Monday, September 14, 2015

Mobile Mondays

Waking up to the cool weather this morning, it finally feels like the fall is here. The weekends are filled again with kids’ activities, back to school is in full swing, and the court’s calendars seem to be over-filled once again. With holidays closing the schools and leaving some light court calendars, I somehow find myself in three different boroughs of New York.

It begins in Staten Island with a dissolution matter that seems destined to take up a good part of my fall calendar, then is followed by a new client meeting in Brooklyn with an innovative company seeking to change our restaurant experiences (stay tuned…) and then finally a long time client with some collections needs in Manhattan. Thankfully, the hot summer temperatures evaporated late last week, or today would have been unbearable for all the travels.

Finishing up the travel portion of the day, it was nice to catch up with another long time client who followed me from a former job and just wanted to see how things are doing these days. So generally, it was a busy but good beginning to a week of hearings and a very acrimonious conference coming up.

Mobile Mondays are exhausting but fulfilling.

Wednesday, September 9, 2015

Even More Useless Litigation Paper

It now seems like a weekly occurrence that I get drawn into some strange vortex where someone else thinks it is more convenient to send me reams of papers when a simple email or electronic transfer would do. As we get “back to school” after Labor Day and the fall litigation season seems to ramp up, I’ve been brought in on another corporate dissolution. So far, so good. Client seems reasonable. Opposing counsel seems reasonable. Maybe we’ll have this wrapped up by Christmas?

But just when I thought this would be an enjoyable matter to work on, three boxes of documents arrived by Federal Express this morning. While I bear no animosity towards Federal Express and their ability to make money, this was a total waste of time and money. First, for the delivery man who had to carry these three boxes on the stairs to my office (I told him who to sue if he gets an injury from all these boxes). Second, for the other attorney who probably had to pay a small fortune to have three boxes of documents shipped to my office over Labor Day weekend (or, on second thought, maybe there was some kind of discount or Labor Day sale?). Third, for me who has to now convert three boxes of documents into electronic format so that they can be used by my office and the client.

The most egregious thing of all? The majority of the documents are bank documents and statements that were generated in electronic format! That means that someone sat at a computer and hit the print button repeatedly, wasting reams of paper and all kinds of time for that person to collate and put the documents into boxes. And now all that paper is simply being scanned back into electronic format to be used in the case (as an electronic filing case, to file any document with the Court, the electronic version will be necessary).

In a few years (hopefully less), this will all be an outdated mode of discovery and exchange of documents in the legal industry. Although the technology is readily available for anyone to use at an inexpensive price, for some reason, people still cling to the old inefficient methods.

Friday, September 4, 2015

The (Un)official Last Day of Summer

Although the calendar tells us that summer ends in another two weeks, the Friday before Labor Day always feels like the real end of summer. On Tuesday, schools start and it feels like Labor Day is the signal for the beginning of fall.

Even though Labor Day is as late as it can be this year, there is still essentially one-third (4 months) of 2015 remaining. So what do you have left on your agenda for the year? With plenty of time to go, is there some sort of tax planning that your accountant recommends for 2015 that would be helpful to get done before the end of the year? Depending on your industry, fall is a great time to launch a new product or start a new business. Or maybe it's time to begin the ramp up to the end of the year holidays?

No matter what you have left to do for the remainder of 2015, enjoy your Labor Day weekend, no matter how you spend it.

Monday, August 24, 2015

What's the Point of E-Filing if No One Uses It?

From the pages of the New York Post today comes another story about the inefficiencies of the legal industry and the continued use of paper when electronic options are available. In this case, it is the city law department that is claiming that the use of electronic filing in cases is not "compatible" with the organizational structure of the law division. The result is that the city has used a process server and paid $1.238 million over the past five years.

Also used in their defense, the law department is attempting to shift part of the blame back on the court system and the requirements that some (not all) judges have that a "working copy" also be filed with the Court, even in electronic filing cases. The article concludes that at some point, the state or administrative judge will force them to "get with the times", but questions why they can't be proactive on this issue.

The Federal Courts began e-filing in 2001, beginning in bankruptcy courts and then rolling the system out to the district courts and the appeals courts. With that system, it is easy to manage your cases and have access to your documents electronically.  New York has been slowly expanding its e-filing system and cases, but still retains certain types of cases that are not able to be e-filed. Instead of a system wide implementation, the e-filing is different from county to county as to what cases are e-filed and what their individual procedures are. This can cause a bit of a headache when you are e-filing to a case in a county for the first time and have to check to see their individual policies.

From their end, the judges I have spoken to about e-filing all have the same complaint: the infrastructure they are provided with is not able to give them the support they need to go to a fully electronic docket of cases.

But regardless of the hassle, the e-filing system does speed up the litigation process by allowing the fast filing and transmission of documents to the Court and opposing counsel. Opting out of the system, as the law department apparently does, hinders the ability for lawyers and litigants to take advantage of the advancing technologies. Rather than show up with suitcases full of documents, you can show up with a tablet or computer and be able to efficiently present your case and represent your client.

Hopefully it is only a matter of time until the Courts fully implement e-filing for all cases.

Friday, August 21, 2015

Sometimes All You Need is a Key

With all the technology that is available today, sometimes it is easy to forget that life wasn't always so connected. Despite all the different ways to connect, I'm locked out of my office for the most basic of reasons: I left my keys in my office.

It's been a busy week of upgrading technology and systems to get ready for September's crush of cases. With all this new technology to assist with our cases, it is something as simple as turning the key in a lock that has thrown it all for a loop. I have friends who have those fancy electronic locks that you can open with your fingerprint or your iphone. If I had one of those, I wouldn't be in this mess.

Just like any other bit of technology, those smart locks just seem like something else to be hacked. Consumer Reports even thinks they might give you a false sense of security. In fact, some nefarious person in your hallway, trying to find a way to gain access to your home with nothing more than a computer and some bad intent could be just around the corner.

Of course, that's not to say that the person in your hallways couldn't also just use a lock pick or some other tactic to pick your physical lock and break into your home. But as I stare at the lock and the keyhole, I wonder if there isn't a better way to solve this problem in the future (besides not being aloof enough to leave my keys in my office). I'm sure there's a lesson in this somewhere...

Wednesday, August 19, 2015

The Not So Lazy Days of Summer

It seems like almost everyone I deal with is on vacation, but they are making their assistants do a lot of work in their absences. The Courts seem quiet, gearing up for a post-Labor Day rush that seems to arrive each year.

For my part, my inbox has been filled up with Orders that have been long neglected, judgments that need to be entered and other documents that need to be served. But the calls and messages come from assistants, not the attorneys. The attorneys seem to have all left for parts unknown, leaving a pile of tasks for their office to complete while they are gone.

These neglected piles of documents have suddenly become important and I am magically expected to jump up and immediately handle these long neglected matters of utter importance (longest neglect: 2+ years) as if it was somehow my fault that they had been neglected. The urgency ignores the scores of letters and other documents that I have sent in the interim, trying to get these things resolved so that they wouldn’t pile up for an end of the summer tsunami of work.

So now my calendar is suddenly filled, dissolutions of companies, dissolutions of marriages and incorporations of companies. I’m not sure how they are all inter-related, but they all are somehow.

It’s like a spider-web, but the spiders left for vacation and left their assistants to tend to the web.

Wednesday, July 15, 2015

Hot Weather and Cool Contracts...

The weather continues to get warmer and I’ve found myself inside some large summary judgment motions and even a shareholder dispute. Each day it seems another ream of papers arrives with discovery responses or motions to be answered. It seems like this year, no one is taking the summer off.

All of the cases seem to have the same thread running through them: the importance of your written agreements. Step One, make sure you have a written agreement. One client to a real estate investment has been finding out the hard way that without a written agreement, you may be in for a lot of trouble down the road.

For those who remembered to get the agreement in writing, it is important to understand the agreement and keep a copy in a place where you can find it when there is a disagreement. I’ve spent far too many hours trying to track down the signed agreement for a client and, when it is finally found, it doesn’t say what the client thought it did. Unsurprisingly, the judge was not very sympathetic to the position that the client “thought” that is what the agreement said when it said quite a different thing.

And finally, there are those who sign the agreement, live with and act under it for 8 years, and then suddenly decide they no longer like the terms of the agreement. Not surprisingly, the other party is fine with the agreement and doesn’t agree to suddenly change the way things have operated for years without getting something in return. If you are worried about the agreement, the better time to bring those worries up is when the agreement is being negotiated, not nearly a decade later.

All of these approaches to contracts have led to a lot of paperwork and mid-summer headaches…

Wednesday, July 8, 2015

Pre-Trial Conferences. Lots of Pre-Trial Conferences.

July has started in earnest with a series of Pre-Trial Conferences. If it was up to me, I would schedule them all for the same day so that I don’t have to go before the same judge day after day. But unfortunately for me, the scheduling is out of my hands and so I have spent the better part of the last week in front of the same judge for a variety of conferences on different cases. At the end of the sequence, the judge even commented to me that he had seen a lot of me lately.

In the middle of my run, the clerk asked if I was back on the same cases and there was some kind of issue with the settlements that we had reached. Luckily, no, there were no issues and it was simply a quirk of the New York scheduling system that I had such a progression of cases.

So now I have finally seen my office desk again and can get ready to turn around and go down a new road in the coming weeks. Throw in some hot and humid weather, and the summer is definitely in full swing.

Wednesday, June 3, 2015

Can You Ever Really Be Out of the Office?

These days? It seems like the answer is no. 

Even though you try to celebrate a new addition to the family, the work seems to find you wherever you are...

Wednesday, May 20, 2015

Get Those Agreements in Writing

Lunch at the local pizzeria today provided some entertaining people watching. My favorite table included a group of older gentlemen who were attempting to work out some kind of deal. When they got to certain portions of the deal, they would switch languages to Italian, presumably so no one would be able to pick up on what they were dealing with.

As I finished my lunch, they were wrapping up their deal negotiations and ended their discussion the way things have been handled for years: a good and proper handshake. While probably perfectly acceptable for what they were discussing, it reminded me of a few of my open cases right now where people made similar deals, but never got anything in writing, and now are trying to get their money back.

For those unlucky souls who never get their agreements in writing, the legal process can be an uphill battle, filled with intricate legal theories to try and justify the recovery of their money or items. The flip side of that coin are those who get their agreements in writing, usually drafted by an attorney, and are able to sleep much better at night knowing that their agreement is protected.

The challenge of all of this is what to do when the amount being loaned or the value of the items is too small to justify paying an attorney to draft up a formal contract. Is it better to just go with the handshake and hope? Or maybe overpay an attorney to draft a complex agreement that costs more than the money exchanging hands? It is that precise spot that many people find themselves in, which represents a big hole in the legal market from both the attorney and client standpoints.

Even if you aren’t going to go to an attorney to formalize your agreement, at least make sure you have something in writing to show that attorney later when everything goes awry.

Monday, May 18, 2015

How Do I Pay For Medical Expenses For My Child That I've Never Seen Before?

This morning’s trial confronted one of my favorite conundrums that people seem to create: how to make someone pay for expenses they don’t know about? In this case, it was a Family Court proceeding where the Petitioner was requesting reimbursement for medical expenses incurred by the parties’ child. Seems straightforward enough, right? There’s a court order that tells the parties how much they are responsible for, the child has been to the doctor a few times in the last 18 months, so the math shouldn’t require a genius.

But then comes one of my favorite tricks in the book: the Petitioner had not told my client about the expenses. Included in the expenses were trips to the emergency room (which he was similarly never told about). However, we’re in court because he failed to pay expenses that he never knew about. Our judge seemed a little less than pleased.

So now that we got to the bottom of the magic, the next question to answer was… how would my client know to pay expenses he didn’t know about? Well, that’s simple (says the Petitioner), he knows now because she filed a case against him with the Court. So, the judge and I open our workbooks to the documents that had been filed with the court and we see yet another look of displeasure from the court.

When we review the documents and exhibits from the Petitioner, there aren’t any medical expenses listed. Maybe the Petitioner brought them with the files to trial today? Nope. Now the judge is left to figure out how to make my client pay for expenses that haven’t been seen by the court or the client.

Pure magic is needed to get to the bottom of that one. But since we didn’t have any of that today, our trial is adjourned and we’ll reconvene in the future when hopefully, from somewhere, these magical medical expenses will appear.

Wednesday, May 13, 2015

Dumplings and the Need for More Paper Signatures

It’s been a busy week of getting closure for a variety of clients. Every now and then, I end up with a run of cases that settle or go to trial and leave me with a bunch of work to close up files and get ready for the next challenges that await.

This week has included finally tracking down some missing defendants and filing some settlement paperwork with a variety of courts so that we can all move forward.

Working with one client highlighted the inefficiencies of our system where the court still required original, notarized documents to be filed with the clerk’s office. Both my client and the defendant work in the technology industry and are used to working with electronic signature protocols that are prevalent in many industries (although not yet in the legal field). So it came as a shock to the parties that we had to actually have documents physically signed in the presence of a notary public instead of their electronic certification software that they utilize (I won’t name any software because I can’t really vouch for them as effective or safe software).

The documents we needed to sign were not particularly sensitive or unique, but since the court requires it, we went through the necessary motions to get all the physical copies circulated and signed and then filed with the correct clerk. With the documents filed and the case wrapped up, the client and I had a lovely lunch of tasty dumplings where we closed up the matter and bemoaned the lack of technological acumen that still exists in the legal system.

Some day, the law will move forward and we’ll slowly embrace many of the technologies that the creative thinkers of today are creating. Until then, I’ll have another dumpling and apologize to another client for the inefficiencies in our system.

Monday, April 20, 2015

Going to Jail for Failing to Pay Child Support

The child support system gets some headlines as it has come to light that his family believes that Walter Scott was in arrears of his child support obligation, which may have led to him fleeing the arresting officer on April 4.  The New York Times has a feature article on his history with the system and the pressure the system puts on the child support payor.

While there are many cases where the parents can work out their child support obligations and provide for their children, there are also many people on the complete other end of the spectrum. There are those without a job, who are unable to pay even the most basic child support obligation imposed upon their state, and who can find themselves repeatedly hauled into court by either their ex or the state to attempt to enforce the obligation.

Those in the latter category are the focus of the New York Times article:
A 2007 Urban Institute study of child support debt in nine large states found that 70 percent of the arrears were owed by people who reported less than $10,000 a year in income. They were expected to pay, on average, 83 percent of their income in child support — a percentage that declined precipitously in higher income brackets.
In addition to those two categories, there is another large category that I have found myself involved in over the years: the parent who can pay child support, but who chooses not to out of spite for their ex. The New York Times article is particularly troubling because many times, those who can pay but refuse to do so often game the system and pay just enough to stay out of jail. In New York, the cagey payor can usually avoid jail by paying just enough child support to keep the jail option off the table – an option many low income payors do not have.

It is clear from the New York Times article and the studies that have been done that the child support enforcement system is ripe for some alterations.

Monday, April 13, 2015

Remembering the McDonald's Coffee Lawsuit

Riding the train into the office, the discussions that take place around you can be rather entertaining. The most entertaining of last week was the in-depth legal discussion that took place Friday afternoon on the ride home. Four gentleman, large beers in hand, were having a rather loud discussion about the topics of the day (Yankees-Mets, the weather) before beginning on legal topics. There was no way to avoid the topic.

We started our review of the week’s legal topics with the police shooting in South Carolina. The consensus was quickly reached between the participants that they believed the policeman to be guilty, but that he would find some type of slimy lawyer who would get him out of the charges, just like OJ Simpson. To be fair to everyone in the discussion, the OJ Simpson trial was a completely different case than the current one, so I’m not sure I’d follow that analogy.

Our next review of the legal system took us to the recent gas explosion on the Lower East Side in Manhattan. The entire train car was again treated to an in-depth discussion of how the lawyers who would get involved would mess up the case. That day, the news in the local papers also focused on two young ladies who were planning on suing because they were unable to continue to live in New York City. As my new legal friends said, you can find any lawyer to file any lawsuit these days.

This led us to the most interesting part of the discussion to me, as they moved on to the Stella Liebeck litigation from 1992 – you probably know it as the McDonald’s Coffee lawsuit. Friday’s discussion focused on the horrible lawyers who had the lack of integrity to file the lawsuit on behalf of Ms. Liebeck, but seemed to really ignore what happened in that case. If you believed our train philosophers, Ms. Liebeck spilled a drop of coffee on herself and never deserved a dime.

If you really don’t remember the case, I would encourage you to do a little research and see if it reminds you what the case was really about:

What really stood out from listening to this discussion was that these gentlemen really did not know the facts or the law that was in play in any of the situations they were discussing. Instead, they were operating on the headlines from the newspaper without really understanding what the story was truly about.

One thing to remember is that at a newspaper, the person who writes the story usually does not write the headlines…

Friday, April 10, 2015

All That Wasted Paper in a Lawsuit

The dreaded call comes from the other office – a large box of documents has just been delivered and where would you like me to put them. Of course, the box is too big to just mail them over to the other office so you can look at the documents. Years ago, when confronted with this problem I would have to wait for the box to be transferred or for some other way to get the hundreds of pages of paper over to my desk.

Thankfully, we no longer live in those dark times where we are beholden to reams of paper, which is shredded or otherwise wasted when a case is concluded. At some point about a decade ago, we began to transition to a wonderful new world where those reams of paper could be scanned in and turned into .pdf files. We could then burn those files onto a DVD-ROM and send them over to the other attorney and save the client a lot of money on photocopy expenses.

At some point, all of the financial companies also caught on that they could save the same money on stamps and printing and began issuing their bills and statements to the public in electronic formats so that we no longer had reams of papers to comb through. Clients no longer had to keep file cabinets full of financial documents, they could access their documents online and turn them over.

These days, we no longer even need to burn those documents onto a DVD-ROM. We have our client portals that allow clients to directly share documents electronically between lawyer and client – your attorney does have a client portal, right?

So that brings me back to today, when another box of documents arrives on the doorstep. The ludicrousness of it is that the bank statements and other financial records were all originally .pdf files. Instead of providing them in electronic format, someone sat at a computer and hit the “PRINT” button over and over again. And then they took all those documents, organized them as they saw fit, and stuffed them into a large FedEx box and then spent far too much money to have them sent over to my office.

The end result will be that these documents will be fed back into a scanner, turned back into a .pdf file and a computer will run text recognition on them so that we have them in a searchable format to use going forward. All that paper seems like quite a waste now…

Wednesday, April 8, 2015

Serving Divorce Papers by Facebook in New York

This week’s news coverage has focused on Ms. Ellanora Baidoo, a Brooklyn woman who sought permission to serve divorce papers on her husband by using Facebook. (Washington Post) According to the new coverage, Ms. Baidoo was unable to locate a postal address for her husband, no billing address for his cell phone, no DMV records and a private detective was unable to turn up information on his whereabouts. After all this effort, the Court allowed her to post a link to the divorce documents for three consecutive weeks or until her husband acknowledges receipt of the messages.

This ruling is a twist on the traditional request by a party to serve their spouse by publication. In the more typical case, the party who is unable to locate their spouse requests that the Court allow them to publish the divorce documents in a local newspaper where their spouse is believed to be living for a period of time to give them notice of the divorce action. Years ago, when newspapers were more ubiquitous, this system probably did give people notice of the divorce actions. In these more modern times, utilizing Facebook to send messages to your spouse may be more effective to locate a spouse.

When this ruling first hit the news, I was particularly interested in the issue as I have been working on a case where we were trying to locate my client’s spouse. However, unlike Ms. Baidoo’s matter, the private investigator I use is excellent and he had been able to locate an address for the spouse using information from the late 1960’s. But once we found the address, the next challenge was to get the spouse to actually respond to the documents that had been sent.

Just as I was getting frustrated and was considering a motion for publication like Ms. Baidoo, the spouse called my office out of the blue, saying that the papers had been received and that they would be happy to sign off on an uncontested divorce (like Ms. Baidoo, my client and the spouse had not lived together as married couple and had not seen each other in over 40 years).

From all of this, I took two lessons going forward: 1) service by Facebook may be an option in the future and 2) make sure you hire the right private investigator.

Monday, March 23, 2015

Can You Have Too Many Lawyer Billboards?

Spending a few days in Florida and it’s amazing the amount of lawyer billboards on the roads. They have become so ubiquitous that my friend and I began counting them and categorizing them by practice area on a relatively short drive to the baseball stadium to catch a Spring Training game.

It does make me wonder how effective all the billboards are (they must be effective on some level due to how many of them there are) and how the good people of Florida choose an attorney. If you are in a car accident, you are pretty likely to be able to look up at the nearest billboard and see a lawyer who can help you.

Maybe while your spouse and the other drive are arguing over who is at fault, you decide that you no longer want to be married and need a divorce lawyer. Look across the street and there is probably a billboard for an attorney who can handle your divorce.

After all is settled out with the car accident, maybe you find out that your spouse didn’t actually renew the car insurance and you are going to need to file for bankruptcy because your spouse is actually the driver who caused the accident. No problem there either. Just a block down the road is another attorney who handles bankruptcies and other matters who will be happy to take your call.

Even worse, if your spouse was drinking at the time of the accident and was charged with a DUI – you can’t escape those billboards on the roads – there are plenty of billboards, bus benches and other posters of attorneys ready to take your call.

At times, it feels like driving in a movie or television show where the plot twist is that all of these billboards actually have cameras on them and are watching you. When you get in an accident, your phone rings and the lawyer from the nearest billboard is introducing themselves and is on their way to help you.

I really hope it never comes to that…

Friday, March 20, 2015

Expatriates and International Divorces

The Wall Street Journal this week has a good article on the challenges and issues facing an expatriate who ends up going through a divorce either while they are overseas (or as is often the case, caused by the time they are overseas). The story grows out of a study by Yvonne McNulty of SIM University in Singapore, “Till Stress Do Us Part: The Causes and Consequences of Expatriate Divorce”, which will be published in April.

The article discusses the different issues that arise, often including long work hours for the working spouse and feelings of isolation by the entire family who may be thousands of miles from any social network or family to help support them. On the financial front, many countries in the survey do not allow married couples to have joint bank accounts, which leaves one of the spouses at a decided financial disadvantage immediately if the marriage has broken down.

The largest issue that confronts many expatriate couples is where there are children and the custody of those children ends up being in dispute. For international purposes, the Hague Convention directs the children to remain in the country where custody is disputed, if you are located in the Middle East, where most countries did not sign on to the treaty, you are subject to the local laws of that country.

Another issue that couples can run into that is not specifically addressed by the article is where the parties have a prenuptial agreement that complies with their local laws, but may not be enforced by a foreign country’s court system.

As with most legal issues that arise in a divorce or the breakdown of a marriage, it is important to speak to a lawyer or other counselor to make sure that all of the appropriate issues are being addressed and that you are receiving the best advice possible.