Pete Clifford has been a regular monthly columnist for Maine Lawyers Review since 1999, author of the General Practice column. He has written approximately 100 articles for MLR. Here is a sampling:
1. Thoughts on Damages
By Peter Clifford
As a staunch (if not brainwashed) plaintiff’s lawyer, I always guard against the three Ds. Although I like wearing 3 dimensional glasses at the movies, this is not what I’m talking about.
The “3D”s are the primary litigation tactics of our opponents, soulless insurers, to avoid paying valid claims. The are: 1) Delay 2) Deny 3) Defend;
Like Frankie Sinatra in “The Manchurian Candidate,” the utterance of those words triggers a subconscious, visceral reaction in me, complete with foaming at the mouth. Before losing our cool, we should remember that there’s an antidote to the three Ds, which itself begins with a certain letter, between C and E. If we can present our damages well at trial, insurers will, sooner or later, end up paying.
As always, its good to learn from combat veterans. Last fall, at the MTLA/MSBA Litigation institute, defense lawyer Bill Druary and plaintiff’s attorney Terry Garmey gave great talks on their views of damages.
Bill explained that his job as a defense lawyer is to minimize the damages. Don’t insult the jury. Don’t try to embarrass anyone. You can only attack so hard. (He generally leaves it to judges to confuse the jury).
The lawyer’s credibility is critical. Be honest, forthright and speak simply. Allow the jurors to be detectives. You want them to look for clues. Bring them into the case.
A huge part of damages defense is simply digging through the files. For example, in a head injury case, the social security file can be a goldmine of potentially conflicting data. Old medical files are good sources of impeachment. For example, a client could claim he was more irritable after the head injury, when in fact many of the same symptoms were present previously.
Bill believes it is essential for the plaintiff’s lawyer to bring weaknesses out on direct. If not, the client will be destroyed on cross. Bill’s strategy is to draw blood within the first five minutes. In one case, because there was so much ammunition, he kept his cross examination up for four hours. This is far longer than he normally takes. The moral of the story is to track down all meds and to thoroughly understand them before a deposition and before trial.
If you have a good case, with few landmines, it is important to bring in the family doctor to prove “he was ok before the accident.” A good treating doctor is the gold standard of your damages case, along with pain and suffering witnesses. Records are also important, as are diagrams and charts.
Likeability is key to damages. Bill prefers to stay low tech, to rely on commonsense.
From a defense point of view, Bill tries to reduce the opportunity for plaintiffs to drill a hole in his case. He uses few witnesses. He doesn’t like to use high priced experts or exhibits.
The lawyer’s credibility is at issue with each question and each statement. You have to always be honest and upfront. Don’t try to oversell or overstate the case when arguing damages for the plaintiff. A pyramid approach is good – specials at the top of the pyramid, and general damages at the bottom.
He finds that 50% of the plaintiffs will “ask for a number” during closing argument in state court. If there are a lot of special damages it is easier to ask for a number than when there are no special damages. As a defense lawyer, he will usually not try to give a number. He doesn’t want them to split the difference. He reminds them on clear liability cases that they are not here to punish. They are here to take their medicine and that this “was an accident.”
From a defense perspective, look at the pre-accident complaints versus the post-accident complaints. Use simple techniques: What are the odds of having two C-6 problems that are unrelated? He uses the return to baseline concept. Was there arthritis before the accident? Is the arthritis progressive? Was there any anatomical disruption? No. Was the plaintiff in pain before the accident? The big question is, is the client back to baseline? During argument, he reminds the jury this is not megabucks. For closed-end periods of time, the vast majority of cases in Maineaward less than $10,000 for pain and suffering.
He looks for older jurors, working jurors, Republicans. He doesn’t like stay at home people, disabled people or students. He looks for conservatives by the type of job they pick.
The next speaker was Terry Garmey, who addressed these issues from a plaintiff’s perspective.
The first issue was permanency. He doesn’t like percentages. He also said, “You don’t need magic words of probability. “May” and “possibly” can work.
The second issue was lost earning capacity. This can frequently be raised even when the client makes more after the accident than before. Terry recommended a separate verdict form for permanency, not just making it part of the damages. This can help you on the damages side of the case, as well as permanency.
Terry addressed a number of current problems in tort law. What if there is a “less than probable likelihood” of future injury. He noted anxiety is compensable, and also the risk that an injury may recur. It is also compensable. Sometimes this harm has to be reduced to present value however. What is the value of a chance?
The next issue is points of view. He likes to tell the story from third person imperfect, not omniscient. Let the jury make conclusions. Did you drive here today with your 40 year old son? Don’t say why.
The next issue was consortium. How do you sell consortium? Use simple pictures, whenever possible. Before and after.
The next issue was video depositions. He said they don’t have to be as terrible as the generally are. Use illustrations frequently to break up the monotony. Stand in front of the camera so the doctor is looking at the camera. Edit things out so page turning is kept to a minimum. Break up the deposition visuals.
These require a great amount of preparation time ahead of time to minimize the wasted time during the deposition. Use blow ups! Get the opinion right out first. “What is your opinion? Let’s go through the medicals.”
The next issue was juror motivation. Give them a reason to help the client. “ He wants to go to Texas. He wants to drive around the world in a Winnebago.”
We’ll continue with selected topics from the Litigation Institute as we plow into Spring and Summer. And please, don’t reference the 3 Ds in my presence- things might get ugly. (Look what happened to my comic hero, Don Rickles, in the Manchurian Candidate, when he messed with the automaton, Frankie S).
2. Telling the Stories of our Clients: Fiction Writing Workshop 2008
If you want to become more sensitive, there’s nothing better than hanging with fledging writers. Transformative mediation techniques? Not even close. Scream therapy? Forget about it.
This spring I enrolled in a 7-week writer’s workshop at USM’s Continuing Education Center. For those who love to spin a good yarn, writing workshops can be a great way to improve fiction writing skills. Here’s what I learned:
1. Listening. Listening is critical to good storytelling. Before you try to write a story: listen - close your eyes. Pay complete attention to what is going on in the present, to sounds, sights and smells. Pay attention above all, to what the characters are feeling.
Listen to a wonderful short piece of fiction. Read it out loud, carefully and slowly. In a week, tell the story in the present tense to a friend, as if sitting around a campfire. This exercise shows how easy it is to separate boring stories from interesting ones. People don’t remember dry, terse writing. Instead, liven up your writing with imagery, exaggeration, disjointed allegory, creative metaphor. Make it memorable.
2. Creativity. Creativity is something most lawyers sorely lack. You don’t always need to be logical. Think of unrelated objects and arrange a story around them. Try different points of view. Use a global point of view first, then an exterior point of view, and finally an internal, emotional point of view to shift pace and imagery. Make your character’s internal thoughts and emotions part of the story.
When you “retell” a story days after it is read, the internal point of view frequently dominates. (This technique mirrors the Marlon Brando/Stella Adler “method” school of acting, in which the actor becomes the character.) Try to provoke an emotional response in the reader.
3. Journaling. Record and reflect on your observations each day, in a journal. Meditate for five minutes before writing, to clear your head. One of the best fiction techniques is to recount overheard conversations and to reflect on them either in story from, or by looking at them from a different point of view.
There are an infinite number of styles that can exist in a journal. A journal can cover events, lists, reflections, relationships, thoughts, rants, criticisms, gratitudes, fears, stream of consciousness, voice, dialogues, interesting places, travelogues, “what ifs,” poetry, drawings, draft letters, stories, fantasies, character sketches, dreams, affirmations, images, spoofs, alliteration, long sentences, observations, etc. Another advantages of journaling is that it helps you find your voice. It also provides a good vehicle for simply writing on a daily basis.
Every good story contains interaction between people. “Man versus nature” or simple internal observations are usually boring, and are difficult to transform into good, interesting stories.
4. Rewriting. Rewriting cannot be stressed enough. It is impossible to write a decent story in a first draft. This is where journaling comes in. Journaling can channel the original raw material out of your imagination, onto the page. Your internal editor, together with your imagination, takes this raw material and can make something out of it by editing. Writing requires hard work and discipline.
5. Types of Stories.
A. Letters. Tell your story in letter form to a fictitious reader, who needs to know all of the important details of what happened. First person stories create a sense of intimacy. (It is difficult to create complicated plots using this method, however.)
B. “Model tellings” are another technique. These involve “always or never stories.” “He was like Johnny Cash always dressed in black, always looking for a fight.” The formula shows the unbending nature of the main character. The second phase of these model tellings involve something totally unexpected, happening suddenly. Model tellings, in “always-and-never stories,” are a great way to cover long passages of history quickly. They can jump start a short story. They are good vehicles for showing how relationships can change, no matter how difficult or fixed one’s character is.
Model tellings are great vehicles for comedy. Typically the narrative voices in these stories have authority. They are omniscient. They define characters in absolute terms.
C. Another tool is “story shifts.” This exercise involves changing the vantage point from an internal to external point of view. In the short story itself, start with omniscient bird’s eye view of a scene use a godlike narrator who is privy to all of the interrelationships. Shift the point of view into external, and then to an internal point of view. Then shift into dialogue. Then shift to “skin on skin contact,” which elicits a reaction. Shift again, with an exaggeration. Shift again, with a ridiculous exaggeration.
5. What makes a good story? Great dialogue, an emotional, unexpected scene, tone, rhythm, a unique point of view. Use action verbs (‘she laughed,’ not ‘she was laughing’). Lay out a sense of place, a sense of spatial relationships, with well developed characters, seeing characters toe to head, using all of the senses.
The shape of the story can vary. It does not have to be a traditional story of introduction, rising action, climax then denouement. Gestures and little quirks are memorable for most readers. Sense of humor is very difficult to convey in fiction, but can help tremendously. Ultimately a unique and powerful voice is the best component of a good story.
A final technique we worked on was bracketing – taking a full typewritten page of one’s work and condensing the story by simply bracketing those portions which stand out and discarding the rest. Bracket what’s working inside the brackets. Leave out the rest.
These notes are the easy part – now comes the hard part – cranking out that first draft. You with me or again me?
3. Medicine for Lawyers: Part 1
By Peter Clifford
“Never go to a doctor whose office plants have died.” Erma Bombeck
“You have a cough? Go home tonight, eat a whole box of Ex-Lax - tomorrow you'll be afraid to cough.” Pearl Williams
“I’d rather have a bottle in front of me than a frontal lobotomy.” Author unknown
With apologies to the MLR readership for this month’s juvenile, earthy quotes, its time to “bone up” on our basic anatomy. Before we go there, let’s reflect.
Despite our whiny gripes about “lack of respect,” and “being misunderstood,” deep down we lawyers know an undeniable truth: the docs have it worse- a lot worse. While we sip our lattes, and polish our tasseled loafers, the docs are working like dogs, probing areas that need to be probed, and being coughed on by people who need to cough.
No thanks. Let’s face it: We lawyers are narcissistic, effete wimps; they (the docs) are selfless gods. Who make mistakes. And then get sued. By us.
Despite these basic truths, the Maine Trial Lawyers Association recently performed a modern medical miracle. This past December, it convinced some of the leading members of Maine’s medical community to “learn us” basic medicine. The presenters were Doug Pavlak from Medical Rehabilitation Associates in Lewistonspeaking on the “Role of the Physiatrist performing the IME;” Gwen Simons, Esq. PT from Simons and Associates, “Using the PT Expert to Quantify and Qualify Damages;” and “Back Injuries: a Primer,” by Philip Anson, MD. In addition, Louise Thomas from Pierce Atwood gave a presentation on the new Maine Model Code of Ethics.
1. IMEs
The first speaker was Dr. Pavlak. His first point was that “Doctors do not take any courses in medical school on how to conduct IMEs. There is great variation in the technique and quality of IMEs in this state.
IMEs should not be anyone’s profession. “They are simply opinions. They are inherently subjective.”
It is essential that the IME provider have “true independence.” There must be backup for the opinions in the literature and in science. The IME doctor should not have any vested interest in the case. He should not be doing IMEs for a living, or be dependent on any one insurance company or law firm for his business.
If you face such a doctor, hammer away at this dependence, and the accompanying inherent bias.
Dr. Pavlak believes that the medical judgment inherent in a good IME only can come from private practice. Many times the issues are not black and white.
He assumes the patient is telling the truth, unless proven otherwise. This is consistent with fundamental principles of medical ethics.
The quality of an IME will be based on the completeness of the record, truthfulness of the patient, the doctor’s knowledge base, the quality of the physical exam (which should always be done in every IME), and the qualifications of the examiner. Ask yourself, have judges and courts relied on the doctor in the past? Has he/she swayed juries in particular cases?
There are many factors that lead to unreliable IMEs. The biggest problem is the coached patient. Dr. Pavlak refuses to be a “coached IME doctor.”
Incomplete records are also a major problem and major complaint. Very long, boring and inherently troubling cover letters are not helpful.
Dr. Pavlak does not criticize other doctors. He simply states his opinions. Sometimes they are different than those of the doctors on the other side. He likes to have yes or no questions.
He emphasized the HIPPA applies. Generally the IME doctor should not have any physician/patient relationship with the patient. A direct relationship may create a bias, among other things, that the doctor’s treatment has been effective and proper, and that other treatments that may possibly have been used are unsuitable.
The physiatrist has a unique perspective in terms of the ability to give an IME. They are the ones patients go to when nothing else works. They are the doctors of last resort. They are the ones you see after the orthopedist has concluded that nothing more can be done. They are the “relief pitches of medicine.”
Physiatrists get to see all of the records typically. The emphasis on physiatry is on function and outcome. They are frequently asked to address psychosocial issues. Orthopedists, in contrast, are generally asked only to fix broken bones.
The physiatrist frequently is asked to balance surgical and non-surgical options. Physiatrists try to minimize functional losses and impairment through a variety of strategies.
Dr. Pavlak emphasized that the motivation of the patient is essential and key. Many times a motivated patient can overcome even the highest obstacles.
Dr. Pavlak also provided a word about EMG testing (electrical recording of the nervous system). An EMG cannot be used to measure pain. It measures neurological function, not inflammation of those nerves. It can be used to test, for example, carpal tunnel syndrome.
He also spoke about functional capacity evaluations (FCEs). These attempt to measure reproducible activity and to correlate that activity level to the risk of reinjury. They cannot be used to answer questions such as, “Can he work?” FCEs do not measure motivation. They measure a minimal level of capacity.
Even though a patient can do a four hour exam, he/she may be in agony for the next week. FCEs do not measure an ability to work “day in day out.” It can, however, provide clues as to symptom magnification based on inconsistencies between the battery of tests.
Frequently specialists such as physiatrists rely on other doctors for patients. There is an emphasis for professionalism. For this and other reasons, Pavlak is always reluctant to criticize local doctors and agrees that most doctors in the area share that reluctance.
He encouraged lawyers to give well-organized chronologies. Have the paralegal organize the file and index it to save time.
Malingering is a serious charge. It must be proven with objective evidence. It is addressed in the DSM IV Manual.
Sometimes symptom magnification is done somewhat innocently, to convince the examiner that the injury is as bad as they allege. Doctors are good at finding and categorizing symptom magnification.
In the coming months, we will review important areas of knowledge for all would-be tort kings: whiplash injuries, physical therapy basics, and lest we forget, ethics. Stay tuned.
2. PT Issues
The next segment was finding evidence in a rehab record. Gwen Simons has the unique perspective of both a lawyer and a physical therapist. She is based out of Scarborough, Maine. She has written extensively on the relationship with the legal profession and the physical therapy profession.
The focus of physical therapy is assisting those who have impairments, functional limitations and disabilities. There is a fundamental difference between disablement and impairment. Disablement means impairments of the functioning of specific body systems on human performance with respect to particular jobs and tasks. Impairment simply talks about normal function of the body.
Physical therapists are experts not only in measuring pain but also on the issue of disability. They can explain to the jury how particular impairments render the person unable to do particular tasks. They can also help answer questions relating to pre-existing conditions, link the examination findings and medical history to the issue of disability and support a causation opinion from a doctor.
Physical therapists are typically not used as causation experts because they cannot do medical diagnoses. Once the diagnosis has been established, physical therapists, especially those that are legally savvy, can link the impairments or disabilities to the diagnosis. This is something the doctor cannot do. Frequently lawyers rely only on a medical opinion, not on a related PT opinion to qualify and explain the medical causation opinion.
Physical therapists frequently talk about the likelihoods of developing disabilities from dormant pre-existing conditions versus after a precipitating event. Thorough PT history and disability questionnaires are important tools.
There are a variety of opportunities and PT documentation to show malingering, lack of motivation, etc. A trained PT expert can find these issues to support, in many cases, the defense case. Passive resistance for example describes abnormal manual muscle test results, suggesting the patient is not giving full effort. When you see this term used in a PT record, it needs to be examined closely.
Inconsistencies in statements in the record are also helpful. “Passive motion versus active motion” is another signal of possible malingering. There may be faking the patient can move their extremities actively with a greater range of motion than simply allowing the therapist to move it passively.
Straight leg raises are often used to review the issue of symptom magnification, for example when nerve roots are being compressed. When done under proper conditions, the straight leg raise when lying down should correlate to the sitting SLR and the so-called slump test. When there are inconsistencies there may be a malingering or effort or symptom magnification problem. Consistently high pain scores are another clue that mentions 10/10 for pain may have motivation problems. No apparent distress is another clue indicating that the tester believes the patient can do the test easily.
Many times the documentation in the PT record is sparse, non-existent or substandard. Many times the patient is seen by non-licensed support staff, not physical therapists. Many times there is no new examination when new complaints arise. Often times these specialists will adhere the “no pain, no gain” philosophy and ignore legitimate problems. It is critical that the PT expert identify free cautions or contraindications before certain tests are conducted to make sure the range of motion tests will not cause harm.
The second part of the presentation concerned functional capacity evaluations. Increasingly, FCEs are used to measure whether someone is “truly disabled.” The battery of physical tests can be either job specific or standardized. Frequently job specific FCEs are used post offer to make sure new hires can do particular jobs. One of the legitimate purposes of the FCEs are to determine whether somebody needs accommodations at work. Sometimes they are used to determine whether a worker can do sedentary, light, medium or heavy type jobs. They can identify in quantity functional disabilities that a plaintiff has as a result of impairments caused by a particular injury. FCEs are also frequently used to determine whether or not the plaintiff is exaggerating the disability for secondary gain.
There are two types of FCEs: psychosocial in which the plaintiff is in control; and kenisiophysical in which the PT evaluator is in control of the test and is responsible for monitoring safety, looking at changes in the body’s mechanics and looking at muscle recoupment patterns. The test must be stopped when the plaintiff is at “maximum safe performance.” Under the other tests, the worker can sometimes go far beyond his safe limitations, overestimating the plaintiff’s abilities and putting the patient at risk.
FCEs raise important Daubert evidentiary issues. They are designed to be replicated and to be carefully administered in order to maintain their scientific validity. Many types of FCEs fail Daubert and/or Frye standards.
Under the Maine Physical Therapist Act, PT assistants may not do FCE exams. Only PTs can do them. In addition to being licensed, they must have the proper training, experience and skills to monitor safety. There should be empirical research indicating that over time, statistical data resulting from the FCE can be meaningfully used and measured. One of the theories in terms of the coefficient of variation is that a person with particular limits should approach the same number on various tests each time the test is performed within perhaps 10-15% of the score. Other issues on top of the particular exercise at issue, such as grip strength, must also be measured to see if that is an explanation for a sub-par performance.
According to Gwen, not enough attention is paid by lawyers or physical therapists as to admissibility standards and the importance of maintaining rigorous standards. Gwen emphasized that a physical exam must be done by the physical therapist before any FCE. The therapist must know the contraindications before any kind of testing is done.
With psychosocial FCEs, the psyche is a limiting factor. These should not be used. In general, most patients are sore after a good FCE.
3. Back Injuries
The next person to speak was Dr. Philip Anson from the Falmouth Orthopedic Center. According to Dr. Anson, back problems are the number two reason to go to the doctor. Usually it’s unrelated to work. Back pain is a huge cost to the economy. The cost associated with disability secondary to spine disorders exceed $100 billion a year, according to Dr. Anson. The direct medical cost is $15 billion a year. 15% of the patients represent about 90% of the costs.
If the back pain doesn’t go away over time, surgery sometimes should be considered.
According to Dr. Anson, half the population by 50 has experienced back pain. Nine times out of 10 it goes away over time. 50% of the time the back pain goes away within one week. 90% of the time it has disappeared within 12 weeks. However, once you have had a back pain problem, it is much more likely to come back.
The back specialist is typically called when the back pain has lasted longer than 12 weeks. The issue frequently is, Where is the pain being generated from?
Dr. Anson did an interesting experiment. He showed four pictures of spines, three with obvious abnormalities. He said, “Which one has the chronic back pain?” Sure enough it was the person who had the “normal” spine. It is very difficult for x-rays or radiology reports to pin point issues of pain.
He then talked about back surgery. Back surgery, unlike other forms of surgery, only succeeds in about 80% of cases, unlike a knee replacement where perhaps 98% of the time it’s successful.
Dr. Anson emphasized that it is sometimes difficult to identify the pain generator for back injuries. It is difficult to determine whether the pain is neurologic, related to a joint, or a bone, or a tendon or a ligament.
Many times, aging is the dominant factor with respect to the likelihood of getting back pain. It is generally unrelated to life’s work.
He described pain as “an unpleasant sensory and emotional experience” which we associate with “tissue damage.” It is relatively easy to diagnose bone, disc, joint, nerve problems. It can be very difficult to diagnose and validate the precise source of facial, ligament or muscle pain.
Chronic pain is frequently multi-factorial. It frequently stems in part from deconditioning, as well as psychosocial conditions, substance abuse, depression and secondary gain. Many times there are pre-injury issues such as job dissatisfaction or life role dissatisfaction.
Spondylosis occurs in perhaps 16-18% of the population – deterioration of the spine. Virtually everyone has some spine symptoms at some point in their lives. It is unclear whether sondylitic process can be accelerated by a trauma. In the absence of any symptoms, degenerative changes are not equal to pathology. This principle is important to remember for plaintiff’s attorneys when the plaintiff has degenerative disc disease or some other similar problem. These are essentially non-factors with explaining pain after trauma.
Neck pain like back pain can be difficult to quantify objectively. 85% of neck pain is secondary to acute or repetitive neck injury.
Dr. Anson noted that 20% of motor vehicle accidents are rear-end impacts involving perhaps 500 to 1 million people per year. Although most neck pain conditions respond quickly to treatment and heal without incident, MVA associated neck symptoms are more problematic with 20-70% still symptomatic after six months after the date of the injury. Ten years after a MVA only 80% are improved. 40% are pain free, but 30% have persistent or moderate to severe pain. These are very important statistics for those of us dealing with auto cases.
Diagnosis and treatment should be focused on identifying the pain generator. The client needs to be educated. Rest is often times overlooked.
Frequently pain peaks 12 to 72 hours after the event. In MVAs, if there is a disc herniation, it is at C5-6. Many times MRIs are not performed. When MRIs are performed, 23% show a disc problem at C5-6. IT is unclear which of those percentages had similar MRI findings prior to the MVA.
4. Ethics
The last subject was how the Maine Code of Professional Responsibility will relate to the ABAmodel rules which were recently published by the Board of Overseers and the Law Court. Other than Maine, only Californiaand New Yorkhave not adopted the ABA Model Rules.
There are many benefits of conformity including uniformity with our neighboring states of New Hampshireand Vermont, where we have reciprocity. The Model Rules give us much more helpful guidance and case law from the ABAand sister states and the ability to do multi jurisdictional practice without running a fall of ethical rules. The task force was charged in the year 2005 with determining whether the new rules in various instances should conform to the ABAmodel rules. The rules can be reviewed at www.mebaroverseers.org/ethics.
How have the rules changed? The ABAformat has been adopted even when Mainesubstantive law has been retained. The new chapters address:
1. Client/lawyer relationship
2. Counselor
3. Advocate
4. Transaction with other persons
5. Law firms and associations
6. Public service
7. Information about legal services
8. Maintaining the integrity of the profession
Section 1, the Client/Lawyer Relationship deals with issues such as competence, confidentiality, conflicts of interest and the sale of a law practice.
The three categories that highlight the rule changes according to Louise are: The first set of rules relate to instances when Mainehas adopted the ABArule. The second is when Mainerejected the ABAsubstantive rule in favor of Mainelaw or the restatement of the law of lawyering. Number three are those instances when the ABAsubstantive rules exist without any Maineprecedent.
According to Louise, the following areas are “substantively consistent with Mainerules:” conflicts of interest; current and former clients (Maine Bar Rule 3.4). There are some changes however: written consent is now needed where clients are opposing parties, in cases where it is not still the same claim.
The next example are those cases in which Mainelaw and ABAlaw differs and the differences have been retained. One of the most significant is Rule 1.5 relating to fee division. Under the new Maineproposed rule, as in past practice, there is no limitation on the amount of the referral fee. Although there is a requirement of written confirmation form the client. Under the ABArules, the fee division needed to be in proportion to the services performed with each lawyer assuming joint responsibility. The kits of retaining Maine’s fee division rule emphasize that this allows lawyers to refer cases to qualified specialists without any kind of financial penalty. Opponents of the existing Mainerule wanted to prevent in some cases the continued dominance of “advertisers” in the legal services market.
Mainerules with respect to confidentiality have also been retained. Under the ABAmodel rule which was not adopted, there was a broad definition of information relating to representation of the client. Mainerule defines confidential information more narrowly. On July 1, 2005, the Rule limited protection to confidences and secrets. Under the new ABArule there would be additional steps that must be made before making an authorized disclosure of confidential information.
The third category are rules where there is no Mainepredecessor. These include when an organization is the client and a section which is Rule 1.13 and Rule 4.4 respect for the rights of third persons and inadvertent disclosures.
Rule 5.5 addresses unauthorized practice of law with multi-jurisdictional practice of law.
Rule 1.13 relates to the organization as a client. It indicates that the lawyer represents the organization, acting through its duly organized constituents: it defines how a lawyer is to act when an officer or employee engages in wrongful acts.
Louise went through a hypothetical in which a supervisor made an inadvertent disclosure to a corporation lawyer indicating that “she has been slipping rats into the soup.” According to Louise, under the new rule, the client is ABC Corp. not officer, even though she was the contact and even though she made a statement in confidence to you. The lawyer must explain that the client is the organization. When the lawyer determines that the organization’s interests are adverse to “one of the constituents with whom the lawyer is dealing,” the lawyer may well have a duty to disclose the officer’s actions to higher ups if 1) the lawyer knows that the employee is breaking the law and will result in injury to the organization; 2) the actions are reasonably necessary; and 3) in the best interest of the organization. Suggested measures after going to the supervisor who does nothing are to ask the client for reconsideration, advise the client that a separate legal opinion be sought or referring the matter to the highest possible authority if necessary.
Similarly, Rule 4.4 deals with inadvertent disclosures. The current rule is based on the Corey v. Norman Hanson & DeTroy case which is that inadvertent disclosures should be ignored by the recipient lawyer and inadvertently disclosed materials back with no copies made. The proposed rule indicates that the lawyer must stop reading, notify the sender, return, destroy or to sequester. There is an option to pursue court determination on the status of the document. Under the ABA Rule 4.4, the only obligation was to notify the sender. Thus, Maine’s new proposed Rule 4.4 adopts the Corey v. Norman Hanson common law rule.
Finally, under Rule 5.5, the unauthorized practice covers new ground. There is no current rule in the Maine Bar Rules, but see opinion No. 189 from 2005. The new rule defines the unauthorized practice of law as well as multi jurisdictional practice. There are special rules for in-house lawyers in federal practice.
4. Law and Management: Building a Small Law Practice
By Peter Clifford (Exerpt From: Maine Lawyers Review, April, 1999)
Most attorneys are probably not suited to the rigors of solo practice. The ideal person must be two parts entrepreneur, two parts rebel, and one part idealist.
The six principles of _winning clients_ are summarized as follows. 1) Become genuinely interested in other people. 2) Smile and project a positive attitude. 3) Develop intimacy by remembering the person's name. 4) Be a good listener by encouraging others to talk about themselves. 5) Talk in terms of the other peoples' interests. 6) Make them feel important and do it sincerely.
The leader's job is to change peoples' attitudes and behavior willingly. It is essential to show praise and honest appreciation, to call attention to peoples' mistakes only indirectly. An effective technique is to talk about one's own mistakes before criticizing the other person. Another good technique is to ask questions instead of giving direct orders: to always let the other person save face. Praise is important, but only honest praise.
The last principle is to win people to your way of thinking. This section is directed more toward advocacy. Carnegie stresses avoiding arguments as the best way to win an argument. One should always avoid showing disrespect for the other person's opinions. He asserts that negotiations should always begin in a friendly way. If you were wrong, promptly admit it. A nice technique is to get the other person to say yes, immediately. It is always wise to let the other person do most of the talking. The last two principles are to let the other person feel that the idea is his or her own and to see things from the other person's point of view. (Sound familiar?) In sum, for a minority of us, solo practice can be a wonderful way to enjoy the practice of law. Books on emotional intelligence should be required reading for all lawyers, especially solos