Discovery Practice: Using Forms/Checklists at Depositions.

Here is a good suggestion from Paul Luvera, the veteran plaintiffs' lawyer, on using a form to record significant events and impressions at depositions. Paul is right, so often lawyers get caught up with happenings at deposition(s) such as formulation of questioning, document review and side disputes that it can be difficult to focus on the testimony. The form and checklist offered by Mr. Luvera would aid concentration, prioritize tasks and help insure that the lawyer leaves the deposition with all essential information. I have used similar forms for specific kinds of cases and fact patterns which help ease deposition preparation, as well as the formulation of other discovery tasks.

Law Tech: Following Washington Legislation.

If you would like to follow proposed new legislation in Washington State including proposed amendments to existing statutory law try the Washington Votes website. The site allows you to create a free account and build a "watch list" and then sends you an e-mail with updates concerning your choices.

Construction Safety: Checklist for Storing On-Site Construction Materials

Here is a useful safety checklist for contractors storing on-site construction materials which was passed to me by Christopher Hill of Durrette Bradshaw PLC. Chris has included a link to additional construction safety checklists and articles on the same page.

Law Tech: New Website Proposes to Judge Washington Judges.

This month, I have received several e-mail invitations from North Law Publishers, Inc. to help build a "database" for a website called "The Robing Room: Where Judges Are Judged". The declared purpose of the site is to provide ratings of judges presiding in the courts of Washington State. North Law Publishers describes itself as an "up-and-coming, New York City-based legal publisher. Formed and launched by attorneys, to produce and market products for attorneys, the company is attuned to the growing needs of the legal community, as well as the ever-evolving trends in legal practice."

North Law's effort reminds me of the Minneapolis Star Tribune when it used to run an annual column ranking local judges by comparing available statistics on the number of cases handled and resolved by each judge in a given year. I don't think that many of the trial court judges in Minnesota enjoyed the reporting or the method of evaluation. North Law Publishers, Inc., however, apparently seeks to base ratings of judicial performance solely upon opinions it obtains from practicing lawyers. In reply to my e-mail inquiry, Nicholas Kaiser of North Law informed me that the company began with the federal court system and to date has sites in about "half of the states". It will be interesting to see how North Law's site is received in Washington.

Motion and Trial Practice: Start with Basic Concepts and Definitions.

The advent of the internet and online research tools has led many lawyers to look at the 'big picture' first when analyzing a legal issue for motion or trial practice. Although I might try an immediate Google or Lexis search depending on what I'm looking for, I more often take the advice of the judge I once worked for and reach for one of the most refined sources I know, namely, jury instructions. Jury instructions provide straightforward definitions for the legal concepts/actions you may have the burden of proving and which are likely at the core of your case.

For simple example, Washington Pattern Instruction (WPI) 301.01 provides that: "A contract is a legally enforceable promise or set of promises." WPI 301.02 defining "promise" provides that: "A promise is an expression that justifies the person to whom it is made in reasonably believing that a commitment has been made that something specific will happen or not happen in the future. A promise may be expressed orally, in writing, or by conduct." A link to these instructions along with all pattern instructions used in Washington Courts can be found under the heading "Washington Law Resources" on the side-bar of this blog. By starting with basic definitions a stronger foundation for any further or more far-reaching research is created.

Aside from the more traditional sources of online legal research such as Lexis and Westlaw, there are many other sources which provide sound definitional foundations for legal concepts that can help build clarity. One such source is the Stanford Encyclopedia of Philosophy. There you can find legal concepts broken down in straightforward definitional terms which, similar to jury instructions, try to explain concepts so that a lay person or jury member can understand them. For example, here is part of SEP's description of the connection between "tort law" and "insurance":

"Tort law establishes conditions under which victims can shift at least some of the costs they incur to others. All individuals realize that they may be subject to a judgment against them in tort and so many buy third party insurance to protect them from bearing the full costs of those judgments. In some jurisdictions purchasing third party insurance is mandatory. All individuals are likewise aware that they may be victims of another's actions and may not be able to secure a favorable judgment against their injurers — or they may not deem it worth the effort to pursue redress through the courts. So many of them buy first party insurance to guard against some of the costs they would otherwise have to shoulder completely."

I think that research or the development of argument is usually aided by starting with basic definitions, simplifying and breaking down concepts for juries (or anyone else who is listening). If jury instructions are used, an added benefit may occur when the definitions you have internalized and expressed are repeated by the trial judge. By first defining core legal terms and concepts, 'bigger picture' items (including how the facts of your case fit) become well-grounded along with the arguments you will have to frame and make.

Contract Law: Statutes That Make Contractual Relief Reciprocal.

Prior posts have covered exceptions to the American Rule, the generality that parties pay their own attorney fees in litigation. An additional point concerns a potential nexus between contractual and statutory exceptions to the Rule. In Washington, when a contract contains a clause providing that only one party may recover attorney fees in the resolution of a dispute, such a remedy (no matter how one-sided it is written) can be made reciprocal or mutual by statute.

Revised Code of Washington 4.84.330 provides in pertinent part that: "In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract or lease or not, shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. *** As used in this section "prevailing party" means the party in whose favor final judgment is rendered." RCW 4.84.330. The relief afforded by the statute cannot be waived. Id.

In California, a non-reciprocal contract clause awarding attorney fees is also made reciprocal as a matter of law. Civil Code 1717 provides in pertinent part that: "In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs." CC 1717.

It should be noted, however, that in both jurisdictions any clause awarding attorney fees and costs may by its terms pertain to only certain aspects of a given contract and hence the clause may not be applied at all depending on the nature of the parties' dispute. See e.g. Dragt v. Dragt/DeTray, LLC, 139 Wn.App. 560 (2007); Paul v. Schoellkopf, 128 Cal.App. 4th 147 (2005); ABF Capital Corp. v. GMC Properties, Co., 126 Cal.App.4th 204 (2005).

The enforcement of equity and the promotion of access to the courts are the primary reasons given for the statutory conversion of a non-reciprocal clause awarding attorney fees to a remedy that is reciprocal or mutual in nature.

Attorney's Fees: Is the Billable Hour Fatally Flawed?

I have worked with the billable hour compensation system in litigation for many years. The method has some flaws, one of which is the difficulty of the client (as well as the lawyer) to discern or appreciate value especially when the cost(s) of seemingly similar cases are compared. In the last few years there has been a lot of discussion about moving away from the billable hour altogether in favor of a flat, fixed or value billing methodology. These methods have been used more frequently in recent years but not typically in any uniform fashion. The notion is that the attorney and client would also communicate at various stages of the litigation to make compensation adjustments based upon the unique aspects and/or outcome(s) of a case. In the meantime, the billable hour remains dominant at least on the defense side, largely I think because alternative methods are not clearly articulated, massaged or even tried. Few wish to take the time or risk experimentation. The billable hour persists by momentum and clarity despite opinions of dissatisfaction which have echoed now for decades.

This month, lawyer Evan Chesler, the presiding partner of Cravath, Swaine & Moore, again questions whether the billable hour makes any sense at all in an interview in Forbes magazine. The opinions expressed by Mr. Chesler are not new but the sheer volume of response to the piece may signal that the time has arrived for some real change to occur. On the other hand, some saw Mr. Chesler's comments as a mere lure to clients in a weakened economy. At a minimum, however, it is important that everyone acknowledge compensation issues, the faults of the billable hour system and that we make a concerted effort to communicate about how compensation can be calculated during the life of a litigated case. In this manner, over time, some clearly defined and very workable alternative(s) to the billable hour system should rise to the top and receive widespread acknowledgment and use in litigation.

Construction Law: Proposed Homeowners' Bill of Rights.

House Bill 1045 was filed last week proposing to codify a Homeowners' Bill of Rights in Washington amending and adding to RCW 64.50 et. seq. ("Construction defect claims"). The bill seeks to establish legal remedies for defective construction of new, as well as remodeled single family residences (including duplexes). The bill proclaims that consistent with "principles of equal treatment under the law" the new provisions would provide citizens statutory warranty rights similar to those purchasing condominiums under existing law (i.e., Washington Condominium Act, RCW 64.34). Among other things, the Act would alter the common law implied warranty of habitability to protect subsequent purchasers of single family homes who lack privity of contract with the contractor/builder and prohibit the waiver, disclaimer or limitation of the implied warranty by contractual agreement.

Law Tech: Another Opinion Concerning the Use of Social Media in a Business Environment.

Despite the tenor of my last post, I don't believe that everyone is enthusiatic about Web 2.0 for business. There is the fear that the use of electronic social media (including e-mail) within a business environment can defeat mechanisms designed to protect confidentiality and business secrets, as well hurt productivity. These issues have been highlighted in e-discovery disputes and related litigation. However, the growth of different forms of electronic and social media including the increasing use of them by company employees has also compelled the conclusion by many that businesses (including those which provide legal services) must embrace social media (and incorporate them into business planning and operations) or they may simply be left behind. Mark Henshaw, a "global manager for information security strategy and planning at General Motors" addresses some of these issues in an article passed to me via a Twitter post from Kysen PR, the London based "...business development & marketing consultancy dedicated to professional services firms." There is obviously a tension building on several fronts between business interests that require secrecy/confidentiality and those that may depend upon new forms of social media optimized by open and quick means of communication. How these seemingly competing values are handled (if possible) by a given business including law firms and how they 'fall out' are obviously topics for further discussion.