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.

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. 


  

Contractor or employee? Still a burning question.

While I generally represent employees in wage and hour lawsuits, I sometimes represent employers. They want my expertise and my perspective as a plaintiff's attorney.  I am often reluctant to do so, because it forecloses them as potential defendants in the future.  Nonetheless, some small companies are my clients and I can help.

These little companies are start ups, or they were started by a single man or woman doing a job who then needed help.  They put someone to work and then pay them like they themselves had been paid.  That is to say with a flat rate, as a contractor.  These new employers often believe that if they pay someone like a contractor, and tell their employees that they are actually contractors, then voila, they are contractors. 

Oy vey.

In fact, the employer and employee can't make that decision between themselves.  An employee can't waive his status as an employee, nor can he release his employer from liability to pay overtime or SSN benefits, or Medicare, or payroll taxes etc.  If the employers are wrong, then they can find themselves facing hefty IRS claims with fines and penalties, and similar claims by state taxing

authorities asking about where all the withholdings are.  In addition, some of these new employers are in businesses that lead to on-the-job injuries.  If the employer was calling their roofing workers contractors, for instance, and not paying workers compensation insurance, and that worker falls and hurts himself, and then wants medical expenses and lost wages, then the employer will suddenly find that saving a few bucks on payroll taxes has ballooned into a major loss.

The question is control.  States often have statutory definitions of employees and contractors.  They usually employ a control test.  Basically stated, if the person paying for the work provides the work, the tools and resources, controls the worker's hours of work and can discharge the worker for any reason, then the worker is controlled and is an employee.  That classification triggers statutory responsibilities and extra costs. But the extra costs are a fraction of what they could be if the employees are misclassified. 

Often the employer and the "contractor" are okay with their relationship.  The employer has no costs other than paying a straight wage to the worker, and the worker pays no taxes or other withholdings up front.  They may even be getting paid cash.  Everybody is happy.  It's when the relationship sours, usually when someone gets fired or hurt, that the wages of sin are collected.  And it can be an unholy amount of wages.

It is much safer, and less costly and dangerous, not to mention ethically superior, to err on the side of employer/employee rather than contractor/sub contractor.  If it's close, make them employees.  If you have any questions about what's close, then email or phone me.  www.langendorflaw.com.