Total Articles: 28
Does Facebook Friendship Require Recusal?
A decision from the Pennsylvania Court of Common Pleas seems to hold that a judge who is Facebook friends with a party in a matter before him must recuse himself as a matter of course; failure to do so, in this particular case, resulted in the judge's decision being overturned. Does this mean that Pennsylvania judges will be subject to a new, lower standard for recusal?
10 things an employment lawyer never wants to hear
My friend and employee/plaintiff's lawyer, Lee Smith of Atlanta (who does not have a web page, and who neither blogs nor tweets!), has been corresponding with me about the words that no employee's lawyer ever wants to hear from a client. I thought it would make a great blog post, and I'll follow with five from the employer's side.
The lessons of 30 years as a lawyer: Don’t fight the frame
Lesson No. 8: Don't fight the frame. A jury consultant remarked to me long ago, "You can't change the facts, but you can change the story." I now understand. I have tried a lot of cases. What I know is that a lawyer can't force his client’s story on the story a juror already believes.
5 reasons for employers to "hold their fire" on dismissal of employment suits
Last week, I wrote about early motions to dismiss employment lawsuits under Rule 12(b)(6) and questioned whether they were always the best strategy for the employer. Most of last week's post simply described the differences between a motion to dismiss, a motion for summary judgment, and a trial, as background for the benefit of our readers who are not lawyers.
The ethics surrounding lawyers Facebook friending people in connection with litigation
Can a plaintiff's lawyer "friend" on Facebook high-ranking executives of a company he is suing and who he believes are dissatisfied with their jobs (therefore likely to make disparaging comments about their employer on FB)? No, not according to Ethics Opinion No. 2011-2 of the San Diego County Bar Legal Ethics Committeeissued on May 24. Why?
Court Imposes Social-Networking Policy
The Circuit Courts of Delaware County, Ohio, have adopted a social-networking policy for court employees. As reported by TheStarPress.com, the policy prohibits employees from accessing social-networking sites, like Facebook, during working time, including access with personal smartphones.
Federal Appeals Court Rejects Narrowing Summary Judgment Standard for Discrimination Cases
There is no “discrimination case exception” to the federal court standard for summary judgment, the federal appeals court in St. Louis has ruled. Torgerson & Mundell v. City of Rochester, No. 09-1131 (8th Cir. June 1, 2011). In a favorable opinion for employers, the Court rejected an argument for a narrower summary judgment standard in employment discrimination cases, instructing the district courts not to “treat discrimination differently from other ultimate questions of fact.”
Persuader Rule To Be Published
While we are only in the initial stages of reviewing it, it is a huge reinterpretation of the law and it will force disclosure of many routine communications between companies and their lawyers. It will also require disclosure of certain fees paid to supervisors or employees "for the purpose of causing them to persuade other employees to exercise or not to exercise, or as to the manner of exercising, the right to organize and bargain collectively.
Home Is Where the Nerves Are: What to Know About a Subsidiary’s Principal Place of Business When Diversity Jurisdiction Is at Stake
It goes without saying that it is vitally important to place your client in the most advantageous position at the outset of a lawsuit. For a defense attorney, the conventional wisdom is that federal court is often the best forum to defend a complex lawsuit against a corporate client. However, a defense attorney is well-advised to consider challenging federal court jurisdiction in appropriate cases. Diversity jurisdiction, of course, is a common and familiar gateway into the federal court system. However, in Hertz Corp. v. Friend, 130 S. Ct. 1181 (2010), the United States Supreme Court altered the landscape by establishing the "nerve center" test to determine a corporation's principal place of business. Although this test clarifies the often-confusing standards previously used by various courts across the country, a defense attorney needs to understand the impact this case has on its corporate client, especially a corporation with either a geographically decentralized management structure or a subsidiary that is closely controlled by an out-of-state corporate parent. This article discusses the latter type of corporate relationship and considers the tactical options for an attorney who either represents such a corporation or is defending against the claims brought by that corporation.
A question defense lawyers always should ask in voir dire
In voir dire, a defense lawyer always should ask the venire whether it is more important to them as potential jury members to follow their personal ethics or to follow the law.
Greedy lawyers, toxic employees, heavy-handed government, and other bad luck.
In honor of this Friday the 13th, here are some "unlucky" news items from the employment law world:
Evil, money-grubbling lawyers (is that redundant?) who rip off their clients. This morning, I re-tweeted an article from Forbes on "nine ways lawyers inflate their bills." Some of the alleged practices are astounding to even me, a lawyer: charging clients for use of conference rooms when the clients are meeting with the lawyers (!!!), charging for time spent reviewing bills (whaaaa?), having lawyers do photocopying and other routine tasks so they can bill the client $200+ an hour for it . . .. Why any client would tolerate this is beyond me. There are plenty of good law firms out there who will bill honestly with no hidden charges. Don't put up with it!
Legal Ethics and Lawyers' Use of Social Media
Readers interested in the various ethical implications relating to the use (and nonuse) of social-media by legal professionals also may be interested in a just-published law review article on the topic.
Brevity is the soul of a good speech
Short talks are the best talks. They are more focused and thus make a greater impact. In turn, listeners remember them. Christopher Witt, in collaboration with Dale Fetherling, makes this point in "Real Leaders Don't Do PowerPoint: How To Sell Yourself and Your Ideas."
5 Ways Employers Make Plaintiffs' Lawyers Very, Very Happy
The point of the article was that, although this seems to be a legitimate ground for termination on its face, it really isn't because everybody surfs the internet at work. Therefore, terminations for this reason make John very happy because he can argue that his client was singled out for a discriminatory or retaliatory reason.
Judge Obtains Protective Order Based on a Tweet
Ive posted previously how an employees social-media content can be used to show his violation of a non-solicitation agreement. Weve also written about blog comment used as evidence in a Deceptive Trade Practices claim. Family-law practitioners report that Facebook is their primary source of online evidence in divorce cases. And there are even a few cases in which courts have held that a friend request constitutes contact for purposes of a no-contact order. But a recent case from Arizona puts yet another spin on the use of social-media activity as the basis for a lawsuitin this case, the basis for a protective order.
If You Have a Choice, Would You Bifurcate Punitive Damages?
That was a question I was discussing with a colleague Friday just before we gave a seminar presentation on Things that Employers Do to Make Juries Mad, and Pay for it with Big Verdicts. Fortunately in our case it was purely hypothetical.
Trying the Court's Patience Instead of the Case: Common Litigation Mistakes.
Trying the Court's Patience Instead of the Case: Common Litigation Mistakes
When "inside" Witnesses Support the Other Side -- Recipe for an MDV.
In a speech I have given about trying employment law suits, one of the first points is that not all lawsuits should be tried. And one of the things that would make me look twice is if there were a key witness, who appeared to have really good inside knowlege, who is not supporting my story.
Supreme Court Provides Guidance for Businesses Wishing to Avoid Unfriendly State Courts.
Businesses often wish to avoid litigation in unfriendly state court forums. For that reason it is important to know when removal is possible so that cases can be transferred automatically from state court to federal court, where judges are appointed for life rather than periodically elected by local citizens. Until recently, there was no way to be certain about whether removal would be possible because the federal circuit courts did not all agree about how the law regarding corporate citizenship for purposes of removal jurisdiction should be applied.
Lexis-Nexis Brings Cases to the iPhone.
Thanks to iPhone J.D. for alerting us to this new app from Lexis Nexis. Lawyers, you can now get your case law on the go. According to iPhone J.D.,s thorough review, the app doesnt yet give us access to statutes (odd) but it is free, which is a good thing.
Judge Tells Lawyer to Follow Guidelines and Start Preparing Better Documents.
I continue to be amazed by some of the less-than-best writing practices of my friends and colleagues. Many of these practices relate to the ways in which they format documents. I recognize that many of these practices derive only from habitnot bad intentions. But that doesnt make them any less annoying. And what makes them more annoying is the irrational devotion they garner.
Judges in South Carolina May Have More Friends Than Judges in Florida.
The following is an advisory opinion issued in October by the South Carolina Advisory Committee on Standards of Judicial Conduct that addresses the use of social-networking sites by a magistrate judge:
Is Summary Judgment In Employment Cases A Myth?
Companies these days usually realize the importance of
summary judgment in employment litigation. In fact, some employers call the summary judgment
stage the "real trial," since if they lose at that stage, they most often will settle the case before it is
tried before a jury. But is summary judgment winnable any more?
2009 Holiday Gift Guide: Technology Edition.
The 2008 Holiday Gift Guide was so popular, Ive been waiting all year to revisit the topic in improved form. This is the first part of the Guide and includes all of the technology that your favorite lawyer (or other thinking professional) could possibly hope to receive this year. Happy gifting!
3 Reasons to Check the Court Rules Before Filing that Document.
Bad things can happen when you fail to proofread. For example, I previously wrote about surprisingly severe consequences that resulted from less-than-perfect legal filings. (See 3 Reasons to Proofread that Document One More Time). Little did I know how common these stories actually are. Apparently, the longing desire for better writing is a popular sentiment. Here are a few recent stories demonstrating the trend:
Court Rules No Misconduct Where Juror Friends Plaintiff After Trial Ends.
Ah, Facebook in the courtroom. It's a relationship that appears to have a long and tumultuous future ahead.
Summary Judgment Standard Requires Court to View Evidence in Light Most Favorable to Non-Moving Party.
Litigation often ends when one party files a motion for summary judgment, asking the court to determine that there is no issue of material fact for the jury, and asserting that a decision can be made in its favor based solely on the legal issues. In reviewing a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party. Recently, the 2d U.S. Circuit Court of Appeals reversed summary judgment for an employer in an age discrimination case, holding that the lower court failed to construe the evidence in the light most favorable to [the employee] and to draw all permissible inferences in [his] favor.
Lawyers as Employers- Part 1.
Lawyers are focused on the demands
of practicing law and running
their practices. Often, they do not
have time to dedicate to managing
their employees. And, in fact, some
lawyers may not see themselves as
employers. However, the success of
any business, including law firms, is
tied directly to its employees. Competent
and professional employees are
critical to a firm's ability to produce
quality work and keep good clients.
