West Coast Law Journal

Law Tech: JD Supra

2009-05-20T09:29:00.000-07:00

The JD Supra website is a good place to find articles about specific legal topics, legal briefing and pleadings, and case law, as well as to learn a bit more about a lawyer's practice. A registered user of the site can upload documents by category or type and posted documents are searchable and can be found on the Web; creating a repository of legal documents with an internet cast. According to the website owners:

JD Supra lets you create an impressive online portfolio of your articles, newsletters, alerts, court filings, and presentations in minutes. Then, we help you get noticed (by prospective clients, colleagues and the media), so you can concentrate on doing what you do best – great work!

A single user or firm can post documents and create a profile for free but they can also pay a registration fee to be able to post contact information and to employ the site for more powerful marketing purposes. A "widget" for JD Supra can be found on the lower sidebar of this site.

Law Tech: More Reports About How Technology Will Change The Practice of Law.

2009-04-02T21:40:00.000-07:00

The news from recent legal conference(s) focusing upon new technology and featuring authors/speakers such as Richard Susskind is that technology will fundamentally change legal practice and the ways legal services are provided in the future. However, this information, including Mr. Susskind's message, somehow doesn't seem that new, but rather, for the most part, recycled. Yes, we have new forms of and uses for communication technology, but will these technologies necessarily ease conflict, promote economy (e.g., enable us to focus upon preventative law) or result in a lower profile for law as some are saying? Mr. Susskind is also unclear about precisely what legal services he is talking about. The widespread use of new technologies in response to changing social times will no doubt create some change in all areas of social and business life. But, in the process, a host of new issues and accompanying laws will be created that will require resolution by more old-fashioned means, such as litigation in our newly wired courts. I am reminded of Jeremy Rifkin's writings on social entropy and conclude this post with some quotes from his 1980 book Entropy, A New World View as food for thought:

"...every technology ever conceived by the genius of humankind is nothing more than a transformer of energy from nature's storehouse. In the process of that transformation, the energy flows through the human system where it is used for a fleeting moment to sustain life (and the artifacts of life) in a no equilibrium state. At the other end of the flow, the energy eventually ends up as dissipated waste, unavailable for future use.''

Rifkin continues: "The next time a technician, politician, or businessman tells you he or she can eliminate the secondary problems associated with a particular program, product, or process with better planning or better leadership or better design, think about the second law. It is true that the secondary disorders caused by a particular technology can be temporarily solved by the application of new technology. But the solution will inevitably result in even greater disorders.''

We need new technology to streamline and ease communication and the sharing of an increasing amount of information, as well as to allow existing institutions to accommodate more work. However, a view that the increased use of new technology will somehow reduce or materially alter the role of law or legal practice seems counterintuitive. It may well be that just the opposite occurs: that rapid adoption of technology in society and law practice will force everyone including practitioners of the law to step back, slow change, and return to or strive harder to maintain the tried, the more predictably stable and sustainable means and methods of maintaining order and resolving disputes in our world.

Law Tech: Ideas to Insure Innovation?

2009-02-10T10:21:00.000-08:00

The article "50 Ways to Foster a Sustainable Culture of Innovation" by Mitch Ditkoff contains some ideas for building environments helpful to innovation. It seems like people in all sectors of our society are encouraging creativity as the economy struggles even if their not sure what form(s) it should take. A speech delivered by new U.S. Treasury Secretary Timothy Geithner today emphasized that economic strength is derived from 'the doers, the makers of things' and 'the innovators who create and expand enterprises.' The popularity (or necessity) of the concepts of change and innovation has also hit the law and the legal profession. I notice that large firms especially are touting new departments and expertise in all things 'green'. The same firms are mostly downsizing while trying to figure out how to best serve and attract new business.

Another thing I find interesting is the number of technology and legal theorists predicting profound changes in how legal services will be provided in the near future because of, in large part, new technologies. I'm wondering whether these voices might be sourced in personal disenfranchisement from conventional systems or by a desire to market the technology. In general, however, I am somewhat skeptical about 'timing' as, among other things, I have been listening to debates about the use of cameras in the courtroom for over two decades now. Recently, however, federal judges have allowed journalists to cover court proceedings using Twitter, so, maybe new technology is gaining ground faster.

Nonetheless, there are some antithetical differences (purposes and goals) between the law and engineering/technology that often mar attempts to join them in theory or practice. It seems that law is designed in many respects to slow innovation in order that society can organize and stabilize itself in the midst of change. Also, as society becomes more complex (more information and more technology) more law inevitably follows. Finally, law practice is fundamentally a 'people' profession that often depends upon direct, face-to-face human interaction that communication technologies cannot replace. In any event, I think that Mr. Ditkoff's "50 Ways" article contains some good ideas for lawyers and anyone dealing with the legal profession in times of change and innovation (slow or fast, real or just theoretical).

Law Tech: Following California Legislation.

2009-01-24T12:23:00.000-08:00

If you would like to follow proposed new legislation in California including proposed amendments to existing statutory law try the state's website which allows users to track the progress of new legislation by searching with key words, names and/or numbers of bills.

Contract Law: Statutes That Make Contractual Relief Reciprocal.

2009-01-12T11:08:00.000-08:00

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

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

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

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

The enforcement of equity and the promotion of access to the courts are the primary reasons given for the statutory conversion of a non-reciprocal provision for attorney fees to a remedy that is mutual or in favor of all parties to a given contract.

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

2009-01-09T22:56:00.000-08:00

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

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

Law Tech: Another Opinion Concerning the Use of Social Media.

2009-01-09T22:35:00.000-08:00

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

Law Tech: The Importance of Web 2.0 Fundamentals.

2008-12-30T12:33:00.001-08:00

The term "Web 2.0" refers, in general, to the use of social media such as blogs, podcasts, video, and networks to enhance creativity, communications, secure information sharing, collaboration and functionality of the web. In regard to this post, the term is also used with specific reference to the use of such media by lawyers to communicate with other lawyers, their clients and the general public.These days it seems that most law firms/lawyers have some form of presence on the internet. There are some common themes to many of the firm sites which I'll describe as 'generic' including a photo of the firm's location usually a building or landscape portrait and a lot of short paragraphs filled with platitudes professing the specialties and expertise of the lawyers of the firm (including perhaps a reference to a Martindale-Hubbell rating and/or claim of "Super Lawyer") followed by contact information.

However, in the past several years, there has been a fairly steady move away from the 'generic' website with the advent of new internet applications which allow for more interactive forms of communication or Web 2.0. The use of blogs or 'lawblogs' by lawyers has grown significantly with companies such as LexBlog.com showing lawyers how they can supplement or literally replace their 'generic' sites with a blog combining the use of tools such as RSS ("Really Simple Syndication") feeds to share topical information and networking sites such as LinkedIn.com and Twitter.com. The growth of companies such as Google and its many application 'offshoots' such as Blogger.com also allow lawyers to create their own sites and link them to very powerful sets of software applications (e.g., Box.net).

The number of marketing professionals eager to show lawyers how to use the web has also grown exponentially. The old line marketing firms such as Martindale-Hubbell are now feeling pressure to revamp to stay with new competitors like Avvo.com and Legal OnRamp.com as traditional print-copy forms of lawyer advertising loose favor and potentially die out.

Today, it cannot be denied that if a lawyer does not know the fundamentals of Web 2.0 that his or her ability to access the law, as well as communicate with (current and/or prospective) clients will be diminished. If you are not convinced, just take a few hours and look at the variety of legal and law-related websites demonstrating how some lawyers are using internet-based applications to effectively gather, store and disseminate legal information including the marketing of their own abilities as lawyers and communicators.

Damages: Attorney's Fees as Damages in California Under Judicially-Created Exception(s) to the American Rule.

2008-12-03T13:24:00.000-08:00

In the last post, we discussed a court's authority to award attorney's fees in an 'exceptional case' pursuant to a statute that applied to patent litigation. The applicable statute thus provided an exception to the so-called 'American Rule' in the Qualcomm case. The American rule provides that absent a contract or statute providing otherwise, each party to litigation must bear their own attorney's fees. The opposing 'English Rule' of course prescribes that the loser pays.

Under California law there are also three judicially-created exceptions to the American Rule, namely, the "tort of another" doctrine, Brandt recovery and as damage recovery in malicious prosecution/false imprisonment cases. In the last edition of the California Law Journal (Litigation Section) attorneys Marc Alexander and William Hensley provide a history and note that these exceptions are applied in order to make a prevailing party whole and are not recovered as fees per se but rather are recoverable as an item of damages.

The "tort of another" exception has been articulated as follows: "A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fee, and other expenditures thereby suffered or incurred." Prentice v. North Amer. Title Guaranty Corp., 59 Cal.2d 618, 620 (1963). Alexander and Hensley point out that it is essential for a litigant in proving recovery of fees under this exception that he identify a "clear violation of a traditional tort duty between the tortfeasor who is required to pay the attorney fees and the person seeking compensation for those fees." Sooy v. Peter, 220 Cal.App. 3d 1305, 1310 (1990). In other words the recovery of attorney's fees based on the "tort of another" must actually be based upon a tort.

Another judicially-created exception concerns the recovery of Brandt fees which allows for the recovery of attorney's fees against insurance companies in bad faith actions. See Gray v. Don Miller Assocs, Inc. 35 Cal.3d 498 (1984). A year later, in Brandt v. Superior Court, 37 Cal.3d 813 (1985), the California Supreme Court held that insureds can recovery attorney's fees in an implied covenant breach action to recover contractually-based policy benefits and that in that context that the fees were recoverable as damages. Id. See also Cassim v. Allstate Ins. Co., 33 Cal.4th 780 (2004) (providing guidelines for calculating fees for 'apportioned' work for joint contract/tort issues). While Brandt also applies to insurance brokers, there has been a reluctance to extend Brandt to fiduciaries outside the insurance context (e.g., against lawyers). See Schneider v. Friedman, Collard Poswall & Varga, 232 Cal.App. 3d 1276 (1991).

The third judicially-created exception to the American Rule provide for recovery of fees as damages in malicious prosecution and false imprisonment cases as "sanctions against the abuse of process the two torts represent. See Brandt supra and Gray supra. When pursuing fees under any of these judicially- created exceptions to the American Rule, the party seeking recovery must prove the damages in their case-in-chief unless the parties can stipulate to a post-judgment adjudication of them by the court.

Similar to California, Washington courts have long followed the American Rule on the issue of any award of attorneys' fees [Rorvig v. Douglas, 123 Wn.2d 854 (1994)] finding that they are not recoverable by the prevailing party as a cost of litigation absent a contract, statute, or recognized ground of equity. Id. See also, Easterbrooks v. Abrahams, 200 Wn. 636 (1939) (fees incurred for proving wrongful eviction); Winters v. State Farm, 144 Wn.2d 869 (2001) (common fund exception). at 861.

Patent Litigation: Qualcomm v. Broadcom: A Duty to Disclose Patents to Standards-Setting Organizations and Broadcom's Recovery of Attorney Fees.

2008-12-02T22:05:00.000-08:00

In a December 1, 2008 decision in Qualcomm, Inc. v. Broadcom Corp., the United States Court of Appeals analyzed the duty of a products manufacturer to disclose patents prior to bringing suit against an adopting competitor. In review of the lower court decision of the United States District Court for the Southern District of California (Case No. 05-CV-1958), the Court's opinion helps define appropriate and legal behavior in the confusing area of standards-setting organizations ("SSO"). The SSOs are widely used in the technology industry to ensure, for example, that all lamp plugs can fit into the same electrical outlet. The lower court, in a 2007 opinion by Southern District of California Judge Rudi Brewster, punished Qualcomm for not disclosing patents to a standards-setting body and then suing adopters of that standard, namely Broadcom. The patents related to video compression technology and a standard developed by a Joint Video Team SSO ("JVT") that came to be known as the H.264 standard.

The district court concluded that Qualcomm had breached its duty to disclose certain patents to the SSO and as a remedy ordered that the patents (as well as related patents) were unenforceable against the world. Additionally, the lower court awarded Broadcom its attorney fees in the litigation (which exceeded $8.5 million) because of the pre-litigation misconduct by Qualcomm as well as for Qualcomm's misconduct (e.g., repeated false claims by Qualcomm witnesses and its attorneys and failure to produce key e-mail documents) in discovery proceedings in the case. The Court of Appeals affirmed the district court's rulings with the exception that it found the patent unenforceability remedy too broad as it was not limited to the SSO context at issue and remanded instructing the court to limit the remedy in scope to H.264-compliant products. The award of attorney's fees was made under 35 U.S.C. Section 285 which provides that a United States District Court "in exceptional cases may award reasonable attorney fees to the prevailing party". The case besides shedding some light upon disclosure duties of companies working with standards organizations, show the contentious nature of litigation concerning new and lucrative technologies and an example of abuse of the system by a win at all costs mentality. An interesting side topic concerns the use of attorney fee award(s) as a means to deter misconduct in litigation and as a means to compensate aggrieved parties which will be discussed in my next post.

Introduction to West Coast Law Journal

2008-11-30T01:29:00.000-08:00

After a few starts and stops, I have finally gone 'live' with this blog. I think that my hesitancy was sourced in some skepticism that I could add any value to an already crowded legal 'blogosphere' combined with a personal inclination toward contrarianism. Everyone these days seems to have a blog, especially lawyers. Some time ago, I also attended graduate school in journalism/mass communication where my head was filled with concepts such as the 'medium is the message' and other viewpoints suggesting that more information may not necessarily be a good thing.

However, I'd like to think that blogging will sharpen my use of information not dull it; but still I wonder about value. Recently, a reporter for the New York Times told about an embarrassed MSNBC anchor who had relied on the sham report of a fictitious McCain policy advisor named 'Martin Eisenstadt' reporting that Sarah Palin did not know that Africa was a continent. The story warns about an increase in the inaccuracy of 'news' created by tidbits of information that bounce around the internet often spread by unwitting bloggers. But, in the final analysis I decided to do this, if for no other reason, as an exercise to try and keep pace with our ever rapidly changing world and to create an archive of law that I can return to and use. Hopefully, others will use it too.

When I was a law clerk many years ago, I worked for a firm with a staff of four librarians who maintained a library covering the full floor of a building yet containing only a single computer; a small stand-alone Lexis research terminal. Instead of electronics, the librarians (along with West Publishing) were the primary collectors and disseminators of information, clipping newspaper articles topical to the firm's cases and compiling hard-copy binders of the firm's memoranda and legal briefing. Today, there is more information but gathering and storage is much easier.

In this blog, I am focusing upon litigation and other legal events occurring primarily in California, Washington and Oregon and with an emphasis on disputes concerning issues of products liability and emerging technologies. To the extent that I am able, I will compare and contrast the laws created and applied in these states. I am also interested in writing about the use of technology in law practice and in sharing information about the means by which small firm practitioners are increasing the efficiency and effectiveness of their work in litigation (especially when it involves work in neighboring states).