A Trial Lawyer's Stutter and the "Give and Take" of Success

Posted by Hayes Hunt on May 14, 2013

GiveAndTake.jpgBy David Walton

About a year or so ago, around the same time that the movie The King's Speech won the Academy Award, I wrote a piece for From The Sidebar regarding an experience I had at trial regarding my own stuttering issue.  My article described an experience where, after a successful verdict for my client, several jurors approached me afterwards and told me that they could tell that I stuttered and appreciated that I took the lead in a trial. 

After I wrote the article, I received numerous emails from law students, lawyers, and even law professors who all stuttered.  Some asked for advice for how to deal with their impediment in a courtroom, many law students were worried how their stutter would impact their job search, and others shared their own stories of personal triumph that made my trial verdict small in comparison.

Another interesting thing happened after Hayes published my article.  Adam Grant, a professor at The Wharton School saw it on the Internet and included my experience in his recently published book, Give and Take.  The premise of Professor Grant's book is that there are three types of people: givers, takers, and matches (combination).  He studied a lot of research about success in the workplace.  This research debunks the theory that there are takers at the top and givers at the bottom.  In fact, this research shows that the givers are at the top AND the bottom.  One of the questions addressed in Professor Grant's book is -- what's the difference between the givers at the top and the ones at the bottom?  One part of the answer involves communication styles, which is where my experience comes in.  His point is that, after we establish our expertise and command of the subject matter, we need to re-humanize ourselves with our audience.  Sounding too perfect makes the audience suspicious and blocks any emotional connection between the speaker and the audience. Many trial lawyers know this instinctively, but it is interesting how social science research proves it.   

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Dave Walton is a partner in Cozen O'Connor’s Labor & Employment Practice Group and co-chair of the firm's E-Discovery Task Force. 

Coercive Litigation Tactics - Playing Hardball in The Board of Trustees of the University of Illinois v. Micron Technology Inc.

Posted by Hayes Hunt on May 06, 2013

By Hayes Hunt and Thomas M. O'Rourke

ball&bat.jpgIt is not uncommon for the parties to play hardball litigation to exert pressure on the other side to settle a case.  But if your opposing party engages in tactics that you perceive to be coercive, should you immediately seek relief from the court?  A recent decision illustrates some of the issues to consider before you ask a judge to solve your litigation problems.

In The Board of Trustees of the University of Illinois v. Micron Technology, Inc., a patent infringement suit, the University alleges that Micron sold semiconductors that were made using its patented process.  Before the lawsuit, the parties had a collaborative relationship and Micron actively recruited the University’s engineering students to work in its facilities.   The lawsuit brought this relationship to an end.  An email from Micron’s Academic Program Manager to many of the University’s engineering professors in January 2013 read as follows:

Because Micron remains a defendant in a patent infringement lawsuit that [the University] filed against Micron . . . , effective immediately, Micron will no longer recruit [University] students for open positions at any of Micron’s world-wide facilities.

 

The University immediately demanded confirmation from Micron that it would not engage in any further communications of this kind.   Micron requested a legal basis for the University’s demand, which apparently was never provided, and refused to confirm that it would cease its communications.  The University then filed a motion with the court seeking “an injunction that prohibits Micron from sending similarly coercive correspondence to the University.” 

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Upjohn Warning Update

Posted by Hayes Hunt on February 04, 2013

man&puzzle.jpgBy Hayes Hunt and Michael Zabel

By now, the concept of Upjohn warnings should be familiar to any counsel, whether in-house or external, who represents a corporation's interests in an internal investigation. In a nutshell, an Upjohn warning is derived from the Supreme Court decision in Upjohn v. United States, 449 U.S. 383 (1981), and is a mechanism for establishing corporate privilege by which corporate counsel explains to the corporation's officers and employees that when the individual officer or employee provides a statement to corporate counsel in the course of an internal corporate investigation, it is the corporation — and not the individual — that holds the attorney-client privilege for that statement.

A pair of significant cases in 2012 demonstrated just how important proper documentation of an Upjohn warning can be for establishing a privilege claim.

The first case is In re Google, 462 F. App'x 975 (Fed. Cir.google.jpg 2012). You probably read about the legal battle pitched last year between technology giants Google and Oracle. In February 2012, several months before a jury found that Google did not infringe on two of Oracle's patents, the U.S. Court of Appeals for the Federal Circuit ruled that an internal email by a Google engineer was not protected under Upjohn because nothing indicated that the engineer had prepared the email "in anticipation of litigation or to further the provision of legal advice."

Google had argued that the engineer's email was made at the request of in-house counsel for the purpose of investigating Oracle's infringement allegations. In support, Google offered a declaration from its counsel that the email was prepared at his request. The Federal Circuit rejected Google's argument, observing that the content of the email itself suggested that the engineer's email was a response to a request from Google management relating to Google's pursuit of a license for Oracle's patents — and not a response to a request from counsel for assistance in the infringement suit.

Oracle.jpgThe second case is Custom Designs & Manufacturing v. Sherwin-Williams, 39 A.3d 372, 374 (Pa. Super. Ct. 2012). Just as in the Google case, the court in this case rejected a corporation's privilege claim under Upjohn because the record did not indicate that the disputed communication was prepared at the request of counsel. In Custom Designs, the plaintiff was a cabinet company whose building caught fire and was significantly damaged. The day after the fire, a Sherwin-Williams employee visited the site of the fire and shortly thereafter prepared two memoranda addressed to Sherwin-Williams' in-house counsel. The cabinet company later sued Sherwin-Williams, alleging that Sherwin-Williams' products had caused the fire. In discovery, Sherwin-Williams claimed privilege with regard to its employee's two memoranda to its counsel.

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Swartz Suicide: Duties of Prosecutors and Defense Attorneys

Posted by Hayes Hunt on January 28, 2013

By Hayes Hunt and Calli Varner

keyboard.jpgAaron Swartz, 26 year-old co-founder of Reddit and long-time activist against the Stop Online Piracy Act (SOPA), committed suicide.  Mr. Swartz killed himself weeks before his trial for charges related to his access to MIT’s computer network and downloading thousands of academic articles from MIT's JSTOR system.  Swartz faced up to 20 years in prison for charges of computer fraud, wire fraud, and unlawfully obtaining information from a protected computer.  Swartz was convinced he should not be imprisoned for his actions as part of any negotiated plea agreement.  The prosecution insisted on jail time as part of any sentencing recommendation to the Court. MIT and JSTOR did not file any civil actions against Swartz and it is unclear how interested either was in criminal charges.

As details of Swartz’s suicide emerge, it has become clear that he suffered from a history of depression.  In fact, he wrote about his mental issues publicly in a November 27, 2007 blog post titled “Sick”.  Many commentators are linking Swartz’s suicide to his prosecution. Not surprisingly, Swartz’s suicide has raised an impassioned debate about prosecutorial discretion.  This issue has been the topic of debate on the New York Times blog and the Wall Street Journal Law Blog.  Many critics have argued that U.S. Attorney Carmen Ortiz’s actions were overzealous and overreaching.  Ortiz has been notoriously quoted for her comment: “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars.”  Swartz’ supporters have even rallied behind “Aaron’s Law,” which would reform the Computer Fraud and Abuse Act, the very law used to prosecute Swartz. Ortiz’s position has been defended by others.  For example, George Washington University Law School Professor, Orin Kerr, on his blog, “The Volokh Conspiracy stated that “the charges against Swartz were based on a fair reading of the law.”  Afterall, a Grand Jury voted and returned an indictment based on witness testimony and evidence.

Within this debate, is the issue of how prosecutors, as well as defense attorneys, should handle depression and mental illness facing the accused.  What duties do attorneys have when a client/defendant is competent to stand trial but suffers from the dangers of depression? 

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Evidence Needed For Crime-Fraud Exception to Attorney-Client Privilege

Posted by Hayes Hunt on January 07, 2013

crimefraud.jpgBy Hayes Hunt and Michael Zabel

How much evidence is enough to establish the crime-fraud exception to attorney-client privilege? With its recent opinion in In re Grand Jury, Nos. 12-1697 & 12-2878 (Dec. 11, 2012), the U.S. Court of Appeals for the Third Circuit addressed the issue in the context of subpoenas issued to the former in-house counsel of a company subject to a grand jury investigation. According to the precedential opinion, a party seeking to challenge attorney-client privilege by means of the crime-fraud exception must produce evidence demonstrating a "reasonable basis to suspect" that the elements of the crime-fraud exception have occurred. This newly announced standard clarifies Third Circuit precedent and at the same time serves to highlight the split among the federal courts of appeals over how to construe the "prima facie evidence" standard for the crime-fraud exception first articulated by the U.S. Supreme Court in Clark v. United States, 289 U.S. 1 (1933).

Every good lawyer knows, of course, that the attorney-client privilege does not offer absolute protection of his or her communications with a client. One important exclusion from the realm of attorney-client privilege is the crime-fraud exception, which, in the words of the Supreme Court, "assures that the seal of secrecy ... between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime." (See United States v. Zolin, 491 U.S. 554, 109 S. Ct. 2619, 2621, 105 L. Ed. 2d 469 (1989).) A party seeking to overcome attorney-client privilege through the crime-fraud exception must introduce prima facie evidence that (1) the client was committing or intending to commit a fraud or crime, and (2) the attorney-client communications were in furtherance of the alleged fraud or crime.

Federal circuit courts have offered differing articulations and conclusions over what constitutes prima facie evidence. Some courts have held that the evidence proffered must be sufficient to allow the court to require the privilege holder to come forward with an explanation for the evidence offered against the privilege. (See, e.g., United States v. Boender, 649 F.3d 650, 655 (7th Cir. 2011).) Other courts, such as Grand Jury, look for evidence that, if believed by a fact-finder, would establish the elements of an imminent or ongoing crime or fraud. A third group of circuit courts requires a reasonable basis in the evidence to believe that the attorney's services were used by the client to foster a crime or fraud. (See, e.g., In re Grand Jury Proceedings, 417 F.3d 18, 23 (1st Cir. 2005).)reasons.jpg

In adopting the "reasonable basis" standard, the Third Circuit acknowledged that its own past pronouncements of what constitutes prima facie evidence under the crime-fraud exception had been "not particularly helpful." In Grand Jury, however, the court took care to define the contours of the "reasonable basis" standard. "It is intended to be reasonably demanding, neither speculation nor evidence that shows only a distant likelihood is enough," the court wrote. "At the same time, the party opposing the privilege is not required to introduce evidence sufficient to support a verdict of crime or fraud or even to show that it is more likely than not that the crime or fraud occurred."

The factual circumstances of Grand Jury present additional items of interest for in-house counsel. In the case, ABC Corp. (a pseudonym used by the court) and two of its principals were subjects of an ongoing grand jury investigation into an alleged criminal tax scheme. As part of its investigation, the federal government served subpoenas on three former in-house attorneys of ABC Corp. Both ABC Corp. and its former employees asserted attorney-client and work-product privileges, and the government invoked the crime-fraud exception in response. The district court then ordered the former in-house counsel to comply with the subpoenas.

Although the order was not directed at ABC Corp., the company sought immediate appeal under the Perlman doctrine, a rule established in Perlman v. United States, 247 U.S. 7 (1918), which allows a privilege holder to immediately appeal an adverse disclosure order without being held in contempt first by the court when the privileged information is in the possession of a disinterested third party, who will likely disclose the information rather than be held in contempt of court. The Third Circuit found that the former in-house attorneys were indeed disinterested third parties who would likely be unwilling to be held in contempt to protect ABC Corp.'s privilege. Applying the Perlman rule, the court therefore found jurisdiction to hear ABC Corp.'s appeal. 

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Will Pennsylvania Prohibit Discovery of All Attorney-Expert Communications?

Posted by Hayes Hunt on December 03, 2012

By Thomas G. Wilkinson, Jr. and Thomas M. O'Rourke

experts.jpgIn 2010, the Federal Rules of Civil Procedure were amended to address certain problems with prior expert discovery rules which were interpreted to allow discovery of virtually all communications between attorneys and their retained experts.  To combat rising discovery costs and ensure that attorneys and experts could speak candidly, the Federal Rules struck a compromise.  Rule 26(b)(4)(C) was added to extend work product protection to communications between attorneys and their retained experts, except to the extent the communications: (i) relate to the expert’s “compensation[;]” (ii) identify “facts or data” the expert considered; and (iii) identify “assumptions” that the expert relied upon in forming the opinion at issue.  Outside of these exceptions, attorney-expert communications are generally off limits. 

The Pennsylvania Supreme Court has yet to weigh in on whether the work product doctrine protects attorney-expert communications.  Currently, however, the Court has pending before it an appeal and a proposed amendment to the Rules of Civil Procedure that will likely determine whether such communications will be discoverable in Pennsylvania. 

The Appeal – Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity

The Supreme Court has granted review in Barrick v. Holy Spirit Hospital of the Sisters of Christian Charity, 2012 WL 3791328 (Pa. 2012), a personal injury case that raises significant questions about the scope of Pennsylvania’s work product doctrine.  In Barrick, the Defendants served a subpoena upon Plaintiffs’ medical expert, requesting all relevant medical files.  When certain records were withheld, Defendants filed a motion to enforce their subpoena.  In response, Plaintiffs asserted that the subpoena exceeded the permissible scope of expert discovery and sought protected work product. 

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Fired for "Liking" - Social Media Use at Your Job

Posted by Hayes Hunt on October 16, 2012

By Hayes Hunt and Jillian Thornton

likeunlike.jpgGiving your opinion on politics or complaining about the boss to your friends via Facebook is so commonplace and rampant that few people probably stop to think about the consequences of their posting. Less thought is given to the magnitude of a Facebook user “liking” something — a photo, a status update, a fan page, etc. Yet, these actions can have very significant consequences for the person behind such activity. The legal realm is still adapting to the changing landscape of social media with somewhat incongruous legal results, depending on who your employer is and, in some cases, exactly what your Facebook or other social media activity was.

For instance, Facebook use and freedom of speech are at the center of a highly publicized legal battle in Virginia. In that case, titled Bland v. Roberts, government employees of the local sheriff were fired when it was discovered that they openly supported the sheriff’s election opponent, in part because one of the employees “liked” the opponent’s Facebook page. The trial court ruled that “liking” something on Facebook is not protected free speech under the First Amendment. The case is now on appeal, and Facebook has filed an amicus brief, arguing that “liking” a political candidate is a form of verbal expression and/or symbolic expression similar to other constitutionally symbolic expressions such as wearing an armband or even burning the American flag. According to these groups, such activity should be protected as a substantive statement of political support. The fact that the decision ruling against protecting the activity as free speech has been so highly publicized illustrates the broad concern how the First Amendment will interact with our social media use.

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What Judges are Doing with Predictive Coding

Posted by Hayes Hunt on July 16, 2012

Merlin.jpgBy:  Hayes Hunt and Jillian Thornton

The difficulty with implementing processes such as predictive coding is that the technology is so new that these methods are fairly untested in court. However, the first wave of cases discussing the propriety of predictive coding has illustrated that it is indeed going to be accepted as an appropriate discovery tool. Earlier this year, in a landmark decision, U.S. Magistrate Judge Andrew J. Peck for the Southern District of New York authorized the use of predictive coding in Da Silva Moore v. Publicis Groupe, No. 11-CV-1279, 2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. Feb. 24, 2012). Peck summarized his position, stating: "What the bar should take away from this opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review." The district court ultimately adopted Peck's evidentiary rulings in Da Silva Moore v. Publicis Groupe, No. 11-CV-1279, 2012 U.S. Dist. LEXIS 58742 (S.D.N.Y. Apr. 26, 2012). In his opinion, Peck was careful to point out that the plaintiffs consented to the defendant's use of predictive coding and the discovery dispute merely concerned the implementation of its use. Thus, lawyers were left to wonder what would happen if the parties did not agree to the use of predictive coding.

The same week that Peck's ruling was affirmed, a state court judge in Virginia approved the use of predictive coding in a case over the objections of the opposing party. In Global Aerospace v. Landow Aviation, No. CL 61040 (Vir. Cir. Ct. Apr. 23, 2012), 20th Judicial Circuit Judge James Chamblin ordered that defendants could use predictive coding, despite the plaintiff's objections that the technology was not as effective as manual review. Chamblin disagreed and ordered the predictive coding for the production of the defendant's ESI, provided that the receiving party would still have an opportunity to question the completeness of the contents of the production or the ongoing use of predictive coding. This opinion, although limited in its direct impact in other litigation, along with Peck's decision in Da Silva Moore, indicates willingness by the judiciary to incorporate predictive coding into e-discovery.bookshelves.jpg

Predictive coding and other automated methods of e-discovery obviously have limitations. Peck, in Da Silva Moore, emphasized that his approval of predictive coding was not universal: he did not order the use of predictive coding, he stated that computer-assisted review is not required in all cases, and that he did not endorse any particular vendor or predictive coding tool. In addition, it is the responsibility of the lawyers to understand the predictive coding program and how it works so that they can demonstrate the method's reasonableness if it is called into question. Just as with the traditional e-discovery tool of keyword searching, lawyers must engage in careful planning and sufficient quality control to ensure the accuracy of the program. Finally, lawyers should cooperate with opposing counsel and be transparent in their use and the scope of predictive coding in order to avoid unnecessary discovery disputes.

Published in The Legal Intelligencer on June 27, 2012

Predicting the Future of Predictive Coding

Posted by Hayes Hunt on July 09, 2012

By Hayes Hunt and Jillian R. Thornton

old file cabinets.jpgA decade ago, document review meant a small militia of lawyers sitting in a windowless warehouse surrounded by bankers' boxes full of paper documents. Now, thanks to extreme information inflation, the bulk of document review takes place electronically. In order to keep up with the enormous volume of electronically stored information, lawyers have employed a method featuring a combination of keyword searches and manual review. Most importantly, e-discovery can be responsible for 70 to 90 percent of the client's cost of litigation. However, recently, the universe of ESI has expanded in exponential fashion. Exabytes have devoured the smaller gigabytes in the ESI pond. What's next? Predictive coding.

Predictive coding is being used to run algorithms that allow for computer characterization of a massive set of electronic data for a fraction of the cost of more traditional methods (i.e., a cadre of lawyers). Case law is now catching up to the technology and various judges are giving the green light for lawyers to employ predictive coding in e-discovery without running afoul of the rules. The proper use of predictive coding, especially in large-data-volume cases, provides huge benefits for lawyers and clients: Predictive coding of ESI takes much less time, saves a lot of money and is often as accurate or more accurate than manual review. Of course, predictive coding also can be problematic if, for example, privileged documents are disclosed.

A recent study by Rand Corp., which includes 57 case studies from eight large corporations, shows that the cost of e-discovery can be grouped into three main categories: collection, processing and review. Amazingly, the review phase accounted for 73 percent of thepaper.jpg costs incurred during e-discovery. Predictive coding works to drastically reduce the number of documents that are manually reviewed by lawyers. Here's how it works: The first step in the process is that lawyers review a small sample of documents and code those documents for relevance or privilege or subject matter. The software then studies the sample set and applies the coding principles that it has learned to a larger set of documents. Then, the lawyers review the computer-coded documents to further teach the program how to code. This program continues until the software identifies only relevant documents. After coding is finished, the software can be used to select a small, random population of documents for lawyers to perform quality-control checks. If errors are found, the lawyers code more sample documents until accuracy of the coding reaches an acceptable level. Then the review is complete. The software can reduce the documents that need to be manually reviewed from a set of 2 million, for example, to only 3,000 to 5,000 documents. Assume it takes a lawyer 60 seconds to review a one-page document and you can easily do the cost-effective math of predictive coding.

Published in The Legal Intelligencer on June 27, 2012

Juror Misconduct & Bias - Social Media Investigation

Posted by Hayes Hunt on June 18, 2012

by:  Hayes Hunt and Jonathan A. Cavalier

shutterstock_80658793.jpg

Use of social media to explore the histories and potential biases of a jury pool is relatively new, but it is rapidly gaining in popularity. While voir dire can be an effective tool for weeding out obviously biased jurors (and those who do not want to serve), it can be difficult to get complete, detailed and truthful answers from all prospective jurors.

Social media can help. In jurisdictions where a list of prospective jurors is provided to counsel in advance, social media screening can be performed in advance and in detail, can help expose juror bias, and can help craft voir dire questions to eliminate undesirable jurors without wasting peremptory challenges. Social media can reveal work history, political affiliation, charitable activity, personal and professional relationships and affiliations, purchasing habits, hobbies, socioeconomic status and many other traits that may impact a juror's way of thinking about a case.

If the names of prospective jurors are not made available in advance, using social media can be more difficult. Certainly, attorneys cannot examine jurors' Facebook pages during active voir dire of the panel. However, counsel should consider having another attorney perform social media research on jurors during questioning. Although time constraints will prevent the attorneys from probing as wide or as deep as they could if they were able to do so in advance, even a shallow investigation might weed out a problematic juror or two who might have otherwise made it through.

 

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New Year - New Rules of Evidence: Plain Language in the Law

Posted by Hayes Hunt on January 30, 2012

Old Typewriter.jpgBy Hayes Hunt and Brian Kint

New “restyled” Federal Rules of Evidence went into effect on December 1, 2011.  These rules were designed to be easier to read and understand while remaining substantively unchanged.  This update reflects the growing “plain language” trend, a movement that seeks to make government more accessible by using language that is concise, clear, and free of technical terms.  In fact, the need for plain language in government is one of the few things that a divided Congress has been able to agree on in recent years, passing the Plain Language Act of 2010. The Act requires that government agencies write documents in clear, concise, well-organized language, appropriate for the intended audience.

The restyling of the Federal Rules of Evidence, however, represents a new frontier in the plain language crusade, because rules of evidence are used primarily by lawyers, a group largely responsible for the rules’ convoluted language and accustomed to working through their intricacies.  Some lawyers may believe that the precision and formality of the law requires complex language that is beyond the common person’s comprehension.  The plain language update to the Federal Rules of Evidence challenges that presumption.  Here are some examples:

 

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Attorney-Client Interview: Innocence, Jail and Canines - Part 3

Posted by Hayes Hunt on December 16, 2011

Jail Doors.jpgOriginally published in The Champion, November, 2011

Do You Believe That I'm Innocent?

On occasion, some clients desper­ately insist that their lawyer must believe they are innocent. A tempered response goes something like this:

Your innocence is not the stan­dard. The burden of proof is beyond a reasonable doubt and it is the government's burden.

Any verdict in your case will be "guilty" or "not guilty." A judge or a jury cannot render a ver­dict of "innocence" or "not proven." My ethical obligation is to be a zealous advocate for you and you alone. A rare exception to my duty will arise if you decide to testify and commit perjury, which you will not. What is right and wrong is a moral question, not an ethical one. If you are inno­cent, which you are presumed to be, we will need to prove it to the government to get your case dismissed. That proof of innocence can help in my con­versations with the prosecutor and, more importantly, create reasonable doubt if we try the case. I'm not here to judge you or the conduct of which you are accused. I'm your lawyer.

The defense attorney can use the same answer when people ask, "How can you represent someone that you know is guilty?"

Am I Going to Jail?

Am I going to jail? This is the other delicate question the defense attorney will hear at the initial client interview. If the case involves a minor criminal charge and likely to result in some sort of diversion program, counsel should go ahead and answer "no" even if the guidelines suggest a 90-day sentence. In federal court this is less likely and throwing out unmiti­gated and non-negotiated guideline numbers can be as frightening as a prognosis from Dr. Nostradamus. This judgment call depends on defense counsel's evaluation of the client's anxiety and familiarity with the criminal justice system. Defense counsel should let the client know it is still far too early in the process to advise him of the likelihood of a lengthy term of incarceration. There's nothing more shocking to a client than to add up all the charges and talk about a 200-year consecutive sen­tence. An overview of concurrent and consecutive sentencing may be over­whelming and put a premature end to the interview. If the circumstances involve a clear mandatory sentence, such as a gun enhancement, then counsel should let the client know about it during the initial interview.

How Much Do You Charge?

After completing the fundamen­tals of the client interview, counsel can talk to the client about a retainer and the estimated legal fees. The lawyer should not underestimate the cost of defending the case. There is nothing more problematic to the attorney‑client relationship than the lawyer demanding more money from the client in the middle of the case because the lawyer failed to properly provide an accurate budget.

Barking Dog.jpgThere may be pressure to sign up the client, and the lawyer wants the work. However, it is a huge profession­al mistake for the lawyer to suggest a discounted rate when the lawyer knows the case will cost more. Many times a potential client will tell the lawyer that another lawyer quoted him a much lower price for legal represen­tation. Counsel should be honest and respectfully disagree with the other lawyer's estimate. Counsel should not demean or criticize the other lawyer, even if counsel does not have a favor­able opinion of the other lawyer. Being small and petty during the interview only serves to dissuade a potential client from hiring the lawyer. The attorney should sell his understanding of the law, advocacy skills and creative problem-solving, but should refrain from saying had things about other lawyers and business competitors. The lawyer should always take the high road because his reputation with other practitioners, judges, and prosecutors is one of his most valuable assets. The lawyer's integrity will ultimately attract clients and allow the lawyer to give them the best possible defense.

Little dogs bark, big dogs don't have to.

My entire article was published in the 11/11 issue of The Champion published by the National Association of Criminal Defense Lawyers.

Attorney-Client Interview - Practice Points Part 2

Posted by Hayes Hunt on December 16, 2011

Hand Cuffs.jpgOriginally published in the Champion, November, 2011

The Client Has Been Accused of What Crime?

It is essential to know what hap­pened both from the client's perspective and from the government's point of view. Before the attorney starts, she should explain the potential defenses to the charged c•ime such as identification, alibi, self-defense, suppression of evidence, unintentional conduct, a mistake, and the credibility of government wit­nesses. The attorney wants the client fil­tering and aware of the defenses as he relates the facts to her.

Counsel must take her time and obtain all the facts from the client. She should exhaust every fact about every witness, the physical scene, computer data, phone calls, documents, a time­line of pertinent events, and any poten­tial bias of the complainant or the cooperating witnesses. If the charges involve multiple counts; it is best to deal first with lead charges (i.e., con­spiracy to do X). The government believes X is true because of a cooperat­ing witness or the circumstances of the client's arrest. The attorney should use this language throughout the interview: "the government thinks" and "the police are saying." The government is unlikely to change that point of view, at least for now.

Who Is the Client?

Counsel needs to create an in­depth profile of the client. The attor­ney will be funneling her client's life history into defense theories, investiga­tion, and if need be, mitigation for a negotiated plea agreement or sentenc­ing. She must understand the client's educational background, employment history, and relationship with his fam­ily. Furthermore, defense counsel must know the client's medical (physical and psychological) history, and any drug or alcohol problems and treatment. Counsel should find out whether the client is involved with any charities, religious organizations, or the local community. In addition, counsel should take detailed notes about the client's physical characteristics includ­ing height, weight, age, and race. She should note any identifying scars, tat­toos, or unique physical attributes that may relate to an identification defense. Does the client have any prior arrests and convictions? If none, counsel should ask about character witnesses that know the client well and make sure these people have good communi­ty credentials. Good character witness­es include business leaders, the PTA president at the school the client's chil­dren attend, and members of the cler­gy. If the defense attorney does not know her client, the ju•y and judge will not know him.

Arrested Development

Santa Mugshot.jpgWas the client arrested at the time of the charged offense or was an arrest warrant issued? What items did police officers seize and how? Were other peo­ple present who may be witnesses to the arrest or search and seizure? The lawyer should explain the basics of suppres­sion, probable cause and reasonable sus­picion, and how they relate to the exclu­sionary rule. What did the client say at the time of arrest and did he give a state­ment after his arrest (Miranda issues)? If so, defense counsel needs every fact about the circumstances of any state­ment. Was the client handcuffed? How many police officers were present? What questions did they ask that may have elicited an incriminating response from the client?

If the case clearly depends on iden­tification, the lawyer must find out whether the client knows the com­plainants, and if not, whether there was a lineup or a showup at the time of the arrest. Counsel should make sure he preserves any identification defense.

Counsel should tell the client that he may need him to wait in the parking lot at the next court date while counsel requests a lineup.

Guilty or Not Guilty?

At this point, counsel should have gained the client's trust. Typically, coun­sel will suggest that the client plead "not guilty" as there have not been conversa­tions with the government. If the attor­ney has been meeting with people in the Attorney General's Office, they have decided to proceed against the client and a criminal information is off the table. A grand jury has already indicted the client, so the prosecutor will be hard pressed to veto the grand jury's deci­sion. Defense counsel should explain tohis client the importance of retaining an investigator and, if needed, a psycholo­gist or addiction-treatment counselor. Counsel should let the client know he has a dual defense strategy: one related to the alleged criminal conduct and the other to mitigation.

My entire article was published in the 11/11 issue of The Champion published by the National Association of Criminal Defense Lawyers.

Attorney-Client Interview: Practice Points - Part 1 of 3

Posted by Hayes Hunt on December 16, 2011

Client Interview.jpgOriginally published in The Champion, November, 2011

Basics of a Client Interview

A lawyer can meet a client in many ways, including a referral by court appointment or in the waiting room of the lawyer's office. For purposes of this article, let's assume this is the lawyer's first discussion with a potential client who is unfamiliar with the criminal jus­tice system. This is a 360° interview — the lawyer and the client are evaluating each another. The client is deciding not only whether to retain the lawyer, but more importantly, whether he trusts the lawyer. Ultimately, will the client accept the lawyer's advice?

The lawyer must not forget obvious etiquette. Desiring to make a good impression, the lawyer should dress the part. The lawyer should dress as if he is the one being interviewed, not the one asking the questions. He should wear clothes that he would put on if he were interviewing for a job.

Information Available Before the Client Interview

It is not unusual for the attorney to have very limited information prior to the interview. The attorney may have only an indictment, a criminal com­plaint, or bail paperwork. If lucky, she might have an affidavit or police report related to the charging documents. She should print out the criminal codes and statutes in advance since she will need to review the elements and definitions of each charged crime with the client. She should explain Rule 16, or the state equivalent, regarding the timing of dis­covery and the government's disclosure obligations. Counsel should let the client know the procedural reasons for the lack of documentation at this stage and when she expects to receive more information. Depending on the charges, counsel may want to provide the client with a copy of the U.S.C.C. Sentencing Table or similar state guidelines.

Confident Lawyers Don't Brag

Too many lawyers dominate the interview and, in doing so, fail to listen to the client. The lawyer's job is to listen and advise, not overwhelm the client with big words or the salesmanship of convincing the client to hire the lawyer. Counsel will get to that crucial point with the client by establishing trust, not by barking like a chained junkyard dog looking for a fight. Self-aggrandizement is not necessary. Confidence is crucial, but bragging is for those lawyers who lack it. If counsel needs to tell the client he is a great lawyer, then counsel is not a great lawyer.

Tarzan.jpgChest-pounding and aggressive posturing served Tarzan well in the jun­gle, but those same traits are not valu­able while interviewing the client. Conversely, if the attorney believes the client will hire him based on his ability to be loud and profane, the attorney should consider a different career. He is a lawyer, not a late-night comedian or talk show host.

Counsel should explain the basic principles of the attorney-client privi­lege. This is counsel's opportunity to let the client know counsel is a zealous advocate in the client's corner. The client must know that the attorney will not disclose information learned through privileged conversations. After talking about privilege, the client will likely be more candid about the matter at hand.

Defense counsel should not suggest he has a personal relationship with the judge or government lawyers. A profes­sional relationship and experience, if any, with the court or prosecutor, are all that matters and prevents any ethical concerns. If counsel does not know the judge or the prosecutor, before the inter­view he should contact somebody that might know them.

My entire article was published on 11/11 issue of The Champion by the National Association of Criminal Defense Lawyers.

Accused of Bias, Judge Recuses Himself from 17 Ongoing Cases

Posted by Hayes Hunt on November 21, 2011

Judge.jpgBy Thomas G. Wilkinson, Jr. and Michael P. Zabel

Can joint representation with independent counsel remedy a conflict of interest? In a recent criminal case in the U.S. District Court for the Western District of Pennsylvania, a federal judge denied the public defender’s request to withdraw over a conflict of interest from a prior representation and instead ordered the public defender to obtain separate counsel who could independently manage any claimed conflict. When later accused of bias against the defender’s office, the judge voluntarily recused himself from 17 ongoing criminal cases.

Conflict, Withdrawal, and Independent Counsel
The dispute over the alleged conflicts arose in United States v. Vue,No. 2:09-00048 (W.D. Pa. Sept. 20, 2010), a case in which the Federal Public Defender (FPD) had been appointed to defend Youa Vue, a convicted felon who was indicted for possession of a firearm. When the FPD learned that it had formerly represented the confidential informant whose information was used to obtain the search warrant for Mr. Vue’s home, the FPD sought permission in consecutive motions to withdraw from the case, claiming that its representation of Mr. Vue would conflict with its former representation of the informant.

Judge Arthur J. Schwab denied both motions, finding that neither motion was “specific or illuminating with regard to the nature of alleged conflict, nor did it set forth any particulars about the former representation . . . and how that might conflict with the representation of Mr. Vue.” As a protective measure, the judge ordered the FPD to secure, as part of a joint representation effort, separate counsel who could represent Mr. Vue with regard to areas in which the FPD had a conflict of interest. Judge Schwab further observed that the FPD had a safe harbor in Pennsylvania Rule of Professional Conduct 1.16(c), which states that “[w]hen ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.”

Law & Order.jpgThe Interests of Criminal Justice
In rejecting the FPD’s requests to withdraw or to stay the proceedings against Mr. Vue pending appeal, the judge also criticized “a certain few [assistant federal public defenders’] increasingly common practice of filing numerous, boilerplate motions for extensions of time,” which, in at least one prior case involving the FPD, had kept a criminal defendant incarcerated for a longer period than his actual sentence required. Judge Schwab noted that in the Vue case, the FPD had filed nine motions for time extensions over a period of almost a year, threatening Mr. Vue’s and the public’s right to a speedy trial, and that further delays ran a similar risk of Mr. Vue serving time beyond his sentence.

The presence of independent counsel (without withdrawal by the FPD), the judge found, therefore not only protected the FPD against breach of its professional duty but also protected the defendant’s rights and served the interests of justice by allowing sentencing to proceed more quickly.

Prophylactic Recusal
After Judge Schwab denied its requests to withdraw, the FPD filed motions in 21 other criminal cases being presided over by the judge. The FPD requested that Judge Schwab recuse himself from the cases because of alleged bias shown by the judge in the Vue case against the FPD office. In his initial response, Judge Schwab offered to recuse himself from those cases, provided that the FPD submit an affidavit from each defendant that the defendant had read and approved the FPD’s request. The U.S. Attorney’s Office requested that the judge reconsider.

In subsequently ruling on the motions for disqualification, Judge Schwab looked to 28 U.S.C. § 455, the statute governing disqualification of federal judges, and found that “no reasonable observer … would find any bias or lack of impartiality . . . toward the [FPD] or any of the dedicated and professional Assistant Public Defenders in that Office, let alone toward any of their clients.” Lack of bias notwithstanding, Judge Schwab also held that the circumstance “calls for unusual measures to prevent what has real potential to disrupt the fair and orderly administration of justice.” The judge then voluntarily recused himself from 17 of the 21 cases, and from all future criminal cases involving the FPD through the end of 2011.

In three of the four cases from which the judge did not recuse himself, he found it against public interest and the “prudent use of judicial resources” to do so. Appeals in those three cases are currently pending before the Third Circuit Court of Appeals; all three appeals concern, in part, the denial of the FPD’s motions to disqualify. In the fourth case, new counsel was appointed for the defendant and the FPD was allowed to withdraw.

Thomas G. Wilkinson, Jr. is a member of Cozen O'Connor's Commercial Litigation Practice Group and heads the firm’s alternative dispute resolution practice. He concentrates his practice in business litigation, business torts, complex insurance coverage, and professional responsibility matters.

Effective Video Depositions -- The Director's Chair

Posted by Hayes Hunt on September 19, 2011

By Benjamin E. Zuckerman of Cozen O’Connor

Nothing is more boring than watching a witness testify on videotape.  Especially after lunch.  Jurors who don’t nod off should be given prizes.

We live in an age of hyper-active movies, videos and TV shows.  Jurors are conditioned to fast-paced action.  Although trial videotapes don’t involve eye-popping martial arts battles, they can certainly be more interesting than they generally are.  You can produce a good videotape by exercising your inner Steven Spielberg. movieArt.jpg

You first need to consider the deposition background.  Too often witnesses are videotaped against boring monochromatic walls having no visual interest.  You can do better.  Use a library stocked with books as the background.  If your law office doesn’t have one, you can easily find one.  Consider a nicely furnished office with diplomas, artwork or other interesting items displayed behind the witness. Your videotape can take place wherever you choose, so think about where it can be done most effectively.

Next, consider what the witness should wear.  Doctors often are videotaped wearing white lab coats.  Perhaps your doctor should wear a shirt and tie without a jacket so that he seems less condescending and more caring.  Do you want to project your witness a hard working salt-of-the-earth kind of guy?  Have him wear a flannel or denim work shirt.  If your client is an executive with an unpopular corporate defendant humanize him.  Forget the dark business suit.  Have him wear something casual and warm.  You get the idea.

The deposition itself should avoid the single camera stationary head shot pitfall.  Work with the videographer beforehand.  Have the camera zoom in on the witness at appropriate moments.  Pan across to exhibits, models or demonstrations and then zoom in on them as the witness discusses them.  Use exhibits large enough to be seen clearly on camera.

Avoid off-the-record interruptions as much as possible.  Nothing is worse than a constant stream of “Going off the record at 1:32” and “We are back on the record at 1:34” off-camera pronouncements.  If your witness is going to refer to an exhibit, keep the camera rolling while she places it in view, walks to the easel where it is displayed, or otherwise prepares to talk about it.  Avoid jumpy interruptions when objections are voiced. Have them remain on the video and audio record.  If the witness was actually testifying in court the jurors would hear counsel’s objections and responses, so there’s no reason they shouldn’t hear them on the video.  Keeping the camera rolling has the added benefit of revealing your opponent’s obstreperous conduct. If necessary, ask for a ruling from the court on objections before trial and then have the video edited as smoothly as possible.

You may not win an Oscar, but if you produce quality videos for trial you have a bettter chance to win your case.

zuckerman_b.jpgBenjamin E. Zuckerman is of counsel in Cozen O'Connor's General Litigation Department. He concentrates his practice in the areas of commercial and general litigation, including a broad range of civil matters.

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The Bad Habit of Emailing and Texting During a Conversation.

Posted by Hayes Hunt on August 29, 2011

Conversation Pop Art.jpgSomething has changed dramatically about the way we communicate: we don't talk to one another. We text, tweet, "like", and comment as an alternative to speaking and listening. Why speak when we can merely type? Professionally, we email rather than go through the emotional rollercoaster of having a dialogue with clients, colleagues, or adversaries. My favorite is leaving a voicemail message for someone and receiving an email reply asking "what's up?" Genius! 

Fans of email boast that it permits them to multitask. However, emailing while you are with another person, is, at best, rude and worse, demeaning since you are letting the person know that they are unworthy of your full, undivided attention. Behaving in such a manner around a client means you aren't interested in working for your client. 

Using social media and smart phones has become an obsession. Have you ever watched somebody light a cigarette and then another smoker immediately follows suit? Monkey see: monkey do. Next time you are out, watch your friend or colleague check her blackberry. You invariably will do the same thing. It ends the conversation. You stop talking. Bad habit, you should quit.Monkey.jpg

Failing to watch and listen during a conversation means you cannot communicate effectively. One study conducted at UCLA suggested that 93% of effective communication between people is dictated by nonverbal cues. What is lost is the credibility of the speaker. Particularly for litigators, we can't evaluate the sincerity of our client and belief in her case. We need non-verbal cues, such as posture and facial expression, to get a sense of whether our client will make a good witness. Similarly, if we are texting, tweeting, or sending an email, we are not talking or listening to the person in front of us. Voice and tone are tremendously important in evaluating a speaker for honesty and candor. Our loved ones and colleagues may have more tolerance for our multiple interests, however, our clients are not paying us to be distracted and inattentive.

Turn your smart phone, blackberry, i-pad off and pay attention to the person or client in front of you. Kick the habit.

The Usual Stipulations - Deposition Mythology

Posted by Hayes Hunt on July 28, 2011

medusa.jpg

Every lawyer has heard the phrase “usual stipulations” at their first deposition.  I swallowed a few four-letter words in my stomach the first time I heard the suggested “usual” stips."  Nothing was usual!  This was my first deposition and although I spent a week preparing, I was thrown from my saddle at the outset.

The other lawyers around the table started to nod approvingly at the “usual stips.”  To avoid embarrassment, I nodded along, although I had no idea what I was consenting to.  The stenographer typed away and I, seemingly, avoided a rookie mistake and went on with asking my questions.  I couldn't wait to get back to the office and figure out what the "usual stipulations" were and what I may or may not have agreed to. Turns out, I agreed to nothing and was subjected to a classic Litigation Mythology.

There are no usual stipulations.  Federal Rule of Civil Procedure 29 (a) allows the parties to stipulate that a deposition may be taken “before any person, at any time or place, on any notice, and in the manner specified...”.  No answers there.  Federal Rule of Civil Procedure 30 doesn’t use the word “usual” in all the guidance it provides in taking a deposition.  If there is no rule, then there is nothing “usual” about an adversary proposing an unarticulated stipulation before you start a deposition. 

The next time you are asked about the “usual stipulations,” suggest that the deposition will proceed pursuant to the Federal Rules of Civil Procedure and Evidence.  Then politely and with complete confidence, ask what stipulations your adversary suggests.

I understand it may vary from state to state and am curious whether there is an actual rule which explicitly references "usual" stips and what they are.

Using Social Media for Discovery Has Ethical Implications.

Posted by Hayes Hunt on July 20, 2011

By Thomas G. Wilkinson, Jr. and Lindsey E. WilkinsonhippieComputers.jpg

It has become common practice for lawyers to mine social media pages of parties and witnesses for discovery purposes.   But can the urge to dig up dirt on opposing parties cause lawyers and their staff to overstep the line into 'risky business' practices or even  potential for lawyer disciplinary consequences?  

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10 Things a Lawyer Should Never Say in a Social Setting - Cocktail Party Chatter

Posted by Hayes Hunt on June 06, 2011

Many lawyers have a tendency to brag about their work over cocktails with just about anybody who cares to listen.  It is a combination of ego and selling.  Recently, I was a faculty panel member at a PA Bar Institute program entitled "Cocktail Party Chatter" in which we discussed a number of ethical considerations all lawyers should be aware of in social settings. Lawyers may not realize that they are giving legal advice and creating an attorney-client relationship.  As a result, the lawyer may become liable for his loose lips. 

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Are Judicial Rulings Based Only on Facts and Law? Justice, Wheaties and Timeouts.

Posted by Hayes Hunt on April 25, 2011

justice.jpgMost judges, lawyers and anyone that watched an episode of Matlock would suggest that judicial rulings are based solely on law and facts. After all, Justice is blind, and an objective Judiciary must apply facts to the law and render an impartial and unbiased decision.  The Economist's column, "The Science of Justice," discussed the findings of a study by Professors Shai Danziger, PhD in Cognitive Neuroscience, and Jonathan Levav, PhD in Marketing that researched extraneous factors in judicial decision making.  They found some startling information.

In order to test whether judges are prone to external influence, Danziger and Levav tested the age-old saying that "justice is what the judge ate for breakfast."

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One Last Question.

Posted by Hayes Hunt on April 04, 2011

bowling ball - one last question.jpg

I recently attended a large event with a room filled with lawyers and judges.  One of the award recipients made the mistake of telling the audience that his acceptance speech was going to be quick and short.  It wasn't.  Judges started to talk amongst themselves, glad-handing politicos started working the room and lawyers pulled out blackberries under the table.  So many attorneys bowed their heads that I thought it was a moment of silence or prayer.  Ultimately, the speech was well written but the speaker broke his promise to the audience.  

The event reminded me of how often a trial attorney tells the judge and jury that they have "one last question" or promises to be "brief" on rebuttal or re-direct.  In the history of jurisprudence, no lawyer has asked that 1 question.  I exaggerate, but it rarely happens. My guess is that every lawyer, before becoming a lawyer, watched a Hollywood movie in which Tom Cruise or Gregory Peck asked permission for "one last question" followed by a scripted, perfect answer. 

There are a few problems with saying you only have a single question or that you are interested in brevity.  First, you should never start by suggesting your examination should be limited by a certain number of questions.  You may have 50 questions depending on the witness' answer!  Take the time necessary  -- don't self-hinder your ability to fully question a witness.  You don't need to rush the witness off the stand.  There is no stop watch.  Second, the jury will be annoyed with you for not keeping your promise.  After asking your inevitable 2nd question, 3rd, 4th …  a bored juror will start to count the number of questions.  That juror will invariably find other jurors to participate in the counting game as your trial continues.  Manage the jury’s expectations with your advocacy not how much time you expect to take. 

Take your time and ask as many questions as you need. 

 

Client Costs and Litigation Expenses: Ticket to Toledo

Posted by Hayes Hunt on March 28, 2011

 Toledo mud hens.JPG

I need to get to Toledo.  I can fly PennAir or OhioJet, same flight times.  I am a preferred member on PennAir and receive “free” upgrades, bonus miles, and all the things which make me believe PennAir prefers me.  PennAir wants to charge me $1,000 for the privilege of flying to the home of the Mud Hens while OhioJet will get me to the Glass City for only $200.

I came across Tim Harford’s column, Dear Economist: Do Loyalty Schemes Damage the Economy?, in the Financial Times. Harford discussed frequent-flyer programs that incentivize an employee selecting their preferred airline rather than the cheaper alternative to the detriment of their employer.  I got curious.  

Do I, as a lawyer, have an ethical obligation to find the lowest airfare? 

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CON MAN CLIENT

Posted by Hayes Hunt on March 14, 2011

con man.jpg

New York Times reporters Eric Lichtblau and James Risen wrote a front-page article about Dennis Montgomery, a computer programmer, who received $20 million from the US Government for software that was supposed to thwart terrorism.  The article suggests that Mr. Montgomery's technology may have been a hoax and that the DOJ has been obtaining protective orders to prevent disclosure.  Mr. Montgomery's former lawyer was interviewed for the article.  His ex-counsel described Montgomery as a "con man."  He then went on to say that "[t]he government knew the technology was bogus, but these guys got paid millions for it."  I was curious whether Montgomery's lawyer had, at best, a lapse in judgment and, at worst, violated his professional duties to his ex-client. 

ABA Model Rule of Professional Conduct 1.6 relating to confidentiality provides that a lawyer "shall not reveal information relating to the representation of a client."  A lawyer is obligated to maintain that confidentiality to her former clients.  Rule 1.6 (a) and 1.9.  In addition,  a lawyer shall not “use information relating to the representation to the disadvantage of the former client.” Rule 1.9 (c)(2).  There are certain circumstances where a lawyer’s continued duty may be waived or permitted such as a claim of legal malpractice or ineffective assistance of counsel.  Rule 1.6 (b)(5).  Also, a client may give her lawyer informed consent to reveal confidential information.  Rule 1.6 (a).  These are pretty obvious and basic rules of our profession.  That is why I was surprised to read such an apparent gaffe with my morning coffee.

In all likelihood, the lawyer's opinion that his ex-client is a “con man” was formed as a result of many privileged conversations.  If the attorney tried to use these words at trial, he would be offering an opinion about his past client’s character.  Federal Rule of Evidence 404 (a)(1) and 405 (a).  Counsel is not saying that his ex-client has a reputation in the community as being a con man. The attorney offers an opinion, a negative one, that his client is a con man.  If the lawyer was asked what foundation he had for such opinion evidence, the facts would come from the attorney-client relationship.  There is no way to isolate the attorney’s opinion from the relationship.  For example, assume the attorney believes his ex-client is a con man because he watched him toss weighted dice at the Bellagio.  His opinion would then be derived from personal knowledge unassociated with his legal representation.  Arguably, counsel’s demeaning con man comment was a breach of his duty to confidentiality since he did not formulate the opinion without talking to his ex-client as part of his legal representation.  His commentary that the technology was “bogus” clearly would not be advantageous to his ex-client if anyone involved with the contracts- especially the federal government– alleges fraud. 

I suppose you could apologize to your former client and explain that your front-page quote was a mistake made out of anger and frustration.  Maybe your ex-client owes you a substantial sum of money and is willing to forgive your grave error if you quit sending bills for past services rendered.  A very public and very demeaning comment about your ex-client may or may not cross the lines of legal ethics.  Regardless, there is an internet-search engine called “Google” and your potential clients use it to decide who to hire. 

Do you want to be on the front-page?  Of course you do!  Your comments to the media about former clients should be, at the very least, well-reasoned and preserve confidentiality.  At worst, make sure they are neutral and comport with your duties as a lawyer.   

Branding your ex-client as a criminal is professional seppuku.          Sevenm Samurai.jpg

  COMMENT FROM THE SIDEBAR

In Gotham: A History of New York City to 1898, Edwin G. Burrows and Mike Wallace explain the origin of the term "con man."  In 1849, William Thompson started a conversation with a complete stranger and suggested that he knew him.  The stranger was embarrassed he did not remember Mr. Thompson.  Thompson asked the stranger if he could borrow the man's watch for a night.  The embarrassed man, in an attempt to save face, gave Thompson the watch.  Thompson left with the watch.  Subsequently, the victim recognized Thompson on Broadway and had him arrested.  After hearing the story, a journalist called Thompson a "confidence-man".  The term stuck.    

Photo http://uh.edu/engines/Seven_Samurai.jpg 

Dear Esquire,

Posted by Hayes Hunt on February 07, 2011

As lawyers, we pride ourselves on using precise words in our writing and speech.  That is why I am astounded by the frequent misuse of the word "esquire".  I fully admit that I wrote "Esq." the first time I signed my name after being admitted to the Bar.  I thought it was meaningful and a sign of personal accomplishment.  I'm certain that AT&T thought the same thing when they looked at the signature on my check for the phone bill.  I used the word, but I didn't know what the word meant.  I was told that esquire was a synonym for lawyer.  I went back to basics and picked up a dusty dictionary from the bookcase. According to the Merriam-Webster dictionary the word  "esquire" has the following definition:

Thumbnail image for knight on horse - dear esquire.jpg  • a member of the English gentry ranking below a knight, or

  • a candidate for knighthood serving as shield bearer and attendant to a knight

 

I realized that there was no way I could consider myself landed gentry since I did White Tower at the Tower of London - dear esquire.jpgnot have a fiefdom in the States let alone Great Britain.  I decided that I needed to stop referring to myself in such a manner or I might violate the Code of Chivalry.  I saw Braveheart and did not want to be on the rack for my potential offense (offence) against the Crown.

 

Thankfully, Merriam-Webster gave me a way out by also defining the word as being "used as a title of courtesy usually placed in its abbreviated form after the surname <John R. Smith, Esq.>."  I was saved. From that day on, I made sure I only used "esquire" to refer to another lawyer, not myself.      

 

 

The ups and downs of Upjohn

Posted by Hayes Hunt on January 18, 2011

Good morning Mr. Employee.  Thank you for meeting with me.   Sitting next to me is Ms. Auditor and she will be taking notes of our interview.  I am the lawyer for the company you work for.  I’m here to ask you about the big problem your employer needs to figure out.  It is my understanding that you may have facts and information about the big problem.  Let’s talk.

There is a fine balance in explaining to your client’s employee that you want to have a privileged conversation with the employee, however, you are not his lawyer.  You need the employee to be candid and honest.  That honesty may incriminate the employee and benefit your client-company.  It is an awkward moment when you begin the interview by clearly informing the employee you are not acting in his interest even though you work for the same company. 

Every lawyer has some variation of warnings derived from the Supreme Court decision Upjohn v. United States, 449 U.S. 383 (1981).  The Upjohn warnings red flag - upjohn.jpggenerally include the following:

  • I represent the corporation.  I’m not your lawyer;
  • I’m going to ask you questions regarding the big problem; our conversation is privileged.  It is the company’s choice of whether or not to waive that privilege.  If the company decides to waive the privilege, the information you provide may be disclosed to others;
  • You can talk about the big problem to others.  However, you may not talk about what you and I say during this interview to other employees or third-parties with the exception of your lawyer, if you choose to hire one; and
  • Are you willing to be interviewed regarding the big problem?

Once you have provided the employee with sufficient Upjohn warnings, the attorney-client privilege is maintained by the company.  The problem occurs when the company self-reports the employee’s criminal conduct and the employee obviously wants to keep his inculpatory admissions privileged.  The employee’s personal attorney sends your client-company a letter stating that the employee reasonably believed he was being represented by you at the interview.  You respond with an affidavit from the auditor and a letter explaining that you provided adequate Upjohn warnings.  Now it is up to a judge.  Could you have done something differently to alleviate your new big problem?  Yes.

At the end of the interview you can ask the employee to sign an acknowledgesignature line - upjohn.jpgment that you provided Upjohn warnings.  Write each warning out on the acknowledgement.  Remind the employee that you gave the Upjohn warnings at the start of the interview and that the acknowledgement merely serves as his or her written confirmation of receipt of those warnings.  Make sure the employee initials each warning on the document. 

Timing is important.  If you give the employee an acknowledgement form at the beginning of the interview you will likely intimidate the employee.  The employee will be suspicious and, more importantly, less open and honest in providing answers.