It’s Bonus Time ! Top Ten Tips for Business Owners to Follow Regarding Their Employees.

Originally posted on The Florida Litigator:

This is the time of year where companies begin the process of evaluating their employees, their businesses and their future.  It is often a period in the life of a company where managers take stock of themselves and analyze those employees who have excelled and those who have not.   Compensation is often tied to an employee’s ability to excel during the course of the year and there are several things which companies can do in order to maximize employee efficiency and insulate themselves from future legal problems.  Here are some time worn techniques for preventing legal problems with your employees during  the coming year.

  1. Provide Written Job Descriptions.

The first question a new employee will ask is – what am I supposed to do?  This is a reasonable question and one which an employer should be readily able to answer.   An employee’s job should not be a guessing game.  …

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The Perils of A Family Business or How to Save Thanksgiving

Originally posted on The Florida Litigator:

Imagine that you are sitting at the Thanksgiving dinner table with your family—aunts, uncles, cousins, and distant relatives from out of town.  Someone at the table cavalierly asks: “who do to plan to vote for in the next election?”  World war III breaks out while the family members debate whether Obama or Romney is right for the county.

Now imagine that these same people are shareholders and employees in your family business.  If these people cannot agree among two candidates about whom to vote for, how they will be able to agree about the joint management of their financial affairs?  The answer is – only with great difficulty.  This is one reason why so many family businesses, and so many families, end up in costly litigation.

Here are some observations, from someone who has litigated many intra-family disputes, about what might have been done to avoid a nasty and expensive…

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Summary Judgment

Originally posted on The Florida Litigator:

Sometimes lay people and even practicing lawyers do not seem to understand what a Summary Judgment is and how to get one.   In some Courts, obtaining a Summary Judgment is difficult, if not impossible.   Other Courts love Summary Judgment and use it as a mechanism to reduce case load.   This article will provide some tips about how to get Summary Judgment and how to avoid having such a motion granted against your client.

1.            Where Summary Judgment Works and Where it Does Not.

There are certain cases which do not lend themselves to Summary Judgment.   Examples of such cases include the typical negligence case, medical malpractice and cases involving the interpretation of a contract where there is an ambiguity which is required to be explained by oral testimony.   Judges are reluctant to grant Summary Judgment in these types of cases because of the likelihood of reversal.   Remember that State and…

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Social Media Hearsay Objections

Originally posted on Bow Tie Law's Blog:

Social media being offered into evidence in any case will almost always have hearsay objections if the proffered evidence is a status update, comment, Tweet, or even video.

The reason? Virtually everything on social media is a statement. Unless the social media is only a photo with no text, there is a almost certainty that any social media evidence will have a hearsay objection.

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Case in point: a Plaintiff in employment age discrimination litigation during summary judgment attempted to introduce deposition testimony from the Plaintiff about a Facebook status message from a current employee about customer complaints and that the declarant was “sick and tired” of it. Fairweather v. Friendly’s Ice Cream, 2014 U.S. Dist. LEXIS 100755, 12 fn 11 (D. Me. July 24, 2014).

The Court found the Facebook status message “problematic,” because it was made more than a year after the Plaintiff had been terminated, thus would not be admissible…

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A Document Production You Can Believe In

Roger Slade:

Required Reading Prior to my Document Production Seminar

Originally posted on The Florida Litigator:

Recent news in South Florida tells the sad story of a law firm involved in the defense of a major fraud case on behalf of a well-known local bank which was slammed with a $67 million jury verdict after trial.  If that wasn’t bad enough, after the verdict came down, it came to light that the bank failed to produce certain critical documents which plaintiff’s counsel believed would have altered the verdict and made plaintiff’s award even higher had the Jury seen them.  If you were the lawyer responsible for supervising and implementing the document production in this case, and this issue came to light after the trial, there may be only one thing left for you to do – quit your job.  How could you prevent such a debacle?  Read on.

  1. The Dreaded Document Request

There is  probably nothing that a litigator likes less than receiving the dreaded “Request…

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The Advantages of Contacting Opposing Counsel 34 Minutes After Inadvertent Disclosure of One Email

Roger Slade:

Thoughtful Article

Originally posted on Bow Tie Law's Blog:

Ahhhhhhh!!What happens when a lawyer inadvertently produces an email protected by the attorney-client privilege? A Magistrate Judges and District Court Judge orders the receiving party to destroy the inadvertently produced email.

Iowa is the home of where John Atanasoff invented the first computer in 1939. It is also the home of Federal Judges who conduct excellent legal analysis of whether an inadvertent production waives the attorney-client privilege over an email.

Defense counsel inadvertently produced a privileged email and once learning of the production, called Plaintiff counsel within 34 minutes. Pick v. City of Remsen, 2014 U.S. Dist. LEXIS 128411, at *2-4, 11 (N.D. Iowa Sept. 15, 2014).

The Plaintiff refused to destroy the email and instead offered to redact the attorney-client advice.

The Court applied the following test for determining whether a privilege had been waived:

(1) The reasonableness of the precautions taken to prevent inadvertent disclosure in view of the…

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Know Thine Enemy

“Keep your friends close and your enemies closer.” Sun Tzu

      We have spent a substantial period of time in this column discussing the importance of understanding your own client, the law and relevant Court procedure. What we have not focused on, however, is the need to understand your adversary. Ignoring your adversary, or underestimating him or her, can have drastic consequences for the fate of your case.

       By adversary, I do not mean opposing counsel; I mean the opposing party. Whether you are plaintiff or defendant, it is only the foolish lawyer who ignores who is on the other side of the case. The good news is that there are plenty of opportunities to learn as much as possible about your adversary without spending a lot of your client’s money on a trained investigator. Here are a few suggestions.

  1. Google Search

     How about starting with a Google search. While this may seem overly simplistic, it is often the easiest way to begin your analysis. Perhaps the opposing party has his or her own webpage. Perhaps they have been quoted or featured in an article in a newspaper or magazine. Sometimes, through a carefully calibrated Google search, you can learn a person’s entire history – where they went to school, where they graduated college and where they worked. Their political opinions are often featured as are there Federal campaign contributions.

     After exhausting textual information I often do an image search. I want to see what they look like. Are they young or old? What race are they? What do they like to do? Are there pictures of our adversary posing next to a new Ferrari? This could be useful, particularly if you represent the plaintiff in a case involving a substantial damage claim.

  1. The Public Records

     I like to do exhaustive searches in the public records. I want to know where the opposing party lives. Does he or she live in a cheap apartment in a bad neighborhood or do they live in a mansion on the beach This may help me gauge whether the opposing party has enough resources to withstand the litigation assault which is likely coming. Litigation is the sport of kings and it is likely that someone who lives hand to mouth will crumble before your average industry magnate.

     Criminal records are often useful. Is your adversary a convicted felon? Have they done time in prison? Wouldn’t you want to know that before you take her deposition? What about drug convictions? Will you ask him, at the start of the deposition, whether they are taking any medication?

     Does your adversary own a vehicle? Is it a beat up old jalopy or a new Mercedes? Is it owned or leased?

     How about your opponent’s interest in corporations. Does your adversary appear in the public records as an officer or director of a business ? This is important to know because, when you start your deposition, you may want to ask what businesses your adversary is affiliated with. This will give you an opportunity to see if your adversary will lie. Many people do. They tend to underplay their involvement in different businesses. It can be fun to mark as an exhibit a copy of the public records showing how many corporations they are involved with. Videotape this and watch your opponent squirm. If your opponent will lie about something as basic as what corporations they are involved with imagine what else he or she may be lying about.

  1. Linked In

     LinkedIn is great for determining a person’s past employment and future stated goals. Most people post their life story on LinkedIn without giving it serious thought as to whether that information may be subject to review and analysis by an opposing lawyer. It is great fodder to obtain a work history from LinkedIn.

  1. Facebook

     I love Facebook. Facebook provides a window into someone else’s life that you cannot get anywhere else unless you actually know them personally. It is great for finding out where someone lives and who their friends are. When your partners at the law firm complain that you are spending too much time during the course of the day on Facebook tell them, with a straight face, that you are doing research !     

     Just like it is important to understand your case and the law, it is also important to understand your adversary. Understanding your adversary could help you serve process, formulate discovery requests and determine whether you will be able to collect on your judgment. And it all may be there, right in front of you, on the internet.

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