Rise of the Big-Box Legal Retailer
Posted: July 29, 2009 Filed under: Practice | Tags: big firm, practice of law Leave a comment »For the past couple decades, big law firms have been the “norm” as far as how to practice law and the preferred way to go for both budding lawyers and for clients. The last few years, with the economic downturn forcing every industry to cut costs, there has been a sea change as far as how people–both practitioners and their clients, corporate or otherwise–have been approaching the practice of law. Clients were demanding lower costs and more personalized service. Attorneys were seeking a better work-life balance and wanted to be able to implement their vision of how law should be practiced. Up came the niche boutique firms, the virtual firms, and of course solo practitioners (both forced entrepreneurs and voluntary solos). It seemed like the legal world was one big oyster with many pearls, not just one pearl and a bunch of sand.
However, after reading this blog post it dawned on me that the Big Box Retailer of law, the big firm, is fighting back to get the market share they have practically been giving away the last few years. With their vast resources, they can out spend all the little guys to win over the clients that had been avoiding the big firms. They have basically adopted the supermarket method of creating a “loss leader” in hopes of getting the “little” clients that have strayed to the small firms. Once they grab their market share back, the small guys can no longer compete. It’s much like mom & pop hardware stores competing with The Home Depot. At first the small guys could offer products that Home Depot couldn’t or wouldn’t carry. Once Home Depot became the hardware store, it made no sense to go anywhere else because there was nothing different with little hardware stores besides price. The same can be said about Wal-Mart, IKEA, Best Buy, and so on.
Is this the Rise of the Big-Box Legal Retailer? Are big firms trying to take back what’s theirs? I think in the short term it will look like the big firms will appear to squeeze out the little guys with their endless resource pool. However, in the end a reasonably-priced, good-quality product always prevails.
People know that free isn’t always better, but at the same time, people will not pay more for equal products. Solo and small firms are more flexible and adaptable than big firms. Big Firm lawyers are not encouraged to think outside the box. It’s a machine. Although it may be at times difficult to match big firms with their ability to give away more freebies in order to attract business, solo and small firms have the ability to be more creative so they don’t have to. Netflix did not invent video rental. They just thought of a better way of doing it. Good ideas, with a little marketing, always win.
But you signed for it!
Posted: July 28, 2009 Filed under: Family, Law | Tags: acknoweldgment, notice, procedure, service, summons 1 Comment »I have been working on a pro bono case for a few months now. It involves a husband and wife who married overseas and moved to the U.S. a few years ago. They had one child born in the U.S. and lived under one roof. They decided to take a vacation (or to move back) to their home country (depending on who you believe) and all three traveled over seas. Some conflict took place over seas and the mother attempted to return with her daughter, but was unable to leave with her daughter. Nonetheless, she returned to the U.S. sans daughter. She is now filing for divorce and custody of her child. The father is in an unknown location and can only be reached via e-mail.
As you can imagine, there are quite a few huge issues here, most dealing with dueling interests of sovereigns. However, before getting to any of those issues, my main concern is that we must satisfy due process by personally serving the opposing party with summons and the petition before being able to continue with this action. How do you serve someone overseas without knowing where he/she is located? Another wrinkle is that this foreign country is not a signatory to the Hague Convention and has very poor relations with the U.S.
I consulted a practice guide and was doing a little research involving alternative methods of service. Of course, the preferred and sure-fire method is personal service. That looks unlikely here. Substituted service is another possibility, but we’ve found that the opposing party has substantially cut ties with the U.S. and does not maintain a mailing address, place of business, or other address such as a P.O. Box. Third is service by publication, which looks to be like the only way to proceed.
While looking into alternative methods, I started reading about Notice and Acknowledgment of Receipt. I have been involved in a few cases which used this method of service. It usually involves one parent moving away from the forum state and agreeing to consent to the home state jurisdiction. However, I read something that caught my eye. The practice guide said that personal jurisdiction could not be exercised over the nonresident opposing party on a signed Notice alone. At first blush this did not make sense. What better consent to jurisdiction than a signed document agreeing to allow the court to exercise personal jurisdiction over you? The only explanation I could think of was that it uses the word “nonresident” and perhaps what it means is that if the party being served has no other contact with the forum state other than this signed Notice and Acknowledgment then there is no nexus between forum and party. Perhaps if the party to be served was a former resident it would establish minimum contacts.
In any event, the Notice and Acknowledgment could be a way to go here, but it seems like it would waste more time than anything else. The particular foreign county at issue here is not too great with postal mail, and if the party to be served does not respond we’d be back in this position anyway.
How to be a Great Client
Posted: July 27, 2009 Filed under: Practice Leave a comment »While there are likely thousands of pages written about good (but mostly) bad lawyers–and even more including lawyer jokes–I’d like to take a minute to give my two cents about what would make a great client. This is not meant to be a laundry list of things that annoy a lawyer, and surely not a come-back for all the low-blow jokes lawyers take all the time. What it is meant to be is one lawyer’s opinion on what a client can do that would enable the lawyer to provide more effective service.
1. Put everything in writing. This may sound cliche, but many people handle a lot of their business over the phone or during verbal conversations. What is essential, but rarely happens, is for one or both (or more) of the parties to take a minute and to memorialize the conversation in some sort of writing or e-mail to confirm that both (or more) parties were talking about the same thing and reached the same conclusion, if any. People have poor memories and they get worst as time passes. With a written chronicle a lawyer can more effectively get to the core issues. Related to this…
2. Keep good records. Although you may have a good case or you might be absolutely sure you are right in a dispute, it’s hard to convince someone that wasn’t there (like your attorney) if you do not have a record of it. This is why it is important to keep dated records of financial transactions, or as stated above, of verbal transaction. Always think that you must prove every transaction to somebody who was not there. Would he or she believe you? Why?
3. Establish clear deadlines with your attorney. Nobody likes to be hassled by endless phone calls, just ask your local telemarketer. Likewise, you do not want to be on your lawyer’s bad side for calling twice a day. After all, a lawyer has more than one client. Instead, it’s easier on all parties to ask your lawyer when you should contact your attorney for a status update and the best way to contact each other. Alternatively, you can ask your attorney to send you an e-mail every Friday with an update, for example. Similarly, when your attorney asks from you to produce a specific document or other information that you have in your possession, be clear on when and how you are going to be delivering that information.
4. Adjust your expectations according to your situation. Your attorney is not a miracle worker, and similarly cannot predict everything about your case. However, it is important at the outset of the lawyer’s representation to adjust his/her client’s expectations to fit the client’s specific legal matter. If your attorney has not gauged and guided your expectations, then you should specifically ask the likelihood of your success, and more importantly, how much the lawyer expects it to cost the client, both in terms of time and money.
5. “A lawyer’s time and advice are his stock in trade.” –Abraham Lincoln. Although something may seem like a “quick question,” it’s helpful to remember that the practice of law is a service. Lawyers neither sell tangible products like a retailer, nor does their service result in a consumable item such as it does in the food industry. Lawyers serve their clients using analytical reasoning and advocacy skills in order to champion his or her client’s best interest. Therefore, instead of asking your lawyer questions as they come up, it’s more effective to sit and think (as objectively as possible) about what your goals are, what you are willing to settle for at the minimum, and what you need to know in order to understand what your legal matter entails. These are very important “big picture” issues to consider even before seeking the advice of a lawyer. What do you want and what are you willing to do to get it? In other words, being impulsive about learning about your case is less effective than truly pondering what you want and how far you are willing to go and then discussing your case with your attorney. In the end it will be less time consuming for everyone involved. That being said…
6. There are no winners in litigation. Litigation is time consuming, stressful, and downright expensive. Nobody really wins in the end. Clients should truly try to distance their emotions from the legal issues as much as possible. Just because you didn’t “stick it to” him or her doesn’t mean you did not “win.” If you are able to settle without litigation then everyone has done his or her job. The best legal advice I can offer to anyone is to avoid litigation. Then again, those that do not take this last piece of advice are the ones that keep people like me in business.
We’re MOVING!
Posted: June 2, 2009 Filed under: Uncategorized Leave a comment »Due to growing business opportunities outside of San Francisco (and nicer digs), the Law Office of Matthew M. Shafae will be moving from San Francisco to San Mateo County. Effective June 15, 2009, our new contact information is as follows:
Law Office of Matthew M. Shafae
1200 Sixth Ave., Suite 200
Belmont, CA 94002
Telephone: (650) 539-4044
Please update your address book accordingly.
Wild, Wild West
Posted: April 28, 2009 Filed under: Law Leave a comment »Last week, the Contra Costa County District Attorney responded to budget cuts to his office by proclaiming that “smaller” crimes will no longer be prosecuted. As you can imagine, the Board of Supervisors (and the people of CoCo County) were up in arms for essentially announcing that anything lighter than a dead body will go unpunished. (SF Gate article)
Contra Costa County’s district attorney and Board of Supervisors are heading for a showdown today over the prosecutor’s refusal to bring charges against burglars, shoplifters, reckless drivers and other misdemeanor offenders because his office can’t afford it.
Although the DA presumably warned the Supervisors that his office would not be able to do the same amount of work with less money, the Supervisors are now appalled at the DA’s announcement to the public.
“Certainly, this is an economic crisis, and the budget is hitting everybody hard,” said board Chairwoman Susan Bonilla, who called today’s special meeting to discuss Kochly’s actions. “But our expectation was that our elected district attorney would step up in his role, rather than say, ‘Don’t submit these crimes.’ “
So what does this all mean? Are we going to see some Rodney King-esque looting throughout Contra Costa County? Are people going to stop abiding by traffic laws? Will people start riding horses and wearing huge hats with six-shooters on their hips?
It sounds like some major bureaucratic chest-puffing to me. The Supervisors threatened to, and eventually did, cut the DA office’s budget. The DA, thinking this was not a good move, engaged in a game of chicken, part of which is being fought through the press. This will probably amount to a few hearings and local news soundbytes, but with little other effect. Traffic citations don’t usually involve jail time. They are fines that drive in revenue to the city and county. The DA’s office will likely not be involved. The same goes for traffic collisions. Most of the aftermath is handled in civil courts as between insurance company and the injured. So what we’re really talking about here are going to mostly fit under petty theft and DUI. However, the DA office will still be prosecuting DUIs. They simply cannot ignore those because of the high incidence of that crime and the amount of money it brings in to the county. All this squabble for what will essentially amount to a few stolen TVs. Well, the money that could have been used to prosecute those crimes could have come out of the money being used to discuss the DA’s remarks in this week’s hearings.
Happy Birthday, Roxana
Posted: April 28, 2009 Filed under: Uncategorized | Tags: free press, iran, saberi Leave a comment »Roxana Saberi turns 32 today. She is currently on a hunger strike while serving an 8-year prison sentence in Iran. I am thankful to be able to post this without the fear of being imprisoned.
Truth or (no) Consequences
Posted: March 31, 2009 Filed under: Law | Tags: first amendment, free speech 2 Comments »I find Brian Williams brilliant. He’s intelligent, articulate, and most importantly, funny. I found out on The Daily Show with Jon Stewart that he maintains a blog on msnbc.com called “The Daily Nightly.” It’s concise and usually provides a link or two. One of the links today directs the reader to a Wall Street Journal article about Philadelphia tour guides challenging a city law requiring tour guides to take and pass a licensing quiz in order to give a tour of the city’s historical sights and monuments. You see, a journalist went on a number of Philadelphia tours and recorded several historical inaccuracies promulgated on these private tours and he appeared before the City Council with his list of tour guide “facts.” The City Council then passed a law requiring tour guides to be licensed before being able to give tours. The tour guides are challenging the law based on First Amendment rights to free speech.
It’s a fascinating case. I have no clue how the court is going to resolve this. Either way, it seems like it’s going to go up on appeal as high as it can go, as many constitutional cases do. First Amendment cases are so interesting partly because there is little guidance for judges to decide the cases besides drawing factual analogies to other cases decided before. Meanwhile, morals, values, and economics play a significant side roll.
The basic arguments here seem to be that the city wants the tour to be historically accurate because the tours hold themselves out to be historically accurate presentations of the city’s sights and the tour guides see the tour as protected speech whether it’s historically accurate or not.
I am no expert in free speech law. However, a compromise could be that the city offer an optional “certification” process by which customers may choose to purchase a tour given by someone certified by the city for historical accuracy. That way, no infringement on speech, and the city gets to establish some sort of factual standard. Perhaps a third party, like a historical society, could handle certification procedures. Whatever it is, it would be less time-consuming and cheaper than this law suit.
Socialists rejoice; Free Marketers… well, this ain’t your year
Posted: March 3, 2009 Filed under: Landlord-Tenant | Tags: legislation, rent, san francisco Leave a comment »As reported in SF Gate and SocketSite, SF Supervisor Chris Daly plans to introduce a series of laws that are intended to help tenants in this time of economic crisis, and accordingly will anger landlords.
The proposals include the suspension of any rent increases that would cause a tenant’s rent to exceed one-third of their income; expansion of the rights of tenants who want to add roommates to help pay their rent; and limiting the amount of “banked” rent increases — where annual rent increases allowed under city laws are saved up and then imposed at one time — to 8 percent.
(source)
With our country nationalizing a piece (or more) of just about every bank, it should be anticipated that this type of legislation would at least be discussed. However, I can see landlords’ angry resistance to this type of maternal/paternal legislation, since the free market is such a big part of our economy, and let’s be honest, our culture. As counterpoint to Supervisor Daly’s planned legislation, arguments can be made (here and here) that the market will work itself out if allowed.
So close… ok, maybe not
Posted: March 2, 2009 Filed under: Uncategorized Leave a comment »As we are all aware, Proposition 1A from last November’s ballot–aka the California High-Speed Rail proposition–passed amidst this great economic collapse. Many voters were conflicted. We all knew that we had a budget shortfall and at that time we were at least entering a bad recession, but we also wanted this infrastructure put in place. Well, we passed the referendum to budget the rail project after failing multiple times in the past. But we are no where near getting this project off the ground. As reported on SocketSite, the current plans for the Transbay Terminal may be obsolete sooner than designers planned. High-speed rail has low-speed planning, and with the bigger problems facing our state and nation, I think we can forget about high-speed rail for a while.
Boring People Don’t Like Google Street View
Posted: February 19, 2009 Filed under: Law | Tags: google, privacy Leave a comment »Pittsburgh couple Aaron and Christine Boring (yes, that’s their real name!) filed a lawsuit against Google for privacy violation, negligence, trespassing and unjust enrichment after they were photographed for Google Maps’ “Street View” feature, where a Google car drives around with cameras attached all over it to give a Google Maps user an actual image of a map location. The couple’s lawsuit was seeking $25,000 in damages.
The lawsuit was dismissed.
“While it is easy to imagine that many whose property appears on Google’s virtual maps resent the privacy implications, it is hard to believe that any – other than the most exquisitely sensitive – would suffer shame or humiliation,” Judge Amy Reynolds Hay of US District Court for Western Pennsylvania wrote in her 12-page decision.
(source)
Google’s defense was that the Borings could have had their image removed or blurred by submitting a request to Google. What was even more interesting, and quite obvious after I thought about it, were the additional reasons for why the judge concluded that the Borings had a baseless claim:
“Furthermore, they have failed to bar others’ access to the images by eliminating their address from the pleadings, or by filing this action under seal,” she said.
The publicity has actually perpetuated dissemination of the Borings’ name and location, and resulted in frequent re-publication of the Street View images, the judge concluded.
“The plaintiffs’ failure to take readily available steps to protect their own privacy and mitigate their alleged pain suggests to the Court that the intrusion and that their suffering were less severe than they contend,” wrote Judge Reynolds Hay.
(source)
Wouldn’t that be the issue with almost all invasion of privacy claims? The mere fact that one is filing a lawsuit–which would add purportedly sensitive details to the public record, focus public attention to one’s private life, expose one to invasive discovery requests, etc.–diminishes the claim that the information at the root of the lawsuit is in fact private. In some ways it’s a catch-22. One way toward legal recourse for suffering humiliation and/or damages because of an invasion of privacy is filing a lawsuit, in which case you would either suffer more humiliation because of the lawsuit or not being able to prove humiliation because you filed a lawsuit.
Any insight from privacy lawyers?
