Suits And Noncompetes for Lawyers

This season, one of the big issues that came up in the show Suits was that a partner was thinking about leaving the firm. But no! You can't leave, the partners say. Why? Because the partners all signed agreements that they wouldn't compete with the firm or take clients with them.

Doi.

Before I smacked my head on my desk, I double-checked. I knew that Florida lawyers aren't allowed to have noncompete agreements. But Pearson Hardman, or whatever they're called these days in the show, is in New York. Here's what New York law says about noncompetes for lawyers.

RULE 5.6:

Restrictions On Right To Practice

(a) A lawyer shall not participate in offering or making:

(1) a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or

(2) an agreement in which a restriction on a lawyer’s right to practice is part of the settlement of a client controversy.

(b) This Rule does not prohibit restrictions that may be included in the terms of the sale of a law practice pursuant to Rule 1.17.

Yep. Just as I thought. Lawyers in New York aren't allowed to have noncompetes either. Pretty clear. Took me about 5 minutes to find the rule. But the Suits writers are increasingly unwilling to do even the most basic research to make their show credible. My 14-year-old daughter still loves it, but I'm having a hard time with it this season.

Why can't lawyers have noncompetes? Because the attorney-client relationship is so personal, so special, that clients must absolutely be allowed to choose their lawyer, even if it means leaving a firm to follow a lawyer who moves to a different firm. This logic makes sense, but then why doesn't the same rule apply to doctors? I don't know anyone with whom I have a more personal relationship than my gynecologist, yet doctors frequently sign noncompetes. The patients are out of luck if they leave.

The law may be an ass, but writers who don't bother doing their research on even the most basic issues make an ass of their viewers and readers, as well as themselves. Losing 1.8 million potential viewers is surely a loss any show can't afford, and that's how many lawyer/viewers you stand to lose if you don't do your homework.

My Publishing Predictions (Partly) Come True

Last year, I made a number of predictions about what would happen in 2012 in publishing. Call me Cassandra, because they (partly) came true. Here's how I did with my prognostications:

Full-service e-books: I predicted that full-service shops would open up to assist writers who want to publish their own e-books, offering editing, cover design, formatting, special features such as links, matchmaking with illustrators, uploading to the major e-readers, and marketing. So far, there have been no takers on this model. Instead, publishing professionals have opened their own e-publishing companies rather than companies to assist writers. The big e-publishers like Lulu and Amazon also offer what they say are turnkey services. I think there's still room for some smart publishing professionals to pick up the slack in this huge market.

Consumer protection suits: I predicted we'd see more lawsuits claiming readers were misled. Sure enough, we've seen new consumer protection suits against authors and publishers, still mostly nonfiction, with consumers claiming they didn't get what they paid for. Lance Armstrong and Greg Mortenson have had the most highly publicized cases. I'm still waiting for suits saying a book advertised as fantasy was really sci fi, or a book advertised as good was really terrible.

Trademark suits: I predicted more trademark suits by authors, and I was right. Suits by comic book authors, dead authors and bestselling authors have claimed trademark infringement. It's one of those issues that will keep lawyers busy for decades to come as the publishing industry becomes more tight for money. The Fifty Shades people alone will create a boon for intellectual property lawyers.

Licensing: I predicted more publishers would make grabs for author rights in overbroad licensing language. Sure enough, publishers are making unprecedented moves to grab author rights. Beware contract language that may take away your rights. I've seen really broad licensing language proposed to me in contracts where I was writing free content. I find that most publishers, especially the ones who don't pay, are willing to negotiate when you call them on it.

Noncompete: As publishers insert more noncompete clauses into contracts, I predicted we'd start to see authors sued the same way employees are sued now – to keep them from going elsewhere. I haven't seen this yet, but I hear of more and more of these clauses. Since it takes a couple of years to get most books into print, it might be awhile before the suits come rolling in. What we are seeing, though, are suits where employers claim they own the copyright on books written by former employees based on contract language. Watch what you sign with your employers, as well as your publishers.

Alternate revenue sources: I predicted that publishers will insert links in ebooks to purchase items mentioned, like music, other books, and products. So far, while some e-books do have links, it looks like they are mostly for scam purposes, such as inserting malware. As publishers look for alternate revenue sources, advertisements are inevitable.

2012 certainly had its share of the usual libel and copyright litigation, along with a plethora of other legal issues that kept us busy on The Debriefer. Keep listening to us this year to hear the latest legal news in writing and publishing.

666 Park Avenue Starts With An Employment Law Lesson

The new television show, 666 Park Avenue, is a fun show about a luxury apartment building that has issues way beyond the normal plumbing problems. And the landlord? Well, as the Church Lady used to say on SNL, "Could it be Satan?" I think I had that landlord once.

The first show starts out with our hero couple finding the ideal job as managers of the building from hell. It all looks so nice, the tenants so happy. The new boss offers them more money than they imagined and a gorgeous apartment. He shoves a lengthy agreement in front of them. What's the worst that could happen?

Of course, our heroes sign without reading. And there's the big lesson for all employees: read what you sign. Your could be making a deal with the devil.

What could be in the agreement in this show makes me shudder to think. I'm sure we'll find out some of the worst provisions as the show progresses.

What could be in your employment agreement? There could be a noncompete provision saying you can't work for a competitor for a year or two. Or a nonsolicitation agreement, saying you can't solicit or communicate with clients, vendors and employees of the company for a year or two. I saw one that was so broad, my client couldn't talk to her bank about her own bank account if she signed. One would have barred my client from talking to his son for three years. You might have waived your right to a jury trial for any disputes against your employer, or have agreed to arbitrate, meaning you'll never get your day in court.

For writers, horror of horrors, there could be an intellectual property agreement saying that, if you thought of it or wrote it while you worked for them, even on their own time, they own it. That's right. Your blog, Twitter account, novel or nonfiction book about the workings of your industry might not be your own.

While you enjoy this fun new show, let it serve as a reminder to you: no matter how nice someone seems, read what you sign. You just might be making a deal with the devil.

Hey Good Wife Writers: Mediation Is A Settlement Conference, Not A Hearing

I just finished watching Episode 11 of this season's Good Wife, called, "Boom De Yah Da." Where do I begin? The writers must be watching that idiotic show about "mediation," Fairly Legal for their research. They couldn't have been more off base if they tried.

First of all, our heroes get a "Notice of Mediation" ordering them to attend a mediation on short notice regarding their bankruptcy. Sure, mediators do sometimes issue notices. But that's about all they got right. While a court may order mediation between parties, nobody can unilaterally set a mediation. The parties agree to both the mediator and mediation date. If they agree on neither, the judge sets it. There's no such thing as a surprise mediation. Usually, a party issues the notice after both parties agree on a date, location, time and mediator.

But it gets worse.

The mediator arrives and calls herself an "empress." It is clear that she intends to conduct a hearing and make a ruling. That's not what a mediator does. A mediator is a facilitator. She is not a judge, an arbitrator, a hearing offer, or an empress. She is there to help parties to a legal dispute reach a voluntary settlement. She can't take testimony. She can't make an order.

I'm so sick of writers getting this wrong. Mediation is a great thing to write into a legal show or a story involving the law. The Wedding Singers was a comedy that started with the main characters conducting a mediation, and they did it right. It was a great introduction to the characters, funny but true to the law.

Why has Hollywood gone off the deep end about mediation? It's simple. If you want someone who isn't a judge make a ruling in your story, they can be several things, just not a mediator. Here are a few:

Court-appointed special master: A special master is someone the judge appoints to make rulings on a specific matter. It might be discovery or a complex legal issue. That would have been perfect here.

Arbitrator: If the parties agree, the whole case can be ruled on by an arbitrator instead of a judge. It's a great process that saves time and money, and is not public. I doubt it would have worked here since the parties didn't agree and I've never heard of a bankruptcy arbitration. Arbitration can be forced on people like consumers and employees who signed an agreement in fine print they didn't read, and you can't appeal an arbitrator's ruling, so it's an excellent vehicle for a writer to use. It creates tension, drama, and gives finality to your story's outcome, unlike a judge's ruling, which can be appealed.

Hearing officer: Some cases, usually minor ones like traffic matters, use hearing officers instead of judges. They can make rulings just like judges. It wouldn't have worked here.

Magistrate judges: Federal courts also have Magistrate Judges, appointed but not for life, who hear federal matters. They take some of the burden off the judges and can hear cases by agreement or by court order. That would definitely have worked here.

Why oh why can't writers be bothered to get this right? It really ticks me off since I'm a mediator. Any lawyer, party to a lawsuit, mediator, or judge who is familiar at all with mediation knows this wasn't even close to realistic.

C'mon, Good Wife writers. I know you can do better.

How I Met Your Mother Court Episode is Unwatchable

Now that the new TV season is up and running, I promise to post more. Summer is tough for writing about TV writing. I just watched the newest episode, Twelve Horny Women, of How I Met Your Mother. I usually enjoy the show. Anything with Neil Patrick Harris is worth watching in my opinion.

Except this episode.

I hope the writers never, ever write another courtroom show. I'll have to stop watching. The show starts with Marshall's traitorous ex-friend weaseling his way into Marshall's firm, sneaking into the conference room they're using as a war room for their new big trial, and photographing their notes on trial strategy.

In real life, the peeking lawyer would be in real trouble. If a lawyer gets an accidental copy or email of something they know is confidential, they're supposed to disclose it to opposing counsel, return it or delete it, and not use it. Period. They can't go around peeking at opposing counsel's notes during a deposition break or look through their garbage for confidential information.

I won't ruin the show for you by doing spoilers. The writers will ruin it anyhow for any lawyer who watches. I'll just say that the parade of gaffes includes:

• Ex-parte communications with a judge
• Lawyers presenting evidence to the jury with long narratives instead of a witness
• Lawyers offering their own opinions on the case
• Lawyers making themselves witnesses in the case
• A finding of guilty/not-guilty in a civil trial
• The judge determining damages with no evidence and no basis stated on the record
• Calling damages a "fine"

I'm sure there were more, but I can't think about this travesty of a show anymore. The ridiculousness of it ruined the show, and they could have made it funny and kept it more real. Instead, it was just silly.

C'mon guys. Two minutes of research would have made the show better. Heck, watching five minutes of Judge Judy would have made it more realistic than this show was.

If you won't even attempt to make the scenes somewhat like what would happen in a courtroom, why use a courtroom at all? Make it something different. Use arbitration, which has looser rules. Use mediation, which is very informal. Make it a settlement conference. Do something, anything, but what the writers did in this show.

I declare this episode officially unwatchable for lawyers.

Suits Gaffe - Lawyer Noncompetes Are A Big No-No

If you're like me, you've been waiting for the Suits season finale where the battle between the contenders for managing partner of Pearson Hardman comes to a head. I won't spoil the result (although you find out in the first five minutes of the show), but I will say that the losers start muttering about taking as many lawyers with them and forming their own firm. But the one who keeps their calm says they can't. They have noncompetes.

At that point, they've lost me. I can't believe it! In Florida, lawyers can't have noncompetes, so I run to the computer and look up New York's code of professional conduct. Sure enough, I run across references to Karas v Katten Muchin Zavis Rosenman, a case saying that New York lawyers aren't allowed to restrict their ability to compete. In that case, a lawyer would be paid beau coup bucks in severance, if only he would refrain from working from a competing firm. The court found that “restrictions on the practice of law that include ‘financial disincentives’ against competition. . .are objectionable primarily because they interfere with the client’s choice of counsel.” When I find the actual rule, it says, “A lawyer shall not participate in offering or making: (a) a partnership, shareholder, operating, employment, or other similar type of agreement that restricts the right of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement. . . .” In case you're interested, it's Rule 5.6.

Most states follow the same rule. The idea is that, because the attorney-client relationship is so personal and so important, clients must not have any restrictions on their ability to choose which lawyer they use. This reasoning is bizarre to me in light of the fact that my gynecologist, your proctologist, and your psychiatrist can all be forced to sign noncompetes, at least in my home state. You may not be able to use your favorite doctor for a year or two, but god forbid you not be able to choose your lawyer. I can't think of a relationship more personal than the one I have with the person who checks out my hoo-ha every year and who delivered my kids.

Why are lawyers so special? Is it because we write the rules and pass the laws? You betcha.

The better question is, why can employers make most employees sign these agreements and force them into indentured servitude? Maybe it's time to revisit the whole concept of noncompete agreements in this country. In the meantime, when you're writing about lawyers, don't make the mistake of having them sign noncompete agreements.

Suits Gets Fraud on the Court Right

I had one of those WTH moments while watching Suits recently. A lawyer with a grudge against Harvey shows up claiming he has evidence that a judgment Harvey obtained 5 years ago was done fraudulently. The evidence? He comes up with a memo he claims was hidden. In it, a company representative talks about the design defect the company denied existed in a products liability case. He claims Harvey hid it deliberately. He is suing the law firm for fraud and is going to move the court to set aside the judgment.

So I’m thinking, five years? How is he going to reopen a case that old? Does fraud on a court let you go back indefinitely in New York?

The answer is, maybe. If the judgment was entered in Federal court, the parties have only one year to seek relief based on fraud. Fed. R. Civ. P. 60 says:

(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within a reasonable time—and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding.

However, I don’t see a similar time limit under New York’s CVP. LAW § 5015 : Relief from judgment or order:

(a) On motion. The court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of:

1. excusable default, if such motion is made within one year after
service of a copy of the judgment or order with written notice of its
entry upon the moving party, or, if the moving party has entered the
judgment or order, within one year after such entry; or

2. newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not have been
discovered in time to move for a new trial under section 4404; or

3. fraud, misrepresentation, or other misconduct of an adverse party;
Or

4. lack of jurisdiction to render the judgment or order; or

5. reversal, modification or vacatur of a prior judgment or order upon
which it is based.

The one year time limit only applies to excusable default, and not to the other grounds. So I’ll rate that plotline as plausible (NY civil procedure gurus, let me know if I missed something).

The next thing that happened is the lawyer tricked Harvey into doing his own investigation after the client fired the firm. Harvey found out that there was indeed fraud. The lawyer then announced that Harvey had to disclose the fraud to the court now.

If they were in Florida, that’s probably true. New York law isn’t so clear. NY DR 7-102(B)(1) provides that “[a] lawyer who receives information clearly establishing that . . .[t]he client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon the client to rectify the same, and if the client refuses or is unable to do so, the lawyer shall reveal the fraud . . . except when the information is protected as a confidence or secret.”

So while Harvey probably had to withdraw once he found out the client committed fraud, he probably can’t reveal it to the court. That’s because the fraud occurred while he represented the client, so most of his factual knowledge comes from attorney-client communications. If a person other than a client has committed the fraud, the lawyer must tell the tribunal. So the other lawyer probably has a duty to inform the court if he thinks Harvey’s client perpetrated a fraud.

On the other hand, NY law says a lawyer may reveal: “Confidences or secrets to the extent implicit in withdrawing a written or oral opinion or representation previously given by the lawyer and believed by the lawyer still to be relied upon by a third person where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud.” So maybe he’s okay if he reveals the fraud, but he can only do it to the extent he announces to the court that he’s withdrawing his representation that the company produced all the relevant documents. He probably can’t say, “Oh, by the way, the client told me that he had produced everything but I found this document that wasn’t produced.”

Overall, although I initially thought the plotline wasn’t very plausible, I have to conclude that it is indeed plausible under New York law. While the writers took some liberties, I’ll concede that they did a good job overall. I wonder how Harvey will get out of this one?

USA's Suits Gets Dangerous Employment Clause for Writers Right

Yes, yes, I know. I’ve been away, not blogging. I was in Italy for 3 weeks, so sue me. But I’m back, and am starting to catch up on my American TV.

In the first episode of season 2 of the USA show Suits, our hero and fake lawyer Mike had to deal with representing a publishing company against a former employee. The employee sued, saying she had pitched a book idea to her boss, wrote up a proposal, and it was rejected. Shortly after that, her book showed up under her boss’s name.

As part of her employment contract, she signed an intellectual property clause saying, essentially, that if she wrote it, thought it or sketched it while she worked for the company, it belonged to the company.

At first, Mike does the thing I always hate in these legal shows: he started to act against the interest of his client. He even convinced them to pay her off to the tune of $30,000. She didn’t take the deal. She should have.

Fortunately, Mike finally read the contract. Not only that, but he came up with two prior books the company published with similar ideas. “There’s nothing new under the sun,” he said. She ended up with nothing.

That brings up two key points for writers:

1. You can’t copyright an idea. If you put your idea out there to someone, you have very little protection if they run with it. Copyright protects the written expression of an idea, not the idea itself. If you have the greatest book idea in the world, write the book. Don’t blab and let someone else run with it.

2. You are probably bound by your intellectual property agreement. Remember the Bratz dolls? They disappeared off the shelves for awhile because their founder used to work for Mattel. He did some preliminary sketches while he still worked there, albeit on his own time. It took years of litigation and millions of dollars, losing a court case and the entire Bratz franchise, then appealing, to take it back. Most writers don’t have the kind of financial wherewithal to fight when their employer takes credit for their work. 

The whole inability to copyright an idea bit is scary. I write nonfiction, and when you do nonfiction you don’t write the whole book. You write a proposal with a few chapters and a pitch for the rest. There’s very little protection if a publisher says, “Wow, what a great idea! Let’s get one of our regular writers on this.”

So what do you do? Write the best, most professional proposal you can. Show them you’re the right person to do the book. Have your platform polished and prove to them you can sell the book.

As to employment contracts, always have an employee-side employment lawyer look at yours, especially if you do anything creative. Whether you are writing a novel that has nothing to do with work or writing a nonfiction book in your area of expertise, make sure you have a clause exempting any work you want to own before you sign. Otherwise, your employer just might own it.

The Good Wife Has A Conflict of Interest

In the season finale on The Good Wife, The Dream Team, the writers went completely off their rockers. They had the firm file a multi-million dollar class action lawsuit with multiple plaintiffs. The firm wins a $25 million judgment. Huzzah! But then it all goes terribly awry.

Two regular nemeses of the firm (played by Michael J. Fox and Martha Plimpton) team up and sue the firm. They say the firm must have bribed the judge or done something wrong. They ask the firm to drop the class action suit and they say they’ll then drop the suit against the firm. The firm says no. Later, the firm changes its mind and agrees to drop the class action if the lawyers will drop the suit against the firm. Fortunately, they say the deal is off the table.

Hello? Anybody home? If the writers wanted to end the show and have the firm shut down in disgrace, they could let the firm make this offer. Otherwise, it’s a non-starter.

The firm has a duty to act in the best interests of its clients. It can’t dismiss a suit without client permission. It can’t dismiss a suit because the dismissal benefits the firm. It can never, ever, act against the interests of the client.

This plot device was so colossally stupid I almost didn’t make it through the episode. Fortunately, they didn’t have the double-dealing dismissal actually go through.

How could they have made the plot as interesting without sacrificing any sense of real world attorney ethics? How about having the clients offer to dismiss their suit to save their beloved lawyers? Okay, I’ll try to stop laughing. What about having the firm notify their malpractice carrier about yet another suit, and have the insurance lawyers try to double-deal the firm? If their carrier hasn’t dropped them by now, it should. Maybe next season.

While we’re at it, can we all promise to stop having depositions and hearings happen the day after the suit is filed? No? Puh-leeze. I can’t get a hearing on even the smallest issue for at least 2- 3 weeks. I’d love to see shows that actually use the delays to help create tension in the show. But that’s a blog post for another day.

C’mon, Good Wife writers. I’m a lawyer and a fan. Try not to make me throw things at the TV. I’ll be watching in the fall. You have plenty of time over the break to catch up on your research.

The Good Wife and At-Will Employment

A couple of weeks ago, The Good Wife dealt with at-will employment in an episode called The Penalty Box. In that episode, Cary Agos, the former colleague of our heroine Alicia, who joined the prosecutor’s office in a huff a few years ago, decided to interview at Alicia’s firm. The prosecutor’s political consultant saw him and ratted him out. 

Cary had pretty much decided to stay at the State’s Attorney’s office, but his boss confronted him and asked if he’d been interviewing. When he admitted it, his boss fired him. Fortunately for Cary, he had an offer from Alicia’s firm, so he got a soft landing.

But this situation comes up all the time in real life. In all but one state, Montana, employees can be fired for any reason or no reason at all. That means you can be fired for looking at other job opportunities. I see people who had potential employers call current employers for a reference. They don’t get the job and they’re fired. Can they do anything? Probably not. They’re out of work and out of luck. Maybe the can sue the potential employer for tortious interference, but it will be tough to prove.

I’ve seen people fired for not taking their CVs down from Monster or Career Builder. The employer saw the resume, assumed they were looking, and gave them the ax. 

If you’re writing about your characters’ employment, never forget that they can be fired for any reason, including arbitrary ones. They can be fired because their boss didn’t like their shoes or shirt that day, because the boss was in a bad mood, or because they got caught looking for another job. If you need conflict in your story, look no further than at-will employment.

Harry’s Law, At-Will Employment and Concerted Activity

The most recent episode of Harry’s Law, the terrific show starring Kathy Bates as a lawyer who also owns a shoe shop in Ohio, had an issue near and dear to my heart. The employees of the shoe shop, which is on the floor below the law office, owned by the same person as the law firm, and managed by a law firm employee, were outraged about working conditions.

The law firm employee managing the shoe shop, who replaced a much beloved manager, changed the rules. Suddenly employees felt like they were in prison. They were micromanaged, with every move tracked. Their clothing was inspected, hours tracked to the minute, and got no breaks.

After the employees complained to the boss’s boss, they were all called into a conference room for a meeting. They expressed their grievances and the manager fired them all for complaining. In comes our hero, who is always a fighter for the underdog. Harry stands up . . . for the manager. She says the manager can fire them for any reason.

Harry is wrong. While Ohio, like every state in the union but Montana, is an at-will state, meaning employees can be fired for any reason or no reason at all, employees do have some rights. The right to get together to complain about working conditions is one of them.

I’m not saying this sounds familiar, but . . . check out this case where 14 employees (I represent 8 of them) were fired for wearing the color orange. They were fired because their boss thought it was a protest over, you guessed it, working conditions.

The National Labor Relations Act (NLRA), which applies to most workplaces, not just unionized ones, says in Section 7: “Employees shall have the right to self-organization, . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .” NLRA also makes it unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” Even if an employee didn’t engage in concerted activity, they are protected under the NLRA. An employer who fires them for suspicion of engaging in concerted activity is in violation of the law. The NLRB said in one case: “The discharge of 4 employees . . .because of [the employer’s] belief, albeit mistaken, that the[y] had engaged in protected concerted activities is an unfair labor practice which goes to the very heart of the Act”

Some folks who know the NLRA may nitpick me and say the store probably doesn’t make enough money to be covered under that law. Retailers must have gross annual receipts of $500,000 or more. However, because the store is part of an integrated enterprise, that is, the same owners and management as the law firm, I’d argue you have to include the law firm’s revenues, which we know are well over that (Harry win’s some big cases). Plus, for law firms the threshold is only $250,000/year.

If one employee had complained about their own working conditions, they wouldn’t be protected. But complaining on behalf of at least two employees is protected under NLRA. The supervisor broke the law by firing them.

I hope we’ll see the employees fight back in the story. Sending the message that employees can be fired for complaining about working conditions is wrong.

Lawyer’s Suspension Is Not A Vacation, Good Wife Writers Should Know

I was disappointed in the last episode of The Good Wife because one of the main characters, Will Gardner (who is also the heroine’s off and on love interest) faced a disbarment hearing. He was offered a 6 months’ suspension instead and he took it. I can’t blame him. He was very likely to lose his license.

But the way it was written, he was so blasé. The other lawyers in his firm were blasé. They acted like he was going to get a vacation. The writers on this terrific show usually do their research, so I was surprised at this gaffe.

A lawyer’s suspension is not a vacation. It’s deadly serious. I looked up the Illinois disciplinary rules, and they’re almost as harsh as Florida’s. Here’s what a suspension comes with:

Notification to all clients: He will have to notify all his clients of his suspension and the reason for it (and it was stealing trust account money, so he could expect a bunch of clients to flee the firm).

Notification to all courts: He will have to notify all judges before whom he has pending matters of the suspension. He has to move to withdraw in all pending cases. His credibility with those judges is now shot.

Notification to all opposing counsel: Can you imagine? This is the worst of all. Can you imagine the humiliation he will face? He’ll be taunted and put down for the rest of his professional career. Opposing counsel are frequently vicious. Worse than any playground bullies you ever encountered.

Removal of any indication he is a lawyer: The writers got this one right. His name had to come off the firm. That means changing the front door, letterhead, brochures, website, advertising and business cards. For a big firm, it’s wildly expensive.

Court approval for payment: If he is to be paid for any work he did before the suspension, he needs court approval.

Supreme Court approval for law firm purchase or transfer: He just handed the firm to his partners with a wink and a “see ‘ya in 6 months.” Ha! The Illinois Supreme Court had to approve any transfer of his ownership interest in the firm first. If he’s still an owner but off the letterhead, will there be problems? After all, non-lawyers can’t own a law firm, and he certainly can’t do anything resembling the practice of law.

At least he’s lucky he’s not in Florida. Here, even though the suspension is for a set period, he’d have to petition for reinstatement. In Illinois he’s automatically reinstated at the end of the suspension period.

So, will we see the writers use this suspension to the fullest? Will we see the firm’s associates having to deal with taunts from opposing counsel about their dishonest former boss? Will we see judges ask why they should trust him ever again once he comes back? Will we see clients fleeing in droves? Will there be articles in the papers about the fallen powerful attorney?

Or will they continue to act like a suspension is a vacation? I hope they’ll get it right. I’ll be watching to see if they do.

Don't Ever Drop The Gun and Other Things I Learned Being Sheriff for a Day

I bet you didn't know that, for one day a couple weeks ago, I was the Broward County Sheriff. Well, not really the sheriff. I couldn't actually arrest anyone (at least, I don't think I could have). But the Sheriff's Office donates a program called Sheriff for a Day to various charities to auction off, and I was lucky enough to win a day for my family and me.

Our tour guide and host with the most was Detective J.R. Cimoch, who was not only lots of fun, but had an interesting life story. He had been on SWAT and the Gang Unit, among other wild and crazy assignments, in Dade County before he moved to Broward. He's the real deal - a tough guy with a heart of gold. So I asked him a question that's been bothering me.

A couple weeks ago, on the new show Alcatraz, they used an old trope that my husband and I absolutely hate. There's a hostage situation. One guy, two cops. The bad guy puts the gun to the hostage's head and says, "Drop your weapon or I'll kill him." The cops drop their weapons. In this episode, the bad guy then had them cuff themselves and he ran. Even worse, they knew he was intending to kill the hostage. Aargh! Why would they drop their weapons? Later, in the same show, the same big bad did it again, and our heroine was getting ready to (idiotically) drop her gun again when her boss blew baddie's brains out.

So I tried to research it. Should the police officer drop the gun? I actually ran across this article, saying that cops used to drop their weapons, and that it all changed after Columbine. That didn't make any sense to me either. Why would they ever drop their guns? So I asked J.R. He said he would never, ever, have dropped the weapon. He started in the 1980s, way before Columbine, and he was never trained to drop it. Here are some of the reasons why:

Wait for opportunity: While you might not have a clear shot now, the hostage could move, kick the guy, or struggle. The bad guy might sneeze or move in range. You would never want to lower the weapon. You might get an opportunity to take the shot.

He's going to kill you: If you drop the weapon, you've given him all the power. He will probably kill the hostage and you.

More weapons for bad guy: You've just handed him another weapon. Heck, his might be empty or even a toy (I saw a toy gun in the evidence room that looked darned real).

So can we all agree never, ever to write another scene where the cop drops the gun? If you need to have the bad guy get away, have him distract your cop characters, don't let them corner him, or do something, anything else to write the scene that isn't completely stupid.

I also asked J.R. about another trope: three baddies point weapons at our hero cop. Should he drop the weapon then? The answer is yes. The bad guys could have already shot him, so it's self-preservation time. He may still end up dead, but that's one situation where it makes sense to drop the weapon.

We had a fantastic Everglades air boat ride, a harbor tour with the Marine Unit, tours of the communications area where they handle 911 calls and the crime lab. Here's one thing I confirmed, and that I always preach to writers: the experts love to share their expertise. I got to ask all kinds of questions of the real CSI people (who uniformly hate the CSI TV shows). Here's some more interesting stuff I learned:

Drugs smell godawful: We got to see the drug storage room (from the doorway only, peering in). We were hit with an overwhelming stench. When I asked the guy in charge of the room what the smell was, he said, "What smell?" He was used to it after all these years. But the smell is terrible. If you're writing about an evidence room that has drugs, don't forget the smell.

Superglue is awesome: Did you know that if you heat Superglue it creates a white substance that sticks to fingerprints and makes them visible? I read that in some book and thought it might be B.S., but it's true. They took us into a room that has huge Superglue ducts and air vents. They can bring an entire vehicle into the room, heat the Superglue, and fingerprint the entire vehicle at once. When they see the prints, they can use the black powder to lift them. They also have small tanks for using Superglue on guns and small objects.

Superglue is poisonous: Don't try the fingerprint trick at home. The byproduct of heated Superglue is cyanide. Wouldn't that be a great way to murder someone in a story? You're welcome.

Marijuana looks like a lollipop: When you stick a marijuana leaf under the microscope, it has these little things that look like lollipops sticking out of it. That's the THC. Yes, they can bust you for a teeny leaf.

Water stops bullets: To get the ballistics off bullets, they shoot them into giant water tanks. I saw this on Mythbusters too, where you dive down in a pool to avoid bullets. A 45 caliber bullet goes pretty far, so make sure you dive to the bottom of the deep end. And better learn to grow some gills, because you'll have to hold your breath awhile. It was pretty cool to watch them shoot the bullet and see the striations. One thing I didn't know about ballistics is that the firing pin also creates a teeny dent that acts like a fingerprint on the casing.

Forensic artists really can reconstruct faces from skulls: I asked the forensic artist about Angela from Bones and all her artistic miracles, and she laughed. They simply don't have the high tech stuff that she does. However, they really can do reconstruction on a skull to figure out what someone looked like. They can figure out what a young person would look like when older from their pictures. They can work with an eyewitness to get a reasonable picture of a criminal.

Forensic artists are lie detectors: One thing I had no idea about is that forensic artists can tell if a witness is lying. They work with detectives to tell them when the witness is making it all up. And apparently about 70% of sexual assault claims are bogus. Frequently the witness will admit they're lying once they're confronted with the lie. So remember: forensic artist = b.s. detector.

Sweat leaves DNA: Another thing I read recently that I thought might be B.S., but it's true. They can swab your steering wheel and get all kinds of DNA.

I could have spent another couple hours with the crime lab people. We learned about crime scene photography, how they shoot great pictures from helicopters, why you should never give a kid a toy gun that looks real (I'd like to know why toy makers even make those things), and that fingerprints come back from AFIS within a minute or so.

We had a great time, and would like to thank Detective J.R. Cimoch and all the folks who met with us at the Broward County Sheriff's Office for a wonderful day.

Remember: when in doubt, call up an expert. They love to talk to writers. They'd love to read a book or see a TV show that isn't laughable to them. They might even let you come in and see their work for yourself. Just don't forget them in your acknowledgments.

GPS Tracking Needs Warrant In Real Life

I know I don’t usually talk about criminal procedure here in The Write Report. My forte is civil law, not criminal. But a recent Supreme Court case put the kibosh on a very common plot device, so I wanted to alert you to it.

You see it all the time on TV. The cops put a tracking device under the fender of the suspect’s car. Let’s follow him from a safe distance, or let’s watch where he goes, they say. Well, unless they had a warrant, that tracking information is illegal, and everything they got from it will likely be excluded.

The police put a GPS device on a suspected drug dealer’s Jeep and monitored him for 28 days. The Court said this violated his 4th Amendment rights. “We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” said Justice Scalia in the opinion. Other justices were concerned about the right to privacy, but the Court hasn’t yet officially weighed in on the privacy issue regarding this kind high-tech surveillance.

It’s good to know that books haven’t lost their relevance. George Orwell’s 1984 was referenced in oral arguments in the case six times.

For at least this type of surveillance, the Court says it’s an illegal search. We’ll have to wait for another day to see how far the police can go before it’s an invasion of our privacy.

So, if you’re writing about cops who attach a GPS to a car, better make sure they have their warrant.

How the Old Twin Stand-In Stunt Plays Out In Real Life

Writers love to show lawyers using twins to trick witnesses into false identifications. The plotline will have the witness asked, “Can you show me the man who attacked you?” The witness points to the person at the defense table. The defense lawyer will say, “Your honor, I move to dismiss. The witness has just identified the defendant’s twin brother.” Gasps arise. Gavel pounding. “Case dismissed.” The victim walks away sheepishly, and the defense lawyer gets slaps on the back for his cleverness.

Back to the real world. A lawyer tried a similar stunt recently, with quite different consequences. She had her client’s twin brother appear at a preliminary hearing instead of her client. The witness identified the twin. Case dismissed? Nope.

The prosecutors are moving to have her removed from the case, and the judge is talking about having her held in contempt of court. The prosecutor is also going to report her to the Bar for making misrepresentations to the court.

When she was caught (the arresting officer recognized the real perp hanging outside the courtroom) she denied she was trying to get the witness to identify the wrong person. So what was all that about? I’m betting that wasn't quite true. She probably saw some stupid TV show where a lawyer pulled a similar stunt.

If stunts like that worked in real life, no twin would ever end up in jail. The truth is simpler. Lawyers aren’t allowed to misrepresent anything to a judge or jury. That includes the identity of their client. If they do, they might end up in jail for a few days, or worse, lose their license to practice law.

Can we all agree to stop using the twin stand-in as a plotline now? On behalf of the 1.1 million lawyers who might read your book or watch your show, I thank you.

The Good Wife Tackles Political Discrimination

In the episode “Parenting Made Easy,” The Good Wife represents a professor who claims she was fired due to discrimination based upon her political beliefs. Whether or not such a claim would exist in the real world depends on whether the school is public or private.

There’s a real-life case going on right now about this very issue, so the show was timely. In this real case, a professor claims the University of Iowa College of Law (a state-run institution) refused to hire her because she’s a Republican, and cites the ratio of only 1 out of 50 professors at the school is Republican. She’s suing under 42 USC Section 1983, claiming her constitutional right of free speech was violated.

Going back to The Good Wife, the first theory the lawyers raised was that the professor was discriminated against due to sexual harassment. That claim kind of fell by the wayside (it was just shoulder-rubbing, so they were probably right to drop that one quickly).

Then they changed their theory to say it was because of her political and religious views on homosexuality. They said it was a civil rights violation. The person who fired her said he believed what she said was hate speech. Let’s forget a moment that they would have to amend their pleadings and give the other side a chance to switch gears as well. They actually did a good job handling this sticky issue by having it be an arbitration, where the rules are much more loose and informal.

The writers didn’t say whether the college was a private one. If it was private, then she has no civil rights and she can absolutely be fired for her political beliefs. They would have had to allege religious discrimination – that she was fired because of her religious beliefs, not for her conservatism or specific political views. So the plotline bothered me because political discrimination is mostly not illegal. I had to make the leap and assume it was a public institution. Personally, I think the religious discrimination angle would have been more interesting plot-wise.

The case result turned on opposing counsel stealing attorney-client communications out of Alicia’s purse, which was just dumb in my opinion. The lawyer would have been disbarred had Alicia complained, so it was a silly way to have him come up with the evidence. They had to show that he is unethical for plot purposes, and this was certainly unethical, but I don’t see Alicia letting him get away with it. It would have been much better had they shown him hiring a hacker to get the client’s personal emails.

Overall, I thought they handled the political discrimination issue pretty well. I would have liked them to say it was because the school was state-run that they could claim this, but I can see why the writers didn’t bother. As usual, The Good Wife’s writers handled a legal issue in a way that even a lawyer can enjoy watching.

The Closer and Attorney as Hobbyist

Guess what folks? Being a lawyer is my job, not my hobby. If I didn’t make money doing it, I could be spending time with the kids or writing a novel. So it really, really ticks me off when people imply or flat-out say that lawyers should work for free. It especially ticks me off when it happens on one of my favorite shows.

It’s been a running plot line in The Closer this season that our heroine, Brenda, is being sued. First, her hubby ponied up the money secretly because the City wouldn’t pay to defend her. When she found out, she was understandably upset. Especially since the city should have been defending her on its own dime.

The last few episodes had her complaining about the attorney’s fees. She even said that her attorney made his living off other people’s misery – as if that wasn’t what cops do. So do doctors, funeral directors, and repo guys. You don’t hear anyone saying they shouldn’t be paid.

Why is it that writers (and a shocking number of wanna-be clients) think lawyers work for free? I really don’t get it.

Then Chief Pope gets all threatening on the lawyer. He says that Brenda will just have to find another lawyer, and it’s that lawyer who will soak up all the publicity the case will generate. Gee, thanks. Pay me in publicity, because that will pay my mortgage. The lawyer should have dumped her, but instead he – you guessed it – agreed to work for free.

So what thanks does he get when he settles her case with a dismissal in the next episode? She hates his guts. Okay, so he had a legal duty to consult with her on any settlement. Somehow, TV almost never gets this right. But this was a settlement the city cut with the plaintiffs, essentially behind her back, and she didn’t even need to sign. I’m not really sure he would have had anything to do with it in real life. They would have more likely cut the deal behind the attorney’s back and dropped Brenda from the suit without consulting him.

How much publicity did he get out of a quiet settlement where his client has zero liability? Nada. So much for getting paid in publicity. I’m sure we’ll hear more about how awful this lawyer is, working for free and getting his client out of a nasty lawsuit. WTH, guys?

Here’s how they could have fixed this plotline to make it better. Have the lawyer go after the city to force it to pay her fees, as it should. Then have him fight the city’s settlement that names Brenda by name as a bad guy. He should make them take that part out, and if he puts up a fight they probably will. The plaintiffs get nothing out of putting Brenda’s name on this, so the only one who gains is Pope, who gets to blame her. Brenda and the lawyer work together as a team, as they should, instead of at cross-purposes.

There’s nothing wrong with getting paid for work done, and lots wrong with advocating a system where the people who make sure we have civil rights, defend us from lawsuits, keep corporations from selling dangerous products and make sure we’re paid for our work are expected to do it for free (presumably at night after their paying jobs flipping burgers).

Attention all writers: being a lawyer is a job. Lawyers get paid, like everyone else who works. We use some of that money to buy books, TVs and movie tickets. Stop writing about lawyers who work for free, and stop vilifying lawyers who dare to be paid for their services.

Donna’s Predictions For Publishing in 2012

It’s time to dig out the magic 8-ball app on my iPad and predict what will be coming in the writing and publishing industry in 2012. We’re in the midst of giant changes in the industry. Here’s what I think will happen this year:

Full-service e-books: With all the laid-off folks from the publishing industry floating around, we’ll see full-service shops opening up to assist writers who want to publish their own e-books. I predict the development of consortiums of displaced professionals. These shops will offer editing, cover design, formatting, special features such as links, matchmaking with illustrators, uploading to the major e-readers, and marketing. Without a doubt.

Consumer protection suits: Now that lawyers have discovered that consumer protection laws can be used against writers and publishers, we’ll see more lawsuits claiming readers were misled into purchasing fiction and nonfiction with advertising. Nonfiction writers have borne the brunt of these cases so far, but consumers will complain that books were advertised as fantasy when they were sci-fi; as nonfiction when they were fiction; as riveting when they fell asleep reading; and as good when the book was a turkey. The winners? Class action lawyers. It is decidedly so.

Trademark suits: With parodies and mashups galore, ticked off writers and publishers are losing copyright lawsuits against writers making big bucks from mocking their work. They’ll turn to trademark for help. You can’t copyright titles and characters, but they might just be trademarks. Watch for more of these cases trying to erode the right to parody. Outlook not so good.

Licensing: Most writers don’t pay attention to the licensing clauses in their contracts. Watch for publishers licensing their entire catalogues, or only some of their books. Unwary authors will wonder where their royalties went as publishers invoke no-pay-for-mass-licensing clauses to avoid paying anything. Will they get paid? Very doubtful.

Noncompete: As publishers insert more noncompete clauses into contracts, we’ll start to see authors sued the same way employees are sued now – to keep them from going elsewhere. Will the courts uphold indentured servitude like they’ve been inclined to do with employees? Signs point to yes.

Alternate revenue sources: Publishers will insert links in ebooks to purchase items mentioned, like music, other books, and products. Authors will need to start negotiating with publishers for a share of these revenues, or they’ll be left out. How will authors keep from being left out of the revenue stream? Cannot predict now.

That’s all for 2011. May you have a happy, healthy and prosperous writing year in 2012!

Guest Post: What We Talk About When We Talk About Legal Fiction by Ted Blumberg

Today, I'm lucky enough to have a wonderful guest post from Ted Blumberg, author of The Seven Deadly Sins of Legal Writing.

What We Talk About When We Talk About Legal Fiction

Litigation (from the Latin “litigare” meaning “to quarrel or argue”) is by definition a fight, the courtroom the arena where people who hate each other right down to the DNA win and lose. No conflict, no lawsuit. Since conflict is the lifeblood of drama it’s natural that the “courtroom drama” is a Hollywood favorite.

It’s grand if laypeople want to think lawyers lead action-packed lives full of adventure, money, and sex. But they need to know, in case they ever have to engage with the real world legal system, that what they see in the movies and on TV and read in the latest Grisham is make believe, a fable, a tall tale. But many of my colleagues at the bar get upset about the poetic license Hollywood takes with the profession. Years ago I suffered through The Verdict because of a lawyer in the seat next to me who kept muttering, “That could never happen in real life!” Of course it couldn’t. David Mamet, who wrote the screenplay, and who is himself the son of a lawyer, knows you have to jazz it up. The torpor, the crawly pace that marks most lawsuits, the arcane rules under which they are conducted, and the odd language through which they are expressed would, if accurately depicted on the screen, drive a picture’s grosses into the low three figures.

While I am sanguine about overlooking most of the liberties Hollywood takes, several of the more prevalent tropes warrant exposure or at least, in one of the five dollar words the law favors, explication.

1. Motions Are Not Served By Pulling Them Out of One’s Breast Pocket Like A Magician Producing A Dove: Every episode of (the now sadly defunct) Law and Order included a savvy mouthpiece slipping a motion to suppress evidence from the breast pocket of his or her Armani coat and sliding it under the prosecutor’s nose with a “Take That!” look of smarmy joy. In real life—and certainly in New York, where L&O was set—a motion to suppress is delivered to the District Attorney on the back of a truck. From there it is loaded on to a forklift and served on the prosecutor in charge with the assistance of burly men wearing weight lifter’s belts. The approximate weight and thickness of a tombstone, the typical motion has more exhibits than the ’64 World’s Fair. Just once, maybe on the remaining Special Victims’ Unit leg of the franchise, I’d like to see defense counsel heave a tome riddled with exhibit tabs across the table at the assistant district attorney, who would riffle the pages with his or her thumb and scowl, like in real life.

2. The Right to An Unspeedy Trial: When litigation clients ask me how long their case will take I give them a short, pretentious talk about Shakespeare. Arguably the greatest writer who ever lived, Shakespeare was not one to waste words. In the mouth of perhaps his most famous protagonist, in one of the most famous soliloquies ever—“To be or not to be”—Shakespeare puts this short list of reasons favoring suicide:

…the whips and scorns of time,
The oppressor’s wrong, the proud man’s contumely,
The pangs of despised love, the law’s delay,
The insolence of office and the spurns
That patient merit of th’ unworthy takes….

If justice was slow four centuries ago, imagine what it’s like today, when litigation is neck and neck with baseball as our national pastime. Indeed, even going to court in New York City, at least in the state court system, is a tedium-laden affair much like making a movie: you spend most of the day sitting around idly, waiting for your case to be called so you can get your five minutes in front of the judge. Except you don’t have a trailer, there is no free food, and no one is pretty.

Despite the creeping pace at which cases slouch through the justice system, the Good Wife seems to try a case a week. So do her peers on almost every legal show I’ve seen. If this were real life, Alicia would still be drafting interrogatories for cases that cropped up in Season One. Of course, no producer or writer could possibly replicate the stultifying slowness of actual litigation. If they tried, the result would be a Warholian anti-film like Sleep, where he filmed a pal snoozing for five hours and twenty minutes.

I don’t blame Hollywood for cutting to the chase (or, rather, the summations) but I do wish clients would understand that the most accurate depiction of a lawsuit’s pace ever presented in fiction is the Jarndyce case from Bleak House, a “scarecrow of a suit” that has dragged on for so long and “become so complicated, that no man alive knows what it means. The parties to it understand it least...but Jarndyce and Jarndyce still drags its dreary length before the Court, perennially hopeless.” What Dickens sacrifices to hyperbole he makes up for by capturing the way litigation feels to the parties (and, sometimes, to the lawyers).

In short, this let’s-get-it-wrapped-up-by-the-end-of-the-movie schedule is the biggest fiction in legal fiction. I don’t mind, there’s no other way to do it, but laypeople, please understand it’s as realistic as one of those time-lapse films of a flower blossoming from seed to glorious rose in five seconds.

3. Sexual Tension and Hi jinks? Not here: Lawyers on TV and in the movies are played by great looking actors who stay so thin you can see the jaw hinge through the fatless skin of their faces. The talk to each other with a charged flirtiness that suggests (a) they used to sleep together; (b) they want to sleep together; (c) they soon will sleep together.

In real life, while there are reasonably attractive people in the profession, what you usually see when you look across the courtroom aisle at opposing counsel is someone (a) way overweight; (b) reasonably fit but the victim of at least one tragic fashion error; (c) someone morally or intellectually repellent. I say this with no sense of superiority, knowing that it applies to whomever is looking back at me.

Flings between lawyers do happen, but they’re usually not something anyone would want to witness.

Attitude Adjustment Time: We should think of legal fiction the same way we think of science fiction, as a product of the writer’s fancy, inspired by dashes of reality here and there but existing chiefly in another planet and dimension where absolutely anything can and will happen, the laws of gravity and all else we’ve come to know and take for granted are entirely malleable, and the good guys always win in the end.




About the author:

Ted Blumberg practices entertainment law in Manhattan and wrote The Seven Deadly Sins of Legal Writing.