fashion, but also with humor.

Our law practice, like any small business, is directly impacted by key economic trends. We also have to manage our practice around those trends. For example, last year, there was a drop in real estate transactions, while there was an increase in employees contacting us to review severance agreements. In Big Law, outright layoffs and the rescinding of job offers to graduates were even better evidence.

So, in addition to being informative and entertaining, the Rise and Shine breakfast was directly on point. My thanks to Dr. Perna and the Chamber.
 

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A healthy business requires appropriate and effective attention to the process of staying in business. A law practice is no exception. Keeping up with developments in the law is a “given,” but with respect to our business processes, we share many of the concerns, issues and shortcomings of any business, including the current pressures of the economy.

(For me, interest in business processes comes naturally. I became a lawyer in mid-career; my pre-law credentials include an MBA and project management experience developing business software and “back office” procedures for insurance and financial organizations.)

Last week I attended the Sixth Annual Law Practice Management Symposium of the New York City Bar.

Don’t stop reading. This is not “inside baseball” for lawyers.

So, very briefly, here are my highlights of the symposium:

Cash Flow – Considering the economic environment, what business is not interested in improving cash flow? Merchant banking (credit card processing) services for our business have become really sophisticated and not only improve cash flow, but also automate some of the strict controls over attorney escrow accounts that we otherwise handle manually. For example, clients can now pay by credit card via e-mail and the terminals are “virtual,” that is, online.

Financial Services – A few banks have focused on attorneys as a market niche and have developed expertise on how to handle escrow accounts (such as organizing statements to facilitate reconciliation). Generalizing to other businesses, why not work with a financial institution that actually understands your business?

Marketing – All the buzz in marketing was about social networking sites on the internet. Here, my “take-away” was pick and choose carefully. However, two important points were raised, applicable to any business: (1) a down economy is not the time to save on marketing, and (2) businesses that don’t cut back on marketing tend to increase market share in a down economy.

Information Management – Practice management systems for lawyers have evolved and are now truly impressive. They tend to be sold on the promise of capturing more billable time and increasing revenue for lawyers. That’s not good news if you’re a client. Take heart. My “take-away” is that they are not likely to increase revenue significantly but they are likely to organize information so as to save lawyers from loads of “administrativia” and free up lots of time for real work or for (is it possible?) leisure.

And, incidentally, it’s a myth that lawyers gain by wasting time on clients’ work to boost billable hours - - actually, getting the work out efficiently and effectively leads to a more profitable practice and is a win-win with clients.

Balance of Work and Leisure – This is as much an issue for lawyers as it is for other professions and occupations. My take-away is that if you organize your practice (or business) so that it functions effectively, life balance becomes a more manageable issue.

And, as a parting point, my primary criterion when evaluating business processes is effectiveness rather than efficiency. I think that applies to any business and more specifically to law practice management.

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Our blog’s mission statement permits us to go off-topic occasionally for various and sundry purposes, including recognition of the cultural assets of the communities in which we practice and live.

There was a great concert last night by blues artist Keb’ Mo’ at the Ridgefield Playhouse. The show included an opening performance by special guest, Kristina Train. Keb’ Mo’s music is, in the words of the program notes, “a contemporary link to the seminal Delta blues tradition that traveled the Mississippi River and across the expanse of America.”

We’ve praised the virtues of the Playhouse before and hereby do so again, including the somewhat undervalued feature of being able to enjoy a top-quality performance -- and be home within minutes afterwards.
Artist Keb' Mo'

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The Tax, Trusts and Estates Law Monitor recently reported that the Gift Tax Exclusion Amount, indexed to the cost of living, will remain $13,000 in 2010.

As explained by TTELM: “The annual exclusion permits a taxpayer to gift $13,000 annually to any beneficiary without being required to use his or her $1 million lifetime gift exemption amount.”

The gift tax exclusion amount is an important estate planning tool since the amount can be doubled in the case of a married couple and applies to any number of persons. Less well-known, other excluded gifts may be made for tuition expenses and health care provided payments made directly to the educational institution or provider.
 

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Last week my partner Angelo Tartaro and I conducted an informal seminar for members of the Deborah Circle of the Jesse Lee Memorial Church in Ridgefield. We covered advanced directives (Do Not Resuscitate Orders, Living Wills, Health Care Proxies, Durable Powers of Attorney) and estate planning basics. We were able to distinguish the different roles that these documents play and appreciated the opportunity to convey our message concerning the importance of each for end of life and testamentary planning.

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In a previous post, we cautioned that employees should never use company-owned computer equipment for any personal communication, specifically e-mail messages, that they wish to remain confidential.

Now it’s going a step further.

According to a recent Law.com post, the same caution should apply to texting. The post, discusses the diffuculties of investigating cases of "textual harassment."  That there are such cases should give us pause.  But, Law.com goes on to state that the federal Stored Communications Act generally makes it unlawful for employers to intentionally access stored electronic communications such as e-mails and text messages without an employee's authorization or in excess of authorization. HOWEVER, if the employer is the provider of the communications service (Blackberry, cell phone, etc.) used to store the electronic communications, or the employee agrees, the employer may access such communications.

Employees need to remember that messages are not just stored in computers or handhelds, but may be in a server somewhere, maybe in a computing “cloud”. So we're going to reiterate our earlier warning: employees can't assume they have privacy rights when using an employer's facilities for email, and now, texting.

According to the post, employers need to be wary as well. The Electronic Communications Protection Act prohibits an employer from intercepting in-transit electronic communications unless the employee consents; the employer is a party to the communication; or the employer provides the electronic communications service and intercepting the messages is necessary to protect the employer's property rights.

We would add, as we have said before with resect to e-mail, make your electronic communications policy clear so that there is no ambuguity about employee's reasonable expectations of privacy (or, more importantly, the lack thereof).

These points simplify a complex area where law and technology converge but they provide a good starting point for coping with future developments in both. 

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