Technology and the Court of Law

By Daryl Williams, Partner and Attorney at Law, Baird Williams & Greer, Attorneys at Law 

At Baird Williams & Greer, we are strong supporters of technology in the courtroom. In fact, we work with TrailDirector, to keep organized in the office and present a stronger case in the courtroom.

Derek Miller, Chief Executive Officer and President of inData Corporation, the makers of TrialDirector, says, “The use of technology in the courtroom allows the attorney to quickly and efficiently focus on the key elements of their case. The ability to call out a specific paragraph of a document and highlight the area at issue keeps the judge’s and/or jury’s attention on what you want them to remember.”

Although I too am a strong a proponent of technology, I believe that there is a time and place for technology and the courtroom. Take Justice Antonin Scalia for example. Some say he made shrewd rulings on tech-related cases. Shrewd is the wrong word because it connotes some sort of practical cleverness. Sagacious is a better word. His view of the law was to apply it to facts, not rewrite the law to arrive at a result.

When it came to technology, application of scientific advances for practical purposes, Scalia was able to relate what was at work to legal precedent in a particularly keen, discerning way, even with technological advances new to him. For instance, technology allows a police helicopter to overfly a backyard and see what is happening without a warrant, but using technology to see infrared images of what is happening behind the walls of one’s home needs a warrant even though there is no observation through the wall, just the reflections “off-the-wall” on the outside of the house. Not at all, then, like looking at the backyard from a helicopter. 

Scalia could judge the watershed between the such uses, unshackling the Fourth Amendment’s warrantless search prohibition from the law of trespass, which had been its bedrock well into the Twentieth Century. The violation of a subjective expectation of privacy applied to societal norms is the original bedrock, perhaps, but that means understanding what is at play so far as the Constitution is concerned and what is at work with the technology.

His replacement

Furthermore, Justice Scalia’s replacement does not need to be technologically savvy; in fact, being too much of a geek could cloud the judgment needed. What geek does not think use should be made of the new advance? Sagacious application of principles to facts, on the other hand, can uphold Constitutional rights over technological possibilities.

A Supreme Court justice needs to know the law, the Constitution, and what the Constitution protects. The jurist needs to be quick enough to parse the explanations of what technology does—the onus being on the parties to explain it—and apply judicial skills to arrive at a conclusion whether use of technology violates the law or the Constitution.”

Some think Justice Scalia was avant-garde in his approach to technology. A closer look shows he was reaching deeply into the past, finding original intent, and applying it today. He would not let technology destroy the Constitutional bedrock of our society.

About Daryl Williams, Attorney at Law, Baird Williams & Greer Attorneys at Law

Daryl M. Williams is an AV-rated trial lawyer, a distinction awarded to preeminent lawyers. He has conducted more than 100 jury trials involving commercial litigation matters. His largest jury award resulted in a judgement nearing $60 million for an international breach-of-contract case involving claims against the world’s largest childcare provider, a multi-billion dollar company. bwglaw.net

Digital Estate Planning

By Ryan Johnson, IT Director

A news story circulated not too long ago about a lawsuit brought by Bruce Willis against Apple involving the star’s right to transfer ownership of his vast iTunes collection to his heirs when he dies. Though the story was ultimately debunked by his representatives, it raised an interesting dilemma surrounding the ownership of digital assets and the transferability of those assets posthumously.

In our increasingly digital world there is a greater need to protect the digital assets we amass over time. Digital content can be any information that is published or distributed in a digital form, including data, photographs, images, text, sound recordings, images, video, or software. Digital assets include this type of content along with one’s online persona (including passwords to and content on social media sites). Currently, there are only five states that have laws governing digital estate planning.[1] As a result, an overwhelming majority of jurisdictions lack any direct statutory guidelines governing digital asset bequeathment, leaving loved ones in a vast gray area of the law. So while traditional estate planning plays a major role in protecting both tangible and intangible assets alike, the law has been slow to evolve with emerging technology.

Traditional Estate Planning

Essentially, one’s estate amounts to anything a person owns, tangible or intangible. Traditional estates are defined as a person’s interest in land or other property and consists of items that are owned and have value.[2] As such, traditional estate planning primarily involves a three-step process to posthumously dispose of property: (1) a consultation to consider an individual’s present and lifetime needs, (2) a thorough plan designed around meeting those needs during the client’s lifetime, and (3) the creation of a unified estate plan that balances the client’s needs during his/her lifetime with the needs of his/her estate after death.[3] Our increasingly digital world has added complexity to this process by creating a whole new class of digital assets that traditional estate planning tools may not be equipped to handle.

Digital Estate Planning

Digital estate planning has other benefits beyond the ability to successfully transfer digital assets to your heirs. It also makes life easier for the estate’s executor and family members, impedes identify theft, protects the decedent’s intellectual property interests, and preserves a decedent’s digital legacy.[4]

Currently, there is no uniform standard to bequeath one’s digital estate, however digital estate planning can be something as simple executory guidelines to one’s executor listing important URLs, usernames, passwords, security codes, and other information needed to access online accounts.[5] Among the most common digital assets are licenses, which are fully transferable within a trust. To facilitate such transfers, author Joseph M. Metrek suggests providing clients with a “Digital Asset Revocable Trust” (DART).[6] Essentially, the DART, like a traditional trust, will retain ownership of digital assets beyond the life of the grantor. Consequently, a trustee would have the authority to manage and transfer authorized licensing agreements to a client’s heirs based on the needs established when the estate was created.

In addition, an executor or fiduciary can mitigate the amount of personal hardship and grievance associated with digital estate planning by following a simple set of guidelines.[7] Experts recommend that fiduciaries implement the following crucial steps when administering a decedent’s digital estate:

  • “Seek the assistance of technical help if necessary.
  • Work on consolidating virtual assets to as few “platforms” as possible (e.g. have multiple e-mail accounts set to forward to a single e-mail account.
  • Obtain statements (or data) of the prior twelve months of the decedent‘s important financial accounts.
  • Consider notifying the [individuals] in the decedent‘s e-mail contact list and other social media contacts.
  • Change passwords to those that the fiduciary can control (and remember).
  • Keep all accounts open for at least a period of time to make sure all relevant or valuable information has been saved and all vendors or other business contacts have been appropriately notified, and so all payables can be paid and accounts receivable have been collected.
  • Remove all private and/or personal data from online shopping accounts (or close them as soon as reasonably possible).
  • The fiduciary should plan on archiving important electronic data for the full duration of the relevant statutes of limitations.”[8]

Conclusion

Sadly, many will not implement traditional or digital estate plans, leaving their loved ones to sort out unfinished details of their lives. Estate planning traditionally has been a service primarily utilized by the elderly, however increasing awareness among tech savvy clients can reduce the ambivalence towards estate planning.  Essentially, digital content owners face two distinct issues; (1) whether they really own their online digital content and if so, (2) how they can pass that ownership or the use of that content on to their loved ones. One thing is for certain – without digital estate mechanisms,  such as DARTs or executory guidelines, even Bruce Willis would not be able to ensure his loved ones were legally entitled to his vast collection of blues albums.


Footnotes

For more information generally see: What Happens When We Die: Estate Planning of Digital Assets, http://commlaw.cua.edu/res/docs/21-1/Perrone.pdf (last visited Aug 20, 2014);

  1. Alissa Skelton, Facebook After Death: What Should the Law Say?, MASHABLE (Jan. 26, 2012), http://commcns.org/10BZYRX. Oklahoma, Idaho, Rhode Island, Indiana and Connecticut have all enacted laws regarding digital estate planning.
  2. BLACK‘S LAW DICTIONARY 626, 134 (9th ed. 2009).
  3. See generally Jerome Solkoff, Scott Solkoff, What is Elder Law Estate Planning, 14 Fla. Prac., Elder Law § 1:3 (2011-12 ed.).
  4. “Planning for digital assets” http://www.southsidetrust.com/ckfinder/userfiles/files/Planning%20for%20digital%20assets.pdf (last visited Aug 20, 2014).
  5. Joseph M. Mentrek, Estate Planning in a Digital World, 19 Ohio Prob. L.J. 195 (2009).
  6. Id.
  7. Michael Walker & Victoria D. Blachly, Virtual Assets, ST003 A.L.I–A.B.A 177, 182-85.
  8. Walker & Blachly, supra at 184-85.

What to Look for in a Trial Attorney

When describing lawyers, my Contracts professor in law school used to say, “You shouldn’t judge an entire profession by three or four hundred thousand bad apples.”[1] But with the bushels of bad apple lawyers, there are also many very good and conscientious attorneys who strive to do what is best for their client. So how do you find a good trial attorney who puts your interests above his or her billable hour requirement? Here are some general things to look for when searching for the right trial lawyer for you and your lawsuit.

Before I jump into some specific traits, let’s make it clear that any lawyer you hire must have at least two basic qualifications: competency and experience. This doesn’t mean your attorney had to go to an Ivy League school to get their degree. Rather, it means he or she must be persuasive and believable. There are lots of great attorneys without the shiny academic credentials who are as sharp as a tack in the courtroom—that’s who I want arguing for me if my company or good name is on the line. Additionally, nothing compares with actually having gone through several full trials. You want someone who has been in the trenches and knows what to expect, but can also react appropriately when the unexpected inevitably happens.

Assuming these bare minimums, first evaluate what kind of case you have. Is this a situation where you need to continue a business relationship after the lawsuit is over (with a supplier or a major tenant, for example), or have all ties been severed with the other side and you must win for your business to survive? Look at your case honestly from a business perspective because not all cases call for General Sherman’s March to the Sea during the Civil War—that kind of case is extremely expensive and, while you may get the satisfaction of burying your opposition, you will certainly end up with a bill to your lawyer for hundreds of thousands of dollars.

Not all trial lawyers are suited for the slash and burn lawsuit, either. By the same token, not all fire-breathing litigators have enough finesse to win your case without so angering the other side to still keep a necessary business relationship with the opposition after the dust has settled. You are the one who has to carry on the business after the lawyers are out of the picture, so you need to make an early decision as to what you want the relationship with the other side to be after the lawsuit is finished. Then hire the trial attorney with the disposition and skill set to get you there.

Second, make sure the lawyer’s personality doesn’t annoy you; after all, you are going to be dealing with this person for the next couple of years and shelling out tens of thousands of dollars so you need to hire someone you like—or at least tolerate. Litigation is contentious enough without feeling like you are fighting against your own attorney. You do not want someone who tries to bully you into taking positions or making arguments just for the lawyer’s entertainment. Remember: you hired the attorney; he or she works for you, not the other way around. I’m not saying you and the attorney have to start hanging out in each other’s social circles. I am saying that you are trusting your future to this person so find someone who respects you and your input.

An important subpart to this second point is trust. Find someone you trust, someone who will listen to your input and then tell you what you need to hear and not necessarily what you want to hear. Sometimes the strategy you want to take may not be in line with what the law or procedure allows. This is why you need an attorney with enough experience to tell you when something should or should not be done. You will be relying upon your counsel to help you out of your current predicament. Make sure you trust his or her advice.

Third, your lawyer should not make your dispute personal—especially in a commercial setting. Doing so takes away the objectivity he or she needs to represent you properly. Of course, you don’t want your trial attorney so unemotional that you are unsure if your interests are being protected. However, there is a fine line between taking a personal interest in a client’s case and making the client’s case the attorney’s personal mission. If you notice your lawyer is more focused on “sticking it” to the other side’s counsel rather than advancing your interests, you have a problem. Shakespeare correctly said, “And do as adversaries do in law, Strive mightily, but eat and drink as friends.”[2] Litigation is inherently full of conflict and tempers flare easily, but the dispute between your lawyer and opposing counsel must be kept professional and not turn into something personal.

Finally, any attorney you hire must remember that the law is a service profession. Lawyers are supposed to serve you when a problem has become too entangled to separate on your own. A trial attorney’s job is to see that your interests are protected in the most efficient and least expensive way possible; not to bill you for every last nickel. If your lawyer has forgotten the service aspect of this profession, you probably hired one of those bad apples and should look for new counsel.


Footnotes

[1] Professor James Gordon, J. Reuben Clark Law School at Brigham Young University, fall semester, 1995.

[2] The Taming of the Shrew, Act 1, scene 2. For a more humorous example, consider the relationship between Sam Sheepdog and Ralph E. Wolf in the classic Looney Tunes cartoon series. See, e.g., Double or Mutton (Warner Bros. Entertainment, 1955). They were friends before clocking in, ate lunch together, and were social after work, but during the workday, their goal was to defeat the other side. Importantly, neither one took the professional attacks personally.

Determining how much money you can expect in settlement of your injury claim

By Robert Greer

If there were perfect justice, a person who causes harm to another, either intentionally or by accident, would be able to make things right through a “do over” -– as if the injury never happened. But “Groundhog Day” and “Edge of Tomorrow” are fiction. We can’t go back and undo the past, restore health, take away pain, and erase memory. Neither can we offer up ourselves to suffer the same thing. “An eye for an eye” may satisfy the half blind with some sense of revenge, but it does not restore sight.

No, all the law can do is order monetary compensation under the fiction that money can somehow make up for that which was taken away. It’s not true of course. Few people would willingly suffer chronic pain in exchange for money or lose a loved one for pay. But it is the best we can do. It harkens back to the biblical concept of restitution. If “men strive together” and one dies not “but keepeth his bed,” if he rise again “and walk abroad upon his staff, then he that smote him shall be quit [released or set free]: only he shall pay for the loss of his time and shall cause him to be thoroughly healed.” Exodus 21:18-19 (KJV). Over the centuries, this idea took root in English law, thence to the colonies which became the United States.

Arizona is much like other states and instructs a jury what factors it may consider when deciding how much to compensate one injured by another’s fault:

  1. The nature, extent, and duration of the injury.
  2. The pain, discomfort, suffering, disability, disfigurement, and anxiety already experienced, and reasonably probable to be experienced in the future as a result of the injury.
  3. Reasonable expenses of necessary medical care, treatment, and services rendered, and reasonably probable to be incurred in the future.
  4. Lost earnings to date, and any decrease in earning power or capacity in the future.
  5. Loss of love, care, affection, companionship, and other pleasures of the marital relationship.
  6. Loss of enjoyment of life, that is, the participation in life’s activities to the quality and extent normally enjoyed before the injury.

Those are factors in evaluating settlement prospects for a claim for monetary damages. What to settle for is based upon a rational prediction of what a jury likely would decide given the facts of the injury and its effect on the life of the person hurt. That is more art than science and takes into consideration as many factors as a thoughtful person can imagine. A sample of questions proves the point:

  • who is at fault?
  • is someone other than the defendant at fault?
  • what percentage of fault should each person involved bear?
  • was the fault aggravated? Will a jury get angry at someone?
  • what were the injuries?
  • what was the cost of medical treatment?
  • was medical treatment reasonable?
  • how much was diagnostic, how much was treatment?
  • are there any permanent injuries?
  • what will future medical expenses be?
  • did the injuries affect the ability to work?
  • what was the lost income?
  • what are the costs of medical treatment?
  • did the person have any pre-existing medical problems?
  • how much did the accident add to the already present medical condition?
  • how well does the person testify about the effects of the injuries on his life?
  • are the parties believable?
  • are they likeable?
  • does the plaintiff exaggerate his/her injuries?
  • what jury trial experience do the lawyers have?
  • how will the lawyers come across to a jury?
  • how strong is the medical evidence?
  • are the testifying doctors credible?
  • where will the trial be held?
  • are juries in that jurisdiction conservative or liberal with money?
  • will the jury be sympathetic to this type of injury?
  • will jurors be able to understand the technical evidence?
  • are punitive or exemplary damages sought?
  • does the judge lean toward plaintiffs or defendants in evidentiary rulings?
  • what have been the results when similar cases have gone to trial?
  • what have other cases with similar injuries settled for?

Those last two factors tend to have greater weight when an insurer evaluates a claim. Bear in mind that insurers have access to databases that have hundreds if not thousands of similar claims. An experienced adjuster would have seen dozens of claims just like the one at issue. For larger claims, there is a “round-tabling” process in which the insurer’s most skilled and experienced casualty claims professionals come together to evaluate hypothetical injury claims by examining settlements in similar claims and published jury verdicts. See In re Farmers Ins. Exchange Claims Representatives’ Overtime Pay Litigation, 336 F.Supp.2d 1077, 1102 (D. Or. 2004). Some insurers use software which incorporate closed claims data from a particular geographical region. While the software is a useful estimating tool, it does not take into consideration external factors like re-injuries to or complications of preexisting conditions, the reputation and experience of trial counsel, aggravated liability, the appearance and believability of the parties and a multitude of other external factors. (After all, juries are never told what other similar claims have settled for.)

For an individual claims professional to recommend settlement in an amount outside the norm requires an extraordinary showing of why this case is different from the run of the mill case. In other words, is the risk of a higher jury verdict on these facts with these parties great enough to merit offering more money in settlement and eliminate the risk. In other words, what do I think a jury will most likely award if this case goes to trial?

Sometimes there are external considerations which bear on a defendant’s decision to settle. Do we want to defend the product or this professional or this company through trial to send a message to other claimants that a suit against us is never easy? Do we want to avoid adverse publicity either from a trial or from a settlement? Do we have business or financial reasons to delay a settlement? Are policy limits so low that the insurer risks having to pay its own money if it does not settle now and puts the policy holder at risk?

In summary, there is no easy answer. There is no chart to refer to which will tell you what to expect. Even experienced lawyers or claims professionals may have different opinions of valuation from the same set of facts.

Our advice? Hire a lawyer after carefully interviewing him or her about experience with this type and claim and this type of injury. The State Bar of Arizona has in place a certification program through which attorneys are tested and screened for subject matter expertise, number of jury trials, review by their peers and respect of judges. There are far fewer certified specialists than there are lawyers who advertise. Check the list at azbar.org.

The Difference Between Trial and Appellate Practice

By Craig LaChance

Suppose you have a case that went to trial, and you are facing an appeal. Either you lost and want to appeal the decision, or you won, but your opponent has vowed to appeal. In any event, the case is going to the next level. Should your trial lawyer handle the appeal? After all, your trial lawyer has worked on the case for months, perhaps years, and will know the facts and law intimately. In fact, your trial lawyer probably crafted many of the arguments that may be raised on appeal. What is more, having gone to battle with your trial counsel, you’re comfortable with them and trust their judgment. If your trial counsel has appellate experience, then having them handle the appeal may be advisable.[1]

But if they don’t do appeals, you want to consider counsel who specializes in them. Trial and appellate work are quite different. Being a great trial lawyer does not make one a great appellate advocate. As federal appellate judge Ruggero J. Aldisert notes, a successful trial lawyer is a salesperson whose objective is to persuade a panel of lay jurors that their client’s witnesses are credible and that the facts favor their side.[2] Trial advocacy typically involves more than legal argument; it often involves emotional appeals to create a sense of righteousness. Much trial advocacy is verbal. Thus, argument is more fluid, organic, and less focused on analysis of legal concepts.
Always Be Closing
“The only thing you got in this world is what you can sell.” Arthur Miller, Death of a Salesman.

An appellate lawyer, on the other hand, “is still a salesperson, but the lawyer carries a different sample case.”[3] Instead of juries, the audience in an appeal is a panel of professional judges. Also, while trial argument is primarily verbal, appellate advocacy is generally written. Where a trial brief is typically less than 10 pages, appellate briefs often run to 30 pages or more. As Judge Aldisert notes, appellate advocacy is really a dialogue between professional writers (appellate attorneys) and professional readers (judges). To be sure, appellate lawyers present oral arguments, but these arguments are extremely circumscribed, often only 15 to 20 minutes; compare this with the days or even weeks a trial lawyer gets to make their case. Additionally, appellate work focuses on the law rather than facts. This results in often abstract arguments concerning policy, history, legislative intent and the analysis of legal concepts. Good appellate attorneys are often reflective, analytical and introverted—traits that are not often associated with the fireworks of a trial courtroom.

This is not to say that trial lawyers are not thoughtful or that appellate attorneys are shut-ins. Nor is it that trial lawyers cannot be successful appellate attorneys, or vice versa. Indeed, there is quite a bit of overlap in trial and appellate skills. The point is that the differences between trial and appellate practice are important and are a factor in successful appeals.

 


Footnotes

[1]  See Michael J. Meehan, “Appellate Advocacy,” in Arizona Appellate Handbook, vol. 1, §2.3, 2-4 (4th ed. 2010) (“If at all possible, every appeal should be done by a lawyer with appellate practice experience”).

[2]  Ruggero J. Aldisert, Winning on Appeal, 4 (NITA 1996).

[3]  Id. at 5.

Recovering Lost Profits by Avoiding Limitation of Liability Provisions

By Daniel Mestasz

Lost profits are often the largest component of damages in breach of contract cases. Limitation of liability provisions, however, typically preclude those damages and other consequential damages. These provisions are in many types of contracts, particularly service contracts, supply contracts, and contracts governed by the Uniform Commercial Code. If a client has been damaged by a breach, avoiding that provision can be critical.

Like a rock thrown into a pond, a single breach can ripple through a company’s operations and damage its other relationships. For example, where a supplier sold defective paint to a dealer, the court did not limit the damages to replacement paint. Rather, the dealer was entitled to the profits it would have made on the contracts cancelled by its contractor customers, as well as its lost goodwill. Isenberg v. Lemon, 84 Ariz. 340, 349–50, 327 P.2d 1016, 1022–23 (1958). Similarly, where a city breached a towing contract, the towing company was entitled to lost profits on the sale of parts from the abandoned cars it would have recovered, lost profits from towing services, and damages for lost goodwill. All Points Towing, Inc. v. City of Glendale, 153 Ariz. 115, 735 P.2d 145 (App. 1987). See also Short v. Riley,150 Ariz. 583, 585, 724 P.2d 1252, 1254 (App. 1986) (where defendant wrongfully withheld liquor license in connection with restaurant purchase, plaintiff was entitled to any lost profits while operating the restaurant without the license).

Thus, where a breach causes lost profits or other consequential damages, it is important to see if the contract has a limitation of liability provision. If it is there, Arizona law presents some options to avoid it.

First, a party who has breached a contract in bad faith may not rely on a limitation of liability clause in that contract. Airfreight Express Ltd. v. Evergreen Air Center, Inc., 215 Ariz. 103, 158 P.3d 232 (App. 2007).

In Airfreight Express, the defendant contracted to provide maintenance repairs on an airplane so that the plaintiff could perform under an air cargo contract with Air France. Following a settlement agreement that required the defendant to make repairs, the plaintiff sued for breach of contract, alleging that the defendant made faulty repairs for the purpose of letting its sister company appropriate the Air France cargo business from the plaintiff. The court reversed the trial court’s summary judgment ruling that a limited liability clause precluded the plaintiff from recovering lost profits that it would have earned under the air cargo contract.

The court held that a bad faith breach precludes reliance on a limited liability clause, as held by courts from other jurisdictions and consistent with Corbin, the Restatement, and Arizona law. Id., at 110–11, citing 15 Grace McLane Giesel, Corbin on Contracts § 85.18 at 471 (2003) (a limited liability provision “is not effective . . . if the party acts fraudulently or in bad faith”), Restatement (Second) of Contracts, § 195 (1981) (prohibiting contracts exempting parties from intentional or reckless tort liability), and A.R.S. § 47–2719(C) (“Consequential damages may be limited or excluded unless the limitations of exclusions is unconscionable.”). The court further explained that as “a matter of public policy, a party should not benefit from a bargain it performed in bad faith.” Id., at 111.

Second, under the U.C.C., and “[p]ursuant to A.R.S. § 47–2719(B), a limitations of damages clause in invalid ‘[w]here circumstances cause an exclusive or limited remedy to fail of its essential purpose.’” Nomo Agroindustiral Sa De CV v. Enza Zaden North America, Inc., 492 F.Supp.2d 1175, 1181 (D. Ariz. 2007), quoting A.R.S. § 47–2719(B). In Nomo, a tomato grower sued its seed dealer for lost profits after its plants died from a virus. The court held that under Section 2719(B) and (C), the dealer could not rely on a limitation of damages clause to limit damages to the purchase price of seeds because it failed of its essential purpose (2719(B)) and was unconscionable (2719(C)). The court reasoned that parties to a sales contract cannot disavow minimum adequate remedies, which would include lost profits for defective seeds that resulted in a lost growing season:

The comments to [Section 2719] state: ‘[I]t is of the very essence of a sales contact that at least minimum adequate remedies be available. If the parties intend to conclude a contract for sale within this Article they must accept the legal consequence that there be at least a fair quantum of remedy for a breach of the obligations or duties outlined in the contract.’ [citing comment 1] . . . A farmer’s lost growing season and the accompanying loss of expected profits due to defective seeds clearly is not compensated by simply replacing or refunding the price of the defective seeds.”

Id.

A limitation of liability provision may not be the end of the world for companies devastated by another’s breach. Defeating that provision may be the first step to recovering lost profits and other consequential damages.

Why Go To Mediation?

Any attorney that says your case is a “slam dunk” is either a liar or is too inexperienced to trust in court. Trials—especially in front of a jury as opposed to a judge—turn on many factors that are simply outside the control of the lawyer and the client. Fortunately, there are alternatives to the roll of the litigation dice. Mediation provides a willing client with at least three benefits: (1) a neutral view of your case from someone other than your lawyer who is financially invested in it; (2) the chance to tell your side of the story in a confidential setting; and (3) the opportunity to control the amount of money you either receive or have to pay without being subject to the whims of a jury. Perhaps the greatest benefit, though, is that a successful mediation puts an end to the financial costs and emotional toll that come with a lawsuit.

First, a mediator is either selected and paid by the parties or is appointed by the court to perform the service for free. Either way, a neutral mediator has no interest in the outcome of your dispute. This allows the mediator to tell you what he or she thinks about your case—warts and all. Your attorney may have glossed over some of those blemishes, or ignored them altogether, and tried to convince you that your case is worth a lot of money or that you don’t have any exposure to pay a large judgment. The mediator provides a neutral perspective of both the strengths and weaknesses of your case. Even if you don’t settle, that insight helps both you and your attorney prepare your case for trial.

Second, a mediation is a confidential proceeding; nothing said there can be used for or against you at trial. This gives you, as a client, the chance to say what you want without fear that it will be read back to you on the witness stand at trial. It also allows you to tell what happened without being muzzled by your attorney. Sometimes all a client wants is to tell someone their version of the story without it being filtered through the rules of evidence or the litigation tactics of counsel. A mediation provides that setting for you to say your peace.

A Civil ActionThird, remember the plaintiff’s attorney John Travolta played in the film A Civil Action?[1] When the jury went out to deliberate, the defense attorney, played by Robert Duvall, offered $20 million to settle the case. Travolta’s character refused. The jury came back and rendered a verdict against his clients giving them nothing. An analysis of the lawyer’s hubris in rejecting such an offer is beyond this scope of this blog. However, I raise the movie to point out that you don’t want to be so enamored with your case and think it is so valuable that you turn down a reasonable offer only to go to trial and walk away with nothing. Mediation allows the parties to put a value on how much each side is willing to accept or to pay to resolve the dispute instead of continuing with the litigation fight.

Some people think of mediation as a touchy-feely-let’s-all-sit-around-the-campfire-holding-hands-and-sing-Kumbaya kind of experience. Not so. It’s actually a chance for you to get a neutral observer’s take on your case, it allows you to vent without being “on the record” for the things you say, and it lets you decide how much your case is worth. Most importantly, though, a successful mediation stops the litigation and lets you move on to bigger and better things in life.


Footnotes

[1] A Civil Action (Touchstone Pictures 1998).

Discovery in Commercial Cases

By Daryl Williams

Discovery in commercial cases, which is all I do, has always been a problem. Before computers and electronically stored information, ESI in lawyer-speak, the issue was being taken to a warehouse full of closed files where you could spend days and weeks looking through banker’s boxes, the producing party saying, “The documents are in there somewhere and the burden and expense for you to find them is the same or less than the expense of us finding them.”

ESI has not made this easier; indeed, the discovery burden is greater because of the volume and complexity associated with looking at the electronic documents and the potential for sanctions if you do not preserve ESI. We handle this internally by getting images of our own client’s computers, which is not very expensive, so that we cannot be accused of not having the ESI if a discovery dispute arises. We have the snapshot. We can then process our client’s records using an internal program that de-dupes and deNISTs the client files; deNISTing involves identification of standard files, like program files, that have nothing to do with data. We can, then, pare the data files down to something manageable with statistical analysis of who is involved in email chains, document revisions, etc. We save the client tens-of-thousands of dollars doing this in-house rather than sending it out to a vendor.

Eventually, though, someone has to put eyes on the images, and the client’s input is essential so you are not engaged in a rock-turning exercise. The client needs to direct the lawyer to the rocks covering the worms needed to go fishing—go to trial. Otherwise, you are turning over rocks in the field of discovery with no more of a plan than turning over every rock in the field to find every worm. The client can give guidance, like describing the wet side of the field where the worms are. It is very expensive to just turn over every rock. The trial lawyer needs to feel comfortable knowing he has enough worms in his can to go fishing even though he has not turned over every rock. Too many lawyers spend all their time rock turning without going to trial. The object is going to trial, i.e. fishing with enough bait to catch your fish.

I also think you need to be careful about spending to much time looking at your client’s or the other side’s computer. We get images of the other side’s computers, of course, and do our own internal de-duplication and de-NISTing and paring, but the client usually knows where to look for worms on its own computer and the other side’s computer. For example, just looking at a particular date range can be very helpful and limits the rock-turning time. Likewise, a subpoena to a third party can turn up a document not produced by the other side, resulting in a narrowly targeted review of the computer if the document is important enough. Is that document important enough?

Many firms tend to put baby lawyers into the field of discovery where they are engaged in prolix rock-turning. The big client being represented by the big firm is slow to realize that the work can be done more efficiently, mistaking the size of the firm and the number of lawyers engaged in rock turning for the quality of representation. Computers make a small firm with expertise equal to the big firm with manpower; after all, it is just one lawyer who stands up and talks in the courtroom.

Robert Greer

Humility and the Detailed Understatement – The Importance of the Story

By Robert L. Greer


Poised somewhere between sinful vanity and self-destructive submissiveness is a golden mean of self-esteem appropriate to the human condition.  – Stanford Lyman[1]


Some successful trial lawyers dominate a courtroom. Their intellect shines, their command of the facts are unparalleled, their language soars. Their physical posture is intimidating; their glare or bemusement or glow reflects whether a jury should trust a witness or even consider an exhibit. Their outrage or reason or compassion can be summoned to their faces and voices at will.

Such gifted advocates are rare. Those skills are as much natural endowments as they are learned. In fact, without those native gifts, similar efforts at domination fall flat. They are too forced, too unnatural for most.

What can be cultivated, however, is something that we trial lawyers normally suppress. That is an admission that we don’t know everything, that we cannot hope to understand it all, that we are just doing our best to represent our client with such modest talents as we have, gifts perhaps no greater than those of the jurors. We can, in short, infuse our presentation with humility. Not forced nor feigned, but real humility.

That concept is most often written about in theological terms, defined usually in juxtaposition to the sin of pride. And, while helpful to our understanding, the humility associated with monastic orders is not to be confused with the humility which marks an effective trial lawyer. C.S. Lewis put it in understandable terms:

Don’t imagine that if you meet a really humble man he will be what most people call “humble” nowadays: he won’t be a sort of greasy, smarmy person, who’s always telling you that, of course, he’s nobody. Probably all you’ll think about him is that he seemed a cheerful, intelligent chap who took a real interest in what you said to him. If you do dislike him, it will be because you feel a bit envious of anyone who seems to enjoy life so easily. He won’t be thinking about himself at all.[2]

Humility of this sort leaves us free to admit that we’re anxious of the task ahead. To represent another person whose future turns upon the judgment of a handful of strangers on the jury is a humbling thing. But necessarily in representing another in a forum for which we have been well trained, we assume power denied to the litigant. He does not know the rules of procedure or of evidence. He does not know how to present facts in a compelling and credible manner. He does not know how to deal with contrary evidence or adverse rulings. We do. With that knowledge comes power. That power, coupled with the natural competition born of the adversarial system, may cause us to slip easily over the fine line into arrogance. But the power to represent another whose future or fortune turns upon our representation cannot be treated lightly or arrogantly. It compels humility.

Telling a jury how we feel – probably the same thing they would feel if they were in our shoes – is telling the truth. It is an admission of our humanity and shortens the distance between ourselves ant the trier of fact. It is a leveler of social strata. That truth permeates the evidence.

But truth is best told as a story. We learn from stories. Fables, allegories, parables, poems, lyrics, plays, movies all are a means of conveying truth. The detail in the story conveys both the genuineness of the events and the deeper meaning beyond the events. A story should move the hearer to feel something, to do something, to bring the story to conclusion and to bring it to conclusion in a way that is consistent with the deeper truths the story is meant to convey.

It is from the details that not only does the story ring true, but the credibility of the story teller is enhanced. Consider the following story, part of an opening statement to a jury:[3]

I am grateful to finally be here in this courtroom. It has taken a long time and has involved a lot of work. I’m frightened by the prospect of having you consider what I have to say; fearful about how I can best help you understand what Jim and Carol Jones have experienced and have trusted me to show how you can make things right.

First, let me tell you about their home. It is a modest, three bedroom house in an old neighborhood in Mesa Arizona. It was built in the late 50’s and is a short distance from an elementary school. The yard is neat with old trees standing at its edge. Stretching diagonally across the lawn is a worn path from the front door in the direction of the grade school a couple of blocks away. Enter the home and you see to the left a wall of photographs, family picture mostly. By the clothes you can tell some photos go back three or four generations. Some people are aging, some are young people mugging for the camera; most are family group shots. In the middle of the photos is a slightly larger painting of a boy who appears about nine or ten years of age. Next to the painting is a small school picture showing the same subject, in the same clothes, in the same pose. Past the wall is a hallway to the left. As you turn you see a door on the right. At that door you look in the room. There is poster of Steve Nash and the Phoenix Suns on the wall, a framed drawing of Christ on the opposite wall. Soccer and basketball trophies are on a shelf above a neatly made bed with an aging “Toy Story” bed spread. There are shelves with books of stories for early readers. A baseball and bat is on top of the book case. In the closet you see the blue and gold of a cub scout uniform, a rugby shirt, an Arizona Cardinals jacket and unmatched pants. On the floor of the closet is a clear plastic bin with Legos in various states of assembly.

It is obviously a boy’s room. But strangely there is no clutter. No clothes on the floor, no books strewn about, no toys in sight. It is clean, almost sterile. But it is empty. You can almost feel the emptiness. It is empty and it is quiet.

It is empty and silent and clean because that man, Sam Everett, sitting at the table across from us, mixed gasoline with alcohol and drove his truck into the little boy who lived there; the boy who left the safe path from his home, crossed the street at the same marked crosswalk that he always did on his way to school and was sent flying more than fifty feet. His skull was fractured at the parietal bone; his lung was punctured by his fourth rib; his spleen was torn and bleeding; his right femur snapped. He lived long enough for his mother to reach him before the ambulance arrived. But the defendant was not even aware that he died. He was three sheets to the wind at the steering wheel of his truck.

You see, Mr. Everett had been at a company picnic, one of those large events at the park, at which his employer sponsored team building exercises, provided catered food, music, mingling between executives and line workers, good times and an open bar – an open bar attended by a single young woman who had volunteered to be there; who had never done it before, and, who never drank herself. Over a period of four hours, the outgoing and fun and charming and flirtatious Sam Everett consumed enough from the bar so that his blood alcohol registered twice the legal limit when his blood was drawn two hours after he wobbled away from the open bar and stumbled into his truck.

So what will a jury feel with that story? Does it ring true? How will they now view the evidence? Will they feel the loss? Will the feel any outrage? What will they want to do?

Now we could convey the same facts in simple declarative statements: “This was a close and religious family. The parents were involved with their children. They miss their son. The defendant was driving drunk. The employer was negligent in serving drinks.” Those statements are true. But they do not convey that truth as much as does the detailed story. They do not impel a jury to feel and want to do something about it.

Rudy Baylor, John Grisham’s hero in “The Rainmaker,” disappears behind his client’s dead son in his closing argument in an insurance bad faith case. The son’s videotaped deposition is first played to the jury in which the young man talks bout the hope and survival offered by a bone marrow transplant, denied by the insurer. The actions of the defendant health insurer are detailed. Mr. Baylor then concludes simply: “I’m askin’ you, the jury, to do what is right, in your heart.”
No demands, no soaring oratory, no brilliant analogies, just a simple heart felt and genuine, even humble, request for justice.


Footnotes

[1] The Seven Deadly Sins, Society and Evil [Rowman & Littlefield, 1989] 135.

[2] C.S. Lewis, Mere Christianity [Macmillan, 1960], 99.

[3] The names and facts are fictitious and do not represent any real people. Any similarities to real people are coincidental.

Arizona’s Homeowner Protection Post-Foreclosure Anti-Deficiency Laws

By Bill Sawkiw

Arizona has several anti-deficiency laws that protect homeowners from a deficiency judgment in the event of a foreclosure.  But there are limitations to the applicability and reach of those laws.

The first is A.R.S. 33-729, which expressly limits a homeowner’s liability in the event of a purchase money foreclosure: “[I]f a mortgage is given to secure the payment of the balance of the purchase price, or to secure a loan to pay all or part of the purchase price, of a parcel of real property of two and one-half acres or less which is limited to and utilized for either a single one-family or single two-family dwelling, the lien of judgment in an action to foreclose such mortgage shall not extend to any other property of the judgment debtor, nor may general execution be issued against the judgment debtor to enforce such judgment, and if the proceeds of the mortgaged real property sold under special execution are insufficient to satisfy the judgment, the judgment may not otherwise be satisfied out of other property of the judgment debtor, notwithstanding any agreement to the contrary.”  (Emphasis added).

In addition to this statute, another affirms this same limitation on liability for such foreclosures.  It is A.R.S. 33-814(G), which prevents a lender’s possible attempts to collect after a foreclosure of a purchase money mortgage: “If trust property of two and one-half acres or less which is limited to and utilized for either a single one-family or a single two-family dwelling is sold pursuant to the trustee’s power of sale, no action may be maintained to recover any difference between the amount obtained by sale and the amount of the indebtedness and any interest, costs and expenses.”  (Emphasis added).

The Arizona Supreme Court has examined the legislative history behind these anti-deficiency laws when ruling on foreclosure-related cases.  For example, in Baker v. Gardner,[1] the court held that a lender is prohibited from waiving its security interest in the property in order to pursue collection of the balance owed.  In reaching its conclusion, the court considered the legislature’s goal when enacting these anti-deficiency laws to protect homeowners from deficiency judgments.  In limiting the lender’s ability to collect, the court specifically held: “In our view, the legislature would not have protected homeowners from deficiency judgments but still permitted the holder of a mortgage or deed of trust to obtain essentially the same result by waiving the security and bringing action on the note.”[2] In other words, under these statutes, a lender cannot issue a purchase money mortgage, foreclose on that purchase money mortgage, then collect any other amount from the borrower.  The lender gets to keep (and eventually sell) the home or it gets the money from the trustee’s sale.  Any attempts to collect any unpaid balance owed beyond the value of the home are expressly forbidden by the anti-deficiency laws.

There are, however, restrictions to the protections of these anti-deficiency laws.  For example, you cannot be the cause in the diminution in value of the property.  And these laws typically do not apply to home equity loans obtained after your purchased the home.  But generally speaking, if you own a single-family or two-family home on less than two and one-half acres, these anti-deficiency laws likely protect you from any post-foreclosure unpaid balance owed on a purchase money mortgage.  If you have any questions about whether these anti-deficiency laws protect you, contact one of the attorneys at BWG.


Footnotes

[1] See Baker v. Gardner, 160 Ariz. 98, 770 P.2d 766 (1988).
[2] Id. at 101-02, 770 P.2d at 769-70.