Law Tech: The Importance of Web 2.0 Fundamentals.

The term "Web 2.0" refers, in general, to the use of social media such as blogs, podcasts, video, and networks to enhance creativity, communications, secure information sharing, collaboration and functionality of the web. In regard to this post, the term is also used with specific reference to the use of such media by lawyers to communicate with other lawyers, their clients and the general public.These days it seems that most law firms/lawyers have some form of presence on the internet. There are some common themes to many of the firm sites which I'll describe as 'generic' including a photo of the firm's location usually a building or landscape portrait and a lot of short paragraphs filled with platitudes professing the specialties and expertise of the lawyers of the firm (including perhaps a reference to a Martindale-Hubbell rating and/or claim of "Super Lawyer") followed by contact information.

However, in the past several years, there has been a fairly steady move away from the 'generic' website with the advent of new internet applications which allow for more interactive forms of communication or Web 2.0. The use of blogs or 'lawblogs' by lawyers has grown significantly with companies such as LexBlog.com showing lawyers how they can supplement or literally replace their 'generic' sites with a blog combining the use of tools such as RSS ("Really Simple Syndication") feeds to share topical information and networking sites such as LinkedIn.com and Twitter.com. The growth of companies such as Google and its many application 'offshoots' such as Blogger.com also allow lawyers to create their own sites and link them to very powerful sets of software applications (e.g., Box.net).

The number of marketing professionals eager to show lawyers how to use the web increases every day. The old line marketing firms such as Martindale-Hubbell are now feeling pressure to revamp to stay with new competitors like Avvo.com and Legal OnRamp.com as traditional print-copy forms of lawyer advertising loose favor and potentially die out.

Today, it cannot be denied that if a lawyer does not know the fundamentals of Web 2.0 that his or her ability to access the law, as well as communicate with (current and/or prospective) clients will be diminished. If you are not convinced, just take a few hours and look at the variety of legal and law-related websites demonstrating how some lawyers are using internet-based applications to effectively gather, store and disseminate legal information including the marketing of their own abilities as lawyers and communicators.

Contract Law: Tort Theories Versus Economic Loss Rule.

In Washington, a plaintiff attempting to recoup strictly economic losses typically requires a contractual relationship (privity) with the defendant in order to plead a good cause of action (unless there are facts establishing possible recovery of such damages under the Washington Consumer Protection Act). See Carlile v. Harbor Homes, Inc., No. 61419-3-I, Wn. Court of Appeals, Div.II, 10/20/08). As explained by the Washington Supreme Court in Alejandre v. Bull, 159 Wn.2d 674 (2007), the economic loss rule applies to hold parties to their contract remedies when a loss potentially implicates both tort and contract relief. The rule "prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from contract" because "tort law is not intended to compensate parties for losses suffered as a result of a breach of duties assumed only by agreement." Id. at 681. [Note: In products liability actions, however, that allege product failure with resulting property damage and economic loss, two tests are applied to determine whether a loss is an economic loss in contract, which is not recoverable under the Washington Products Liability Act, or a sudden injury in tort, which may be recoverable. The two tests are the "sudden and dangerous test" and the "evaluative approach." See Touchet Valley Grain Growers, Inc. v. Opp & Seibold Gen. Constr., Inc., 119 Wn.2d 334, 351, 831 P.2d 724 (1992); Staton Hills Winery Co. v. Collons, 96 Wn. App. 590, 598 (1999); Nobl Park, LLC v. Shell Oil Co.,122 Wn.App. 838 (2004).]

Consequently, in Washington, an action alleging negligence or tort theories of liability will typically fail when a plaintiff seeks to recover solely economic losses. The action must be based in contract and if you did not contract with the defendant you will be barred from suing him in tort. The application of the economic loss rule in Washington creates some thorny problems especially in multi-party construction defect litigation where a developer/owner is confined to suing the general contractor with whom he has a contract and the general contractor, in turn, is confined to suing those subcontractor(s) with whom he has contracted. If a party to the litigation believes that another person should share in the liability equation, but does not have a contract with the person, he may be powerless to litigate the issue. This often makes for some disgruntled litigants and their counsel who seek to reasonably and efficiently spread the loss to all responsible persons in one case or forum. Contrast this with actions in tort under Washington's comparative fault system whereby a defendant may identify non-parties at fault under Rule of Civil Procedure 12 (i). By this procedure in tort litigation, a Washington jury must apportion percentages of fault between all parties and non-parties properly identified in the action. See Revised Code of Washington 4.22.070(1) (apportionment of fault) and 4.22.015 (definition of "fault"). In this manner, plaintiffs are prevented from controlling the litigation and targeting particular defendant(s) for alleged liability. See also G. Sisk, ARTICLE: Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of Tort Reform, 16 Puget Sound L.Rev. 1, 67 and authorities cited at Footnote 283 thereto.)

Also, contrast California, where the economic loss rule is applied only to limit tort recovery under theories of strict products liability to damages for physical harm to a person or to property other than the defective product itself. See Aas v. Superior Court, 24 Cal.4th 627 (2000). See also Jimenez v. Superior Court, 29 Cal.4th 473 (2002) (homeowner may recovery in tort for damage that a defective window causes to other parts of the home in which it has been installed). Unlike Washington, California also permits actions for negligent construction and implied equitable indemnity so that all persons may be brought into a single proceeding by just about any party (and regardless of whether a contract exists). In fact, a tort defendant in California retains the right to seek equitable indemnity from another tortfeasor even if the plaintiff's action against the cross-defendant is barred by the statute of limitations. See Valley Circle Estates v. VTN Consolidated, Inc., 33 Cal.3d 604 (1983). See also Code of Civil Procedure Section 428.10.

It seems that at least arguably some societal benefits may be achieved by the broad application of an economic loss rule. The rule seems to encourage independence by providing business-people with some control and predictability over business risks including terms that impact dispute resolution and litigation (through a process of formal contracting). But, I'm not sure that enforcement of the rule ultimately serves to support these ideals. In the real world, for example, construction contractors (especially lower-tier subcontractors) often do not have the ability (power or money) to enter into contracts which will ultimately serve their best interests. It may well be that our citizenry and court system (in terms of the efficient and effective administration of justice) would be best served by turning away from contract based theories of relief in favor of tort-based (negligence) theories of recovery in actions that are limited to the recovery of economic losses. What do you think?

Law Tech: Practice Fitness.

I was in the administration office of a county courthouse waiting for a settlement conference and was standing there looking at an old photo collection of members of the local Bar Association. Another lawyer standing next to me was also viewing the photo montage and he said: "The only problem with this is that most of these lawyers are dead!" He then proceeded to identify each deceased lawyer (all men) as he pointed to each one. I then began calculating the relative age of the men in the photos given the year they were taken and realized that most of these guys could not have been that old when they died. It occurred to me that perhaps the practice of law had contributed to the early demise of these members of the Bar! Whether this is true or not, my observations at the courthouse that day often come to mind whenever I'm thinking about health, longevity and the positives of exercise as they relate to the practice of law.

So this post is about the form of exercise that I have gotten to know fairly recently and which has really raised my level of fitness. Excuse me if you must, as I have gotten a bit evangelistic about it. I have always bicycled outside and inside (stationary bike) on a fairly casual basis, so a few years ago I thought I'd try a 'spin' class at my local health club. At my first class, I was a bit dizzy after about a half-hour of spinning. However, I kept with it and now spin about an hour or two (interval training) four times a week starting at 5:30 a.m. The central equipment for me is a LeMond RevMaster and an attached Pilot which monitors time, cadence, mileage, calories burned and heart rate (you also need a chest strap for heart rate). This is the equipment at the health club that I go to but there are also other products either for purchase or club use. One of the other key things about spinning is that you can sync the cadence or rotation of the bike's pedals to the music that is playing (either from studio speakers or your Mp3 player) which provides strong motivation as you try to match tempo. One can stand or sit when spinning. I have never found music to be that helpful for running (either outside or on a treadmill) as each stride is associated with the pounding to the feet and joints and does not equate very well to the beat of music. Spinning, however, is a whole different story. If you are looking for great exercise (burning 500-1200 calories per hour) and have not tried it yet, I would highly recommend spinning to everyone and in particular, to you lawyers out there. It will clear your mind and provide the endurance you will need for your practice as well as walking those hills in Seattle.

Discovery: A Deponent Need Not Draw Under Civil Rule 30.

In a recent deposition, opposing counsel was pressing my client to make a drawing by hand of the position of a horse lying in a roadway over which his client had allegedly driven her Ford Explorer. I did not want my client to draw because I thought that the result would be inaccurate in scale and would only prove confusing or misleading. I instructed my client not to draw contending that a deponent had no duty to provide a nonverbal response and was only required to respond orally under Civil Rule 30 ("Depositions Upon Oral Examination").

Thereafter, counsel moved the court to resume the deposition and to compel my client to draw. In opposition, I made the above-referenced arguments and cited a Florida case, Udkoff v. Hiett, 676 So.2d 522 (Fla.App. 1996). In Udkoff, the Florida Court of Appeals held that the trial court could not order the defendant to draw a diagram of an accident scene because the applicable rule of discovery (one very similar if not exactly the same as Washington's rule) did not impose a duty upon a party to draw at a deposition. The Udkoff court stated that: “Although a witness may choose to draw something to help explain his or her testimony, a trial court is without any authority to compel the deponent to create a drawing.”

The court in my case ruled in a similar fashion denying the motion to compel citing Civil Rule 30, as well as the Udkoff case. The judge in so ruling pondered out loud whether a witness at trial might be required to draw noting that drawing by trial witnesses was a common occurrence in his courtroom. In cases where liability can hinge upon a precise location of objects or other facts, counsel should give some thought to whether a drawing might be helpful or not. Cf. Emerson Electric Co. v. Superior Court, 16 Cal.4th 1101 (1997) [deponent required to provide nonverbal as well as verbal 'answers' at videotaped deposition under former Cal.Civ.Pro.Code 2025(o)]. See also, State v. Koontz, 145 Wn.2d 650 (2002) (re: replay of videotaped testimony during trial).