Re: Ask Howard Treesong About Law or Lawyering
 

I'm considering hiring a professional malpractice lawyer to recover damages from my CPA. What should I be looking out for in terms of deciding whether to go forward, selecting a lawyer, etc.

I believe my agreement with my CPA states that we must go through arbitration in case of any disagreement. Do you think that I am likely to get a fair shake in arbitration?

Although these questions pertain to my particular situation, maybe they can be answered in a general way that will be relevant to anyone who has ever thought about suing someone like a doctor, lawyer, CPA etc.

Re: Ask Howard Treesong About Law or Lawyering
 

Howard, how much of current US legal system is unnecessary? For instance, the complexity of the tax code creates the need for complex tax shelter, etc. If they simplified the tax code, they could avoid a lot of the tax legal system probably without giving up too much (at least in some places). So would you agree that our society would not be much worse off if we simplified our legal system in some ways? If so, what ways would that be and how much of it do you think could be simplified?

Re: Ask Howard Treesong About Law or Lawyering
 

LOL. I just realized you weren't Howard Beale. I though a lawyer would know how to handle a thieving kid a little better.

Re: Ask Howard Treesong About Law or Lawyering
 

My opinion: Dickie Scruggs is a massive scumbag. Your thoughts?

Hypothetical: Let's say I get pulled over by the cops and they want me to do the DUI dance. I had two beers but I know I am under the .08 BAC limit. Do I dance or do I demand to be taken down to the station for a blood test?

Re: Ask Howard Treesong About Law or Lawyering
 

Let me jump in while Howard is at work:

[ QUOTE ]
I'm considering hiring a professional malpractice lawyer to recover damages from my CPA. What should I be looking out for in terms of deciding whether to go forward, selecting a lawyer, etc.

[/ QUOTE ]

Litigation can be very time consuming and expensive. Will you still be glad you're suing a year from now? what accusations are you going to have hurled back at you? Much of the time it is not worth it IMO.

[ QUOTE ]
I believe my agreement with my CPA states that we must go through arbitration in case of any disagreement. Do you think that I am likely to get a fair shake in arbitration?


[/ QUOTE ]

It depends on how the arbitrator is choses and what arbitrable body (if any) is specified, but, in general, no.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
[ QUOTE ]
this is very me specific, but im hoping you could answer anyways:

My brother is debating between law schools and has a full preacceptance scholarship offer from GWU. If he accepts the conditions is he has to go there. Im wondering 1) What can they do if he doesnt? And 2) It is that much more highly regarded than a canadian school like University of Toronto or Mcgill?

[/ QUOTE ]

I would be surprised if it weren't less regarded, generally. Looking at rankings online, it looks like Toronto and McGill are 2 of the 3 most esteemed law schools in Canada, and GWU is in the 20s in the US. Especially if he wants to practice in Canada, the Canadian schools seem like a better bet, but a free ride is nothing to sneeze at here.

[/ QUOTE ]

Yes, those were my thoughts. However because of the fact that american school put so much weight on LSAT scores (he got 171) and less weight on GPA (3.3) he has a much better chance of getting in to a tier 1 american school than the best canadian school (U of T).

Is law something where if you learn it in the states you can only practice in the states? I know quebec/montreal is very unique because we have civil law as opposed to common law. But if you learn common law its transnational as long as the other country/state has common law as well?

Re: Ask Howard Treesong About Law or Lawyering
 

The distinction between common and civil law is philosophical, not procedural.

Also civil law is more popular than common, continental Europe is all civil law. Louisiana and Quebec are unique when compared to the rest of Canada and the US, UK/Canada/US are unique compared to the world at large.

Re: Ask Howard Treesong About Law or Lawyering
 

From what I've seen, lawyering seems to be nothing more than oration, trying to make the worse argument the better, to flatter the jury, to win an argument with little regard for truth. Why should anyone respect lawyers?

Re: Ask Howard Treesong About Law or Lawyering
 

I'll put a caveat on this. I've had attorneys represent me in a few matters during the course of my life. I'll say that with all the attorneys I've retained (not that many thank goodness) I considered each one at the very least ethical. With that said we hear about crooked lawyers alot, lawyers get disbarred all the time, etc. In your opinion how prevelant are lawyers that cheat their clients by embezzling money, misappropriating funds and such? I'm not talking about stuff that's on the edge but stuff that can clearly get them disbarred and/or a criminal conviction. How hard is it to catch a lawyer that's adept at cheating their clients? What things should we be looking for and/or how might we safeguard ourselves?

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
1. Please provide your thoughts on conflict criminology strictly as it relates to crime being a busines for the state. There is, in my opinion, validity in the argument that some laws and sentencing strutures appear to be designed to ensnare and retain people in the criminal justice system.

[/ QUOTE ]

I don't generally think states have a business interest in imprisoning people, so I discount your proposition at a structural level. In contrast, I do think it benefits prosecutors to have high conviction rates and make names for themselves (e.g. Mike Nifong) and prosecutors tend, in my judgment, to take an adversarial rather than an objective view.

[ QUOTE ]
2. Your position on capital punishmet. Although I believe that people can commit acts that remove their rights, including their right to life, due to the state's inherrent inefficiency (inequality of representation, potential for outside influence, prejudice etc.) I can not support the death penalty.

[/ QUOTE ]

It's a close question. On balance, I think I support it, but I do so on deterrence grounds -- because I think there's an empirical case to be made that a threat of death deters particularly heinous conduct and may end up saving lives. I admit that this empirical argument is impossible to prove and its pure-utilitarian premises are questionable. As a practical matter, the habeas death case law is highly political, highly technical, highly abstract -- and highly costly to navigate. As a general matter, I'd leave substantial authority to the individual states to govern this issue as they see fit. And I don't feel strongly about this one.

[ QUOTE ]
3. What is the least amount of money over which you would kill someone?

[/ QUOTE ]

There isn't any. No amount of money would change my life sufficiently to even consider this proposition.

[ QUOTE ]
4. Generally speaking, with regard to the legal system as a whole (including the criminal justice system), I think that most of the people working in the profession, most of the time, are doing the right thing. Agree/disagree?

[/ QUOTE ]

I generally agree. I don't think lawyers are categorically different from accountants, engineers, firemen, or anyone else in this regard.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
2: Do you watch Law & Order (or have you ever)? If so, what is your general impression of the courtroom scenes, specifically the motions/objections/etc. that are made?

[/ QUOTE ]

Mrs. T used to love L&O and so I've watched it from time to time. The hearings are abbreviated but surprisingly close in terms of articulating issues that a judge might actually use to decide an issue. They're more theatrical than reality, but not absurdly so. In general, I'd say they're A-. Most real-life arguments cover more than one argument as to why one side is right; my recollection is that L&O boils these down to single-issue arguments.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Quick Noob Q: Thoughts on Gerry Spence and Cochran, probably the two most famous lawyers of our generation?

[/ QUOTE ]

I've read Spence's book but have never met him nor seen him live. He seems new-agey but wildly charismatic to me, and has historically been highly effective. Cochran (and his partner Carl Douglas) were witnesses in arbitration across from me. I crossed Douglas, who is a lying sack IMO. I thought Cochran was also disingenuous, but he was also very smooth, very careful and very charismatic. In fact, I liked him personally even though I thought he did not testify honestly. I did not cross Cochran; one of my partners did.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Why do you think juries are so pro-prosecution in criminal cases? I've seen statistics that indicate conviction rates of 75%+ in some jurisdictions. Given how easy it is for prosecutors to get indictments, There should be a LOT more aquitals in our court system. It's very very difficult to prove that a person did something beyond a reasonable doubt. Especially given constitutional limitations and rules of evidence. Just looking at the design of the U.S. criminal justice system on paper, I would guess the conviction rate should be somewhere between 15-25%.

I think the two factors that contribute most to this phenomenon are the facts that sample of the population that serves on criminal juries is skewed towards excessively pro-government people, and the police/prosecution have exponentially more resources at their disposal than your average defendant.

Any thoughts on this?

Do you think there's a chance that this bug in the system can/will be fixed?

[/ QUOTE ]

I think this has much more to do with the fact that prosecutors are largely overwhelmed and thus only choose to prosecute cases they think they can win, and plea everything else. The one exception is, I think, high-publicity cases in which prosecutors might generate headlines.

I'm actually surprised that conviction rates aren't higher than 75%. I was on one criminal jury and there was absolutely no doubt in my mind that the guy was guilty. The prosecutor wasn't very good, but he sure did have an excess of evidence.

Re: Ask Howard Treesong About Law or Lawyering
 

Howard,

How much does Joe Jamail rule?

http://www.youtube.com/watch?v=ZIxmr...eature=related

(PS: The correct answer is "a lot")

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
this is very me specific, but im hoping you could answer anyways:

My brother is debating between law schools and has a full preacceptance scholarship offer from GWU. If he accepts the conditions is he has to go there. Im wondering 1) What can they do if he doesnt? And 2) It is that much more highly regarded than a canadian school like University of Toronto or Mcgill?

[/ QUOTE ]

If he wants to practice in the US, he'd better go to GWU. Very few firms of which I'm aware hire foreign nationals to work here in the US. If he goes to GWU (where my dad taught for several years late in his career), he had better finish high up in his class, top quarter to have a wide breadth of options on graduation. GWU is somewhere about 25th or so, although as a poster noted, is trying hard to move up.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Howard,

How did you come to make the transition from big firm to in-house? Was your new employer a former client? How does being an in-house lawyer compare to being a partner at a firm?

[/ QUOTE ]

I did not develop my own client base, and I thought my upward track was coming to an end. In my particular situation, the office expanded more rapidly in LA than it should have, and was thus vulnerable. I might have been able to survive long-term, but I was unhappy spending my time spinning wheels trying to generate new clients. My then-firm certainly represented my current company, although I personally did not. There were many close connections, though, and I have (and will continue to) hire my old firm.

I'd say that the range of issues I confront now is far wider, even though I had a pretty broad commercial practice. I have a much much much higher caseload, all but a few of which I do not dig into particularly deeply. In general, I'd say the current job is broader and somewhat shallower. I've given up the courtroom work and have gotten the ability to call the shots. It's an interesting trade; so far, so good.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
HT,

Long time no talk, how the heck are ya??

1. If you're arrested or brought in for questioning for something you didn't do, how long before you should ask for your lawyer?

2. Same question, but you DID do it.

[/ QUOTE ]

On (2), immediately. Prosecutors cannot be trusted to be objective, and you must assume the worst. On (1), I would personally retain counsel immediately for any kind of felony. I would like to think that being up-front with prosecutors is the right move, but Nifong is a good counterexample to that: he simply didn't care that the lacrosse team just didn't commit any crimes. Dealing with that on your own is really tricky, so I'd only try dealing with it on my own if the downside were pretty minor.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Howard,

I'm a young attorney, just licensed, and your last job as a civil litigator is exactly what I want to be doing in 5-8 years.

In terms of preparing myself for that, would you say that a job in the DA's office, the City Attorney's office, or a small general practice civil firm would be best?

[/ QUOTE ]

Wow, that depends. I think I need to know more. There's great variation among each category, but I think I'd tend towards DA. The one downside of starting out that way is that you don't have the time and resources to litigate things slowly and carefully and find your way -- it's more slapdash, which can cause you to learn some bad habits. Small firm can be OK, but you have to find the right spot --quality in terms of care and thought and discipline really does matter.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Howard,

How much does Joe Jamail rule?

http://www.youtube.com/watch?v=ZIxmr...eature=related

(PS: The correct answer is "a lot")

[/ QUOTE ]

Jamail is an arrogant jerk. He can be effective, but his conduct is out of line here and elsewhere. I've seen that video before. Had I been defending this witness, I'd terminate the deposition and certify it.

I do love the witness's line: "Are you threatening to fight?"

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
What would you advise this guy to do? He ignored a jury summons and now has his own court date on misdemeanor charges.

[/ QUOTE ]

I'd advise him to retain counsel and stop ignoring jury summonses in the future. I'd also tell him to be sure and pay his taxes on time.

Re: Ask Howard Treesong About Law or Lawyering
 

HT,

http://www.forbes.com/lists/2006/10/H8XP.html

Joe says [censored] YOU FATBOY, I HAVE 1.4 BILLION DOLLARS

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
HT,

http://www.forbes.com/lists/2006/10/H8XP.html

Joe says [censored] YOU FATBOY, I HAVE 1.4 BILLION DOLLARS

[/ QUOTE ]

Just so. I didn't say Jamail wasn't rich -- he made, I think, his first 300 million on a contingency fee in Texaco v. Pennzoil. Still, he's an ass. His questioning really is out of line, and his posturing rudeness is just disgusting.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
I think this has much more to do with the fact that prosecutors are largely overwhelmed and thus only choose to prosecute cases they think they can win, and plea everything else.

[/ QUOTE ]

So, if criminal defendants stopped entering into plea bargains with prosecutors, you think the conviction rate would go WAY down? Why don't more people just take their chances at trial? If a defendant has 10% chance of getting 5 years and a 90% of walking, why would he accept any plea that would give him a criminal conviction on his record for the rest of his life?

It just seems like something is really off with the system. The notion that it would be better for 100 guilty men to go free than for 1 innocent man to go to jail seems to have disappeared completely from our court system.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
I'm considering hiring a professional malpractice lawyer to recover damages from my CPA. What should I be looking out for in terms of deciding whether to go forward, selecting a lawyer, etc.

I believe my agreement with my CPA states that we must go through arbitration in case of any disagreement. Do you think that I am likely to get a fair shake in arbitration?

[/ QUOTE ]

I've had mixed experiences with arbitration but am generally down on it. I tend to take great care in selecting an arbitrator and in your case would want to make sure he's not an industry captive. I thought the quality of arbitration in an NASD (National Association of Securities Dealers) I did was very poor; our ICC (International Chamber of Commerce) arbitrator was excellent.

If I were in your shoes, I'd think very seriously before I initiated a claim. Magnitude is obviously important, but causation equally so. Litigation of any type is rarely as clean-cut as it first appears, is full of heartache, stress, and is only occasionally worthwhile. I know these are general observations, perhaps bordering on platitudes.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
[ QUOTE ]
I think this has much more to do with the fact that prosecutors are largely overwhelmed and thus only choose to prosecute cases they think they can win, and plea everything else.

[/ QUOTE ]

So, if criminal defendants stopped entering into plea bargains with prosecutors, you think the conviction rate would go WAY down? Why don't more people just take their chances at trial? If a defendant has 10% chance of getting 5 years and a 90% of walking, why would he accept any plea that would give him a criminal conviction on his record for the rest of his life?

[/ QUOTE ]

Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas. Prosecutors would probably get a bit sloppier as they had even less time to prosecute cases that they do try. And it's not possible for criminal defendants to organize in the way you suggest for zillions of reasons. But in theory, I think you're right.

[ QUOTE ]
It just seems like something is really off with the system. The notion that it would be better for 100 guilty men to go free than for 1 innocent man to go to jail seems to have disappeared completely from our court system.

[/ QUOTE ]

I don't think there's much of that principle that exists now, if it ever did. And while it's appealing at some level, I'm not sure it's right, given the additional crimes that those 100 free guilty guys are likely to commit.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Howard, how much of current US legal system is unnecessary? For instance, the complexity of the tax code creates the need for complex tax shelter, etc. If they simplified the tax code, they could avoid a lot of the tax legal system probably without giving up too much (at least in some places). So would you agree that our society would not be much worse off if we simplified our legal system in some ways? If so, what ways would that be and how much of it do you think could be simplified?

[/ QUOTE ]

Being a libertarian nutter, I'm right with you here. The tax code is horrifically complicated; federal acquisition regulations (called "FAR") are perhaps as bad. They're dense, abstract, onerous and ambiguous. I don't know the overall costs for compliance with these and other regulations except to say that the number is massive -- and much of it the senseless result of partisan politics.

One anecdote, however, illustrates the idiocy of government regulation. In its wisdom, the FDA implemented a regulation saying that juice manufacturers could claim "no sugar added" on their products so long as the added sugar wasn't cane sugar. My client promptly started buying grapes and stripping them down to raw sugar and adding that. Voila! From a health perspective, my understanding was that grape juice concentrate is no different than cane sugar, and it was certainly no different from a taste perspective. But the stuff could then be marketed entirely differently. Taste and health profile was the same, but the cost was quite a bit higher.

I got involved because the client needed a southern-hemisphere source of grapes to ensure a year-round supply, and entered into a contract with an Argentinian company. The Argentine guys then promptly defrauded my client out of many millions of dollars and shipped product that was fermented. Litigation and many amusing war stories ensued.

I have no idea how to quantify the problem, however -- and this is just a tiny, tiny example.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
LOL. I just realized you weren't Howard Beale. I though a lawyer would know how to handle a thieving kid a little better.

[/ QUOTE ]

Very nice. Beale is an old RGPer and I certainly know of him from there, but I wasn't aware of the his problems with a thieving kid. I'm surprised he hasn't asked for advice from his local Asian massage parlor.

I think this may be the first time I've ever been confused for Howard Beale.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
My opinion: Dickie Scruggs is a massive scumbag. Your thoughts?

[/ QUOTE ]

Let's just say that I thought his position on the Katrina cases was horrible for our society in the long run. Contracts and the certainty of obligations really do matter. Insurance companies are no shining lights -- and I dislike many of the players in that industry -- but I thought Scruggs' position simply ignored critical limations in insurance contracts and was tantamount to theft. I don't know him personally nor do I know anyone that does. If he's guilty of the conduct charged in the indictment then he is absolutely a scumbag.

[ QUOTE ]
Hypothetical: Let's say I get pulled over by the cops and they want me to do the DUI dance. I had two beers but I know I am under the .08 BAC limit. Do I dance or do I demand to be taken down to the station for a blood test?

[/ QUOTE ]

I'm a total layman on this issue. I think my own inclination would be to go for the blood test, on the theory that it's most likely to be accurate (as compared to breathalyzer or the dance). But this precise issue is why I call a car service when I'm drunk.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas.

[/ QUOTE ]

I was thinking more about the individual level than the systemic level here. You seemed to be saying before that prosecutors tend to enter into plea agreements in the cases that they are most unlikely to win at trial. Even if the plea deal encompasses very little jail time (or even none), the lifelong stigma of having a criminal conviction on one's record should push toward more defendants "gambling" on a trial. Obviously this doesn't apply to people that already have criminal records (maybe these people constitute a huge portion of criminal defendants?), but it just seems that from a game theory/economic perspective, something is WAY off in the criminal justice system. Somehow, the game is rigged.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
From what I've seen, lawyering seems to be nothing more than oration, trying to make the worse argument the better, to flatter the jury, to win an argument with little regard for truth. Why should anyone respect lawyers?

[/ QUOTE ]

Oration is the visible tip of a much deeper and more complicated iceberg. Good lawyering involves finding out and understanding facts, doing accurate risk assessment, and organizing highly complex processes. Truth matters quite a bit, although the adversarial process isn't necessarily the best way to root it out. In my case, I'm not a high-charisma guy, and typically rely on more thorough and careful analysis to carry the day. That's also why I was mostly a defense lawyer. If I had to characterize in very very broad strokes, I'd say the plaintiffs' bar rates higher in charisma, while the defense bar rates higher on the analysis scale. That's certainly not a universal truth, of course.

At the edges, your criticisms have merit. At root, I don't think they accurately reflect what most litigators do, setting aside all the other types of lawyers out there.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
I'll put a caveat on this. I've had attorneys represent me in a few matters during the course of my life. I'll say that with all the attorneys I've retained (not that many thank goodness) I considered each one at the very least ethical. With that said we hear about crooked lawyers alot, lawyers get disbarred all the time, etc. In your opinion how prevelant are lawyers that cheat their clients by embezzling money, misappropriating funds and such? I'm not talking about stuff that's on the edge but stuff that can clearly get them disbarred and/or a criminal conviction. How hard is it to catch a lawyer that's adept at cheating their clients? What things should we be looking for and/or how might we safeguard ourselves?

[/ QUOTE ]

I'd say very few. I've had literally hundreds of litigation opponents and can't think of even one that I thought was corrupt to the bone. Then again, my firm tended only to get involved in serious cases; as one high-school friend of mine who had his own practice said, I practiced "in rarefied air." I think most of the problems with counsel come from guys who overcommit themselves or who have alcohol or drug problems. Just to use an example, I thought Cochran was willing to lie at the drop of a pin --but he was lying on behalf of his clients. At the same time, I thought he was an effective advocate who thought that what he was doing was for the greater good. And I have no reason at all to think he ever stole a dime from his own clients.

I think the sort of thing you're talking about is very hard to detect.

That said, I think there are quite a few lawyers that will misrepresent facts or law to a court, either out of laziness or short-term greed. That's just doing a poor job, though, and is really different from what you're talking about.

For a rather ridiculous example of what I'm taling about, see the link here:
http://online.wsj.com/public/resourc...aw_nycourt.pdf

I applaud anyone who has the fortitude to wade through that entire opinion. The lawyer it discusses at length is just what I'm talking about -- hyperaggressive, disingenuous, unethical. But I have no reason to think she'd embezzle or steal from her clients: it's really just a horrifically twisted sense of advocacy.

Thank You Howard (n/m)
 

.....

Re: Ask Howard Treesong About Law or Lawyering
 

HT? no [img]/images/graemlins/heart.gif[/img] for my questions? [img]/images/graemlins/smile.gif[/img]

Re: Ask Howard Treesong About Law or Lawyering
 

Howard,

I am a 2L at a school slightly outside of the T14. If I want to practice commercial law and am not interested in BIGLAW, what would you recommend for the job search?

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
[ QUOTE ]
Yes, although your premise is unrealistic. As prosecutors got even busier than they already are, they'd offer better-quality deals to defendants, giving defendants more incentive to accept pleas.

[/ QUOTE ]

I was thinking more about the individual level than the systemic level here. You seemed to be saying before that prosecutors tend to enter into plea agreements in the cases that they are most unlikely to win at trial. Even if the plea deal encompasses very little jail time (or even none), the lifelong stigma of having a criminal conviction on one's record should push toward more defendants "gambling" on a trial. Obviously this doesn't apply to people that already have criminal records (maybe these people constitute a huge portion of criminal defendants?), but it just seems that from a game theory/economic perspective, something is WAY off in the criminal justice system. Somehow, the game is rigged.

[/ QUOTE ]

You're ignoring that prosecutors do not randomly indict people off the street. While they could indict ham sandwiches they generally spend their time indicting people who they believe committed crimes. The unusually high conviction percentage can be explained by selective indictment.

You've failed to identify a problem. The cases that prosecutors are truly most unlikely to win at trials are cases where the defendant is clearly innocent. Those people aren't offered plea bargains, they get charges dropped.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
HT? no [img]/images/graemlins/heart.gif[/img] for my questions? [img]/images/graemlins/smile.gif[/img]

[/ QUOTE ]

Not at all: I'm mulling yours over. I didn't like the answer I typed out and want to consider it a little more.

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
I did not develop my own client base, and I thought my upward track was coming to an end. In my particular situation, the office expanded more rapidly in LA than it should have, and was thus vulnerable. I might have been able to survive long-term, but I was unhappy spending my time spinning wheels trying to generate new clients. My then-firm certainly represented my current company, although I personally did not. There were many close connections, though, and I have (and will continue to) hire my old firm.

[/ QUOTE ]

Knowing what you know now, what, if anything, could you have done early in your career to better position yourself later on on the business development front? Or more concretely, what advice would you give to a young lawyer who is concerned about having problems in that area later on?

Re: Ask Howard Treesong About Law or Lawyering
 

[ QUOTE ]
wrt the MSFT anti-trust case like, 8 or 9 years ago? It was about MSFT bundling IE with Windows versus people having to pay for Netscape. I didn't understand why MSFT lawyers never presented the case as a water company offering water freely available to drink as part of your water bill (IE) versus people buying bottled water to drink (Netscape). No one's ever sued the water company for giving away water that people could buy... That analogy seems apt to me and I don't understand why it wouldn't be applicable...?

[/ QUOTE ]

Other than the main allegation you articulate above (which is called a "tying" claim because the downstream product is "tied" to a monopoly in the upstream market), I didn't follow much of the Microsoft antitrust litigation. I always thought that tying claims shouldn't create antitrust liability unless it can be shown that consumers are hurt, as Robert Bork explains in his fine book "The Antitrust Paradox." I don't know why Microsoft didn't pitch it the way you say, although to me that's reflective of a much deeper problem than just their approach to it.

[ QUOTE ]
Frivolous lawsuits (& the costs of defending/settling them) are oftentimes identified as a key driver of insurance premiums. I don't expect that you to be subject-matter-expert in this space, but from your view of the elephant, are they? If so, are there any process/procedural "fixes" you could put in place to curtail them? I've always thought that instead of capping the amount you could win in a lawsuit, you should fix the % that a lawyer can earn off medical claims (tho I think you might create a problem where lawyers will only cherrypick the easiest/most profitable cases) Your thoughts?

[/ QUOTE ]

I don't do med mal. But my company certainly makes a number of industrial/household products on which we get sued all the time. I can't of course reveal particular numbers, but I can say that the cost of defending frivolous suits is not a big percentage of our actual COGS -- without looking, it's got to be well under 1%. I suspect the lawsuit defense number is going to be higher in the medical service space, just because the causation is messy and the result of service is death much more often.

The British system seems to cut down on the number of frivolous lawsuits. There, the loser must pay the winner's fees -- and post security in order to proceed with a case to ensure that defendants can recover. Empirically, that system will cut the number of bad lawsuits, but it will also cause some number of meritorious suits to never be filed. I don't know that anyone has tried to do a rigorous study of the impact of that system change on either insurance costs or general efficiency. I also suspect that such a study would be well-nigh impossible.

Caps on punitives and non-economic damages (i.e. pain and suffering, as opposed to actual out of pocket medical costs) seem like reasonable answers. I think many states have contingency-fee caps (my recollection is that California's is 40%, though, so it's not much of a cap) already.

Hope this answers at least part of it.

Re: Ask Howard Treesong About Law or Lawyering
 

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Knowing what you know now, what, if anything, could you have done early in your career to better position yourself later on on the business development front? Or more concretely, what advice would you give to a young lawyer who is concerned about having problems in that area later on?

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Remember that every single professional contact you make is a future potential client, including your opponents. There's no reason to not be aggressive, but stay entirely out of the cheap fouls business. I've had a number of opponents recommend me on cases where they were conflicted: they thought my work was strong and I was personally reasonable.

Second, start working client relationships from day one; not in an over-the-top salesy way, but rather by figuring out what it is that your firm's current clients need. What's important to them? Cost? Clear written product? Instant response time? Careful and articulate budgeting? An effective and inspiring bedside manner? After you've been working on a case for a while and have enough signature, see if you can sit down with a client and ask 'em what they really think about your work: what's strong and what could be improved. Check off on this with your senior people, obviously.

Co-workers, opponents, current clients, law-school classmates, people you meet at conferences -- everyone.

Re: Ask Howard Treesong About Law or Lawyering
 

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Morally, I'm 100% with you. The guys that did this are total scum. But I don't think animals have rights per se; I think they are property -- and the rights violation here is to the property of the animal's owner.


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So if these guys had bought the dog from a pet store and therefore had full property rights to the dog and then done this you would be OK with that?

I'm not particularly animal-righty, but I think that forbidding cruelty to animals is perhaps a necessary fence at the top of a slippery slope.

If it's OK to set fire to a dog, why not a baby? They have less cognitive function than a dog. If you allow potential value to say that a baby is more valuable of protection than a dog, what about a mentally handicapped person?

Also, if someone can have unrestricted rights over a dog, why not a person?

I may sound like I'm trying to browbeat you with argumentative questions but I am genuinely curious to hear your answers as you seem more intelligent and well adjusted than most people who espouse these views.