Does It Really Matter What We Include In The Pleadings?

Posted by wlansden | Filed under , , ,
By Eileen Burkhalter Smith 

We all know the answer to this question is “yes” for numerous reasons.  I want to focus now on just one of the reasons, and an arguably minor one at that.  The pleadings in a case are evidence.  At trial, they can be read into the record and to the jury by a witness on direct or cross, and even by the attorney if the Court takes “judicial notice” of them.  I saw this effectively done in a recent trial.

Federal Rule of Evidence 201(a) allows the court to take notice of “adjudicative facts.”  “Adjudicative facts” are ones not reasonably in dispute, and capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.  Moreover, this judicial notice is mandatory if a party requests it.  Fed. R. Evid. 201(d).  In Tennessee, at least, courts interpret these “facts” to include “court records” and pleadings.

Imagine the effect it can have when allegations from a complaint or affirmative defenses from early in the case are read to the jury.  I think a good way to avoid any embarrassment about an affirmative defense with no place in this lawsuit (or an allegation in the complaint completely off-the-mark) is to conform the pleadings to the case before trial.  Better to go through the effort to amend the pleading, than to have to explain why a provision was included, perhaps years ago when the document was filed.   

Currently rated 5.0 by 2 people

  • Currently 5/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (1) | November 4, 2009 12:30

Can Young Lawyers Take a Vacation?

Posted by wlansden | Filed under , , ,
By Brian Malcom

Can young lawyers take a vacation?  Yes, and they should.  The practice of law is not easy.  It is a difficult career.  It demands much of one’s time, energy, effort and mind.  Young lawyers should take a vacation every now and then.

I realize that some of our readers are going to disagree with this post.  Given the state of the economy, many might say that a young lawyer should remain at his or her desk 52 weeks a year and at least six days a week.  However, I disagree.

A vacation can give your mind a break.  A recent article by Psychology Today, discusses the benefits of a vacation.  The very first paragraph of the article encourages people that think for a living (i.e. lawyers) to take breaks, during which they do not think about work for a while.  The article then goes on to discuss the benefits of a mental rest.  Research suggests that we should place value on a fresh mind, as this is the time we are more likely to be able to solve tough problems.  In other words, the mental rest allows us time to engage in non-linear problem solving.  Non-linear problem solving is also known as the “aha” phenomenon.

I am sure each of you have experienced such an “aha” moment in one way or another.  Often, people will grind through possible solutions when faced with a difficult problem.  These problems typically have no linear or obvious solution.  Once frustrated or exhausted, the person facing the problem will often walk away from the problem or engage in some other task as a way of taking a break.  It is during this break, when the mind is not actively focused on the difficult problem, that the mind so often comes up with a creative, non-linear solution to the difficult problem.  This is insight; this is an “aha” moment.

The Psychology Today article credits the ability of the mind to solve difficult problems after a period of rest to the following factors:  a rested mind isn’t stuck in the wrong answers; a quiet mind notices subtle signals; a happy mind is an open mind; and clarity comes from distance.  “When we are too close to an idea, either by knowing too much, having an agenda or experiencing strong emotions, it is hard to see an idea completely.”  Distance encourages creativity and non-linear problem solving.

If the above research by Psychology Today is not enough for you, I have one more reason all lawyers should take a vacation.  The reason is a bit of a cliché:  the practice of law is a marathon and not a sprint.  Most lawyers do not go into private practice to practice for one-to-five years and then turn to another career.  Most young lawyers are in it for the long haul.  To keep yourself happy, fresh, and enthusiastic about your work, you should take a vacation.  You don’t have to spend a lot of money to take a mental break.  You just have to make an effort to make yourself rest.  I just took a vacation, and it was nice to give my mind and body a break for a few days. 

Currently rated 4.3 by 6 people

  • Currently 4.333333/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (3) | October 19, 2009 12:13

Tips for Time Entry

Posted by wlansden | Filed under , , ,
By Bob Felber

As a young lawyer in tough economic times, you may be faced with increased pressure to find billable work and get your time entered and released quickly – in some firms by the next day!

As you enter your time, keep in mind that, while you may never see that time entry again, others will – particularly, the partner who sends out the invoice on which that time entry appears and, ultimately, the client who receives the invoice.  If your time entry is ambiguous, trivial, confusing, or not consistent with firm or client billing guidelines, you are creating headaches for the partner who must spend his or her time reviewing and editing that invoice prior to sending it to the client.

Make sure you have taken the time not only to get your time entered on the correct file but to state clearly and concisely the value of the work you have undertaken.  To accomplish that, consider the following guidelines: 

  1. When entering your time, put yourself in the shoes of the client reading the invoice.  Confusing invoices = no payment!  Also, remember that the client contact with whom you work may not be the same person who reviews and pays the invoice.
  2. Avoid trivialization of your work and be descriptive.  For example: “Prepare memorandum to S. Smith regarding Davidson County building codes” is better than “Email to S. Smith”;  “Confer with J. Doe re: strategy for completing Jones Company license agreement” is better than “Exchange emails with J. Doe.” Time entries should convey value delivered rather than the mechanics of completing a task.
     
  3. Use care in billing for meetings with colleagues within the firm. While these meetings may be very productive and ultimately benefit the client, clients tend to balk at paying for a lot of internal meetings and some have policies stating that they will not pay for them.

  4. Watch the shorthand.  Bills are a serious matter to clients and should not be casual.  Using a lot of abbreviations for terms that the person processing the invoice will not likely understand only creates a potential for confusion and delay in payment.
  5. In the end, make certain that you follow both firm policy and client billing guidelines when entering time.

If you are careful and thoughtful with your time entries, the result will likely be a happier partner, a happier client and a more successful associate.

Currently rated 4.7 by 7 people

  • Currently 4.714286/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (1) | October 13, 2009 09:46

Good Idea - Bad Idea: Taxes

Posted by wlansden | Filed under ,

Good Idea: Tax Deductions

Bad Idea: Trying to deduct $100,000 in payments for prostitutes and pornography, especially when you are a New York tax lawyer.

U.S. Tax Court Opinion attached:  Halby Tax Court Opinion.pdf (12.91 kb)

Currently rated 5.0 by 2 people

  • Currently 5/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (0) | September 16, 2009 13:01

Good Idea - Bad Idea: Calling a Court "Ghetto"

Posted by wlansden | Filed under , ,

Good Idea: Speaking up when you feel the justice system has let you or your client down.

Bad Idea:  Calling a court "ghetto" when you are a high-ranking city attorney.

Worse Idea:  Citing online slang dictionaries in support of your argument that you did not intend to use the term in a racist way.

Currently rated 3.0 by 2 people

  • Currently 3/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (0) | September 4, 2009 13:35

Good Idea - Bad Idea: Commission Meeting Etiquette

Posted by wlansden | Filed under ,

Good Idea: Attending City Commission Meetings to Participate in Local Politics

Bad Idea: Punching the City Manager After the Meeting

Be the first to rate this post

  • Currently 0/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (1) | August 19, 2009 11:52

Good Idea - Bad Idea: Cheating with Dishonesty

Posted by wlansden | Filed under ,

Good Idea: Maintaining Academic Integrity While Completing Your Education

Bad Idea: Cheating on Any Test

The Worst Idea: Cheating on a Test at Simon Fraser University Which Can Lead to a Grade Worse than F: An "FD," which is "Cheating with Dishonesty."

Be the first to rate this post

  • Currently 0/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (0) | August 17, 2009 11:16

Good Idea - Bad Idea: Bernie, can I borrow your debit card?

Posted by wlansden | Filed under

Good Idea:  Using the money you earn as a lawyer to buy groceries, have a drink or make home improvements. 

Bad Idea:  Using a deceased client's debit card to buy groceries, have a drink or make home improvements without authorization.  

According to TampaBay.com, "Marvin L. Stull was Mary Larson's lawyer and friend, but in April, just weeks after she died at 94, he made several unauthorized cash withdrawals from her bank account."  Read more about the allegations against Mr. Stull. 

According to this site, Mr. Stull was "suspended until further order" pursuant to an emergency suspension order this week by the Florida Supreme Court.  Tampa Bay Online reports that Mr. Stull was arrested in June for failure to appear.

Currently rated 5.0 by 4 people

  • Currently 5/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (0) | August 7, 2009 12:03

Good Idea - Bad Idea: Olfactory Offenses

Posted by wlansden | Filed under ,

Good Idea:  Wearing a little perfume/cologne

Bad Idea:  Wearing so much it sends 34 to the hospital 

Seriously folks.  For those of you not yet in the workplace, let me introduce you to the Two Squirt Maximum rule.  While YOU might like how it smells, the rest of the office doesn't need to smell you coming down the hall!

Be the first to rate this post

  • Currently 0/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (0) | July 31, 2009 11:18

Good Idea - Bad Idea: Don't Stab the Messenger

Posted by wlansden | Filed under , ,

Good Idea: I can't even come up with a good idea for this one.

Bad Idea: Trying to stab a process server with a large hunting knife when you are a member of the state bar.

No one likes getting sued.  No one likes getting served with civil court papers at home.  However, in the unlikely event that you find yourself getting served with civil court papers,  (I cannot believe I have to say this) do not stab the messenger.

In the Santa Ana lawyer's defense, the idiom is "don't shoot the messenger."  No one ever told him not to try to stab the messenger.

Well, I am telling all you young lawyers out there: Do not try to stab the messenger.

Currently rated 3.0 by 2 people

  • Currently 3/5 Stars.
  • 1
  • 2
  • 3
  • 4
  • 5
E-mail | Share on Facebook | Share on LinkedIn
Digg it! | Kick it! | DZone it! | del.icio.us
Permalink | Comments (0) | July 24, 2009 09:38