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Campolo quoted in “Keep It Down” article about legal fees

Posted: December 9th, 2014

By: Bernadette Starzee, Long Island Business News

When a homeowner hires a contractor to remodel his kitchen, he expects to be quoted a total price for the job. If, after ripping up the cabinets, the contractor discovers additional plumbing work needs to be done, he’ll run the cost by the homeowner and get his permission before revamping the pipes.

Attorneys traditionally have operated on a different plane, according to Joseph Campolo, managing partner of Ronkonkoma-based law firm Campolo, Middleton & McCormick.

“Lawyers were always open-ended, billing by the billable hour for as much time as something took, and the customer had to pay,” he said.

But since 2008, that has been changing, as cash-strapped consumers and businesses seeking law firm services have increasingly resisted open-ended billing. They’re demanding itemized budgets upfront, and Campolo says it’s healthy for the industry.

“Historically law firms have been challenged in trying to collect from clients, and clients have always complained that law firms are too expensive,” he said.

But if the scope of work and the cost are determined in advance, and clients are empowered to make a business decision – to say nay or yay – up-front, there will be fewer disputes about fees, Campolo said.

The wealth of legal information available on the Internet has led to a more educated legal services consumer, said Joseph Milizio, managing partner of Vishnick McGovern Milizio in Lake Success.

“As a result, clients are often not taking a back-seat approach to their legal representation,” he said, noting many of them see greater involvement as a cost-cutting opportunity – they figure if they can contribute to a part of the underlying work, their fees can be reduced.

As law firm customers have become savvier, certain legal services have evolved into commodities.

“During the economic downturn, many lawyers and law firms who could not differentiate the value of their services from their competitors discounted their rates and/or wrote off substantial portions of clients’ legal bills to maintain market share,” said Craig Olivo, co-managing member of Bond, Schoeneck & King’s Garden City office. “This resulted in what many refer to as the ‘commoditization’ of some legal services – generally those services that are considered routine in nature and for which the economic risks do not justify engaging outside counsel or an attorney with a higher rate over one with a lower rate.”

More than 2 million people have used the website LegalZoom for everything from incorporating a business to creating a will to transferring real estate deeds. In addition to sites like LegalZoom taking lower-level business away from law firms, consumers are turning to the Internet for free legal advice.

Even Fred Rooney, an attorney who directs the International Justice Center for Post-Graduate Development at Touro College Jacob D. Fuchsberg Law Center in Central Islip, sought free legal advice online after, shortly after moving to Long Island, he was ticketed for making a right-hand-turn at a red light.

“I didn’t understand for the life of me why I was getting ticketed for turning right on red,” he said, noting he received free advice online from a Long Island lawyer, who informed him a full stop was required by law.

People aren’t turning to do-it-yourself websites because it’s the best option, Rooney said, but because they can’t afford legal services. This has engendered a growing trend toward law firms unbundling their services, said Rooney, who until recently was a member of the American Bar Association’sstanding committee on the delivery of legal services, which analyzes the way people access the legal system.

In order to make sure clients can afford the law firm’s services, lawyers are increasingly empowering them to do more on their own, to reduce the overall cost of legal representation, Rooney said.

“We’ll tell clients, ‘If you want us to do this, it’s going to cost you X, and if you want us to do a piece of it, it will cost you Y,’” Campolo said. “It’s no different from a contractor who may charge you $5,000 to rip out the kitchen and put in new cabinets, but if you take them to the dump yourself, you don’t have to pay for that.”

For instance, in uncontested divorce cases, attorneys may instruct clients to secure a custody order and child support order on their own, while the attorneys handle the more complex equitable property distribution piece, Rooney said.

However, when consumers represent themselves – such as in divorce matters – they can make mistakes that wind up costing them more in the long run, said Jerome Wisselman, senior law partner at Wisselman, Harounian & Associates, a Great Neck law firm with a concentration in matrimonial and family law.

“We have seen cases where one spouse is seeking an order of protection, and the other spouse attempted to litigate the matter himself and ended up losing the case and being ordered to vacate his home,” he said. “When that happens, it sets up a difficult framework for the rest of the case.”

Wisselman has noted an increase in inquiries about mediation, and the firm has grown its emphasis on the less costly alternative to litigation.

While some divorces do not lend themselves to mediation – such as in cases of domestic violence or when there are disparate levels of sophistication about the issues among the two parties – it is an effective option in many instances, he said.

It isn’t just consumers that are looking to reduce legal costs.

Although the economy has improved slightly, “businesses have weathered the economic storm of the last several years by cutting costs across the board and reallocating their limited budgets to perceived priority areas, often at the expense of their budgets for legal services,” Olivo said. “So the pressure by general counsel to ‘stay within budget’ continues unabated.”

Like many firms, Bond, Schoeneck & King has begun “on a case-by-case basis to utilize a variety of alternative fee arrangements in an effort to make the cost of legal services for a particular project or matter more predictable for the client,” Olivo said.

The challenge with such arrangements, he noted, is that it is often difficult to accurately predict how much work will be needed to complete a given matter.

Many times, an attorney can break down a matter and fix a fee for part of it, said Lewis Meltzer, managing partner at Meltzer, Lippe, Goldstein & Breitstone in Mineola. In commercial litigation, for instance, “you ought to be able to fix a fee for the complaint, because it’s totally in a firm’s control how much time it spends on it,” he said. “But with depositions, the time spent is dictated by what somebody else does.”

While clients may choose the lowest bidder for low-order legal services, when the more complex, critical or financially imperative matters arise, most clients focus on a law firm’s ability to achieve the desired results, Olivo said.

In those cases, “clients determine value by the effectiveness of the work the lawyer does, not just the hours that are put in,” Meltzer said. “The lawyer has to accomplish something.”

Keep it down

Problems with Joint Bank Accounts

Posted: November 24th, 2014

By: Martin Glass, Esq. email

Tags: elder law, estate planning

Most of my senior clients want to be able to transfer their assets to their children in the simplest and quickest way possible. The way they usually want to do this is by adding their child’s name to one or more of their bank accounts.

If you don’t think about it too hard, the logic makes sense. Most parents want to assure that their bills, mortgages, insurances or even funerals get paid for should something happen to them. Yet most senior clients and children don’t realize the risk that this small change in their accounts creates.

Even though I think that this is stating the obvious, each person on a joint bank account is legally considered a full owner when it comes to withdrawing money from the account. Therefore, the risk of a child withdrawing money, borrowing money or accidentally losing the checkbook/debit card for their parent’s bank account opens the door to the possibility of losing the parent’s savings through theft, stolen identity or bank account access.

Once a child is added on a joint bank account, it becomes an asset for both parties. So if a situation arises where the child has a creditor problems, that creditor could garnish the entire bank account, regardless of the parent’s involvement in the creditor claim. This could result in the accounts being frozen or possibly in the loss of the account funds. Of course, most of my clients tell me that their children don’t have creditor problems. That is, until they get into a car accident or someone slips and falls on their property. Now that child has creditor problems. Any lawsuit claim or judgment settlement for money will include this account as part of the child’s assets.

As noted above, any assets in this assumed bank account are deemed as owned property by the parent and the child. What if the child’s spouse files for divorce? That divorcing spouse could be entitled to a portion of the joint bank account funds. Even if it turns out that the divorcing spouse is not entitled to any of the assets, that account could be frozen and tied up in the litigation until it’s all settled.

As you probably know, joint accounts or any asset registered jointly with rights of survivorship bypass the Will of a deceased person. So in this case, the Will does not impact the money in joint bank accounts. This might not be an issue if the child is the only beneficiary of the parent’s estate. If not, it can create a major feud among other beneficiaries, as the dividing process is not that easy after the fact. Furthermore, should the parent’s Will include specific trust provisions related to their estate planning goals, this change in ownership of the bank account could have drastic and irreversible effects on everything from inheritances, taxes or other estate expenses, since this account would bypass the Will’s provisions.

Most clients are not aware of the gift and estate tax issue, as the laws are pretty complex. As far as the IRS is concerned, adding a child to a parent’s bank account is indirectly making a gift, which may or may not be subject to gift tax for the parents. Furthermore, the amount of money in the account and how many children are added as owners all plays into the gift tax issue. While most of my senior clients do not need to concern themselves with gift and estate tax as the NY exemption is over $2 million, it is still important to note that a possible gift or estate tax issue could be a problem for some parents.

There are many more issues of concern in this area, such as their effect on long‑term care or Medicaid‑related issues, but, outside of a small checking or savings account, putting a child’s name on a bank account, or any asset for that matter, is probably not a good idea.

November 2014 Legal Brief – Firm Newsletter

Posted: November 24th, 2014

Tips for Protecting Trade Secrets

Posted: November 24th, 2014

Tags: intellectual property

Any information that is unique to your company but isn’t public knowledge can be considered a trade secret and, in many cases, can be protected under both state and federal law.

As your company grows in the competitive marketplace, it becomes even more important to identify the company’s most important information, then build trade secret protection into the company’s employment policies and technology systems.

The key question to trade secret law is whether your company has taken reasonable measures to protect the secret. Companies have to be proactive and think ahead. Trade secrets, unlike other forms of intellectual property, can be easily lost and difficult to recover once they’ve slipped out the door.

Generally, any company hoping to shelter information as trade secrets should consider the following tips:

Identify Your Company’s Trade Secrets. The first step is knowing what information in your company is the most critical. Create an inventory of trade secrets and classify them by the level of importance. Then identify what is already being done to keep the information protected. The inventory provides a baseline to ensure appropriate measures are taken to secure the information. Update this inventory periodically. The protective measures should also be revised if needed to ensure the trade secret is sufficiently protected.

Educate Employees of the Need to Protect the Company’s Trade Secrets. Clearing polices upfront and educating employees about company rules can help avoid any unintentional leakage of trade secrets. One concrete measure is to create a comprehensive employee handbook that spells out the company’s policies. When employees understand company policies and procedures, they are less likely to unintentionally divulge trade secrets.

Stick to a “Need-to-Know” System. In most cases, it is unnecessary for every employee of a company to know all of the company’s trade secrets. Identify those people who absolutely need to have access to the trade secret to perform his/her duties, and limit access to only those key employees. This limits exposure to a possible theft of trade secrets. In addition, other mechanisms such as non-disclosure agreements and confidentiality agreements can be used with the key employees which would require him/her to acknowledge what information is confidential and how that information may be used and disseminated.

Implement Procedures for Incoming and Outgoing Employees. Trade secret protection should begin with any new hire. Non-disclosure and non-compete agreements are a way to protect the company’s position if a trade secret is lost or stolen. Further, it is just as important for a company to screen outgoing employees to make sure there are no trade secret leaks. Exit interviews are the standard way to figure out any physical or electronic information he/she has currently, whether there are any non-competes that will continue past his/her employment, and where the employee is going. Having this inventory will help prevent a former employee from taking trade secrets out of the company.

Employ Effective Security Practices. For those trade secrets that take on a physical form, locked rooms or cabinets may be important. Limiting the printability of certain documents or even identifying certain documents as using restrictive legends (e.g., “Confidential”) should also be considered. For electronic information, firewalls, authentication procedures, and limited access should be employed to properly protect trade secrets.

In sum, there are a number of strategies that a company should keep in mind when protecting its trade secrets. It begins with identifying the company’s most important information and then building trade secret protection around it. The above list is a starting point, and it is not intended to be comprehensive. The practices necessary to protect trade secrets vary in complexity based on specific circumstances.

Aereo Update: Case Volleys Back to Trial Court

Posted: November 24th, 2014

This blog has previously reported on American Broadcasting Co. v. Aereo, a dispute between television broadcasters and a start-up that distributed broadcast signals through a network of small antennas in a “cloud.”

For around $10 a month, subscribers could record shows and watch live and recorded programming from their mobile devices. In June, finding that Aereo’s resemblance to traditional cable companies was “overwhelming,” the Supreme Court determined that Aereo’s service conflicted with copyright law requiring the copyright owner’s permission for a public performance of the protected work. “Performance” includes retransmission to the public, and the Court was not swayed by Aereo’s argument that its retransmission was private due to the nature of the technology. Due to the service’s “overwhelming likeness” to a cable company, the Court found that any technological differences were inconsequential.

But Aereo refused to see the Supreme Court decision as the end of the line; the seemingly never-ending case then returned to the Southern District of New York. In an order dated October 23, 2014, U.S. District Judge Alison J. Nathan granted a preliminary injunction against Aereo, enjoining the company from “streaming, transmitting, retransmitting, or otherwise publicly performing any Copyrighted Programming1 over the Internet (through websites such as aereo.com), or by means of any device or process throughout the United States of America, while the Copyrighted Programming is still being broadcast.” For the time being, the judge rejected the broadcasters’ request for a more expansive order that would have also prohibited the copying and storing of copyrighted matter for later viewing, but this limitation was hardly a victory for Aereo considering the nationwide ban on a significant aspect of its service offerings.

Because the Supreme Court decision addressed only the narrow issue of whether Aereo’s retransmission constituted a “performance” as defined in the Copyright Act—and not whether Aereo had actually infringed on the broadcasters’ copyrights—it remains to be seen precisely what services Aereo can and cannot offer its customers. Perhaps this case will make it back to the Supreme Court before long.

Deal Protection: An M&A Negotiation Lesson

Posted: November 12th, 2014

By: Joe Campolo, Esq. email

Tags: M&A, negotiation

Protegrity Advisors recently published a Long Island M&A Report, highlighting the strong M&A activity on Long Island, even as the country navigates what might be best described as a modest economic recovery. The full report can be read here.

As the report dives into the statistics and metrics, it’s important to remember the very foundation of these transactions – negotiations. The world of M&A is all about negotiations and there’s a lot to me learned from these sometimes complex business transactions.

Published previously in the Harvard Law School Program on Negotiation Daily Blog on September 19, 2011, is an article entitled “Negotiation lessons from the M&A World.” The full article can be read here.

For many years, Harvard Business School professors James Sebenius and Guhan Subramanian have studied real-world mergers-and-acquisitions (M&A) deals, which tend to involve experienced lawyers, bankers, and businesspeople, and many millions, even billions, of dollars. Some of these deals prove successful; others are well-known disasters.

Sebenius and Subramanian have begun to apply their observations about these agreements to other multiparty contexts. One lesson you may be able to adapt to the complex negotiations that crop up in your business and personal life is deal protection, or the extent to which the parties are bound to each other between signing and closing a deal. A heavily negotiated issue in M&A transactions, deal protection is rarely negotiated outside the M&A context, say Sebenius and Subramanian, even when it could create significant value.

Take the typical residential real-estate deal. In the time between the purchase-and-sale agreement and the closing, the seller is bound irrevocably to the transaction. This clause protects the buyer, but it means that the seller can’t accept a higher offer—a condition that can be inefficient for both the seller and the buyer.

Imagine you’re selling your home. A prospective buyer falls in love with your house and (unbeknown to you) one other house. After much debate, he makes a successful bid on your house.

Soon after you’re under contract, you receive a blockbuster offer from another party. It’s too late to back out, right? Not if you had negotiated deal protection. For example, you might have proposed a clause that would allow you to withdraw between signing and closing by paying the buyer a breakup fee of perhaps $25,000. For a buyer who is virtually indifferent between your house and another house, this should be an attractive alternative.

Buyers can make similar moves. Suppose parties are at an impasse, with the seller asking $500,000 and the buyer offering $450,000. The buyer might offer a “loose” $450,000 deal that allows the seller to accept a better offer between signing and closing by paying a modest breakup fee, such as the buyer’s out-of-pocket costs.

Sophisticated deal structures create value by capitalizing on differing beliefs about the likelihood of higher offers. Such terms could be useful in home-buying transactions, where the stakes can feel just as high to the players involved as if they were hammering out a billion-dollar merger.

http://www.pon.harvard.edu/daily/business-negotiations/negotiation-lessons-from-the-ma-world

Safe Harbor Update

Posted: November 9th, 2014

Tags: healthcare

On October 3, 2014, the Office of the Inspector General for Health and Human Services (“OIG”) published a proposed rule that revises the Safe Harbor under the Anti-Kickback Statute concerning discounted or complimentary transportation services that medical providers can provide to patients.

See 79 Fed. Reg. 59717 (October 3, 2014). Medical providers should welcome this much needed update, as the “nominal value” rule has declared many providers’ plans to provide complimentary transportation for their patients illegal.

In the past, the OIG declared that under the legislative intent of the Civil Monetary Penalties Law and the Anti-Kickback Statute, Congress intended that the statutes not preclude the provision of complimentary local transportation of “nominal value.” The OIG has interpreted nominal value to mean no more than $10 per item or service or $50 in the aggregate over the course of a year. Based upon persistent feedback, the OIG now believes this interpretation of nominal value may be overly restrictive as applied to complimentary or discounted transportation for patients.

The proposed safe harbor would protect free or discounted local transportation made available to established patients to obtain medically necessary items and services.

First, the proposed safe harbor would apply to “Eligible Entities.” The OIG suggests that Eligible Entities include medical providers, but it would not include entities that primarily supply health care items, such as durable medical equipment suppliers or pharmaceutical companies. The OIG also suggests excluding home health care providers from “Eligible Entities” designation when providing transportation to or from their referral sources, such as doctors’ offices, while extending safe harbor protection when transporting patients to non-referral sources, such as pharmacies.

Next, the OIG seeks to limit safe harbor protection to “established” patients. It offers as an example a patient who has already selected an oncology practice and has attended an appointment with a physician in the group. The oncologist may offer discounted or free local transportation to this “established” patient, who may have trouble reliably attending appointments for chemotherapy. By contrast, the safe harbor would not extend to a practice providing free or discounted transportation to new patients.

Under the proposed safe harbor, the entity would not be permitted to restrict the transportation service to patients sent from specific referral sources, nor could the entity require the patient to utilize the services of other referral sources of the entity. The entity may set limits on the free or discounted transportation, but such limits must be unrelated to the volume or value of referrals. Likewise, entities would not receive safe harbor protection if they limit the offer of free or discounted transportation only to patients prescribed expensive treatments versus inexpensive ones.

Providers considering offering free or discounted transportation services should contact health care counsel, who can submit comments on the provider’s behalf to the OIG with the goal of having the final rule most closely resemble the provider’s proposal. Our healthcare law department stands ready to assist in this endeavor for any interested providers.

No Rescission of Contract in Dental Practice Sale Gone Bad

Posted: November 9th, 2014

While the sale of a business is a common occurrence, courts are often looked upon to interpret the terms of the relevant sale documents associated with the transaction when either the buyer or seller is alleged to have breached certain obligations post-closing.

This was the case in a recent decision in the Suffolk County Commercial Division in Huntington Village Dental, P.C. v. Rathbauer, et a. (J. Whelan).

In Rathbauer, plaintiff Huntington Village Dental, P.C. (“HVDPC”) purchased a dental practice from John F. Rathbauer, DMD, LLC (“Rathbauer LLC”), evidenced by an Agreement of Sale, Promissory Note, and Bill of Sale, all dated June 14, 2010. HVDPC also executed a lease for the first floor of a building owned by another defendant, John F. Rathbauer, DMD, P.C. (“Rathbauer P.C.”). Of particular significance, the Promissory Note provided that, in the event of a default in payment by HVDPC under the Note, Rathbauer LLC could send a notice of default requiring payment of the balance within 90 days. Additionally, if the default was not cured within the 90 days, ownership of the dental practice and assets would revert to Rathbauer LLC.

As part of the sale documents, Rathbauer himself remained employed by the dental practice for one year following the sale. However, shortly after the closing, HVDPC claimed that the defendants breached their obligations under the terms of the sale documents due to “failure to turn over full and complete patient lists, clinical quality copies of x-rays and practice management documents as data which plaintiff purchased from Rathbauer LLC.” Despite these claims, HVDPC apparently continued performing under the Promissory Note until July 2012, approximately two years after the closing and one year after Rathbauer completed his employment. Beginning in July 2012, HVDPC refused to pay it obligations under the Promissory Note going forward, essentially based upon the same alleged breaches it claimed back in 2010.

In the Complaint, HVDPC sought rescission of the Promissory Note and the other sale documents on the grounds that the defendants materially breached their obligations and fraudulently induced plaintiff to enter the sale. HVDPC also sought money damages for alleged tortious interference due to the defendants’ alleged interference between HVDPC and HVDPC’s patients. Plaintiff further sought a declaratory judgment finding that HVDPC was free from any further obligations under the sale documents and that the provision in the Promissory Note permitting Rathbauer LLC to “take back” ownership of the dental practice and its assets to be deemed null and void.

Defendants then asserted two of their own counterclaims – the first seeking declaratory relief that the “take back” provision in the Promissory Note is valid and enforceable, and the second for money damages due to HVDPC’s failure to pay amounts due under the Promissory Note.

Both parties ultimately moved for summary judgment. With respect to HVDPC’s claim for rescission of the sale documents due to the alleged “material breaches” by the defendants, the Court noted that rescission of a contract is permitted when a breach “substantially defeats [the] purpose of the contract” when such breach is “material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract.” Wiljeff, LLC v. United Realty Management Corp., 82 A.D.3d 1616 (4^th Dep’t 2011)(quoting Lenel Sys. Intl., Inc. v. Smith, 34 A.D.3d 1284 (4^th Dep’t 2006)).

Based upon the record before it, the Court denied summary judgment and dismissed HVDPC’s claim for rescission, holding that HVDPC failed to satisfy its burden of proof. Particularly, the Court noted that the breaches alleged by HVDPC were slight, casual and/or technical breaches, with nothing in the record pointing to a material, substantial breach by the defendants. Furthermore, the parties operated under the agreement for two years after the closing; thus, rescission was not a remedy available to HVDPC at that point. Given that the Court found no evidence of material breaches by the defendants, the Court also denied summary judgment and dismissed HVDPC’s declaratory judgment claim.

With respect to HVDPC’s fraudulent inducement claim, the Court held that the alleged representations by defendants were not actionable because the representations were promissory and futuristic in nature and HVDPC could not prove justifiable reliance. The Court also noted that HVDPC essentially waived its rights for rescission under a fraudulent inducement theory by continuing to operate under the agreement for two years despite allegedly having knowledge of the alleged misrepresentations.

In considering the defendants’ separate summary judgment motion on their counterclaims, the Court granted summary judgment to the defendants for money damages as a result of HVDPC’s failure to pay amounts due under the Promissory Note because HVDPC had no bona fide defense to not paying the amounts due thereunder, given the Court’s finding that the defendants’ alleged breaches were non-material in nature. However, with respect to the “take back” provision that was available to the defendants in the event HVDPC defaulted under the Promissory Note, the Court refused to enforce the provision, noting that no proof had been shown demonstrating the enforceability of the provision, which was actually handwritten into the Promissory Note at the closing.

This case provides an important illustration of how parties’ actions after the sale of a business is completed will affect how a Court interprets certain provisions of the parties’ agreements when the parties later seek to enforce them. Particularly for HVDPC, while it thought it had a valid basis to rescind the sale agreements and to stop paying under the Promissory Note due to what it claimed were material breaches by the defendants, the Court ultimately found those breaches to be non-material and that HVDPC’s continued performance under the sale documents for two years post-closing resulted in a waiver of its right to rescission and, as a result, it was plaintiff HVDPC that was in default of the Promissory Note, owing money damages to the defendants.

McCormick quoted in “The Art of Making Objections”

Posted: November 9th, 2014

By: Bernadette Starzee, Long Island Business News

“Objection, your honor!”

It’s a line that fans of shows like “Law & Order” and “Boston Legal” have heard hundreds of times. But while TV lawyers make objections look easy, it’s not so simple when there’s no script or retakes.

“Young lawyers especially fear the use of objections,” said Jeffrey Kimmel, a partner at Salenger, Sack, Kimmel & Bavaro in Woodbury. “You have to object in real time, and since you don’t know in advance what your adversary is going to say, you don’t know if it will be objectionable. You have to decide on your feet the reason for objecting, whether you should object and if you will sound silly.”

To help attorneys choose their battles wisely, the Nassau County Bar Association offered a continuing legal education course entitled “Objections! When and How to Make Them” in October. It was attended by about 70 attorneys across many practice areas.

While it’s true there’s no script in real-life court, it is possible to prepare in advance of a trial for instances that may arise and warrant an objection.

Attorneys should prepare by reviewing the rules of evidence before every trial, said Mark Mulholland, managing partner and senior member of the litigation department at Ruskin Moscou Faltischek in Uniondale. Further, with the disclosure process, both sides generally know what their adversaries will present and what their witnesses will testify to.

“You should know what the potential objections will be before you even walk into the courtroom,” said Patrick McCormick, partner and head of the commercial litigation and appellate practice groups at Ronkonkoma-based Campolo, Middleton & McCormick.

As the trial progresses, or from trial to trial, “you get a sense of your adversary and how he asks questions and what he’s trying to accomplish,” McCormick said. “Most experienced lawyers know whether they’re going to object and what the objection will be based on before their adversary is halfway through with a question.”

Mulholland finds that inexperienced attorneys typically fall into two camps: those that are uncertain about the rules and therefore timid to stand up and object, and those that are what he called “spring-butts” – lawyers who jump to their feet for hyper-technical reasons.

The latter group runs the risk of coming across as inexperienced, naïve and/or obstructionist, he said.

“I think the most important thing to learn is just because you can make an objection doesn’t mean you should,” McCormick said.

There are certain objections attorneys must make in order to protect the record in case of potential appeal for BLC bankruptcy attorney san diego. But by making too many objections, an attorney can give the jury the impression he is trying to hide something, Cormick said.

Occasionally, making repeated objections may allow an attorney to gain momentum.

“Your adversary may run into trouble – he may be blocked in his attempt to put a piece of evidence in, and he may try a different approach to get the same evidence in,” Mulholland said. “A seasoned lawyer can seize upon the opportunity to object again; if the judge agrees and blocks the evidence a second time, the lawyer is effectively building momentum.”

In this scenario, Mulholland likened repeated sustained objections to a flurry of punches thrown late in a heavyweight boxing match.

“You can start to pummel your adversary whenever he goes back to the well again to try to get the evidence in,” he said. “The jury will begin to see that the judge and you are aligned, and that’s a terrific thing. Imagine in your mind’s eye, by the fifth or sixth round, jury members cocking their heads, with their arms folded across their chests, wondering, ‘why is the [adversary] wasting our time with this?’”

Hearsay is the most frequently cited rule of evidence in the courtroom, Mulholland said, noting it goes against the very heart of the trial process, which centers around cross-examination as a means by which a witness’ credibility is tested. In the case of hearsay evidence, the speaker is not in the courtroom, so he cannot be cross-examined.

Other common objections are “relevance” and “asked and answered,” said Kimmel, noting the latter can stop an adversary from repeating a point that is helpful to his side.

Another classic objection is to an adversary assuming a fact that is not in evidence, such as asking a witness, “When did you stop beating your wife?” when it has not been established that the witness has been beating his wife, Kimmel said.

Attorneys also frequently object when their adversary leads the witness. When addressing their own witness, attorneys cannot suggest an answer, Kimmel said. For instance, rather than “The light was red, wasn’t it?” the question should be, “What color was the light?”

One objection that’s frequently upheld is absence of a foundation, Mulholland said.

“Lawyers need to understand the technical rules required to build a foundation for different types of evidence,” he said, noting, for instance, the background information needed to introduce a telephone call is different from that needed for an email. “Inexperienced lawyers are tripped up by their inability to lay foundation, and if you come ill-prepared to do so, your adversary is going to jump up and object, and the judge will agree.”

Mulholland has seen judges help a young lawyer lay the foundation, but whether the judge will be willing to do so is a matter of speculation.

“It’s not a good approach to go into court planning to have the judge help you get your evidence in,” he said.

One of Mulholland’s favorite reasons to object is for evidence that’s misleading.

“This is one that can gain the judge’s attention,” he said. “I have had substantial success persuading the court that something my adversary was trying to present would mislead or create confusion.” He said judges are very protective of juries and the jury process, noting, “If you can make a compelling argument that a piece of evidence creates a specter of confusion or may be misinterpreted, you can dramatically increase your chances of success in keeping the evidence out.”

Young lawyers must keep in mind that judges are people too.

“If you have 10 judges listening to the same question, five may say ‘Sustained’ and five may say ‘Overruled,’” Kimmel said, noting the importance of getting to know individual judges and how they have ruled in the past. A judge who is familiar with one lawyer’s style may give that attorney more leeway than one he hasn’t seen before, he added.

“Many objections can go either way, and I tell young lawyers not to take them personally,” he said. “If you’re overruled, you have to persevere and get past it.”

http://libn.com/2014/11/12/sustained-li-attorneys-on-the-art-of-making-objections/