• A Word to the Wise About Lawyers

    Not all lawyers are alike and some, unfortunately, take shortcuts that can have serious consequences.  I provide you with the following excerpt from a recent decision by California’s Fourth Appellate District.  While the facts of the case are interesting in and of themselves, the opening paragraphs are very telling regarding unacceptable work by attorneys.

    We reluctantly return in this case to the question of default judgments with a cautionary tale – well, three actually. The first is a tale for plaintiff‘s attorneys, who may assume a defendant‘s default is an unalloyed gift: an opportunity to obtain a big judgment with no significant effort. It is not. Instead, when a defendant fails to timely respond to the complaint, the first thing plaintiff‘s counsel should do (after offering an extension of time to respond) is review the complaint with care, to ascertain whether it supports the specific judgment the client seeks. If not, a motion to amend is in order. In this case, counsel for plaintiff Gil Kim failed to do that. Instead, he simply asked the court to enter defendants‘ defaults on the complaint as initially alleged. Unfortunately for Kim, the factual allegations of that complaint do not support any judgment in his favor.

    And even when the allegations of a complaint do support the judgment plaintiff seeks, he is not automatically entitled to entry of that judgment by the court, simply because defendant defaulted. Instead, it is incumbent upon plaintiff to prove-up his damages, with actual evidence. It is wholly insufficient to simply declare, as Kim did here, that defendants‘ breach of one or more promissory notes ―caused [him] tremendous financial loss, and that a judgment of ―$5 million against each defendant, for a total of $30 million . . . would be a reasonable sum. That evidence may establish the amount Kim feels entitled to recover, but it fails utterly to demonstrate what he is legally entitled to recover. Kim‘s failure to offer any significant evidence to support his damage claims precludes any monetary judgment in his favor.

    We consequently reverse the default judgment entered in Kim‘s favor, and remand the case to the trial court with directions to enter judgment in defendants‘ favor.

    The second cautionary tale is for trial courts. And it‘s not the first time we have told this tale. As we previously explained in Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 868, ―[i]t is imperative in a default case that the trial court take the time to analyze the complaint at issue and ensure that the judgment sought is not in excess of or inconsistent with it. It is not in plaintiffs‘ interest to be conservative in their demands, and without any opposing party to point out the excesses, it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through. That role requires the court to analyze the complaint for itself — with guidance from counsel if necessary — ascertaining what relief is sought as against each defaulting party, and to what extent the relief sought in one cause of action is inconsistent with or duplicative of the relief sought in another. The court must then compare the properly pled damages for each defaulting party with the evidence offered in the prove-up. Unfortunately, the trial court in this case seems not to have done that, and instead simply gave Kim what he asked for – which in this case was $30 million. Even more unfortunately, this trial court is certainly not alone in doing so, even since Heidary was published. (See, e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th1161 [$8 million in compensatory damages awarded on a complaint alleging $50,000 in damages].) We need to shore this up. The court‘s role in the process of entering a default judgment is a serious, substantive, and often complicated one, and it must be treated as such.

    And third, this case is a cautionary tale for appellate counsel. Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel. The fact a respondent has no obligation to file a brief at all, in no way excuses his counsel‘s misconduct if he chooses to do so. The conduct of Timothy J. Donahue, Kim‘s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case – including a boilerplate accusation of misconduct against appellants‘ counsel and a boilerplate request for sanctions based on a purportedly ―frivolous appeal – will not be countenanced. Donahue‘s response to this court‘s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue‘s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.

    When I became an attorney a good friend of mine expressed concern because his experiences with his attorney were less than positive.  From my friend’s perspective he paid a significant amount of money and the attorney merely used boilerplate forms and “plugged in the names.”  I cannot comment on that attorneys’ practices, but my friend’s perspective played a significant role in how I approach cases.

    Deciding how to proceed in a case begins with the initial meeting with the client.  I draw on my past experience and knowledge to educate my clients regarding different approaches and likely outcomes.  I then work with my client to execute a plan of action intended to meet my client’s goals.  While I certainly use past experience and work product to further my client’s interests, it is not enough to simply change the names and submit a document to the courts without ensuring the documents are accurate, appropriate to the situation and drafted to meet the intended outcome.  Unfortunately not all lawyers are alike.

    I heard a joke recently that 99% percent of the attorneys out there ruin the public image of the remaining 1% of us hard-working folk.  I’ve been lucky enough to surround myself with colleagues and co-workers that I respect and who consistently hold themselves to a higher standard.  I never want to have an opinion written about my work product that even implies I gave less than 100% of my attention.  Taking the time to do things correctly may not be the cheapest way to approach a situation, but it’s the only way I feel comfortable doing business.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Can I Get My Fees, Please?

    The Ninth Circuit Court of Appeals says the answer may be up to the trial judge.  In  a Fair Housing Act suit, the Ninth Circuit held that the district court properly relied on its own knowledge of customary rates charged by attorneys and its own experience concerning reasonable and proper fees in making an award of attorney fees.

    After the plaintiff won a similar state case, the parties settled their federal dispute.  The plaintiff asked the court to grant its motion for attorneys’ fees.  The court awarded fees, but substantially less than the amount sought.  The trial judge believed the plaintiff should have settled the case earlier and wasted time and money with unnecessary arguments.  The plaintiff appealed.

    The Ninth Circuit concluded that under Lohman v. Duryea Borough, 574 F.3d 163 (3d Cir. 2009), the district court properly considered settlement discussions for the purpose of deciding a litigant’s “success,” and therefore what would constitute a reasonable award.  The Ninth Circuit believed the trial court was in the best position to discern what work was unnecessary and could not find any abuse of discretion in deducting the hours spent on unnecessary motions and arguments.

    Many lawyers and clients want to make every conceivable argument to increase the chance of prevailing.  This is often a wise decision, but lawyers need to be mindful that if a court determines a particular argument or motion was unnecessary or a waste of time, the client may end up footing the bill without hope of recouping those costs from the other side.  I’m a firm believer in ensuring my clients are an integral part of putting together the strategy for the case.  Ingram v. Oroudjian is a good reminder that attorneys and clients need to pick their battles carefully, or at least be mindful of the resources that are being spent.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     
    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.
     
    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.

  • Don’t Email Your Attorney From Your Work Computer!

    For years I have been advising people not to use their work computers to communicate with their attorneys.  Most companies reasonably expect you to use work equipment for work matters, not personal matters.  There are usually policies in the handbook that say the employer may monitor the employee’s emails and computer usage.  This means that if you email your attorney using a work computer the company may see the email.  A communication with the knowledge that others may or are likely to overhear the communication may not be privileged.

    Well, a California court of appeals agrees with me.  In Holmes v. Petrovich Development (CA3 C059133 1/13/11) the court held that an employee’s emails sent to her attorney using the company’s computers were not privileged.  The company’s policies said that its computers were to be used only for company business and that employees were prohibited from using them to send or receive personal e-mail.  The employee had been warned that the company would monitor its computers for compliance with the company policy and thus might “inspect all files and messages . . . at any time.” Also, the company had been explicitly advised employees that employees using company computers to create or maintain personal information or messages “have no right of privacy with respect to that information or message.”

    Based on this information the court likened the issue to an employee meeting with her attorney at the company’s offices with the door open and speaking in loud voices.

    This is not to say that email communications, just from the nature of how emails are sent and the fact that “persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication,” cannot be privileged.  It simply means that you should not use work emails to send confidential communications to your attorneys unless you want to run the risk that the company may read those emails.

    The Law Office of Phillip J. Griego
    95 South Market Street, Suite 520
    San Jose, CA 95113
    Tel. 408-293-6341
     
    Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
     

    Feel free to suggest topics for the blog. We are happy to consider topics pertaining to general points of Labor and Employment Law, but we cannot answer questions about specific situations or provide legal advice. If you desire legal advice, you should contact an attorney.

    Your use of this blog does not create an attorney-client relationship between you and the Law Office of Phillip J. Griego. The use of the Internet or this blog for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be posted in this blog and the Law Office of Phillip J. Griego cannot guarantee the confidentiality of anything posted to this blog.

    Phillip J. Griego represents employees and businesses throughout Silicon Valley and the greater San Francisco Bay Area including Palo Alto, Menlo Park, Mountain View, Los Altos, San Jose, the South Bay Area, Campbell, Los Gatos, Cupertino, Morgan Hill, Gilroy, Sunnyvale, Santa Cruz, Saratoga, and Alameda, San Mateo, Santa Clara, San Benito, Mendocino, and Calaveras counties.