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

A recent post on the Wall Street Journal Law Blog discussed a study that found that consumers come out better than expected when they go to arbitration to resolve disputes with businesses (“Consumers Rejoice: After All, Arbitration is Fair, Study Says”). 

The Law Blog tone tended to reflect a characteristic degree of skepticism about the study, as did a quoted comment from a public interest lawyer. As pointed out by the post, in some industries, the securities industry among them, arbitration is mandated. Often, the consumer doesn’t realize that arbitration is mandatory for disputes.

So, what’s the story with arbitration? There is no doubt that arbitration resolves disputes more quickly and less expensively as compared to going through the litigation process. That is a key consideration if the amount at issue is relatively small and would be eaten up by the expense of litigation. Also, the process is less formal and more straightforward and understandable.

 But, in general, arbitration decisions are almost impossible to appeal successfully, the arbitrator is not required to follow the letter of the law and the arbitrator is not required to give reasons to justify the decision. In other words, the decision is pretty much final and can appear (excuse the pun) arbitrary.

The biggest issue with arbitration is the perception that the arbitrators favor the business over the consumer. That is the issue discussed by the Law Blog post and addressed by the study. From the tone of the post, the writer does not find the study convincing. 

Preferably, there would be a set of tools for settling disputes, a set that includes arbitration as well as mediation. Simple disputes with relatively modest amounts at issue should never go to litigation. But, there has to be a reasonable level of confidence in the fairness of the processes. Apparently, the study says we’re getting there but the contrary view is still prevalent.

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This post is a little bit of a change of pace for us because it concerns the mechanics of initiating a lawsuit, rather than substantive legal issues of interest to managers and business owners. 

We review a recent decision of the New York Court of Appeals which held that service of process outside the state may be made by any method valid within the state, as long as New York has jurisdiction. For our non-lawyer readers: service of process (normally, delivery of a summons and complaint in civil cases) on the defendant is essential for a court to obtain personal jurisdiction over the defendant and, therefore, essential to begin a lawsuit.

The case was brought to our attention by the New York Law Digest, No. 589, January 2009, edited by David D. Siegel, perhaps the top authority on New York civil procedure, and distributed via e-mail by the New York State Bar Association. The case is Morgenthau v. Avion Resources, Ltd., 11 N.Y.3d 383 (2008). 

In this case, the defendants were in Brazil. But, the decision is applicable to service outside New York generally. The case involved an attempt to seize assets in New York for wrong-doing in Brazil. Under the circumstances of the case, there was no dispute that the New York courts had subject matter jurisdiction – the courts had jurisdiction over the dispute. The issue that went to New York’s highest court was whether the methods of service that were valid under New York law were also valid out of state.

To shorten the suspense, the Court said, “yes.”

First, the New York statute in question, N.Y.C.P.L.R. §313, does not require that service adhere to local (in this case, Brazilian) law. As an appellate court is sometimes apt to do, it reminds us all that when interpreting a statute, we need to be mindful of what the statute doesn’t say as well as what it does say. The statute does not say that it is necessary to comply with methods of service prescribed by (out-of-state) local law.

In addition, the Court points out that the concept of comity does not apply. Comity is a concept that involves a “spirit of cooperation” between the courts of different sovereign states (including other states in the U.S. and in foreign countries). However, the Court said:

we have never applied the doctrine to import the laws of a foreign country into a New York lawsuit -- and we decline to do so in this case.

International Treaties, of which the United States is a signatory, can mandate a particular method of service. But, Brazil is not a signatory to one treaty that does mandate a method and it is a signatory to another that does not mandate a method of service.  That, made the case for this plaintiff.  But, note that other countries may have signed treaties that do mandate a method of service. 

I’m sure the defendants in this case were fairly frustrated. But, the bottom line is that the defendants were required to defend the lawsuit in a New York court. And, applying the case generally, if the defendant (or the person you would like to make a defendant) moves to Brazil, yes, under circumstances similar to this case, you can still sue. 

What is the takeaway or, at least, the relevance?  An important technical rule was clarified.  Had the decision gone the other way, it could have stymied many attempts to even begin a lawsuit if the defendant was not within the borders of New York.  Remember, the rule is as applicable with respect to an adjacent state as it is to Brazil.  Thus, while it may be rare to deal with a defendant in a distant foreign country that has not signed a treaty that mandates the method of service, disputes crossing neighboring states are far more common and not subject to treaties. 

Image: Locator map for Brazil; Wikipedia Commons

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Recently, two blog posts had some very good advice about e-mail in the context of litigation.

Daniel Schwartz in the Connecticut Employment Law Blog entitle his post, “You’ve Been Sued, What Phrases Are ‘Hot’ for Electronic Discovery Searches?”   ABAJournal.com, carried a post by Molly McDonough entitled “Things You Should Never Put in an E-mail.”

Here is, for me, the simple version of Mr. Schwartz’ advice:

don't put something in an e-mail that you wouldn't want your mother to see on the front page of the New York Times six months later.

Here is the essence of Ms. McDonough’s advice, quoting a court reporter, Ron Sylvester:

My wife says you should never put anything in a company e-mail that you don’t want to be shown to 12 strangers on a big movie screen.

How could I say it any better? Thus, I merely make a modest effort to distribute the message further.

The message is on the surface merely defensive. In the context of litigation, it says that through discovery, things you put in e-mail will come back to hurt your case. Or, in a more general context, it says e-mail can come back to really embarrass you. More positively, careful attention to what and how you communicate, by e-mail in this case but in any medium generally, can only be beneficial to the business and all connected with it.

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A post in the Wall Street Journal Law Blog, commenting on an Associated Press report, notes that the number of pro se litigants has increased and they are “clogging” the courts with errors that sometimes have long-range consequences. Pro se litigants, of course, are litigants who represent themselves without lawyers. The post is by Jennifer Forsyth and telegraphs its point in the title: “Pro Se Litigants On the Rise and Mucking Things Up.”

LB ironically notes that the American Bar Association, apparently going with the flow, is urging states to create help desks and standard forms for such thins as uncontested divorces. 

In this blog, we try to identify “best practices.” We have plenty of “war stories” to confirm that mistakes made by individuals who don’t want to pay a lawyer can have long-term and, we will add, very expensive consequences. The old saying “penny wise and pound (or dollar) foolish is apt.  

However, I would not suggest that an attorney is needed for every aspect of every minor legal matter. It’s just not cost-effective.

The best practice seems clear: Consult an attorney. Then, decide together whether the matter is one you should be able to handle pro se.  The fee for a consultation to decide how to proceed is likely to be cost-effective in the long run.  

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ABAJournal.com reported last week on a futurist’s prediction that lawyers advising corporations will change their practices to offer a wide range of advice on how to avoid legal problems. The post, “Futurist Says Lawyers Will Become Legal Risk Consultants” was by Debra Cassens Weiss.  The futurist is Richars Susskind and his predictions are made in an interview in Am Law Daily.

We would like to think that we are in the forefront of that trend although we advise smaller businesses and individuals, not major corporations. The premise of this blog is that by studying trends and events in litigation, we can derive not only broad principles for managing legal risks but better practices for managing business and personal assets.

On the surface, it may seem like an idealistic position but there are many, many practical examples. To cite one example, a recent post commented on performance reviews as a rich source of evidence for either side in employment litigation. But, it is not a stretch that if you manage performance reviews effectively, you will effectively manage performance.

So, we tend to agree with the futurist cited by ABAJournal.com that lawyers advising businesses will in the future position themselves as “legal risk consultants” and we venture to predict that litigation will become “dispute resolution.”

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A short post in the New Jersey Employment Law Blog succinctly makes the point that while a deteriorating economy means belt-tightening, layoffs and severance agreements, obtaining advice before taking action is the one way to avoid making a difficult situation even worse.

I’d like to elaborate on that point and comment on a related but different aspect of the economy. There is no doubt that survival is the overriding business objective when the economy deteriorates. The real question though is whether the actions being taken to “survive” might actually accelerate the demise of the business. 

The business will not only survive but may actually come out stronger if (1) costly and demoralizing litigation and controversies are avoided while (2) building habits that establish a more professional, effective style of management towards workers and the business in general. 

On a different aspect of the deteriorating economy: there has not been sufficient time for all the government-generated liquidity and rescue funds to make any kind of impact. Without being over-optimistic, there is a good chance better times may be coming sooner than widely expected. Our businesses and professional practices need to exercise patience, professionalism and perseverance to position themselves for better times ahead.

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When a former employee is to be a witness in litigation involving the employer, issues are raised which need to be resolved carefully and thoughtfully. Law.com, in an In-House Counsel post by Linda L. Listrom of The Corporate Counselor, has covered the issues and developed useful guidelines for attorneys acting as in-house counsel for the employer (“When Your Witness Is a Former Employee”). We offer some additional insights for the smaller business employer, especially one too small to employ in-house counsel.

The guidelines offered by Ms. Listrom are summarized in her conclusion:

A former employee can be a pivotal witness for your company. Fortunately, the ethics rules permit you to help your former employee by alleviating some of the hardships of testifying. If a former employee wants counsel, you can provide it. If he wants to be compensated for his time, you can do that, as long as the fee is reasonable. But you cannot discourage him from cooperating with your opposing counsel, if he chooses to do so.

The analysis presented by the post is primarily for in-house lawyers since it is focused on the interpretation and application of ethical rules for lawyers, relying on the ABA Model Rules. Here are a few thoughts that may be of interest to the nonlawyers who may be running a small business (as well as the attorneys who advise them):

• The situation where a former employee is to be a witness highlights the problem of “burning bridges,” a problem we usually associate as the employee’s, not the employer’s. An employee who is “forced out’ by harassing tactics, rather than leaving on good terms may present a whole new set of issues. The better management practice is to be aware of the possibility and always take the high road when it comes to terminations and performance management.
• The Law.com post notes that it is proper to compensate former employees for their time acting as witnesses, within certain limits. If you use a severance agreement, and you probably should, you should discuss with counsel the possibility of including these provisions. They cost nothing unless you really are in litigation. Then, cooperation may be priceless.
•  If the business has no in-house counsel, it is all the more important to contact to get advice from outside counsel on how to handle the former employee witness. In fact, as reflected in the Law.com post, it is primarily the lawyer’s role to contact former witnesses, even employers. Conversations about the case between a manager and a former employer are not likely to be privileged and are likely to be the proper subject of cross-examination,

Common sense tells us that if the employer business is involved in litigation, it is no stretch to anticipate that an employee may be a witness.  That's why it is important to understand the issues presented and the appropriate ways to deal with the situation.

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Abajournal.com reports that a federal magistrate in the Eastern District of New York (Brooklyn) has recommended a default judgment as a penalty for the intentional destruction of evidence.  According to the report, the destruction was accomplished by secretly replacing the defendants' computer. The post ("Magistrate Rcommends Default Judgment for Destroyed Evidence”). is by Debra Cassens Weiss.

According to Abajournal.com , the defendants apparently tampered with their new computer’s calendar/clock to make it seem like an older computer and uploaded files (apparently other than the files sought for discovery). 

A default judgment is a severe penalty; in effect, the defendants will have lost the case.

This story serves as a reminder that records on your computer are evidence. In case of a lawsuit, the computer records become discoverable. As illustrated in this case, the penalties for intentional destruction of evidence can be severe.

Image: Blue gavel from Wikipedia Commons.

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Law.com carried an interesting and useful post by Stewart Weltman of The Corporate Counselor on best practices to control litigation costs and optimize results (“Rules of Thumb To Rein in Litigation Costs and Optimize Results”).

Before commenting on the substance of the article, I need to make clear an important distinction (from our point of view) and a useful quibble.

First, the distinction: the article is written as advice to in-house corporate counsel. Our experience is mostly with clients who are far from the size where they would employ full time in-house counsel. Thus, the strategies to reduce costs would be selected and applied by non-lawyer business people. 

The quibble is that if the author’s advice is taken just a bit too far, in-house counsel will end up micro-managing the litigation and relieving outside counsel of accountability for results. All the major strategic and tactical decisions would be taken by in-house counsel. In our case, the decisions would be made by non-lawyer managers and proprietors.

All of the above having been said and noted, the substance of the article can be turned around and re-characterized as a more general identification of options to be presented to the client (with or without the mediation of in-house counsel) along with an identification of the associated risks. There are risks. When you choose to dispense with a “needless” deposition, you better be right about the “needless” part.

I strongly recommend reading the full article to fully appreciate the “rules of thumb” to control costs and optimize results presented by the author. But, here is how I would boil them down:

• In motion practice, choose your battles carefully, don’t make every motion possible;
• Don’t make every argument, urging a losing position loses credibility;
• Don’t get into discovery disputes: produce more, rather than less; limit your document requests and don’t use interrogatories;
• Dispense with needless depositions and presume they are not needed until demonstrated otherwise;
• Don’t train your adverse witnesses with your best cross-examination at depositions;
• Don’t employ an ediscovery team;
• Do employ a “devil’s advocate” lawyer to test your counsel’s strategy and tactics.

A consistent thread running through the article is the use of a “best-case story” to keep your case simple, short and effective.

Ultimately, we can’t disagree with the author’s conclusion that there is no quick fix. Controlling litigation costs requires close attention to every aspect of the litigation. 

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New York’s Court of Appeals (the highest appellate court) recently administered severe chastisement to a litigant for failing to comply with a conditional order to disclose. 

The case is Wilson v. Galicia Contracting & Restoration Corp., 10 N.Y.3d 827, 860 N.Y.S.2d 417 (2008) and was reported by David D. Siegel, the leading commentator on New York civil procedure, in the New York Law Digest , No. 585, September 2008, which is distributed to members by the New York State Bar Association.

According to the Law Digest, the Court of Appeals has tended to punish “dilatory conduct in litigation” and, if so, we would add: Good! But, whether this particular case is a good example of that tendency or a bad result for one unfortunate litigant remains an open question. 

Here’s a very brief summary: There were several defendants in this case involving an eye injury to the plaintiff while passing a construction site. The defendants were ordered to disclose some information about the incident that caused the injury. One defendant failed to comply with the order. The order was a “self-executing conditional order,” that is, it spelled out what to do (disclose) and what would happen if the defendant did not do it (a default). 

Thus, failure to comply meant a default which, in turn, meant liability was determined and the only issue remaining was the amount to be paid in damages. 

The case was then discontinued against the other defendants because the cause of the injury turned out to be something other than what was alleged (metal from a pellet fun, rather than construction debris). It seems the remaining (defaulting) defendant might have had a valid defense based on a fraud on the court (a false allegation about the cause of the injury). Nonetheless, the inquest (hearing) that followed the default was limited to proving damages, ultimately assessed at $700,000. There was a dissenting opinion but that provides no comfort for the defendant ordered to pay damages to a plaintiff who might have had no case.

In general, we applaud the Court of Appeals’ efforts to punish recalcitrant litigants who do not meet their disclosure obligations and fail to comply with court orders. That kind of conduct, aside from being very annoying, causes delays, raises the cost of litigation for everyone and undermines respect for the courts. The question here was whether the courts are undermined even more if a defendant who might have had a valid defense is not permitted to present evidence of it.   

We don’t know whether the non-compliance with the discovery order by this defendant was a deliberate strategy or inadvertent. Thus, although we can’t, in fairness, reach any conclusion about whether the result was deserved in this case, it does send a caution signal about the practice of not complying with discovery orders. 

Image: Court of Appeals, from its website.

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In a New Jersey case reported by Debra Cassens Weiss in the ABAJournal, an appellate court decided that a hearing must be held even when the trial court thought that the cost of litigation would far exceed the amount in dispute (“Judge Who Refused Hearing on ‘Ridiculous’ Lawyer Dispute is Overturned’). The trial court had decided the case on papers rather than hold a hearing. The court had admonished the litigants, two former law partners, with the “ridiculous” comment quoted in the story title, referring to the unfortunate prospect of continuing litigation by “two very good, very competent professionals.” 

The appellate court decided that the court has an obligation to go forward with a hearing.

New Jersey law is not normally on our agenda but the story is interesting because of the reflection it provides of human nature, not because of the law. We do not know the back story in this case. Thus, we should be careful about forming any conclusions specific to these two litigants.

More generally, it is not unusual in our practice for clients to be prepared to expend far more to fight than the battle is worth. Sometimes, genuine principles are involved (or intangibles nor easily measurable in dollars) and there is nothing more to be done than to support the client and try hold down the expense. More often, it is a matter of counseling and trying to get the clients to take a more dispassionate view of the case.

Public funds, as well as the clients’ own funds are involved, if a way can’t be found to resolve the issues economically.

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A  recent post by Bob Dennison in the Pennsylavania Litigation Blog used an intriguing analogy, plaintiff as architect and defendant as wrecker, to make a good point about effective litigation planning at the pleading stage (“A View From The Left Side of the “v” and the Importance of Pre-Pleading Planning to Receive Compensation”).

The essential point, I think, is that a well-pleaded case should be designed artfully at the planning stage. For example, pleading causes of action that are not covered by insurance, such as intentional torts, when  suing for negligence, may ultimately “take money off the table.” However, PALB makes the point artfully using the architect/wrecker analogy so rather than elaborate further, I will simply recommend that you read the post.

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For our lawyer colleagues, it is no news that a case can be won or lost on a procedural issue. For our readers who are managers and business owners, here is an example of a case that can cause you to re-think that settlement offer you turned down.

New York Civil Law blog brought the case to our attention in a recent post (“The New York Court of Appeals Revisits Timing for Summary Judgment Motion”). The case was Crawford v. Liz Claiborne, Inc., 2007 N.Y. Slip Op. 08301, 45 A.D. 3d 284 (Sup. Ct. N.Y. Co.) . According to NYCL, the case is about to be heard by the Court of Appeals, the highest appellate court in New York.

A quick review of legal concepts for our nonlawyer readers: summary judgment is a very common procedure used to decide a case based on papers because there are no material issues for trial. Under New York procedural law, the motion requesting summary judgment must be made within 120 days after filing a “Note of Issue” which is essentially a paper certifying the case is ready for trial.

In this case, the local court had its own rule, which it is allowed to have under the law; the local rule (of Supreme Court, New York County) set a deadline of 60 days after the Note of Issue. And, the defendant made its summary judgment motion but missed the 60-day local deadline while making the 120-day statewide deadline.

A few complicating facts: The missed deadline was by only a few days. The plaintiff opposed the motion only on the procedural ground that it was untimely. The “local rule,” according to the dissenting opinion, was ambiguous because there was a local court rule, which changed around that time, as well as a part (individual judge's) rule and the scheduling order did not specify a date or which rule but said simply “per local rule.”

The trial court, apparently having determined it could overlook the missed 60-day deadline, decided the motion. Its decision was to dismiss the complaint. The Appellate Division, First Department (a New York intermediate appellate court), reversed and held that an “oversight” of the local rule is not the “good cause” (a satisfactory explanation for being late) necessary to consider the motion after the local deadline is missed. The appellate court, in an unusual move, also directed transfer of the case to another trial judge. 

For lawyers, this case presents an interesting and important procedural issue. 

For clients, this case is a classic, concrete reminder of the inherent uncertainties of litigation. The defendant has a victory. Whether or not that victory will stand or the case goes to trial will now depend on the Court of Appeals’ ruling on the strictly procedural issue involving the missed local time deadline. 

After all, what is the lawsuit about?  We've gotten to this point in the discussion without needing to mention it.  Actually, this is a discrimination case based on sexual orientation.  It almost doesn't matter because now the controversy centers on the procedural rule.

Better see if that settlement offer is still on the table.

Image: 60 Centre Street, NY, Supreme Court; from NY Supreme Court Website.

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On the Friday before the holiday weekend I believe a change of pace is in order. Lawjobs.com recently carried an amusing and interesting article by Michael P. Maslanka (“Shakespeare’s Lesson for Lawyers: How to Access Empathy”) about lessons that lawyers can learn from Shakespeare. The article is an analysis of “Measure for Measure” and I will not spoil any of it by trying to summarize it but simply recommend it.  Just click on the title.

This is somewhat off-topic for us but not so much so since it does involve litigation and what we can learn from it.

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Legal Blog Watch explored an interesting question recently about how law firms are seeking to strike an appropriate balance in the use of technology in the discovery process (“Will Technology Displace Lawyers in e-Discovery”). LBW made very interesting use of the American mythical character, John Henry to make its point; I recommend their post. 

Law firms have a conflict on this issue. The automation in question would replace billable hours. However, since our clients tend to be below the size threshold for “Big Business,” we normally work in a world where the client has the right to expect that control of litigation costs will be a major value-added contribution by their attorneys. The real issue is how much testing and research needs to be done first to ensure that the technology can effectively deliver on its promise.

And, if the discovery is so extensive that it has to be automated, the parties should probably try really hard to settle.

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Plaintiffs that turn down a settlement tend to win less at trial than if they’d settled. This, is the conclusion of a recent study according to a post (“Go for That Settlement Study Says”) by Robert J. Ambroji on Legal Blog Watch, citing a story in the New York Times.

We tend to believe the conclusions despite our skepticism regarding most conclusions based on a single study. Why, do we give this particular study credibility? We concur with the LBW post:

Because a settlement is a product of mutual agreement. Both sides walk away from the table having made a bargain they both agree they can live with. By contrast, litigation is a crap shoot. Let someone else decide your fate, and more often than not you'll be unhappy with the outcome -- even if you "prevail."

Thus, even if the study statistically is wrong, there are other good reasons to reach a settlement. And, if the study, in fact, reflects the statistical reality, there is a substantial risk of ending up with less by going to trial.

The Times article is slanted so as to blame bad advice by lawyers for the study results. In my experience, the problem is much more often an emotional attachment to “the fight” by the clients. After all, even the Times notes that 80 to 92 percent of cases actually settle. Within the small minority of cases that go to trial, there are additional plaintiffs who should have settled. 

As the LBW post says: Go for it.

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Recently,Law.com, reported that New York had established statewide guidelines for the qualifications of court-appointed mediators and neutral evaluators ("N.Y. Court Establishes First Statewide Guidelines for Mediators, Neutral Evaluators"). The story was by Joel Stashenko of the New York Law Journal.

Law.com rightly reports that this is a “coming of age” for alternative dispute resolution (ADR).

The story brought to mind a court-appointed mediation session I was involved with for an employment matter that occurred on the same day and just before I attended a seminar on mediation. The mediation session seemed an utter failure and that put me in a negative mindset throughout the seminar.

A few months later, the case settled on terms basically similar to those recommended by the mediator.

One of the points emphasized in that seminar is that mediation (and settlements in general) put the parties back in control. They decide what they will concede or agree to. By contrast, in a litigated resolution, the court decides who will win or lose and to what extent the parties will win or lose.

That was a good lesson to learn. Another good lesson was that the positive effects of mediation may not be immediate. It may take some time for the parties, who have a deep emotional commitment to their positions, to absorb the points made in mediation. After time for thought, and reinforcement by the attorneys on each side, the mediation can be very successful.

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Two mortgage brokers in Pennsylvania might want to consult the Wikipedia entry on Pyrrhus of Epirus after their experience with arbitration and a federal court.

Law.com carries their story in a post by Gina Passarella (“Brokers’ Employment Suit Backfires, Defendant Awarded $1.6 million) of the Legal Intelligerncer. It is an interesting, well written story, about Field v. Gateway Funding, and we won’t go into details since the full story is available by clicking on the title or here.

Essentially, the brokers sued because they claimed the mortgage company infringed on their promised, exclusive sales territory. The case went to arbitration and they won well over $300,000. Problem: the defendant won too, on two claims that: (1) the brokers took advances they did not earn and (2) they provided confidential information when they went to work for a competitor. A federal court confirmed the arbitration award. The net award against the brokers: $1.6 million.  

A few general lessons:

1. The case illustrates the inherent uncertainty of litigation.

2. It is possible that the brokers knew they would be sued so they sued first but, in fact had to litigate. It is also possible the brokers should have had a better understanding or acceptance of their position before commencing litigation. We don’t have the actual back story.  But, it sure looks like if they had quit while ahead, they would have been way ahead.

3. The case illustrates the general nature of arbitration. It is a more efficient, less costly way to resolve disputes and mandatory under some contracts. But, once the arbitrator makes a decision, the courts will generally confirm it. Exceptions are very narrow and hard to get.

Clients will sometimes resist the suggestion to settle or drop a claim. They want a victory. But, a pyrrhic victory is a costly one.   

Image: Pyrrhus of Epirus, from Wikipedia Commons

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Occasionally, from a ruling with a very technical focus we are able to draw a broader lesson.

The Wall Street Journal Law Blog, in a post by Ashby Jones, reported recently that a judge in the U.S. District Court for the Southern District of New York tore into counsel for the plaintiffs in a class-action securities fraud case. The title of the story clearly describes the viewpoint of the judge who took the unusual step of disallowing a class representative: “Judge Jed Rakoff: This Court Will Not Be Party to This Sham.”

The specific issue that set off the fireworks was that plaintiff’s counsel, in a class action, is supposed to produce a class representative with knowledge of the case. The representative chosen by counsel and produced at a deposition in this case, according the LB’s report of the judge’s decision:

. . . testified that he did not know the name of the stock at issue in this case, did not know the name of either individual defendant, did not know whether STA-ILA ever owned Monster stock, did not know if an amended complaint had been filed, did not know whether he had ever seen any complaint in the action, did not know that [an individual] defendant . . . had moved to dismiss the complaint, and did not know that [the organization chosen as class representative] had moved for pre-discovery summary judgment.

Counsel’s task was made a little complicated because they appropriately chose an organization to be class representative and the organization, in turn, chose the specific individual to be deposed.   LB quotes counsel as follows:

The rule requires that the person who is most knowledgeable be produced for deposition, and in this case the client failed to produce someone who was the most knowledgeable. Nothing about this was a sham.

From only a single news story we are reluctant to pile on and criticize counsel about what happened in this particular case.

The story, however, does serve as a sharp reminder of a general lesson: in any litigation, it is crucial to prepare the witness for a deposition.

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Last week Law.com reported, in an article by Alison Frankel of the American Lawyer (“Wal-Mart Loses $6.5 million Wage-and-Hour Class Action”) that Wal-Mart had lost a non-jury trial on complaints of violation of the Wage-Hour laws that resulted in an award of damages of $6.5 million. Law.com also reported that Wal-Mart was 0 for 3, in that, in the preceding several years it has lost two other trials, these with juries, resulting in damages of $172 million and $78 million. Appeals are pending in the latter two cases and planned in the current case, also according to Law.com. The alleged violations involved, apparently, failure to give employees rest breaks.

Normally, we do not comment on “big business.” What caught our attention was not so much the controversy and apparent hostility between Wal-Mart and the class-action bar. Both have the resources, apparently, to be formidable adversaries to each other. Nor was it Wal-Mart’s apparent willingness to accept the public relations consequences of losing these types of cases.

Rather, what caught our attention were several points about the composition of the damages that may be of interest to the attorneys and managers of businesses with much more modest resources:

• Damages accrued on each occurrence, each time there was no break; thus, the number of employees and the number of days multiplied to millions of alleged violations;
• On the table were compensatory damages, attorneys fees and punitive damages;
• After losing the federal case last week, these same allegations of Wage-Hour violations (whether or not employees were appropriately given breaks) will be the subject of state law litigation with potential for even more damages.

The Law.com article notes that not all the damages that were sought were actually awarded. That highlights the fact that the potential liabilities were even greater.

In short, the case serves as a reminder that violations of the Wage-Hour laws can be extremely serious because damages can escalate very rapidly. Business owners and managers should be aware of the potential for damages and pay careful attention to compliance.

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Readers might have noticed that we like commenting on posts in the Wall Street Journal Law Blog. We don’t cover “Big Law” or “Big Business” nor do we usually comment on criminal law, all LB specialties, but some LB posts just stimulate thought and, in this case, memories.

So it is with the recent post by Dan Slater on how Judge Richard Posner, U.S. Court of Appeals, 7^th Circuit, allowed the “Ostrich Instruction” in a criminal jury trial (“Conrad Black’s Sentence Upheld; 7th Circuit OKs Ostrich Instruction”). We’ll pass on commenting on the criminal matter under discussion in the post.

Instead, the concept of an “Ostrich Instruction” reminded me of our firm’s experience with a civil matter, specifically an adverse possession matter that also involved a jury trial. I believe that without being aware at the time, we were confronted with a similar concept which, with apologies to Judge Posner, we will call the “Ostrich Defense.”

An earlier post on this blog generally described the concept of adverse possession ("Losing Your Property Rights Through Inattention". For the sake of brevity, we will now simply say it is a claim that you own part or all of your neighbor’s property after a prescribed period of claimed continuous possession; there is more to it, of course, and for the rest I refer you to the earlier post.

The “Ostrich Instruction,” in a criminal context, is explained by LB in its post with a quote from Judge Posner, who coined the term, as follows:

An “ostrich instruction,” Posner explains, “tells the jury that to suspect that you are committing a crime and then take steps to avoid confirming the suspicion is the equivalent of intending to commit the crime.” Posner also clears up a fallacy: The legend that ostriches bury their head in the sand when frightened, he says, is “pure legend and a canard on a very distinguished bird.”).

The situation involving our derivative “Ostrich Defense” was as follows: In New York, for adverse possession, it is a settled principle that when claiming ownership of a neighbor’s property, the claimant’s knowledge of the actual boundary lines is not all that relevant. However, acknowledgment of the boundary lines would soundly defeat the claim. 

In our adverse possession case, the claimant maintained he could not possibly have acknowledged the boundary lines because he never had knowledge of the boundary lines. This, despite signing numerous documents submitted to municipal authorities that did acknowledge the boundary lines. He claimed to have signed the documents in blank so he never could have had the requisite knowledge. 

There was, of course, cross-examination (by our firm’s other partner Beverley Rogers) and the jury found for our client, the property owner. On appeal, the claimant dropped the adverse possession claim and tried only for a prescriptive easement, where you have right to use but do not own the property. That failed too, the appellate case is 40 AD3d 577, 834 N.Y.S.2d 330 (2d Dep’t 2007).

Well, how do you cross-examine a witness who is relying on the “Ostrich Defense?” Persistently. In this particular case, it was a matter of allowing the claimant to bring out his own inconsistencies.

On the other hand, could the “Ostrich Defense” actually be effective? I have to concede it could be a legitimate and effective defense in a civil matter under the right circumstances.

But, that would be a different case and a different post.

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The Delaware Business Litigation Report recently reported a case in which the Delaware Court of Chancery upheld the right to refuse to settle “Court of Chancery Upholds Right To Refuse To Settle”). One might wonder why that right was ever in question.

The case was somewhat complex and involved an insurer, a company, the company’s former directors and D&O coverage. The company wanted the former directors to settle so it could use their admission of liability, part of the settlement, as a legal “club” against the insurer. 

The Court did not think much of the company’s argument against its directors and upheld the directors’ right to refuse to settle. But,  the company’s position was at least based on a thought-out, rational legal strategy. I won’t actually comment further about that particular case, the text of which is available on the DBLR post.

I will comment on situations, encountered often, in which clients refuse to settle not because of any legal strategy, good or bad, but because of strictly emotional reasons. These situations are unfortunate.

Settlement puts the parties in charge. They can decide the terms by which their dispute be resolved. In a fully litigated case, the court decides for the parties. Often, unlike the Delaware case, there is no insurance involved and the parties exhaust themselves financially.

In our firm, we make it a practice to counsel litigation clients to start thinking about the acceptable terms of a settlement at the outset of a case. Of course, not every case can settle or, even when it can, not necessarily early on. Sometimes the parties need to go through discovery and pre-trial procedures to fully understand their positions. Sometimes, as was once pointed out to me by a judge’s clerk, the parties need to start spend money to fully realize the wisdom of a settlement. 

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Law.com reports that Stanford plans to drop letter grades as early as this fall. It will join a few other law schools that dropped letter grades and apparently some medical schools (“Stanford Law Drops Letter Grade System”). Instead of A+ to F, students will receive honors, pass, restricted pass and no credit.

The goals, according to Law.com, are to shift students away from a focus on grades and prevent course selections that factor in instructors’ grading habits.

I have no real concerns about which grading system Stanford will use in the fall. Rather, my interest in this story arises from more general concerns about defining clear goals and matching solutions to the goals.

In my view, there appears to be a disconnect between Stanford’s goals, as reported by Law.com, and its solution. If Stanford’s goal is really to shift the students’ focus from grades, a pass-fail system would be in order.

The story reminds me of an incident in my past as a manager in a large corporation. There was a perception at the time that there were too many meaningless promotions because of the structure of our salary scale. A proposal was floated to broaden the salary ranges within each pay grade but to provide for sub-grades within each range. I held the not-so-popular view that there was a disconnect between our goal and the solution because promotions within the new grades would be just as meaningless as the old promotions between the grades. 

I am also reminded of litigation clients who were angry at the opposition and, at trial, wanted to discredit the other side with every innuendo and every bit of evidence of supposed falsehoods that they could possibly dredge up (and could be admitted). But, allowing ourselves to be distracted by side issues would create a disconnect with our overriding goal: to prove the elements of our client’s case (or disprove the opposition’s). Impeaching the other side’s witnesses, to be sure, was an important goal but we needed balance to have an effective litigation strategy. With counseling we were able to satisfy our clients and pursue an effective strategy.

I suspect that Stanford needed to balance other goals, for example, to satisfy large law firms that need or prefer quantifiable gradations in performance for recruiting. Or, they prefer to use language (“honors”) more appropriate to an academic setting. 

In any case, the story reminded me to clarify my thinking if I wished to make the grade.

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Cousin Vinny (yes, the character in the movie comedy, My Cousin Vinny) inspired the first venture in scholarly writing by our firm’s two partners and we are pleased to have received permission to re-print it as a post on this blog. 

The article, “Comparing The Rules In Three Jurisdictions: Can Extrinsic Evidence Be Considered On a Motion To Dismiss or Strike” was originally published in Volume 35, No.1 of the Westchester Bar Journal at pages 19-24, and is hereby reprinted with the approval of the Westchester Bar Association. 

To access the article,click on the title above or click here.

It is a serious article; the comedic reference is meant as a dash of sweetener to keep it from being excessively dry.

For our non-lawyer readers and for our colleagues not inclined to parse the scholarly exposition, we offer the following as a summary, with the disclaimer that the summary simplifies complex issues. 

The motion to dismiss or the motion to strike is an important procedure for cutting short litigation at the early stages, before the clients on either side have gone to a lot of expense. Comparing similar rules in the three jurisdictions (federal, Connecticut and New York), we note the following as to whether a certain type of evidence is to be considered:

• ·In one jurisdiction, the judge has to make a close call and the case may turn on that call;
• In a second, there is no decision to make because the evidence is never considered;
• And, in the third, there is no decision to make because the evidence is always considered.

There is an obvious lesson: whether one is on the plaintiff or defendant side, one needs to fully understand how the facts of the case will interact with the pleading and motion rules of the jurisdiction which will decide the case.

For details and to find out what Cousin Vinny had to do with it, you have to read the article for which we now offer one more link.

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Many people remember the long-running Broadway (and national) show, Les Miserables, or, at least, its music. Some may also remember that it was based on Victor Hugo’s 19^th century novel Les Miserables and that both the old TV program and the movie, The Fugitive, loosely reflect the same novel in story and concept. The character, Inspector Javert, the detective who doggedly pursues the main character, Jean Valjean, for years, may be less-well remembered.

I was reminded by a recent court decision that many prospective plaintiffs need to contemplate whether they will have to become Javerts themselves in order to gain any benefits from their litigation. 

Thus was I thinking when I read the decision reported recently in the private blog of the Real Property Law Section of the New York State Bar Association. A New York County Appellate Division decision (for out-of-staters: first level of appeal after a trial in the court of general jurisdiction, the Supreme Court), held that a renewal judgment is entered as of the date it was granted, and the liens of mortgages (recorded prior to that date) receive priority over that judgment. Gletzer v. Harris, 2008 WL 678589 (Sup.Ct., N.Y. Co.). The controversy arose when a judgment creditor applied for renewal of a judgment lien for a second ten-year run and was ultimately granted the renewal but nunc pro tunc (retroactively) to a date four years earlier.

The decision is somewhat technical and its impact may not be appreciated without a great deal of background. However, the decision affords the opportunity to fill-in some of that background by reviewing fundamentals that should be reviewed with a client before commencing a lawsuit. One can start with a very fundamental question: what do you win when you win at trial?

In most cases, you win a judgment. If it is a money judgment, you hope that the defendant will simply pay it. And, many do pay, which in that case ends the discussion. If the defendant doesn’t pay it, what have you won? 

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