Monthly Archives: April 2010


Hearsay. A statement made out of court, provided for the truth of the matter asserted. I would bet that most of you could mumble it along with me. But can you really apply it?

Hearsay seems like such a simple concept – but just the mere mention of the word sends chills up my spines and gives me really bad memories of studying for the bar exam. Non-verbal assertions, non-hearsay, non-statements, dying declarations and numerous other exceptions – just blogging about hearsay is enough to give me a headache. I have a degree in Biology from UCSD (where I primarily studied cellular and molecular biology) and I passed the California Bar Exam, but hearsay has to be one of the hardest subjects I have ever tried to tackle. Luckily I don’t practice and I just had to deal with it in Evidence class and while studying for the bar.

If you could use a refresher on this perplexing subject, we have just videotaped an incredible course for any attorney whose practice takes them into the courtroom. As part of a Trial Institute Series presented by the North County Bar Association, this Evidence Seminar further includes demonstrations in addition to the trial perspectives from the Bench and senior Trial Attorneys. Whether you may work in litigation, Criminal Law, or Family Law, Hearsay: The Evidence Seminar features insight from a number of judges and experienced attorneys on one of the most difficult subjects in the legal profession.

However, these presenters don’t stop at just delivering the rules. While a rule may be black and white, hearsay presents many gray areas. And this Seminar utilizes role play and a mini mock trial to illustrate the intracacies and nuances of the various hearsay rule and how you want to approach these out of court statements at trial. Indeed, with hearsay there are many paths to go down, and if the first on doesn’t work it is important to stay come and try an alternate route.

Topics addressed include the Hearsay Rule, What is Not Hearsay, Exceptions to the Hearsay Rule, Tactical Considerations in Making Evidentiary Objections, and Multiple Hearsay. It is the practical points presented by both the judges and senior attorneys – that comes from years of experience – that are so invaluable if you practice in the courtroom. As one attorney puts it, these judges know their evidence code inside and out because they work with it every day – and if you show up to court without one you are in for a rude awakening. This Trial Institute will cover Trial and Evidence topics of interest to many practice areas – including Civil, Family and Criminal Law. Don’t miss Hearsay: The Evidence Seminar.

Goodbye Justice Stevens!

Well, since I am heading off to the Padre’s season opener in a few hours with my Dad and brother, I figured I would start this blog with Justice Steven’s link to baseball history. It turns out that Justice Steven’s was in attendance at Wrigley on one of the most famous moments in baseball/American history – the day that Babe Ruth called his shot. Yes, the stuff of legends, but when an authority such as Justice Stevens vouches for it, we know it must have happened. Here is his account of that day’s events:

“My dad took me to the game. We had box seats behind third base, about fifteen rows back. There are millions of people who claim to have been there, but I can assure you we were. I saw it and it was really something. There was a byplay going on between Guy Bush and Babe Ruth. I don’t remember what the issue was, but they were razzing one another. Bush came out of the dugout and yelled something at Ruth. I thought Babe was responding to Bush and pointed his bat at the scoreboard. I remember thinking he was saying, ‘I’m going to knock you to the moon’ or something like that. It seemed to be part of the interchange. I didn’t interpret it as saying ‘I’m going to hit a home run’, which of course he did. He then hit the next pitch out of the ballpark.”

Truly an incredible first hand account of one of the greatest moment’s in baseball history. The only other one I think could compare would be “The Iron Horse” Lou Gehrig’s “Yet today I consider myself the luckiest man in the world …” speech. It turns out that Steven’s was an avid Cubs fan and his dad took him to the game that day. I like his proclamation “there are millions of people who claim to have been there” because that is truly one of those events that everyone claims to have seen in person – but Stevens was one of the lucky few to have actually been there.

There is more about Stevens that I didn’t know. Here are a few of the other gems I came across in my reading:

  • Born into a prominent Chicago family, his family operated what was then the largest hotel in the world
  • Served 34 years on the Supreme Court
  • Served in the Navy in World War II, signing up on Dec. 6, 1941
  • Republican
  • Became the senior justice in 1994 with the retirement of Justice Harry A. Blackmun.
  • Has written more than 600 dissents over the years,
  • Never joined the “cert. pool,”
  • Nominated in 1975 by President Gerald R. Ford, who said all he wanted was “the finest legal mind I could find”

And for that, we must thank President Ford, because he truly did find one of the finest legal minds in our country. A jurist that seems to understand the everyday implications of the law, as well as the duty to follow the rule of law – much the same qualities President Obama looks to find in Steven’s replacement.

We will miss you Justice Stevens!

The arrangement under which the justices share their law clerks and have them produce a single memorandum making a recommendation about whether the court should hear each of the more than 7,000 appeals that reach it each year.

Top 8 Ways to Get Sued for Legal Malpractice

Hello and Happy Friday to everyone! I hate to ruin the festive mood as everyone heads into the weekend, but I thought I would reserve this time to speak about one of everyone’s least favorite topics – malpractice. Yeah, I know, way to run the mood heading into Saturday, but I have been putting this course together this week and it’s on my mind.

After scouring the literature, this is what I found to be the Top 8 ways to get yourself into trouble. Why ‘Top 8’ and not ‘Top 10’ you ask? I just found that everything fits nicer into these main categories:

§ The Technology Trap

o Law Firm Websites

o Communicating by E-Mail

o Metadata

o Storage and Security of Confidential Information

o E-Discovery and E-Competence

§ Missed Deadlines and Calendaring Issues

§ Stress and Substance Abuse

§ Poor Client Communication and Relations

§ Client Intake

§ Avoid Conflicts of Interest

§ Inadequate Research and Investigation

§ Fee Arrangement and Client Funds

You will notice that I lead with the first heading of “Technology Trap” because these are the topics that are near and dear to my heart, and in fact, I cover many of these topics on our MicroSeminar series on YouTube and If you have a few free minutes some time, I would recommend that you check some of them out. With our MicroSeminars we can’t teach you everything that you need to know in 5 or 10 minutes, but we can at least alert you to issues that you need to be aware of in your everyday practice. Think of it more as in issue spotting exam.

Under the “Technology Trap” heading I discuss many areas that attorneys need to be aware of in this new day and age. Maybe I need to add a social media category with the recent rash of attorneys and judges getting into trouble over their twittering and Facebooking! I have been following the evolution of these topics for years now, even warning attorneys about twitter liability over two years ago before anybody even knew what a “tweet” was. I think many attorneys are still unaware of the problems that their websites pose – from an unauthorized practice of law claim to possible disqualification – and this still remains a vital topic of conversation. I was reading online a few months ago where the Virginia Bar sent letters to California attorneys warning them that their websites posed ethical violations because consumers in Virginia could assess these California attorney’s websites.

Aside from the technology trap, which has developed over the last decade and will continue to evolve, it’s amazing the simple stupid common sense things that get attorneys in trouble – everything from missed deadlines and failing to call or email clients, to taking too many cases and downright stealing from clients. I guess the more things change, the more they stay the same? If you looked at a malpractice list from thirty years ago, I think most of the top ones would still be there.

What do you think of list of top malpractice violations? What I have been amazed to find is that the majority of the attorneys that are punished by the State Bar for ethical violations (which usually serve as vital evidence in a malpractice proceeding) suffer from drug and alcohol abuse and addiction. And abuse and addiction run rampant in the legal profession. This is due to many factors – from the A-Type lawyer personality to the stress and unhappiness with the profession. Many attorneys lack work/life balance, and this stress can lead to problems with alcohol and drugs. What do you think? I would love to hear from you!

You can also check out the latest course I filmed on malpractice 8 Malpractice Traps & How to Avoid Them. As always, I provide some crisp analysis and entertaining commentary.

New Jersey Ban on Virtual Offices Short Sighted?

While parousing today I happened to notice an interesting headline coming out of New Jersey that a “Virtual Office” is not a bona fide office. In the article, the President of the New Jersey State Bar Association agreed with the state judiciary’s decision to ban virtual law offices.

Apparently, the state judiciary recently issued an advisory opinion warning lawyers that they violate New Jersey’s bona fide office rule when they list and advertise space rented on a periodic basis as their primary place of business. While it may just be one state, the concerns expressed could possibly resonate across the rest of the county if other state bars take notice.

To me, this seems like another short sighted decision decided by a body that doesn’t completely understand technology, and they seem to arbitrarily draw distinctions between time share arrangements and home offices. Unfortunately, I have been seeing too many decisions like this in the last few years that fail to grasp the fact that we now practice in the 21st century – not the Stone Age. For example, consider New Jersey’s definition of “bona fide office.”

“Usually staffed by a receptionist with a list of all lessees who directs visitors to the appropriate room at the appointed time. Depending on the terms of the lease, the receptionist may also receive and forward mail addressed to lessees or receive and forward telephone calls to lessees.”

To me it seems that under the New Jersey definition of “boda fide office,” if you do not have a secretary, then you do not have an office.

There were a few main justifications advanced for the decision – both of which don’t carry much merit in my book. The two main reasons for banning virtual offices dealt having a place to meet clients (and storing client files) and advertising.

First, New Jersey felt that attorneys with “virtual offices” may have issues when it comes to meeting clients and storing client files. One thing that New Jersey fails to take into account is our new green movement. In an attempt to “go green” (which I think is just code talk for using energy/resource effiecient technologies to save money) many offices around the country have gone paperless. Whether that means storing your files in “the cloud” or merely scanning and saving all files electronically, the true implication of the paperless office is the fact attorneys will be generating much less of a “traditional” client file in many cases. And as attorneys slowly and cautiously tread into the digital age, more attorneys and firms will be going paperless and “storing” traditional paper files will become less of a priority. Of course in some actions there is no substitute for the original document, so attorneys would still have to store original contracts and other important documents. However, on this point I think that New Jersey really misses the mark.

Second, New Jersey banned all virtual offices due to “truthful” advertising concerns. There is just something about the legal profession and “advertising.” Steven Mannion of DeCottis Fitzpatrick Cole & Wisler in Teaneck, N.J., who chairs the ethics panel, says the opinion reflected the need for attorneys to be truthful in advertising. It also was based on an accurate interpretation of the rule as written according to Mannion.

All in all, I thought New Jersey decision really missed the mark. Instead of making a tech friendly decision, Jersey seems to take a few steps back. Further, many feel that this rule unfairly discriminates against women with families who choose to utilize a virtual office. “This will certainly create a barrier,” says Lynda Bennett of Herold Law in Warren, who serves as president of the New Jersey Women Lawyers Association.

Carolyn Elefant, a D.C. practitioner and author of the popular blog, says the New Jersey opinions discriminate against women because they would require a lawyer who has a home office and a convenience office to list the home office as the bona fide office, creating security and privacy problems for the family.

And as solo practitioner Mary Cece points out, “it’s impossible for attorney regulators in New Jersey to know whether home offices comply with the rule. Is anyone listening to phone messages? Are client files kept separate and under lock and key?” Cece finds it ironic that a home office of any kind is a bona fide office, but a time share that has a receptionist able to reach lawyers and the ability to keep files locked and separate is not.

What do you think?

ACPE 718/CAA 41 defines virtual offices as time shares in an office building on an hourly or daily basis, and states that these types of arrangements are popular with lawyers who work from their homes but need someone to take their calls and a conference room to meet clients.

The Advisory Committee on Professional Ethics (ACPE) and the Committee on Attorney Advertising state in a joint opinion (ACPE 718/CAA41) that Rule 1:21-1(a), requiring bona fide offices, is violated by what the opinion identified as ‘virtual offices.”

The purpose behind the bona fide office rule is to ensure that lawyers have a place to keep client records secure and separate, a place where clients can meet the lawyer in privacy and a place where someone is available to take a message if the lawyer is absent. N.J. State Bar Likes ‘Virtual Office’ Ban but Women Lawyers Raise Bias Concern.

N.J. State Bar Likes ‘Virtual Office’ Ban but Women Lawyers Raise Bias Concern