Category Archives: Law Practice Tips

Blog o’ the day: The Grammarphobia Blog

Every so often, we all run across one of those odd questions about our English language. You know, like what does the prefix “un” do to a word–intensify or negate? Or is it “sports’ report” or “sport’s report?” Maybe while at the water cooler you’ve asked your coworkers why duck sauce doesn’t have any duck in it.

If you’ve ever parsed words, phrases, or syntax, then The Grammarphobia Blog will be a fun treat for you. The product of Patricia T. O’Conner and Stewart Kellerman, who are both journalists, their format is to take questions from readers, do the research, and report back in an entertaining and interesting review of topic.

For example:

Q: A friend of mine (and I mean it) insists that “they/them/their” can be used in place of “he/she/him/her,” etc. For instance: “Has anyone lost their pit bull?” This sounds wrong to me. Can you help me persuade my friend that it’s wrong?

A: It sounds wrong to us too, though we’d be more concerned about that lost pit bull than about the questionable grammar.

Followed by a quick review of etymology, rules and usage in modern English. Here’s an excerpt from the answer to the above question.

Granted, “they/them/their” are third-person plural pronouns. But many, many people use them in a singular sense, especially in reference to unspecified or indefinite people (as in “If someone calls, tell them I’m out”).

Furthermore, this usage, while now considered a misusage, has some history on its side. We’ve written about this several times in the past, including in the New York Times Magazine.

It’s a great little blog, updated regularly, and always an interesting, educational, and entertaining read. Check it out, add it to your blog reader, and start learning a little more about your mother tongue.

Is your University short of cash? Just increase law school tuition.

Let’s say you’re the dean of a law school on the East Coast with just four years as dean under your belt. As your accomplishments, you can list the following:

  • Increasing the school’s US News Ranking from 170 to 117
  • Higher bar passage than when hired
  • A new building almost completed
  • Securing a donor willing to plunk down enough cash to put his name on the school.

What’s the result? How about a call from the president of the university to ask for your resignation?

That’s what has happened to University of Baltimore Dean Phil Closius.

Yep. Because he complained that the law students shouldn’t be subsidizing the rest of the university.

Heck, not even that. He just complained that the School of Law should not subsidize the rest of the University as much as it was. Over the last year, University of Baltimore School of Law revenues have increased $1,455,650, but the law school’s budget itself has only increased $80,774. For those of you, like myself, who attended law school because math was not their strong suit, that’s a difference of $1,374,876.

Where is all that extra law school tuition going? Not the law school. Not for more professors and smaller classes. Not for more law school scholarships, building improvements, clinics, workshops, internships, or career training (which is sadly lacking in most law schools). Nope. It’s going to elsewhere in the University of Baltimore.

Rather than increasing tuition so that the School of Law can better prepare its students to compete in a ho-hum legal market, the University is fleecing them. In other words, law students are going to graduate with an average of $90,000 in debt because the University was greedy.

And Phil Closius had the gall to speak out against it. From his resignation letter:

Every seven years, the ABA inspects law schools for renewal of their accreditation. The law faculty drafted a self study in the spring of 2010 as part of our ABA reinspection process. The percentage of law revenue retained by the University was emphasized as a significant concern of the faculty in that document. I believe a law school dean has a continuing responsibility to share accurate data regarding the law school and its operations. In the past year, I distributed the financial data I had to the faculty and the Dean’s Advisory Board in order to inform them about the increasing scope of the problem. Both bodies were concerned about the continued ability of the law school to reach its potential without sufficient funding and the inequity of charging law students increasingly high tuition and fees if a significant percentage of those funds were not directly benefitting the law school. Both the faculty and the alumni insisted that I continue in my efforts to obtain more financial data and a University agreement to decrease its retention percentage over time. I was criticized by the central administration for sharing the financial data with the faculty and my advisory board. University officials also stated that providing funding for the continued improvement of the School of Law was not a high priority for the University.

Awkward…especially when the ABA came back and said that it ought to be a high priority for the University.

We were inspected this last academic year and the University and I received the final report of the ABA Accreditation Committee on July 27. The report generally praised the condition of the law school but indicated a concern, among others, about the substantial amount of money the law school contributes to the University and the lack of a University explanation of a rationale by which the money retained by the University is determined. The ABA Committee requested that the University President and Dean submit a report by March 12, 2012 which provides in part a rationale for the School of Law’s share of costs for non-law school activities and central administration services and information about any agreement between the Law School and the University regarding a fair process by which the Law School’s contribution to the University for direct and indirect costs will be determined. The day after receipt of the ABA report, I was asked to resign.

I hope US News is reading this, and that it slaps the University of Baltimore back down to 170 and the subsequent drop in law school applications. Perhaps when U of B is hit where it obviously needs help–in its wallet–its Harvard educated President will start investing in law school, and thereby the students, rather than ripping them off and limiting their career opportunities with a mountain load of debt.

(See also “Law School Economics: Ka-ching” in the New York Times on how law school tuition has increased four times the rate of undergraduate tuition, but without any corresponding increase in post-JD compensation…all while we’ve got the biggest recession in legal employment in our history going on).

(h/t Above the Law)

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Litigation Funding: Helping you get your case to trial or disrupting the litigation process?

If you haven’t heard of litigation funders, then stay tuned. I’m sure you will soon. They’re here to make sure your next big case gets the cash it needs to stay alive to victory or settlement.

Or are they just here to see if they can make a buck? Or both?

If you have heard of litigation funding, then I’d like to hear what you think.

What is ‘litigation funding?’

What is a “litigation funder?” These are financiers that provide one of two types of litigation funding to plaintiffs: either by cash advances to individual plaintiffs or funding to plaintiffs’ firms, helping them trade future risk for current cash flow.

In other words, they offer the cash to plaintiffs and plaintiffs’ firms to make it possible for litigation to go forward when it might not otherwise due to the cost of litigation.

The best part is that plaintiffs and plaintiffs’ firms need only pay it back if they win.

The cost? Funders can charge between 36% and 150%, per year, though, according to Kirby Griffis of Hollingsworth LLP, higher rates are not unheard of. They get away with it and avoid usury laws by advancing the cash on a non-recourse basis, requiring repayment only if the plaintiff wins or gets a settlement in their favor.

The Legal and Ethical Gray Area

The main problems–ethically and legally–arise under the legal doctrines of maintenance and champerty. As summarized by Griffis, maintenance is “the giving of assistance to a litigant in pursuing a lawsuit, and champerty is a form of maintenance in which the party giving assistance does so in exchange for an interest in the outcome of the lawsuit.”

Cases, such as Rancman v. Interim Settlement Funding Corp., have found that “a]n intermeddler is not permitted to gorge upon the fruits of litigation.” 789 N.E.2d 217 (Ohio 2003). As a result, the industry has formed a lobby to legitimize litigation funding. The American Legal Finance Association (or the ALFA) approaches legislatures and lobbies them to endorse “voluntary” codes of standards through codification.

ALFA has been successful, even overturning Rancman by statute in Ohio. Maine and Connecticut allow litigation funding by statute, and similar legislation is pending in Kentucky. Texas, Florida, New Jersey, Mississippi, Massachusetts, North Carolina and South Carolina and New Hampshire courts have allowed litigation funding contracts.

So, in some places it’s legal, others it’s not…but what is the effect?

It’s not healthy for our system, Giffis says. Third-party litigation funding disrupts the normal operation of litigation and will increase litigation in the U.S. He cites three reasons for the disruption, as well as an explanation for the potential increase in litigation:

1.  Conflicts of interest: the objectives of the funders and those of the individual plaintiffs are not necessarily aligned.

[I]t is difficult to believe that plaintiffs’ firms that receive a large portion of their funds from a third party will not come under the influence of that third party to at least some extent. Funders may want to hasten settlement to recoup their investment, delay settlement to increase their interest charges, and steer cases toward monetary and away from injunctive relief, among other things.

2.  Displacement of Risk: The opportunity for certain cash (which is only repaid from proceeds of a victory) from funders may create an incentive for plaintiffs’ firms to shift risks to third-party funders, trading future uncertainty for secure cash flow in the present.

3.  Confidentiality conflicts: The involvement of third-party funders “risks the disclosure of confidential information.” Like any investor, funders will want as much information as possible about the case they are financing, and right now the case-law “strongly suggests” that there is no privilege for communications with a third-party funder. What does this mean for defenders against such law suits?

[I]f you are defending a case in which the plaintiffs’ firm has litigation funding, go after the communications with the funder.

Why Increased Litigation? The Bottom Line

These are some of the ways litigation funding distorts the legal system, but why could it result in increased litigation? Simply put, the best way for a litigation firm to protect its investment, much like a smart investor, is by spreading out risk.

For anyone who stands to make money from litigation, as much litigation as possible should happen…

Litigation funding enables plaintiffs’ firms that are reluctant to take on risky litigation to shift the risks of failure to investors, who are able to bear the risk because they can spread it around. Obviously that will cause more litigation to occur.

Is there another side to this? Without a doubt, there are plaintiffs that fail to hold defendants to account in court because of the prohibitive cost of litigation. Should they be prohibited from obtaining third-party funding?

(h/t to Kirby Giffis of Hollingsworth LLP whose comments were published in “The Metropolitan Corporate Counsel,” vol. 19, no. 7, July 2011)

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Practice Tip: Note to self–don’t hit ‘reply all’

A quickie: when you get an email from opposing counsel, the cc line full of email addresses, don’t just hit ‘reply all’ or you might be violating ethics rules.

Rule 4.2(a) in the Utah Rules of Professional Conduct provides guidance on this:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.

Unless you have already received a communication from the opposing counsel asking for you to cc his client, be wise, and reply only to the attorney.

If you make the mistake, or if you aren’t clear, lay out the ground rules with opposing counsel so that the mistake is not made.

For example, in our office, we have a legal department manager who coordinates the high volume of transactions that cross the attorneys desks every day. Often, our client and its agents will go to the manager before the attorney to find out the status of a deal, simply because it’s faster, she has a better view of the big picture, and knows what needs to happen next. If we don’t ask that she’s cc’d on all emails from opposing counsel, not only is our central manager left out of the loop, transactions slow down or are delayed. Laying out the ground rules–in our case, to ask that a non-lawyer be cc’d on all emails to us–helps keep the deal moving and gets the transaction finished.

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Anyone’s fault but mine

A sign we’ve become too litigious? Or just stupid?

This, from Namby Pamby, my favorite lawyer-with-a-nom-de-plume:

Caller: I fell and I want to talk to a lawyer about taking my case.

Me: You’re talking to a lawyer. Tell me what happened.

Caller: It was raining when I got out of my car. I closed the car door and I started walking when I slipped and fell in the parking lot.

Me: It was raining?

Caller: Yep.

Me: And you slipped because it was wet?

Caller: Yes sir.

Me: Who exactly are you looking to sue? God?

Caller: No…no…no… I fell because it was raining and wet. In the parking lot. And I want to sue.

via Time to sue The Weather Channel « The Namby Pamby.

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