Lawyers are great at thinking small — small picture, that is. We’re awesome at details, however painstakingly minor. We sport the “grammar police” badge proudly, even though we know that it’s the dorkiest one out there (wait, except for the “I memorized all of the two-letter words in Scrabble” badge — that one’s slightly dorkier). We find nit-picky, meaningless, hypothetical debates to be “intellectually stimulating,” while the rest of the world sees them as a complete and utter waste of time. And it’s all good. Details are essential to the practice of law. But so is seeing the big picture.
A law firm associate friend once represented a bank on a loan in which the borrower later ended up missing a payment date. Upon learning of the missed payment, he promptly drafted a default notice. When he presented the default notice to the law firm partner, the partner’s reaction was, “Whoa, Nelly… hold on there — no way are we sending any default notice.”
The associate was thinking small picture — how dare the borrower miss a payment to his client! In full gunner mode, he proceeded to take steps to ensure that the bank was paid the monies due (and, by the way, now at a default interest rate — haha!). He was only trying to zealously represent his client, right? Right? The partner, on the other hand, was thinking big picture….
Continue reading “Moonlighting: What’s the Big Deal?”
This ship be sinking.
* How many one percenters do you think are members of the 11%? According to this poll, Congressional approval ratings have hit an all-time low. Looks like it’s time to occupy Congress. [CNN]
* Wikipedia is planning a site-wide blackout this Wednesday to protest the Stop Online Piracy Act. At least they’re giving some advance notice. If you’ve got papers to write, hurry up and finish. [Businessweek]
* Racial profiling ain’t easy. Sheriff Joe Arpaio still wants to detain people based on the suspicion that they might be here illegally, so he’s appealing Judge Snow’s ruling. [Washington Post]
* The part you won’t see in the inevitable movie starring Robert Pattinson: victims of Italy’s Titanic reenactment will probably be unable to sue for damages in U.S. courts. [Reuters]
* Here’s the umpteenth rehashing of the “are law schools cooking their employment statistics?” argument. Better question: without minimum standards for employment, does it matter? [NPR]
* Jesse Dimmick — the kidnapper who sued his victims for breach of contract — won’t get his day in court. The “most ridiculous lawsuit of 2011″ has been dismissed. [Topeka Capital-Journal]
I’m writing this wearing my new bifocals. They take some getting used to after years of regular glasses and contacts. But, after watching me examine small print like I was Mr. Magoo, my wife convinced me that it was time to take a symbolic plunge toward middle age. I admit to no small amount of trepidation at the prospect of wearing “old folks” glasses. But the risk of not seeing properly finally outweighed my vanity, and a change had to be made.
And so it goes with some legal decisions in-house. When faced with a dilemma, you weigh the risks versus rewards, and pull the trigger on what you hope is the right decision.
In a company the size of mine, people have performed risk/reward analyses on legal issues for years, down to the proper placement of semicolons in contract clauses. To borrow from the iPhone ads, yep, there’s a committee for that. We have Lean Six Sigma belts of all colors who are subject matter experts in every facet of our business. There are folks with many years of experience, who own any number of policies from which I am to draw when making decisions. It sounds on paper like filling in the blanks will get you where you need to go, but that is far from reality.
In a perfect world, for my job anyway, a Customer would receive a proposed agreement, see the inherent fairness in the document (and the work that went into carefully crafting all those clauses and semicolons), and sign on the dotted line. But sadly, life isn’t perfect, and I have yet to receive a contract back without so much as a redline….
Continue reading “House Rules: Risk / Reward”
Admittedly, I take on some large issues in this column. But this is neither a treatise on contract law, nor the forum to attempt one. I am simply attempting to give some pointers for negotiating commercial contracts. I do very much appreciate the emails that I receive that suggest where I missed some salient information, or that offer critiques to some of my strategies. I’ve even used some of them and credited the authors, to the extent they’d allow. Funny thing about this site, most people don’t want to be identified. It’s almost end of year, so here goes:
Let’s say you’re in the heat of a commercial lease negotiation and the customer says to you: “What are these payments in the event of default? Why should I be penalized if your product doesn’t work as it should? Are you telling me that I have no remedies? Don’t you stand behind your products?”
Continue reading “House Rules: Termination Clauses, Remedies, and Other Things to Argue About Before Christmas”
Nice acid wash jeans.
You always hear urban legends (and some of them turn out to be real cases) about burglars who sue — and win against — homeowners for injuries sustained during the robbery. These are the kinds of cases that make you wonder how the justice system even functions, because you can literally sue for just about anything these days.
Oh, you fell through a skylight while you were attempting to burglarize a home and cut your arm? File a lawsuit! You tried to steal a television set from your neighbor and got bitten by his dog in the process? Time to litigate! So, what happens when you’re on the run and you decide to break into a couple’s home and hold them hostage?
Our latest pro se criminal litigant decided to up the ante. He’s suing his former kidnapping victims for breach of contract….
Continue reading “Lawsuit of the Day: Kidnapper Sues Hostages for Breach of Contract”
Caveat: I did not write the following dialogue. It is from the “comments” section of one of my columns where I mentioned I’d be writing about HIPAA and GLBA. Unfortunately, I cannot attribute the comments to the persons who wrote them, as they are anonymous; however they are quite apropos of today’s subject:
1) “I wish vendors would get it into their heads that indemnity for being sued on a confidentiality basis doesn’t cut it for financial institutions and other customers/clients that have affirmative obligations without being sued in the event of a breach of confidentiality.”
2) “I wish financial institution customers would get it into their heads that the ‘customer information’ they’re obligated to protect is not the sort of thing they would ever disclose to the vast majority of their vendors, and stop using their ‘affirmative obligations’ as a tool to cram unnecessarily restrictive confidentiality terms down the throats of vendors.”
Perfect. Those two comments capture the schism between vendors and customers when dealing with private financial or personal confidential information….
Continue reading “House Rules: HIPAA and GLBA and Indemnity, Oh My!”
In Feeling the Kumbaya (Part I), we looked at how different the perspectives of business clients and in-house lawyers can be. Below are a few techniques that have helped me and my clients to feel the Kumbaya for each other (or at least have helped them to not think I’m only a total loser who has nothing better to do than change all of the commas in a list after a colon to semicolons).
Prioritize. I used to suspect that there was something about going in-house that made perfectly good law firm attorneys develop permanent amnesia when it came to good drafting. It was the strangest thing. Even my husband, a supposedly respectable corporate law firm attorney, after going in-house, suddenly started to let minor errors appear in his emails. My judgment of him was quick and deliberate. He would sometimes mistakenly use “there” instead of “their,” for God’s sakes! What lawyer does that?
Continue reading “Moonlighting: Feeling the Kumbaya (Part II)”
Last week, more than a dozen high-profile mass torts attorneys lost a San Francisco jury trial against a small technology company. The jury decided the attorneys had illegally breached a document review contract during the high-profile Chinese drywall class-action litigation.
On September 19, the 14 defendants in Cataphora Inc. v Parker were ordered to pay $317,113 to the technology company in lost profits, plus attorneys’ fees.
“These guys are the worst of hypocrites that you can possibly find,” said Roger Chadderdon, technology counsel at Cataphora. “They claim to be trying to help the little guy, but what they’re doing is trying to put more money in their own pockets. Everybody knows that, but this is a case that illustrates it beyond what I have ever seen.”
Clearly, tempers are still running hot. We’ve got more from both sides of the dispute, and a quick refresher on Chinese drywall, after the jump….
Continue reading “Prominent Plaintiffs’ Attorneys Ordered to Pay Up After Losing Breach of Contract Trial”
* A scam blogger hit it hard last week, calling Cooley out for policing the internet. Guess we know why s/he chose to go by “Rockstar.” [Detroit Free Press]
* Hundreds of people gathered on Saturday to remember the life of slain Mercer Law School graduate, Lauren Giddings. Rest in peace. [Baltimore Sun]
* Other than the fact that this dude waited nearly a decade to sue, Facebook now says it has “smoking gun” evidence that Paul Ceglia’s case is a fraud. Like. [Bloomberg]
* The Innocence Project says that past DNA evidence is a “poor judge of character.” You’d say that, too, if you exonerated a future rapist. [New York Daily News]
* Lady Gaga is being sued for copyright infringement. Seriously? Get it straight, lady: Gaga only copies from Madonna. [Daily Mail]
* In this economy, to get a job you have to make believe you love the law. Career advice for old farts can be applicable for young lawyers, too. [Boston Globe]
The internet is on fire today. The purported contract between Facebook CEO Mark Zuckerberg and random New York resident Paul Ceglia has hit the worldwide web. We’ve written about Ceglia’s claims to 84% of Facebook before. But now that people have actually seen the document, everybody wants to talk about it.
I even ended up on Fox Business News, sharing my analysis of the Facebook contract.
As most lawyers know, just because you have a signed contract doesn’t necessarily mean you have anything. What was the bargain? Was there a meeting of the minds? Contracts aren’t always clear about what the parties are actually agreeing to.
This one, allegedly signed by Zuckerberg when he was a college sophomore, has lots of room for interpretation…
Continue reading “The Facebook Lawsuit: Everybody Calm Down and Remember Your 1L Contracts Class”
Judge Richard Posner made one remark that stole the show at a panel about regulation at the recent American Constitution Society conference. We summarized his quip on Twitter:
Judge Posner at ACS panel: For my home equity loan, I got 100s of pages of documentation; I didn’t read, I just signed. #ACS10 #Posner #LOL
This generated laughter from the crowd, due to Judge Posner’s status as one of the greatest legal minds of his (or any other) generation. It was amusing to imagine the brilliant Posner flipping page after page of paperwork and mechanically scribbling next to every “Sign Here” flag, without even bothering to read what he was signing. It’s the kind of behavior one would expect from a person earning $35,000 and a buying a $600,000 home two hours outside of Phoenix, circa 2006 — but not from one of America’s leading jurists.
As it turns out, Judge Posner isn’t the only boldface name of the legal profession who skips over the fine print in form contracts….
Continue reading “Do Lawyers Actually Read Boilerplate Contracts?
Richard Posner and Evan Chesler don’t; do you?“
Toreador, En garde ... Et songe bien, oui, songe en combattant Qu'un oeil noir te regarde!
In America, nonperformance on a contract usually involves a failure to deliver goods or a failure to pay. In Mexico, apparently contract law covers a failure of courage. The ABA Journal reports:
Gored by a bull in a previous match several months ago, Mexican bullfighter Christian Hernandez lost his nerve and bolted from the ring ahead of a charging bull on Sunday, dropping his cape along the way…
But his escape from the charging animal left him vulnerable to legal action.
After his inglorious exit from the ring, Hernandez was arrested for breach of contract, jailed, and ordered to pay a fine.
And yes, there’s video…
Continue reading “Bullfighter Arrested for Cowardice Breach of Contract”
With all the students just dying to get into Cornell Law School, I figured I’d give you guys a taste of what exams will be like for the few of you lucky enough to get in. A contracts exam there turned into something so complicated that you need to be an expert in statutory interpretation just to understand the rules for the exam.
In law school, you’re supposed to learn to be careful with words. Really careful. Now, I didn’t really take that lesson to heart, and apparently neither did professor Chantal Thomas. She gave out some pretty mixed messages regarding the word limit for her contracts exam.
Tipsters report that in class, Professor Thomas said that there would be a word limit. But even that in-class directive was vague:
She said, “well, maybe 1000 words.” This in itself is ambiguous. 1000 words per question? 1000 words for the whole exam?
Perhaps you think that the exam itself would make clear this most basic exam parameter? Think again…
Continue reading “Cornell Contracts Exam Should Fail for Ambiguity, Vagueness”
Last month, as your ATL editors were leaving work, we ran into a fresh recruit to Biglaw, newly arrived in New York with a January draft date. He was at the corner of Mott and Houston after having looked at a possible apartment for rent. He recognized us as chroniclers of Biglaw’s troubles and complained about the New York housing search.
It’s not that it’s hard to find an apartment these days, thanks to the recession-inspired exodus from Manhattan. Instead, our Biglaw-bound reader said that he had found the perfect apartment but that the landlord had turned his application down. “I don’t have bad credit,” he said, and he looked respectable enough, going to open houses in a suit. “I think the landlord may have googled my firm and seen that it’s had layoffs.”
We doubt that landlords are coming to Above the Law to do background checks on potential tenants. We suggested that the rejection may be due instead to a certain housing phenomenon: discrimination against lawyers.
Continue reading “Open Thread: Lawyerly Housing Woes”
