Month: June 2018

Yesterday, I had a conversation with my father about his approaching death and his estate plan. He’s got terminal cancer and he’s 92[1] so, while he’s doing relatively well right now, the reality is that he’s going to die sooner rather than later.

Now, many people might think that sounds cold, but it’s not: none of us gets out alive, after all. I love my father and will miss him, but as a (bad) Buddhist, I know about impermanence[2] and accept it, including when it means accepting death and loss. I’ve been lucky to have my dad in my life for so long; my mother died when I was 18. If you look, you’ll find a (fake) quote from the Buddha on my site that sums it up: Impermanence is a bitch.

As a lawyer, regardless of my thoughts on impermanence, I know that estate planning is important. However, that combined with an acceptance of impermanence meant that asking Dad about his estate planning now, while he’s still doing well, was the right thing to do. That he was an attorney before retirement helped make it easier. These can be difficult conversations, but they are needed.

It’s one thing to think about estate planning for our elders, but the sad reality is that things can kill any of us, any day. If you haven’t planned for it, then when it happens you force your loved ones into a bunch of extra work and emotional hell. This is true even if you don’t have much of anything but, as a creative pro, you have more than you think: your copyrights are assets that live beyond you. You also probably have art on your walls or notebooks full of sketches or other objects that might not seem of financial value, but that you don’t want falling into the hands of, say, your crazy brother who has joined a cult.

There are many things that can be done to make that difficult time much easier: wills, trusts, pay-on-death accounts, life insurance, just to name a few tools. In some states, there are transfer-on-death deeds, even, for real estate. Basically, you can keep almost everything out of probate, if you plan appropriately[3].

Of course, I think getting the plan executed and all the tools in place is the best thing to do, but I think talking about this as soon as possible, with the people you love, is important. That can be done today. Ask people what they want and tell them what you want. At the very least, even if it isn’t leally binding, at least you’ll know that, say, your camping-loving girlfriend wants her ashes chucked off Mount Whitney rather than in the desert; then, if necessary, you can try to do that for her.

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[1]Yes, I am the youngest of my siblings and there is a gap. 🙂

[2]For more on impermanence: https://tricycle.org/magazine/impermanence-and-four-noble-truths/

[3]Here is some good info for Californians: http://www.calbar.ca.gov/Public/Free-Legal-Information/Legal-Guides/Estate-Planning. While a lot of that basic info may be the same in other states, the law is state-specific.

Contrary to the assertion of at least one copyright lawyer getting a lot of press out there, filing more suits is not better than filing fewer. Certainly, it’s not a valid metric for evaluating an attorney’s abilities. In fact, I’d say it’s not better on any level, except, maybe, increasing that attorney’s bottom-line.

I’m not saying that one should never file, but rather it should be a last resort, not a first (or second) salvo. Sometimes, you have to file suit; some people refuse to negotiate a reasonable settlement. Doing it right off or often though, especially in large numbers overall, is much more likely make things worse in the long run than give you a fast win.

First, judges notice. A plaintiff or attorney who is very litigious will raise the eyebrows of the judge or judge magistrate (JM). That is never a good thing. It can happen even when the total case count is small but still more than a couple. I was once in an Early Neutral Evaluation[1] where the JM said that she noticed that my client had (while represented by other counsel, I would note) filed “more than a few” cases before this one. Actually, the number of cases was not at all large, but she still noticed. I explained that my client’s work was often infringed and, when necessary, he’d filed to protect his rights. Whether the JM accepted that or not is not important here (she seemed to, though); the fact that she raised the question meant it was on her radar, and not in a good way. Imagine if he’d previously filed 20 or 50!

Attorneys have it even worse. Judges recognize our names more than you might expect and they do talk about us with their colleagues. I heard a JM talk about that at a recent event. Anyway, if you’re that attorney, no matter how neutral judges try to be, they’re going to have your litigiousness in the backs of their minds. It’s not a good look.

Not surprisingly, some people think that attorneys who file a lot of suits must be good, aggressive litigators. Well, those lawyers may be aggressive litigators, but are they good? I’d argue no. Time alone makes that impossible.

Litigation is time (and brain-power) intensive. There is no way an attorney can simultaneously handle many (much less hundreds of) cases in active litigation and do it well, not even with a bunch of support staff.

Right from the start, it takes a lot of time to draft a good complaint. Even if the attorney is working off a template of some kind (and, honestly, we all do), a well-drafted complaint must be detailed, present the facts of the case in a logical-yet-compelling manner, and yet still be concise.

It is storytelling in a way, but non-fiction (of course) and with technical limitations that make the process much harder than just filling in the blanks. That “storytelling” also happens after the attorney has already thought through the whole matter to make sure s/he is asserting all the claims s/he legitimately can (or should), has checked to make sure the filing is in the right district (there are rules about that), and also has tried to predict what defenses will be asserted, to thwart as many as possible. It’s not easy and it’s not quickly done.

Before the drafting starts, the attorney will also have to research the district’s local rules to make sure to follow them in the drafting itself (numbered lines? font requirements? caption format? etc.). While drafting, the attorney will have to fight with Word which, although the standard tool for lawyers, seems to hate line numbers and other legal oddities (I swear the chances of a photograph being inserted without glitches on the first try are less than 25%). Add it all up and the attorney will have spent hours and burned out many grey cells before even filing a thing.

Filing the complaint is only the beginning. If the defendant doesn’t immediately try to settle after being served (or waiving service) and you get into discovery, well, that is a whole different (larger) pile of work for the attorney: interrogatories and requests for admission and requests for production and depositions, plus responding to the same from the other side. It’s a ton of work, all detail-oriented (or it should be), and not something you can do (or should even consider doing) half-assedly.

In my own practice, I limit the number of cases in litigation that I will take on at any particular time because I believe it is my ethical duty to be present for each client, in each case, at all times. I would never send someone else to cover a hearing[2] unless there was an absolute emergency (and even then I would contact the court, first, for permission) or that attorney was already a part of the case (like, local counsel or other co-counsel). I research the law and double-check previously cited cases before including them in any filing to make sure I’m doing the best by each client I represent, in each matter I handle. And I agonize if I somehow miss a typo after proofing and re-proofing anything I draft. All of that necessarily takes time and attention and all good attorneys know and do that.

Importantly, here’s what “aggressive” attorneys aren’t likely making clear to their clients: the financial risk is mostly on them, I mean on the clients. If a copyright case is dismissed or if the plaintiff loses otherwise, then the plaintiff may have to pay the defendant’s attorneys’ fees and costs[3]. If an attorney doesn’t follow court orders, there is a chance a judge or JM will impose penalties or even strike entire filings[4]. Yes, attorneys may be sanctioned directly, too, but a lot of the penalties for bad acts fall on the party, not the attorney.

Especially since losing carries a significant risk of having to pay the other side’s attorneys’ fees, I think a good attorney owes it to her client to make sure the case is a strong one and truly worth filing before suggesting that step to her client. And a good attorney should do all in her power to get her client satisfaction without filing, if possible.

I don’t see how any of that can be done if one is filing hundreds of cases a year.

Finally, a client certainly can’t get personal attention and regular updates if the attorney has too many cases in litigation. One of the biggest reasons for unhappy clients (and malpractice claims) is a lack of communication by attorneys to their own clients. It’s your case–make sure to pick an attorney who will give it, and you, her full attention.

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[1]An ENE is like a mediation, but with the assigned JM on the case functioning as the “mediator.”

[2]See, Footnote 1 in this order, for an example of why this is bad: https://assets.documentcloud.org/documents/4404749/Reynolds-v-Hearst-Liebowitz-Bond.pdf

[3]17 USC §505 says that a winning party may get her/his attorneys’ fees and costs–that includes successful defendants.

[4]I had this happen in my very first litigated case as an attorney–the defendant’s attorney didn’t show up to two hearings then made a lame excuse so the judge threw out the defendant’s answer and my client won in a default.