Monthly Archives: July 2012

Attorneys in Transition: Defensive lawyering tips

Nick Augustine is the principal of Chicago’s Augustine Legal Public Relations and he works for the Bryan Law Group, a full service boutique family practice in DuPage County. Nick teaches law firms and their staff how to get more clients as he helps attorneys share their knowledge, skills, and abilities. Nick earned a communications and rhetorical studies degree from Marquette University and a law degree from The John Marshall Law School where he is an active Alumni Board member.

Law practice in Chicagoland can be challenging, depending on the court in which you find your cases. Driver education instructors preach defensive driving, so should not law schools preach defensive lawyering? I think so.

  1. Read and review your court orders. This seems obvious, but too many times people accidentally leave things off the order and/or incorrect language appears. Some lawyers I know will sign the order as “Reviewed, but not for content” to indicate they saw the order but do not agree to what is written. Taking good notes and spending the extra time reviewing the order of the court will save you time in bringing a motion to clarify or to correct later on.
  2. Bring a court reporter. Not all Illinois courts have the CourtSmart system to preserve a record of everything said before the bench. Judges are human and they forget and make mistakes, just like lawyers and everybody else can. The benefit of practicing in counties with the automatic recording is that you can order a transcript of any recorded proceeding. If you are in a county without this technology, bring a court reporter to get a record of what transpires at key court appearances. It is always easier to build a record for appeal when you have transcripts.
  3. Prepare for appeal. When you disagree with the court’s ruling and believe an error occurred, you owe it to your client, and to the community, as an officer of the court, to file and prosecute necessary appeals. Have you ever looked for law on point, you are sure exists, but it is not out there? Without appeals, we do not record published opinions on which everyone can rely on a reviewed statement of law and procedure.
  4. Review local motion practice. Every county has their own local rule and custom regarding motion practice. A motion to strike a motion (as opposed to a petition) is improper in many counties who follow the rule that a Section 2-619 motion to dismiss applies only to pleadings. In one county, the judge might know this and in another, you may have a different experience.
  5. Copy and bill your client for both your benefit. Miscommunications seem to be the greatest threat to the attorney/client relationship. Clients get confused and frustrated, just like their attorneys. If you get in the practice of copying the client and billing everything that happens (yes, you should n/c as appropriate and at your discretion). The invoice should tell a story of the case and when you bill for things with the “why” included, the client has a better understanding. In addition, in the event of a breakdown or problem, you will have an accurate record of communication.

Many great Illinois lawyers go out of their way to mentor attorneys in transition and help them learn the ropes. The greater legal community and the clients it serves are better off when attorneys in transition practice law defensively.

Appellate court considers governmental tort immunity

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The Illinois Appellate Court recently made an important decision concerning governmental tort immunity. While, much of the quite lengthy opinion focuses on issues relating to contribution and the limitations period in the immunity statute, it is the decision regarding immunity issues that is, perhaps, of most interest.

The case arose out of an auto accident where the plaintiff sued the defendant, alleging the defendant was negligent in the operation of a motor vehicle while driving drunk. The defendant then filed a third-party counterclaim for contribution against the city, claiming that the city negligently maintained a water main underneath the road on which the accident took place. The water main, it was claimed, leaked, causing an ice patch to form that the defendant’s vehicle skidded onto before crashing into the plaintiff’s vehicle.

The jury ultimately found the defendant 65 percent liable and the city 35 percent liable for the accident. The trial court further found that, based on Section 2 of the Contribution Act, the defendant was not entitled to contribution from the city unless he paid more than his pro rata share of liability. After the city’s motion to dismiss was denied, the plaintiff sought leave to amend its complaint to add the city as a defendant directly.

The trial court ruled that the plaintiff’s claim was barred because it attempted to file against the city after the expiration of the one-year immunity period set out in the Immunity Act, in contrast to the defendant’s permissible contribution claim, which was filed in a timely fashion.

Second, despite some arguable ambiguity in the Contribution Act, the trial court ruled the plaintiff was not entitled to recovery from the city. The Contribution Act does provide that defendants who are more than 25 percent liable for an injury are jointly and severally liable for the full amount of nonmedical damages. However, the dispute came down to whether or not the term defendant in that context encompasses third-party defendants, such as the city. Ultimately, the court ruled that it is a fundamental principle that a plaintiff may not recover against a party against whom the plaintiff did not seek relief. Further, as a matter of statutory interpretation, the statute did not intend to include third-party defendants within the definition of defendant in such circumstances.

Finally, on the immunity issue, the court ruled that the city was not entitled to discretionary act immunity. The city argued that a plan for improvement of the city’s water distribution system, made and carried out by one of its employees, was ongoing at the time of the accident and that the plan involved the exercise of discretion on the part of the city employees. However, based on these facts, the court found that, while there was an improvement plan in place for River Street, there was no such plan.

The city tried to argue that an improvement plan for one street encompassed another. Further, it tried to argue that one employee was exercising his discretion despite the fact that he was fourth in the hierarchy of decision-makers in relation to public improvements after the city council and others. The Tort Immunity Act is already wide enough in its scope. Its terms should not be handled in such a manner to find municipalities immune from suit in all cases. In this case, the city sought immunity in a scenario where it was never intended to apply and the court wisely rejected its arguments.

Litigation PR: Public opinion in the Batman shooting case

Nick Augustine is the principal of Chicago’s Augustine Legal Public Relations and he works for the Bryan Law Group, a full service boutique family practice in DuPage County. Nick teaches law firms and their staff how to get more clients as he helps attorneys share their knowledge, skills and abilities. Nick earned a communications and rhetorical studies degree from Marquette University and a law degree from The John Marshall Law School where he is an active Alumni Board member.

Yesterday morning I received a text from Sprint: “Colorado shooting suspect to appear.” I was at the Daley Center with my hands full and was not able to check in on the shooting case. Later in the day a friend posted on my Facebook wall that James Holmes was in court. Other friends commented on what they heard and thought. What I gathered was that there was a bond hearing. I also talked to a few friends who had their thoughts on the fate of the Batman shooter. Not until the end of my day did I read a traditional news story about the case.

Where do you get your news? Some people read newspapers and others visit news websites. When I see stories that matter to my friends I share them through social media. Some people may solely rely on Facebook or Twitter to keep them up to date.

If I want to learn more about the Holmes bond hearing, I search Google for top news stories. Sometimes a Wikipedia page has concise information, despite vetting concerns. I found an article by CBS News and The Associated Press detailing the Batman shooter’s first appearance before a judge.

My favorite part of the article is the reader comment section. I always hope experienced and credible people will share new information and ask new questions I hadn’t thought of. In this case there were 262 comments posted by others who read the story.

Comment topics included:

  • Race in terrorism
  • Gun rights and laws
  • Mental state and capacity
  • Death penalty
  • Prison rape
  • Religion

When someone starts a new discussion thread on a hot button issue, we learn what people really want to discuss. How would you contribute to the conversation? What discussions would you start?

Ruling may show future of greenhouse gas regulation

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal-injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The Court of Appeals for the D.C. Circuit, in the case of Coalition for Responsible Regulation Inc. v. Environmental Protection Agency, recently made a key finding in a case concerning a challenge to certain EPA rules and regulations regarding industry greenhouse gas emissions under the Clean Air Act (CAA). Fourteen states (spearheaded by Texas and Virginia) and various industry groups petitioned the court to review the EPA’s decisions. The EPA was supported by 15 other states including California and Massachusetts.

Among the central findings of the court was the decision to uphold the EPA’s “endangerment finding,” namely that greenhouse gases are air pollutants which “may reasonably be anticipated both to endanger public health and to endanger public welfare.” Such a finding is required to bring greenhouse gases within the purview of the CAA.

The petitioning states and industry groups challenged the scientific basis of the ‘endangerment finding,’ arguing first, that the EPA had improperly delegated its decision-making function by relying on the conclusions of various research groups in relation to global warming. The court resoundingly rejected this argument noting that the EPA had simply reviewed the existing scientific evidence in reaching this conclusion, and stating that “[t]his is how science works. The EPA is not required to re-prove the existence of the atom every time it approaches a scientific question.” The court also noted that, on scientific questions within the technical expertise of the agency, the court will presume the validity of its decisions as long as there is a rational basis for it, and the court, based on the scientific evidence considered by the EPA, concluded there was.

The petitioners also argued that, in interpreting the CAA as automatically triggering regulation of greenhouse gases, the EPA relied on an improper interpretation of the CAA, and was arbitrary and capricious in failing to justify and consider the cost impacts of its decision, with regard to the so-called Tailpipe Rule regulating emissions by automobiles. However, the court, again, decisively rejected this argument noting that the language of the CAA compels the CAA to promulgate regulations once it determines something to be an air pollutant.

There were various other reasons for challenging the EPA’s rules, all of which were ultimately rejected. I see this decision as a very positive step. Ever since the 2007 Supreme Court decision in Massachusetts v. EPA, in which it was held that greenhouse gases could be regulated under the CAA if the gases were found to endanger public health and welfare, there has been protracted legal wrangling over the EPA’s efforts to regulate and limit greenhouse gases. Opposition to regulation has, unsurprisingly, been led by big industry.

Global warming, and its acceleration due to our greenhouse gas emissions, is a major problem that could cause serious and irreparable damage to the planet in the not-too-distant future. Hopefully this ruling, in conjunction with Massachusetts v. EPA, has put an end to the legal bickering and will pave the way for meaningful progress on regulation of greenhouse gas emissions in the U.S.

Leveraging Your Reputation: Finding news

Tom Ciesielka is president of TC Public Relations (www.tcpr.net). Tom has over 25 years of marketing and public relations experience, working with individual lawyers and midsize law firms. He is also a former board member of the Legal Marketing Association in Chicago and has spoken at The Chicago Bar Associations CLE programs. Reach him at tc@tcpr.net.

Sometimes you want to promote yourself, but when you look at what you or your firm is doing, you think that there is no news value, or you have information that seems unimportant. Here are a few tips to offer news when there doesn’t seem to be any:

Transcend. Ask yourself if there are any messages about your firm or you that transcend the news. Step back from the details of your current cases or new hires to find the larger newsy themes, then look at current news topics and offer your insight as an expert in a certain area. For instance, if there was a fatal auto accident and you’ve worked on such cases, you can make comments about the legalities of the situation, and how each party can proceed.

Be Alert. Find news story trends through a search online or Google alerts. At the very least, set up Google alerts for your clients’ names and your name to see who is covering your case so that you can follow up. Stories often are developing; the news organization will do a report when something initially happens, but they will do follow-ups if it is a larger story. Sometimes when there are new developments in a case, producers and editors will scramble to get an expert to provide analysis. If there is a story about your own case, keep the media updated about developments, and they will not only cover your story, but might use you on other ones in the future.

Contact. Stay in touch with the media, even if they don’t use you right away. It’s important to establish trust so that when a relevant story comes your way, you’ll be ready and they will already know who you are, and what you’re capable of speaking about. An example of an email that you can write is:

Dear [reporter’s name],

I saw your article about [topic] today in the [publication]. Here’s information from another point of view that can help you as the story progresses …”

If you contact them in this way, you’re helping them while also letting them know that you’re available when they need an expert. Just remember to give relevant information and to not be pushy.

Is hiring a PR Firm a bad PR move?

Debra Pickett is president of Page 2 Communications (www.page2comm.com).  A former newspaper columnist and television commentator, Pickett offers consulting and training services to law firms and lawyers who deal with the media.  She writes here each week on topics related to law and media.  To learn more, reach her at deb@page2comm.com.

Let’s begin by stipulating that, contrary to the popular saying, there actually is such a thing as bad PR.  (See: Cruise, Tom)

There are times, in life, when you just know that having your name in the paper is going to be bad news for your reputation.  Backing the car over that adorable, furry animal, newly listed on the endangered species registry, is not going to make you look good, even if the car was a hybrid and you were rushing your grandmother to the doctor at the time.

But what about the simple act of hiring (and presumably paying) a public relations firm?  Does contracting someone to help manage your reputation automatically imply that there’s a problem?

This week, the Wisconsin press was full of stories about how Gov. Scott Walker used money from a legal defense fund, established before his election to statewide office, to pay a PR firm.  There’s nothing illegal about him doing this and, in fact, it’s a fairly standard practice.  But the underlying message of the media stories was clear: Walker, in the very quotable characterization of Wisconsin Democratic Party spokesman Graeme Zielinski, had hit “a new low.”

The specter of “spin doctoring” haunts the public relations industry and, with it, the idea that paying a media consultant is, somehow, just a little bit dirty.  One of the most effective ways to characterize, say, a corporate defendant as a big, bad conglomerate is to attach the phrase “and their high-priced lawyers and big PR firm” to their name whenever possible.

So, is this an impossible Catch-22: that the clients who are most in need of help dealing with the press are also those who will be most thoroughly pummeled for procuring such help?

Fortunately, no.

There are any number of strategies for minimizing public attention to the fact that a media consultant has been added to your client’s team, but the first among them is correctly managing the contractual relationship, which should be created, whenever possible, between the attorney and the consultant, NOT directly between the client and the consultant.  In this manner, the work done on the client’s behalf can be protected as attorney-client work product and billing records can be kept more discretely.

When you, or your client, needs help dealing with the media, seek it out.  The right professionals can guide you through a crisis without making it worse.

Attorneys in Transition: Fake it until you make it

Nick Augustine is the principal of Chicago’s Augustine Legal Public Relations and he works for the Bryan Law Group, a full service boutique family practice in DuPage County. Nick teaches law firms and their staff how to get more clients as he helps attorneys share their knowledge, skills and abilities. Nick earned a communications and rhetorical studies degree from Marquette University and a law degree from The John Marshall Law School where he is an active Alumni Board member.

Assume a psychological phenomenon: Everybody around you is more successful, has a nicer suit, a better window view and a parking spot in a downtown garage. Now, consider reality: Most of the others assume you are the one doing well. Reality: You could both be doing equally well or miserable.

Fake it until you make it and allow others to perceive you as successful.

Perception is reality in the business of law. “Successful” law firms and lawyers project an image of success so members of their community hold them in high regard. It makes sense. I would not want to hire the sloppy lawyer who looks like s/he just came from their second job bagging groceries.

Here are some tips on not blowing your cover if you are still “making it” or just getting started:

  1. Always appear dressed as you just came from court. People will assume you are doing well and working. People are not likely going to ask why you are dressed for business. If someone does ask, a safe answer is “… had a meeting.”
  2. Never talk about money. It is always distasteful to talk about the amount you (want to) earn at work. Most young attorneys are close in pay-range so bringing up wages only makes you appear conceited or self-conscious.
  3. Do not complain about student loans. Most of your colleagues have loans and the only people who complain most are the ones who can barely eat because their budgets cannot afford the loan repayment. Why draw attention to your financial stress?
  4. Talk about interesting matters on which you are involved. Young lawyers share stories to compare their work experience with others. If you show interest in appellate work, for example, a friend could remember that and a referral could come your way.
  5. Believe that you deserve all the best. A lawyer’s career will likely continue through economic swings. Remember that there is always work for quality lawyers. Appreciate the qualities that make you a good lawyer and allow yourself to believe in your knowledge skills and abilities.

If perception is reality, then make sure others perceive you as a successful lawyer they know, like and trust. People talk. They know whose going to make it. Will it be you?