Wednesday, November 26, 2014

More on Lawyer Civility

On Tuesday I had to share a silly letter that I got from opposing counsel threatening "sanctions" over the stupidest thing.  It is my sincere belief that lawyers, particularly lawyers in big firms, try to justify and even inflate their bills by picking stupid fights with their opposing counsel.

Then today I get an form email from the Northern District of California basically slamming their lawyers over the same thing. There's a very interesting quote attributed to Chief Judge Claudia Wilken:
“The bench and bar have long bemoaned the decline in civility in federal litigation, especially on the civil side. This year, the court decided to tackle the problem by taking concrete action. After much discussion and a great deal of input from the bar, we promulgated the Guidelines for Professional Conduct for the Northern District of California. The guidelines set forth best practices for attorneys to follow and to cite when litigating cases in our court. While they do not carry the force of rules, our judges expect attorneys to adhere to them.”
There is no mention of my theory that lawyers pick fights just to protract litigation and inflate their bills. But maybe that's just something judges don't like to admit in public.

I'm glad this issue is getting extra attention. I don't want to say "now" because I think it's been getting a lot of attention for a long time.

Perhaps it's my own demeanor, but I don't enjoy working an in area where nearly everyone you work with is constantly threatening you. And I'd be willing to bet the legal industry is alone in this. Heck, look even at the UFC where people are paid to bash the hell out of each other. Even there the fighters generally act professionally to each other. Sure, they frequently threaten to bash each other's faces in, but that is their job. You don't see them taking the beatings personally.

In the legal profession, lawyers seem to take winning and losing personally. Like their clients' case is their own case. Maybe that's where the acrimony comes from. And maybe that's why you see it more in younger, less-experienced lawyers. Either way, until we identify the cause, I don't see this issue going away.

Monday, November 24, 2014

Where Is The Professionalism?

I have started writing more frequently about how the legal profession seems to be coming off the rails in terms of professionalism and civility. Maybe it’s always been this way and I’m just getting more sensitive to it.

Excessive billing is the number one problem for general counsel at companies spending upwards of $5 Million or more per year on legal fees. Companies spending that much rarely hire small firms; and when they do, I would be shocked to learn it’s the small firm bills they’re complaining about.

But how do they do it? How do big firms run up the bills? Lots of ways.

One way is churning bills like happened to Mr. Victor.

Another way is just picking fights. How, you ask? I’ll show you.

I do a lot of litigation. So ask yourself what should the lawyer’s role be in litigation. Is it dispute resolution? Or is it dispute escalation?

I have always believed that the lawyer’s role should be to help both sides resolve their dispute. Apparently I’m in the minority. More often than not, lawyers I’m up against seem to view their job as doing everything they can to pick fights with me. I’m convinced the only reason they do it is to run up their client’s bills.

You see, if the lawyers on both sides can work together, the dispute often gets resolved fairly easily and quickly (read "cheaply"). But when the lawyers are constantly picking fights with each other, guess what happens. Litigation drags on when it shouldn't. Each side’s hackles get up and they want to fight. Long protracted fights generally means huge legal bills.

“They said what?!?!”

"We'll show them!"

"You can't let the other side talk to you like that. Let me prepare a motion!"

So how do lawyers pick fights? By constantly threatening the other side over trivial insignificant stuff. Maybe discovery disputes over irrelevant documents, or just silly debater's points. One set of lawyers actually used a paralegal to set up their opposition for a DUI. Ordinary folks call these “bulldog litigators.”

Here’s an example. I represent a small company trying to make its way. We got in a tiff with the Flipboard people over my client’s name. We could have tried to resolve this like adults and negotiate a reasonable settlement, but no. The other side’s litigation strategy was to make threat after threat of sanction and woe and doom. None of which ever came to pass, really. It almost never does. But they are bulldog litigators, so the case pressed on.

I actually asked Flipboard’s lawyers once, face-to-face, about whether we could discuss settling the case. His exact words were: “That ship has sailed.” I wonder if his client knew he had no interest in trying to stop their bleeding money.

So the litigation pressed on through countless threats. We lost at trial and my client is changing its name. Fine. But even after trial, it still never ends. Below is a letter I got from Flipboard’s lawyers threatening sanctions (again) because my client did not add some conspicuous disclaimer on its web site as fast as Flipboard liked. Really?

How much did Flipboard have to pay their lawyer to write this letter? Figure about $1,000 minimum. One lawyer had to write it, send it to the partner for review, send it to the client for approval, then send it to me. Easy $1,000. Probably more. And why? Is it because they really wanted my client to put a little disclaimer on its web site? Of course not. It was for no reason other than to try and pick a fight so they could generate more billings.

How do I know this? Well easy. Because if they really just wanted my client to put up a disclaimer, all their lawyer had to do was spend three minutes picking up a phone and calling me. Maybe even send me an email. Too easy.

Easy, but not expensive enough.

The point to all this is there are too many lawyers who view their jobs as dispute escalation rather than dispute resolution. Dispute escalation means more money to the lawyers. Dispute resolution means less money to the lawyers. It’s that simple.

So if you are a general counsel trying to cut your legal bills, maybe the first thing you should do is ask your lawyer what he or she is doing to resolve your dispute rather than just win it.

One final note if you are a Flipboard user. You should be careful what information you provide to the Flipboard people using their app. If they feel the need, they will actually dig through their records and use your personal information in court proceedings. And you don’t even have to be the one with the legal dispute. In our case, Flipboard actually tried to use the personal information collected from an innocent third party in court proceedings against my client. Something to think about if you use Flipboard.

Thursday, November 6, 2014

Dallas Buyers Club Injunctions Slapped Down

There are several Dallas Buyers Club cases pending here in Seattle. As is happening around the country, DBC is pushing forward to get subscriber information and then demanding settlements. These settlements include a stipulated injunction against any further infringement. The terms of hose stipulated injunctions don't really matter too much to the subscribers, but they create substantial marketing value for DBC.

Frequently a court is willing to enter pretty much any agreement between the parties if it means the case is settled. After all, if that's what both parties want to settle the dispute, then so be it. But inevitably a judge comes along who actually reads these injunctions with an eye toward fairness. Judge Jones in Seattle is one such judge. Rather than just rubber stamp the injunctions, Judge Jones called out problems that rendedered them unenforceable.

More specifically, Judge Jones wrote that the "court encourages the resolution of disputes, but the court declines to affix its imprimatur to an injunction order (which comes with the consequence of civil contempt for violations) under these circumstances. The court will not enjoin parties unknown to it, it will not enter a permanent injunction absent a judgment unless the parties cite authority permitting the court to do so, and it will not enter an injunction that has no effect other than to require the parties to follow the law."  See Order below.

In a nutshell, Judge Jones is telling the DBC folks that the Court will not attach the dignity of the Federal Judiciary to a simple marketing ploy for the purpose of generating even more and more strong-arm settlements. Good for him. Good for us all.

The entire order is embedded here: