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Litigation: Drafting and Implementing Effective Litigation Management Guidelines

Posted on June 4, 2013 by Barger & Wolen LLP

David McMahon wrote an article, Litigation: Drafting And Implementing Effective Litigation Management Guidelines, published in Inside Counsel on May 30, 2013, that stresses the importance of drafting and putting into practice effective litigation management guidelines.

As McMahon outlines in his article, litigation management guidelines "supplement the judgment of counsel by enabling the client to exercise the right and duty to control the costs of litigation while at the same time allowing counsel to have a voice in the strategic direction of the handling of the matter.”

McMahon also discusses how important it is to have billing guidelines in order to manage costs and address clients' concerns about billable hours. He notes that most billing guidelines prohibit billing for actions performed for more than one client at the same time, known as “double billing,” require notice of staff changes, require the attorney to get advance notice from a client when performing certain types of work and mandate effective use of technology, among other things.

"In general terms, billing guidelines memorialize the economic relationship between the client and retained counsel,” he wrote. “These guidelines tend to cover the costs of handling the defense and attempt to prevent exposure to the client to what might be perceived as unreasonable or unnecessary fees.”

Billing guideline can help to foster communication between attorney and client, according to McMahon.

It is imperative that in-house counsel put into place clear, concise and express billing guidelines to govern outside counsel billing practices, particularly in major litigation,” he added. “In-house counsel should require your counsel and every member of his or her team to read them and acknowledge the rules.”

Related litigation management articles: Litigation: How to Get Paid On Time, Inside Counsel, May 16, 2013.

Auditing Billing Practices

Posted on April 3, 2013 by Barger & Wolen LLP

David McMahon wrote an article published in The Recorder on March 29, 2013, about qualitative litigation management audits, which seek to determine whether the litigation bills are reasonable and necessary.

According to McMahon's article, a qualitative litigation management audit looks at the strategy, staffing and overall approach utilized in the case and is intended to ensure that attorneys hired for litigation and other legal work operate “in a goal-directed, streamlined and thus cost-effective manner.

To this end, we typically review the available work product, including the pleadings, motions, discovery requests and correspondence to identify wasteful practices, improper staffing and to identify opportunities to increase efficiency,” McMahon wrote.

In his article, McMahon notes a number of factors including the filing of unnecessary motions, needlessly aggressive letters to opposing counsel and staff management issues that tend to drive up the cost of litigation.

A PDF of the article will be available shortly.

 

Tripartite Attorney-Client Relationship Arises when Insurer Hires Law Firm to Prosecute Action on Behalf of its Insured

Posted on January 17, 2013 by Barger & Wolen LLP

By Travis Wall

It is well settled that a tripartite attorney-client relationship arises when an insurer retains counsel to defend an action against its insured. As a consequence, confidential communications between counsel and the insurer or the insured are protected, and both the insurer and the insured are holders of the privilege.  

The California Court of Appeal for the Fourth Appellate District clarified that a tripartite attorney-client relationship also can exist where the insurer hires a law firm to prosecute an action on behalf of its insured. See Bank of America v. Superior Court of Orange County (Pacific City Bank), 2013 DJDAR 654 (2013). 

In Pacific City Bank, Fidelity National Financial (Fidelity) was the insurer and Bank of America was the insured under a lender's title policy insuring a deed of trust. Pacific City Bank (PCB) had recorded a deed of trust on the same property and sent a notice of trustee sale. Bank of America tendered the claim to Fidelity, which hired a law firm to institute an action on behalf of its insured, Bank of America, to protect its security interest. In the ensuring litigation, PCB served subpoenas on Fidelity seeking communications between the law firm and Fidelity. Bank of America moved to quash the subpoenas to exclude communications between the law firm and Fidelity on the grounds of privilege. The trial court held that the tripartite attorney-client doctrine did not apply because the law firm was retained to prosecute the underlying action rather than defending litigation. According to the trial court, Fidelity did not have a "favored position" or "sacred role" in the litigation.

The Court of Appeal reversed, holding that the trial court erred as a matter of law in making this artificial distinction. The court's holding turned on an analysis of the title insurer's duties to its insured. The court reasoned that a title insurer's obligation to defend a lawsuit and to take other appropriate action, such as prosecuting an action to protect the integrity of an insured's title, are "kindred duties" addressing the "same fundamental concern" and that there is no logical reason why a tripartite relationship should exist in one situation but not the other. 

The court rejected PCB's arguments that no tripartite relationship arose because there was no formal retainer agreement between the insurer and counsel hired to protect its insured's interest. The mere retention of the law firm was sufficient to establish the tripartite relationship. It also did not matter that Fidelity had reserved rights. The law firm was not acting as Cumis counsel, and, even if it were, the privilege would still apply to all confidential communications among the insurer, insured and law firm except those pertaining to coverage.

PCB maintained that Fidelity waived any right to object to the production because it did not bring its own motion to quash the subpoena. The court rejected this argument as well, noting that Bank of America was a holder of the privilege and thus had standing to assert the privilege itself.

Employer Liable If Discrimination Was A "Motivating Reason" For Termination, Court of Appeal Rules

Posted on October 22, 2012 by Barger & Wolen LLP

By Michael Newman

Alamo v Practice Management Information Corporation (California Court of Appeals, Second Appellate District, Division Seven, decided on October 18, 2012), clarifies the standard of causation for employment discrimination claims in California, as well as the circumstances under which attorney fees can be awarded.

Following the termination of her employment, plaintiff Alamo filed a civil action against her former employer, PMIC, alleging, in relevant part, (1) pregnancy discrimination in violation of the California Fair Employment and Housing Act (“FEHA”) and (2) wrongful termination in violation of public policy.

The case was tried before a jury, which rendered a general verdict in Alamo’s favor and awarded attorney fees.  PMIC appealed, claiming that the trial court had committed errors in its instructions to the jury.  First, PMIC argued, the court had erroneously instructed the jury that Alamo merely had to prove her pregnancy was a “motivating reason” for her discharge, rather than the “but for” cause of her discharge.  PMIC also contended that the court erred in failing to instruct the jury that PMIC could avoid liability under a mixed motive defense by proving it would have made the same decision even in the absence of a discriminatory motive.

The Court of Appeal found that the trial court had made no instructional error.  Under California cases interpreting FEHA, the discriminatory motive needed only be a motivating reason for the adverse employment action, and need not be a “but for cause.”  The Court contrasted the FEHA rule with that of the federal Age Discrimination and Employment Act (ADEA), which does require the discriminatory motive be a but for cause.

Furthermore, as neither party had presented the case as a “mixed motive” case (i.e., a case where both legitimate and illegitimate motives were allegedly behind the termination), the trial court did not err in failing to inform the jury that PMIC could avoid liability by proving it would have made the same decision even in the absence of discriminatory motive.

However, as the Court of Appeal noted, the question of the proper standard of causation in a FEHA claim, including the availability of the mixed motive defense, is currently pending before the California Supreme Court in Harris v. City of Santa Monica, review granted April 22, 2010.  Thus, the Court made its ruling “[p]ending further guidance on this issue by the Supreme Court.”

Finally, the Court held that the award of attorney fees was not in error.  With respect to this, PMIC had argued that attorney fee awards were available under FEHA but not for common law wrongful termination claims.  PMIC maintained that, because the jury had issued a general verdict, there was no indication that Alamo had prevailed on the FEHA claim, rather than the wrongful termination claim.  The Court held that this argument was barred under the doctrine of “invited error,” which provides that where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal on appeal.  The record indicated that PMIC had deliberately agreed to the general verdict form in order to be able to challenge an attorney fee award. It had thus deliberately “invited” the error it complained of.  Furthermore, because Alamo’s wrongful termination claim was derivative of her FEHA claim, Alamo necessarily prevailed on the FEHA claim.  Thus, the award of attorney fees was appropriate for this reason as well.

COMMENT:

Causation in FEHA cases will continue to be in flux until the Supreme Court rules on Harris v. City of Santa Monica.  We will follow the progress of that case and provide updates on this blog when they occur.

If you have any questions about FEHA, or other employment law issues, please contact Michael Newman.

 

Originally posted to Barger & Wolen's Employment Law Observer blog.

No Attorney Fees Can Be Awarded for Non-Payment of Rest Breaks, California Supreme Court Rules

Posted on May 1, 2012 by Barger & Wolen LLP

by Michael A.S. Newman

In Kirby v. Immoos Fire Protection, Inc., the California Supreme Court held that neither California Labor Code section 1194 nor section 218.5 authorize the payment of attorney fees in an action seeking recovery for denial of required rest breaks under section 226.7.

Section 1194 authorizes recovery of attorney fees by a prevailing employee on a claim for unpaid minimum or overtime wages. It provides for one-way fee-shifting to plaintiffs.

Section 218.5, by contrast, provides for attorney fees to be paid to the prevailing party in any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions. It is thus a two-way fee-shifting statute. However, it is also limited, since it does not apply to any action for which attorney’s fees are recoverable under section 1194.

Section 226.7 imposes an obligation upon employers to provide mandated meal and rest breaks.

Plaintiffs, employees of Defendant (“IFP”), sued the employer for nonpayment of mandated rest breaks, but subsequently dismissed this claim. IFP sought roughly $50,000 of attorney fees for successfully defending this claim.

The first question the Supreme Court had to address was whether attorney fees would have been recoverable under 1194. The Supreme Court found that fees would not have been recoverable under 1194, since rest breaks do not constitute a type of “minimum wage,” as Plaintiffs had argued.

The second question was whether, in that case, attorney fees were recoverable under the two-way fee-shifting of section 218.5. Here, it was IFP that argued that non-payment of rest breaks constituted a “wage,” and therefore qualified under section 218.5. Again, the Supreme Court disagreed. Rest breaks do not constitute wages of any kind.

Thus, the Court held, attorney fees were not recoverable in actions seeking mandated rest breaks under section 226.7.

What makes this case interesting (and a little ironic) from a procedural standpoint is that it was the defendant employer seeking the attorney fees, and the employee plaintiffs who resisted. Thus, in losing their claim for attorney fees, the employer ended by establishing law generally advantageous to employers. And in winning this battle over the payment of roughly $50,000 in fees, the employees essentially nullified the ability of future plaintiffs to seek attorney fees in actions based on the denial of required rest breaks.

Originally posted on Barger & Wolen's Employment Law Observer blog.

TranscriptPad for iPad Offers Powerful Mobile Transcript Review

Posted on March 23, 2012 by Barger & Wolen LLP

By John M. LeBlanc

TranscriptPad is an elegant, fast and powerful transcript review app for the Apple iPad, designed specifically for the legal field, from the same folks who designed TrialPad, their flagship trial presentation and legal file management app. Similar software exists for your PC or Mac, such as the excellent Deposmart (from Clarity Legal), but TranscriptPad is the first dedicated transcript review and annotation app for the iPad. 

TranscriptPad accepts transcripts in .txt format, and exhibits in .pdf format. (Make sure you request the transcript in .txt format, as some court reporting agencies have their own proprietary format). The .txt format is a simple and relatively small file format that all court reporters can generate, and usually do so at no extra charge. Importing is a breeze, and can be done via email, Dropbox or even iTunes. I’ve uploaded multiple transcripts simultaneously, quickly and without any problems.

TranscriptPad

Transcripts are imported into case folders that you create and that are stored on your iPad. Opening a case folder reveals a deponent folder (created automatically upon import, with the deponent’s name and date of the deposition, along with the volume number). Multiple sessions of the same deponent are placed automatically in the deponent’s folder.

You can read a transcript hands-free by pressing the play button at the bottom of the screen, which allows you to adjust the speed. You can also flip back and forth as if you are reading a book (either in landscape or portrait orientation). 

Most attorneys like to annotate their transcript when reviewing, and here’s where the software really shows off. You can create your own “issue” codes to any part of the transcript. Issue codes can be assigned any name along with a choice of six colors, and appear in the margins of the transcript. You can also flag a portion of the transcript for later review. Issues codes, flags or any portion of the transcript can be emailed or exported to Dropbox. 

TranscriptPad contains a powerful search feature that allows you to search across any transcript or even multiple transcripts. Each hit is highlighted in the text, and you can create issue codes or flags from there, or email the section containing the search result. Detailed or summary reports of your issue codes, flags and searches are easily generated, and can be exported in .pdf or .txt format. 

TranscriptPad’s price tag is $49.99, which is pricey for an app, but on the other hand, this is robust and professional software. Similar software for the Mac or PC start at $200, and go much higher. For lawyers, paralegals, experts, in house counsel, and others who review and annotate transcripts, and who place a premium on mobility, TranscriptPad is a must. TranscriptPad can be found here (www.transcriptpad) and purchased in the Apple App store.

 Originally posted on Barger & Wolen's Life, Health & Disability Insurance Law blog.

U.S. News & World Report & Best Lawyers Names Barger & Wolen to Their Best Law Firms List

Posted on November 1, 2011 by Barger & Wolen LLP

Barger & Wolen is proud to announce that the firm has received a first-tier ranking in the 2011-2012 U.S. News – Best Lawyers “Best Law Firms” survey for our regional Los Angeles insurance law practice. The firm is also recognized for our national insurance law practice as well.

In addition, partners Kent R. Keller and Royal F. Oakes are listed for their work in Insurance Law.

“Barger & Wolen continues to be honored by our inclusion in US News & World Report and Best Lawyers’ ranking for the second year in a row,” said Steven H. Weinstein, chairman for Barger & Wolen. “Receiving this national recognition for the work our firm is doing validates for us that we truly are providing the quality legal services our clients’ demand, while maintaining the competitive price structure the insurance industry seeks.”

About the Survey

U.S. News & World Report uses data compiled by Best Lawyers to produce their Best Law Firms rankings. Best Lawyers combines hard data with peer reviews, and client assessments to produce their annual reports.

Rankings of 75 national practice areas are included in U.S. News & World Report’s Money issue, available November 15, with the full results available online today here.

Former President of Association of California Insurance Companies Joins Barger & Wolen

Posted on June 15, 2011 by Barger & Wolen LLP

Firm to Expand California Footprint with New Sacramento Office

Sam Sorich, the former president of the Association of California Insurance Companies (ACIC), California’s longest established property/casualty insurance trade association, joins Barger & Wolen as Of Counsel on June 15, 2011. Mr. Sorich, who has been in the insurance industry for more than 30 years, will also open and head the law firm’s new Sacramento office. 

“After my retirement from the ACIC, I was looking for an opportunity to continue to serve the insurance industry and its customers. Joining Barger & Wolen was the perfect opportunity to do that,” Sam Sorich says. “Barger & Wolen is an extraordinary firm that has incredible presence and influence in the insurance industry and has successfully represented many of ACIC’s 300 members.”

As ACIC president, Sorich directed the group’s legislative, regulatory and litigation activities. His role with Barger & Wolen will focus on expanding the firm’s presence and relationships in Sacramento particularly with the Department of Insurance and other state agencies. Although Barger & Wolen is not new to Sacramento, due to its representation and regulatory work before the Department of Insurance, Sorich will become a liaison for the firm’s clients within the influential circles of the state’s capital. 

“This new move solidifies our presence in Sacramento, which is a center of influence in California for the insurance industry,” says Steven Weinstein, chairman of Barger & Wolen. “The addition of Sam not only shows our understanding of our client’s business practices and needs, but it demonstrates our leadership in the industry.”

Under his direction at ACIC, Sorich and ACIC played a key role in the crafting and regulatory implementation of the 2003-2004 workers’ compensation reforms, the development of regulations that implement Proposition 103's provisions on auto insurance rating and underwriting, litigation that determines the scope of the insurance commissioner's authority over homeowners insurance underwriting, and legislation that provides consumers with effective disclosures regarding insurance coverage. 

Robert Hogeboom, one of the leaders of the firm’s regulatory practice, adds: “Sam Sorich is well respected by the insurance industry and regulators throughout the country. He will continue to play a key role in the regulatory work that we do for insurance companies at the state and federal levels.”

Sorich is a graduate of the University of Illinois College of Law. Before beginning his insurance career, Sorich served as a Peace Corps volunteer and an assistant attorney general in the office of the Illinois Attorney General. Sorich is a member of the Illinois Bar and the Hawaii Bar.

Originally posted in Barger & Wolen's Insurance Litigation & Regulatory Law blog.

Attorney Conflicts of Interest: Identifying and Resolving Ethical Pitfalls

Posted on March 22, 2011 by Barger & Wolen LLP

Strategies to Minimize the Risk of Ethics Violations and Malpractice Claims

Barger & Wolen partner David J. McMahon will be a faculty member for this Strafford Publications' CLE webinar which will provide attorneys with a framework to identify the most problematic and difficult-to-detect conflicts risks. The panel will outline best practices for attorneys to cope with conflicts that could potentially result in disqualification, discipline and malpractice.

Description

Conflicts of interest are one of the most common ethical dilemmas for attorneys. Whether the situation involves a personal conflict, a multi-client conflict, or a third-party conflict, practitioners must identity situations or transactions that pose potential conflicts of interest.

Conflict issues that arise when attorneys change firms are particularly relevant in the current environment. The ABA's Formal Opinion 09-455 addresses situations in which revealing a client’s identity and description of work performed may itself violate client confidence.

While many conflicts can be resolved with client consent, an effective waiver depends on the nature of the conflict, the timing of the waiver request, and whether the client is a current or former client. Conflicts can also be anticipated and addressed in engagement letters.

Listen as our authoritative panel of attorneys discusses how to identify potential conflicts issues and outlines best practices for avoiding or resolving those conflicts.

Outline

  1. Identifying sources for potential conflicts of interest
    1. Defining the client
    2. Defining the adversity that triggers conflict rules
    3. Adverse client conflict — direct adversity or adverse representation
    4. Joint representation — dual or concurrent representation
    5. Adversity to former clients
    6. Personal conflicts of interest
  2. Conflict resolution
    1. Withdrawal from representation
    2. Client consent
    3. Conflict waivers
    4. Engagement letters
    5. Law firm conflicts checks

Benefits

The panel will review these and other key questions:

  • What are some best practices for law firm conflict avoidance procedures?
  • Under what circumstances will a conflict prevent representation?
  • How can engagement letters effectively limit potential conflicts?
  • What critical language should be included in a conflicts waiver document?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.

Joining Mr. McMahon on the faculty are Brett A. Scher, Partner, Kaufman Dolowich Voluck & Gonzo, Woodbury, N.Y. and Thomas B. Mason, Partne, Zuckerman Spaeder, Washington, D.C.

Upcoming Event: Crisis Management: A Primer on Crisis Response and Prevention

Posted on March 16, 2011 by Barger & Wolen LLP

Barger & Wolen partner David J. McMahon will lead a roundtable discussion on Crisis Management: A Primer on Crisis Response and Prevention at the 2011 Council on Litigation Management Annual Conference, (March 23-25 | New Orleans, LA).

Program Description:

A crisis is a severe, unexpected situation that threatens to harm a business, its shareholders or the general public.

The objectives of the roundtable are to provide a primer on crisis response and prevention through five hypothetical cases studies.

The case studies will illustrate how crisis management specialists, public relations professionals, legal counsel and other in-house professionals can be effective players in crisis response, prevention and planning.

Joining Mr. McMahon will be Rhonda Barnat, Abernathy MacGregor Group, Warren Perkins, Jr., Boh Bros. Construction Co. L.L.C. and Frank Vasek, Chartis Insurance.

About the Council on Litigation Management

The Council is the largest fully inclusive defense organization, comprised of thousands of
insurance companies, corporations, corporate counsel, risk managers, insurance professionals,
claims adjusters and attorneys. Through education and collaboration, its goals are to promote
and further the highest standards of litigation management in pursuit of client defense. The
Council sponsors educational programs, provides resources, fosters communication, and
recognizes lawyers who meet high standards. To learn more about the Council, please visit
www.litmgmt.org.

Older Entries

September 17, 2010 — Barger & Wolen Receives First-Tier Ranking in the Inaugural "Best Law Firms" Survey by U.S.News and Best Lawyers®

May 27, 2010 — "Prevailing Party" Status Not Necessary for an ERISA Attorneys' Fees Award

December 23, 2009 — Financial Abuse of Elders and the Recovery of Attorneys' Fees