Subpoena Power

Whenever a civil lawsuit commences in state or federal court, the parties to the lawsuit gain subpoena power.  The power is found in Rule 45 of the Federal Rules of Civil Procedure.  This means that they can use court authority to direct witnesses to testify or produce documents that may be, or may lead to, admissible evidence.

This power does not apply to other parties.  They are obligated under different rules to make facts and documents available.  (Rules 26, 33, 34 and 36 for example).

A subpoena also acts as a tool allowing a party to obtain  confirmation that the opposing party is producing all that is requested of it.  For instance, in a prevailing wage case by a former employee of a subcontracting construction company, a subpoena to the general contractor for proof of all prevailing wage contracts with the sub in the relevant time period forces the construction company to diligently produce accurate records.

This is so because the former employer does not know what the contracting company will produce.  Unless they are colluding.  Not very likely that.  Companies and people not party to a lawsuit like to keep it that way.

Subpoenas issued to vendors and customers of a corporate defendant are unnerving to all concerned.  Responding or objecting to them can be expensive.  The effort to object or the ease of compliance can be telling too.  In addition to their discovery value, they increase pressure on parties to more strongly consider the value of settling earlier.

Use subpoenas early to make sure you are getting a complete picture of the other party and its claims or defenses.  If other benefits flow from the effort, then so be it.  There is of course the risk that your subpoenas do nothing but irritate otherwise helpful witnesses.  This is a real risk, so consider the costs you may incur before flexing your discovery muscles.







of the completeness of production required of opposing parties.

Getting Work as a Lawyer

A recently admitted lawyer in Ohio had gone on the Bar Association's Solo and Small Firm list serv and posted a request for tips on how to get work.  This was my response, for what it's worth:

 

"Dear Amy:

 

While marketing your services as a lawyer is a process hampered by ethical land mines and a tradition of waiting to be called, there are some easy, inexpensive ways to get work.  First though, decide what broad kind of work you can do.  You can't take on work that you aren't able to do or aren't reasonably able to get prepared to do.

If you want criminal work, get on the court's appointment list.  It's low paid but filled with opportunities for experience and exposure.

For civil work, the biggest bang for your buck may be the local bar association's lawyer referral service.  Dayton's is 175 a year plus 10% of fees earned.  It is so worth the cost. Hundreds of times over.

Go to bar association events.  Go to the national ABA section events if you can afford it.  If you go, and you introduce yourself and make connections, then you quickly become a nationally known attorney.  Have a quick response to "what do you do?"  Be friendly with other lawyers.  Refer work to them.  Volunteer in a group or groups that do something you like. Speak up and take some leadership.  It isn't always quick, but exposure + competence = work.  Always be grateful for referrals. Call or send thank you cards to your referral sources. Refer back and speak well of them.

Write a blog, get a website that links to your blog, and then use a twitter account and a linkedin profile to mention your blog or website.  Write often and be real.  Read blogs by James Altucher.  Read his book "Choose Yourself".  It's five bucks on Amazon and it may change your life.  

Do good work, bill fairly, and deliver more than you promise.  Always, always do what you say you will.  Don't lie or cheat.  Lawyers and judges will know, and it will kill your career.  Don't chase low profit work or clients.  Analyze your practice areas for the highest profit for the least amount of time and effort, and then do that work most of the time.  Develop an expertise. Love it. For me that is FLSA litigation. For you it will likely be something different.

Charge a fee for consultations too. Make yourself valuable from the very first meeting.  If a potential client balks at 50-100-150 for your initial time, then you don't need them.  Exceptions of course, but charge as a rule.  

Finally, go to Dave Lorenzo's website and follow him on Twitter @TheDaveLorenzo, He is undoubtedly the best legal marketing mind.  Read all that he writes and do just part of it. You will get work and clients.

I do these things.  I believe in them and I have been successfully self employed, with luck and gratitude, since 2001.  

Good luck Amy.  Contact me if you'd like any more info. Although I think that is all that I have."

Smoke 'em if you got 'em

Old movies with soldiers often saw drill sergeants relieve their squads with a jovial "at ease smoke em if you got em".

The same can be said for affirmative defenses.  If you have them as a defendant, then you should use them. Like the cigarettes in those old movies, you might not get to use them if you get killed in a battle.

For litigators it's more figurative.  But the civil rules of civil procedure in some state and all federal trial courts tell defendants that if they fail to raise affirmative defenses (with some substance thank you Iqbal and Twombley) then those defenses are waived and barred from later use.

Some lawyers may feel that they can "reserve the right to add defenses" in their answers.  Don't bet on it.  There is no such right to reserve.  The civil rules and the case law are fairly clear on this point.  Aggressive and unyielding plaintiffs' counsel will not stand by while affirmative defenses like good faith error, or acting on counsel's advice, or the plaintiff was exempt from overtime coverage because they were not performing the duties of an employee are raised well after the answer is filed.

Factually unsupported affirmative defenses are now just as troublesome as absent defenses. Thanks to the US Supreme Court's decisions in the Iqbal and Twombley cases (search those names and the cases will appear in google or any other halfway competent search engine) a formulaic recitation of elements of a claim or defense will be vulnerable to a motion to strike.

Use em if you got em.  If you don't, then expect my motion for judgment on the pleadings or a tough row to hoe at summary judgment and trial when your defenses are long buried by waiver. 

Professional conferences pay for themselves

Professionals spend years in school learning their trade.  Then after they enter their profession they are often required by their professional licensing organization to keep current in their field.  Keeping current for lawyers means taking ten to fifteen hours per year of continuing education.  It is often expensive and seemingly unproductive.

It does take time, true.  But to those who would call it unproductive, because it can't be billed to a client, I would say think again.

While taking on my first Fair Labor Standards collective action case more than twelve years ago, I was overwhelmed. Fortunately, the National Employment Lawyers Association was holding an FLSA focused conference that year.  Too bad it was in San Francisco.  That was a long way from my little shared office space in Middletown, Ohio.  It appeared too expensive and risky.  I calculated the benefits I hoped for against the clear monetary expense, and got my airline ticket west.

I met some extraordinary people. Authors of practice guides like Janice Kearns, and nationally known litigators like David Borgen.  I also met a super sharp lawyer from NYC named John Bernstein.  Nearly a year after that meeting, which gave me more than enough info to powerfully settle my case in Ohio's southern district, I got a call from a class action lawyer from New York.  He wanted local counsel in Ohio and Mr. Bernstein referred him to me.

Since that time I have done two more class cases with this lawyer, with settlements in the many million dollar range.

I didn't get those kinds of cases because I was in the fray already.  I got them because I took a chance and went to a national lawyers conference and made some friends.  That trip has paid for itself hundreds of time over and has been an inspiration to me ever since.

The American Bar Association's class action and derivative claim committee had its annual class action institute in Boston this past week.  I went for the great agenda and to meet up with some friends I made at a litigation conference earlier this year.  I was thrilled by the quality of the content, but even better than that, I was fortunate to meet some incredible lawyers who work all over the nation and the world.  We may not talk daily or even monthly, but we now have connections built face to face in a forum that allows for real evaluation.  Your MarHub profile or website copy is like smoke in comparison to the quick and certain impression you can take, or present, talking about the law or judges or sports teams with your potential co, or opposing counsel.

Go to your national professional meetings.  Join the players on the biggest stage you can manage.  They are just like you.  It is likely that you will be welcome into the cast just by virtue of showing up with a good attitude.  These conferences bring all attendees up. Sometimes in ways you don't see coming.  Don't wait. Go to the next one.  Do it.

Congress affects choice of forum in FLSA cases

I have a couple unpaid overtime cases in the complaint stage. It is my understanding that the federal courts are feeling seriously underfunded.  The pending government shutdown is threatening to freeze pay and lead to furloughs.  This potential slowdown in my wage and hour forum of choice has me concerned.  While the Fair Labor Standards Act provides concurrent jurisdiction to state courts, neither judges, nor counsel who are commonly called to appear in county common pleas courts seem well versed in the procedures and risks presented by FLSA litigation.

The state courts do allow things to move along more quickly in the early stages of the case, particularly with discovery.  Federal rules of procedure prohibit formal discovery prior to the discovery plan conference which may not be for ninety days or more after the complaint is served.  Under Ohio rules, interrogatories and other paper discovery can be served with the complaint.

I think that under the circumstances of threatened funding for federal courts, a diversion to state court may be the way to go.  It requires more time spent educating the court and counsel not used to FLSA litigation, but the cases will not be held hostage to congressional foolishness.

Ironically, my state court is smack in the middle of House Speaker John Boehner's Ohio district.  If he were able to do his job, then I could rely on the federal courts.  But he can't. So neither can I.

Personal Injury

People get in car accidents all the time.  They get hurt, and then they sue the driver of the other car.  On a daily basis, thousands of lawyers are looking for the opportunity to represent someone who was injured.  They're known as trial lawyers, personal injury lawyers, accident lawyers, wrongful death lawyers, Plaintiff's lawyers, even ambulance chasers and shysters.  All are titles attached to those who work, usually on no more than the belief that they will prevail, to recover medical costs, lost wages and an amount of money to compensate an injured client for their pain and suffering.

I do not work in the personal injury area of law.  Almost never.  However, in the course of representing people fighting about their pay and employment rights, an occasional car accident affects my employee client and I am asked to help.

In a car accident, the driver doing the injuring is usually protected by an insurance company.  Insurance companies, contrary to their television commercials, are not good hands, problem solving, double check discounting, Aussie geckos.  They are businesses with ruthless, bottom line driven employees whose job is literally to keep an injured party's recovery to an absolute minimum.  Insurers seem to view every injured person as a fraud, cheat and liar.  They are out there, but the generalization has made the process painful.

Remember, insurance companies take money in from their customers and then invest that money, called a premium.  The less they pay out in losses, the more the insurance company and its employees get in profits, bonuses and perks.  I don't begrudge a business its profits, but you gotta understand insurance is designed to deny the existence or size of a loss. 

My client was recently reminded of that business purpose.  She was injured in a car accident.  She had no obvious injuries, but had pain for years.  She still does.  Sadly, her evidence and the location of the court and its stingy jury pool, along with the costs of medical testimony made the likelihood of her prevailing in a court case very small.  The neighborly insurance company that was there with a minimal amount of money and a big smirk knew the cost of litigation would outweigh the likely verdict.  So rather than pay a fair amount of compensation for the loss, the company bet the farm that my client would not risk her farm.  The insurer was right.

You can't see the pain of a toothache on an X-ray.  Nor can medicine say with certainty whether any other pain is present.  Doctors can't test grief and depression with an MRI.  Sometimes the pain and suffering and despair from an injury simply cannot be seen by modern medicine.  Is it any less real?  Is it any less painful for its camouflage?  No.  But to insurers, their captive and well paid doctors, and to many jury pools, it might as well be a big lie.

It may be a fight worth having.  The battle to show that pain is real even without shattered bones or lost blood.  But not by me.  I am back to my arena now.  Saddened, chastened and glad to not be a PI lawyer. 


  

NSA intercepts everything - no privilege is safe

Well the National (in)Security Agency has mucked it up.  With this revelation NSA cracks all it is clear that the Internet's most familiar service, i.e., email, is NOT a method of secure communication with clients or other counsel.

Back to US Mail and Fed Ex.  The Internet revolution was just perverted by our friends in Washington. I appreciate a fair and well enforced scheme of laws, rules and regulations.  Most lawyers count on that stew to make a living. However, I cannot accept, support or appreciate an unbridled abrogation of my legitimate privacy expectations.

This delusional and self protecting government madness leaves many frustrated and in despair.  I am at a loss myself.  The helplessness is unwelcome and unfamiliar.  I am unsure how to fix this pervasive problem, but I will be looking for a solution.  I hope everyone else is too.