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Lawyer Sanctioned for Frivolous Filings

A lower court imposed sanctions on a lawyer who filed lengthy and frivolous filings in a dispute with his brother. The Atlanta-based 11th Circuit Court of Appeals upheld the sanctions for the Florida-based bankruptcy attorney. The pleadings, according to reports, were riddled with exclamation points, rants, and at one point even quoted Bugs Bunny.

The Case

In its December 15 unpublished per curiam opinion, the appellate court placed sanctions on the man. The behavior by the bankruptcy attorney included comments during a deposition telling opposing counsel to “shush, shush, shush” as well as frivolous filings, one of which included a haiku in a motion seeking reconsideration of a court ruling. The bankruptcy attorney further quoted Looney Tunes character Bugs Bunny when arguing that the sanctions motion against him was lacking specific allegations.

According to the opinion, the sanctions started from the attorney’s self-representation in litigation that began with a probate case and then moved into bankruptcy court. Initially appointed as the personal representative of his mother’s estate, the attorney was then removed by the court based on his brother’s request due to filing for bankruptcy and listing the brother as holding a non-priority unsecured claim. The brother, on the other hand, alleged that the debt was a result of the attorney converting the estate property for personal use and, therefore, was not dischargeable in bankruptcy court. The attorney claimed the bankruptcy court lacked jurisdiction; in response, his brother filed for sanctions.

Monetary Fines

At a sanction hearing, the bankruptcy court ordered the attorney to pay his brother nearly $3,000 in attorney’s fees. After attending a hearing on the underlying bankruptcy case, the brother again filed for sanctions. Ruling on the merits of the case, the bankruptcy court held that the attorney acted in bad faith throughout the litigation, awarding the brother nearly $10,000 in costs. According to the bankruptcy court, the attorney suffocated the docked with frivolous and unnecessarily long pleadings as well as asked repetitive and rude questions in depositions. The court further noted the attorney was wrong when he claimed the bankruptcy court lacked jurisdiction over his brother’s claim.

A district court noted that the bankruptcy court lacked authority to impose sanctions and, therefore, interpreted its order as a recommendation imposing the same sanctions. The attorney appealed. Not only did the 11th Circuit uphold the lower court’s sanctions, but placed additional sanctions of almost $3,500 for expenses incurred by the attorney’s brother for the appeal justifying its decision on the attorney’s baseless arguments, according to an article by Law360.

 

To protect your reputation from harm like this, check out Attorney Tips and How Lawyers can Improve Their Online Reputation.

Court in Hong Kong Approves Novel Method of Ordinary Service of Process

Courts in China, specifically in Hong Kong, have demonstrated its legal system’s continuing embrace of technology.

The city’s Court of First Instance — the highest court in Hong Kong that can hear a case at first instance with unlimited jurisdiction in criminal and civil matters — granted the plaintiff’s application for service of process through access to a data room. This is the first time, according to reports, that this novel method of service of process has been used in Hong Kong. The decision is a clear showing of the Chinese courts’ efforts to incorporate the use of technology in courtroom proceedings.

The Case

The underlying case had to do with misappropriations of funds. The act occurred through numerous bank accounts and the suit included 28 defendants. None of the defendants actively participated in the legal proceedings. The court granted service out of jurisdiction for 16 of the overseas defendants. Notably, certain court documents require personal service while others may use the method of ordinary service (by mail or leaving at the proper physical address). The Hong Kong court granted the plaintiff’s proposal to serve documents by access to a data room because of the numerous defendants and potential joinder of future defendants to the legal proceedings.

Permitted Service

The lower court in Hwang Joon gave the following directions to the serving party for service by access to a data room:

  • Creating an online data room containing all the relevant documents;
  • Providing a link to the data room to all intended recipients through a method previously approved by the court;
  • Providing an access code to the data room, as well as instructions on how to access the room in a separate email or post mail to the recipient(s).

An English court had previously allowed service by access to a data room in CMOC Sales & Marketing Ltd v Persons Unknown and 30 others [2018] EWHC 2230 (Comm). The COMC case involved email scams as well as fraudulent transfers of monies.

Bottom Line

It is true that in recent years courts both in the United States and around the world have become more amenable to the use of technology in legal proceedings as well as service of process methods. The Hwang Joon court stressed, however, that the approach to technology use in service of process is not a “one size fits all.” Specifically, the court noted that the party seeking the method of service of process will need to establish that the chosen method is good and service will still be properly effectuated. While the Hwang Joon decisions are welcomed, these decisions remain the exception and not the rule of permitted methods of service of process.

The case is Hwang Joon Sang & another v Golden Electronics Inc. and Ors [2020] HKCFI 1084.

For more information, check out Service in Hong Kong.

Despite Global Pandemic, Some Law Firms Thriving

Despite the COVID-19 pandemic that forced much of the world into a stand-still, many law firms posted double-digit gains in revenue and profits per equity partner. A common factor in these law firms not just surviving but thriving included a strategic plan and commitment to a culture of high-performance, according to a study by a law firm consulting group.

 

Strategic Plans

 

According to a Law.com article, the law firm consulting company Zeughauser Group (“ZG”) notes that there are traits that are commonly shared by outperforming law firms. In regards to strategic planning, these are generally an reasonably attainable yet aspirational vision of what the law firm partners want to build together. The plan also includes clear priorities for the firm’s partners as well as goals for achieving them. According to ZG, successful firms have a clear understanding of their current market position as well as a clear understanding of the market position they want to achieve.

 

Not surprisingly, a majority of law firms have to build a consensus — obtaining input from the firm’s informal and formal leaders as well as respond to their concerns — while developing their strategic plan. If law firms share data indicating where the business stands, the benefits of market leadership in particular areas of focus, and other aspects will help the firm succeed.

 

Compensating High Performers

 

ZG further learned from its analysis that law firms that outperform others in their market often prioritize the interests of their high-performing partners. This often includes law firms ensuring that top contributors are compensation in a manner that at a minimum remains competitive with the market. ZG further noted that some law firms took the economic unknown regarding COVID-19 to reallocate funds as well as compensating high performers. The continued uncertainty has provided other law firms the opportunity to do the same.

 

Moreover, outperforming law firms both set and communicate clear expectations for what is required to become and stay a partner, according to the article. These expectations are several including producing, originating cases, managing teams across practices, managing teams across offices, and obtaining client-pleasing results. Moreover, outperforming law firms encourage those who do not measure up to those expectations to find other positions inside or out of the firm.

 

Other Traits

 

Other characteristics of law firms that are outperforming their counterparts in the legal field includes firms that have a deep and thorough knowledge of the firm’s markets. They also have a clear and focused understanding of the competitions. Most important, these firms are able to recognize and embrace market shifts as well as prioritize where they focus on excellence.

 

As a result, many lawyers at Biglaw are not concerned about their job security (while many Americans are) due to the COVID-19 pandemic. In fact, many lawyers are collecting large bonuses because these firms have excelled financially in 2020 and are projected to continue to do so in 2021. This success and stability can be attributable to many factors including an attorney’s ability to work from home easily, having business revenue from a diverse range of industries, focusing on varied practice areas, and a significant reduction in travel expenses. According to a Wells Fargo Survey reported by the Wall Street Journal (“WSJ”), of the 125 firms surveyed their revenue increased an average of 6.4 percent in the first half of 2020 when compared to the prior year despite demand being roughly the same. Net income rose 25.6% in 2020 when compared to 2019.

Litigators: Fact Witness Deposition Tips

So, you are taking a fact witness’s deposition, but you have never done so before. You are likely asking where you should start in order to properly prepare. It is true that depositions of fact witnesses can be complicated. You need to familiarize yourself with learning the rules that are both case-specific and court-specific. You will likely need to wade through a vast volume of documents in a short amount of time. You will also need to make sure you are covering all relevant topics in the deposition. While this will not cover all aspects of fact witness depositions, there are some tips that can help make it go more smoothly, according to the American Bar Association Journal.

 

Get to Know the Facts

 

•Initially when you prepare a deposition, make sure that you pull the applicable court orders or rules that govern depositions. When there is no court order, the court division handling the lawsuit will have specific rules posted on its website that governs discovery (including depositions) or there may be local rules that may apply.

 

•In addition to the rules that are specific to the case as a result of a court order, you should make yourself familiar with any unusual rules on depositions within your jurisdiction. Opposing counsel will easily detect your inexperience if you show that you are unfamiliar with the local rules.

 

Preparation Pays Off

 

•Be sure not to underestimate the power of investigating the facts when you are preparing for depositions. Be sure to search for important facts that may not be readily available in the pleadings. Social media is one of the best places to search for information that may support your theory of the case or undermine the other side’s theory. Involvement in other lawsuits is another way to gather information that could be useful for your deposition.

 

Organize and Know Your Exhibits

 

It is no surprise that in a fact witness deposition the attorneys have a large volume of documents to review with the deponent. The attorney taking the deposition must review and familiarize him or herself with the relevant documents. This should include references to the witness in plaintiff fact sheets, pleadings, discovery responses, other witnesses’ deposition, and other case-related documents. All documents that the witness brings to the deposition, as requested by the subpoena, should be marked as exhibits. The deposing attorney should also check to see if the documents are sufficient or if additional discovery needs to be propounded.

• Be sure to provide a buffer of time to receive all relevant documents well in advance of the deposition and account for delays.

 

Final Thoughts

 

Be sure to keep the big picture in mind when preparing for and taking a fact witness deposition. This will help further your case and lay the foundation for trial.