Cape Cod Barrister

EMails, Litigation and "Think Before You Click"

A recent decision by a U.S.  District court judge in the Southern District of New York serves as a reminder of the prevalent role that technology plays in our daily lives; as well as what can happen when we forget or "neglect" that fact.

This weeks Massachusetts Lawyers Weekly reported on the case of Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC. In the decision, Judge Shira A. Scheindlin, who has authored prior decisions regarding "electronic discovery" ruled that while the plaintiffs in the case did not "egregiously destroy emails", they deserved to be sanctioned for failing to "properly preserve" evidence.

What makes this case particularly interesting is that, in the course of litigation, I still find it astounding what people put in emails, thinking that their emails are "secret" in some way, or differ, in any respect, from any other document.  To the contrary, the first thing I ask for in litigation "discovery" is "all emails in any way relating to the case or matter at issue". In cases where there is evidence that all such information has not been produced, or that someone attempted to delete it,  judges will routinely order a "forensic sweep" of a computers' hard drive.

In summary, the judge ruled that a party could be sanctioned if the other side:

a) had control over the evidence that was destroyed;

b) acted with a "culpable" state of mind when destroying or losing the evidence;

c) the missing evidence was "relevant" to the other party's claim or defense.

If you're in business, I always tell clients to "think before you click". If you don't want the world to know about it, don't send it. Of course, we also know there isn't a person out there has has sent out an email or blog post and then regretted it 10 seconds later. My personal rule is to take 10 deep breaths before I send out an incendiary electronic message...or just sleep on it!

Bruce A. Bierhans

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A Spectacular Wellfleet and Truro Weekend!

Wellfleet Preservation Hall, Main Street, Wellfleet. Architect's rendering by James Hadley, Hadley Crow Studios.

Almost every day, off Cape lawyers that I work with ask me "what do you do on the Outer Cape in the winter." They should have been in Wellfleet this weekend. If you're interested in helping the many worthy non profit organizations on the Cape, there's no shortage of volunteer opportunities and things to do.

On Saturday afternoon, I had the pleasure of seeing the First Encounter Chamber Group perform at the Wellfleet Library. I was bursting with pride seeing my para legal, Kwon Faith, perform. Kwon is a concert violinist and has been playing the violin since age 4. She, and the group were wonderful. It was a SRO crowd (even though WHAT was also filled with Opera go-ers).

After the concert, I attended a birthday party/fundraiser for Wellfleet Preservation Hall at the home of Kim Skapich, who also does work for the AIDS Support Group in Provincetown. We celebrated the birthdays of Kim and Bert Bruinooge and raised funds for the Preservation Hall renovation/restoration. We have raise over 1.5million of the 2.2million needed to complete the project, and our groundbreaking is on March 20 at the Hall.

On Sunday afternoon, we had a combined fundraiser for Preservation Hall and Payomet Center for the Performing Arts in Truro. Another SRO crowd of over 400 people were thrilled by the performances of The Parkington Sisters (who hail from Wellfleet), and Livingston Taylor. Taylor is like a tall leprechaun that mesmerizes the audience with a combination of great vocals, animated facial expressions and storytelling. An "after party" at The Lighthouse in Wellfleet was attended by over 100 people.

This summer, Payomet is planning an amazing summer schedule of film, musical events, theater and festivals.

Nothing to do on the Outer Cape in the middle of February? Hogwash!

Bruce A. Bierhans

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Legal Fees: How Lawyers Bill

I can't count how many calls I have received this week, from lawyers as well as clients, asking me if I've seen the news reports regarding a local attorney that has been ordered, by a Probate Court judge, to repay allegedly "excessive" legal fees to an estate. Yes...I have read the articles, but am not going to comment on that case. It's an ongoing matter, and the courts and the Board of Bar Overseers will ultimately weigh in on the case.

However, I thought that the articles provided an opportunity to educate readers a bit on how lawyers fees are determined in certain types of cases. In summary, lawyers fees are determined, in most cases, by either an hourly fee, contingency fee, flat fee or "hybrid" fee. All will be described below.

HOURLY: In  most cases, other than contingent fee cases, lawyers bill on an "hourly" basis. Hourly fees can depend upon the lawyers experience, as well as the market in which the lawyer practices. For example, during the years I practiced in Boston, I billed far more than I have since I have been practicing on the Cape. Fees are generally billed in increments of 6 minutes, so, for example, a bill received with a time of .01, means that the client was billed for 6 minutes. Some lawyers bill in minimum increments of greater than 6 minutes, although I do not favor this practice. 

Most "business" cases, probate cases, divorce cases and criminal cases are the types of cases that are customarily billed on an hourly basis.

CONTINGENT FEES: Most people are aware that most "personal injury" cases are contingency cases. Customarily, the lawyer receives 1/3 of a recovery, but only if he or she is successful. Some more complex cases, such as medical negligence cases or product liability have contingency fees that can run as high as 40% because the "risk" in those cases is significantly higher than in a run of the mill motor vehicle accident case. In addition, the money the lawyer has to pay in expenses to litigate those cases, is much more than in other types of cases. In fact, in Massachusetts the fees a lawyer can assess in a medical negligence case are set by statute and "slide" depending upon the amount of the recovery, i.e the higher the recovery, the more the fee is reduced.

While contingent fees are often the subject of attack, I would point out that the contingent fee allows many people to retain attorneys that would not be able to do so if this type of fee did not exist. We win some cases, and lose others, so the contingent fee provides the consumer access to a qualified attorney, while helping the lawyer balance the risks of the winning and losing cases. By the way...any lawyer that tells you that he or she has never lost a case is a boldfaced liar!

HYBRID Fees: Not all lawyers use this fee, although I do. Basically, the hybrid fee, which I use mostly in "riskier" business types of cases, allows a lawyer and client to share the risk of a case. It is a combination of an hourly billed and contingency case. For example; a business client comes to me and says "I think I have a good case, but can't afford to pay a regular hourly billed rate". The lawyer can then reduce the hourly rate, often by half, but also take a small contingency, say 15-18%. The lawyer bills less, but also shares in the recovery, albeit to a lesser degree, if he or she wins. The lawyer and client, in effect, become partners in the case and share in the risk and the reward.

FLAT FEES: I don't use these much in my practice, except for when I do relatively standard types of tasks like health care proxies and powers of attorney.  They are often used by estate planning attorneys, and sometimes criminal lawyers, but even then, those fees must be based  based upon a reasonable estimate, by the attorney,  of the amount of time necessary to complete the required tasks.

In many cases, such as the one in the news, attorneys fees are subject to approval by the court. This often occurs  in Guardianship cases, certain types of consumer protection cases, class action cases, and other types of cases in which one judge has jurisdiction over a large number of similar cases in one forum. The recent VIOXX cases, which are in an MDL (MultiDistrict Litigation), in the federal court is one example.

In addition,  and this is VERY important; ALL legal fees are subject to the broad provisions of the Massachusetts Rules of Professional Conduct, which provides, in part, that a lawyer shall not "collect an illegal or clearly excessive fee." The applicable rule lists a variety of factors that shall be considered when determining whether or not a fee is excessive, which include the novelty of the case, the time involved, the experience and ability of the lawyer, and the result obtained. There are other factors as well. As someone that has, on occasion,  represented lawyers before the Board of Bar Overseers, I can safely say that lawyers violate the Rules of Professional Conduct at their peril!

I hope this answers some of the questions that have come my way in the past few days.

Bruce Bierhans

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Outer Cape Health Services: The Progress Continues

Architect's rendition of new Outer Cape Health Services building

As I've said before; since this is my blog, I don't apologize for promotion of good causes I'm involved with, particularly when they are of paramount  importance to our community.

This past week, OCHS received unanimous and enthusiastic support from the Provincetown ZBA for our Provincetown expansion and renovation. Most of the members were thrilled and acknowledged that the expansion was long overdue. As our project is "shovel ready" a majority of the project is being paid for with federal stimulus funds. On behalf of OCHS, I thank the members of the PTown  ZBA for their support. In the "kudos" category, our First VP, Robin Reid, Esq, gave the board a polished and impressive presentation. Our architect, George Berg, also did an excellent job.

At this time, we are also exploring a variety of options for our Wellfleet facility, including purchase of a private parcel, use of a town owned parcel adjacent to the Council on Aging, and perhaps even the renovation and expansion of our existing Wellfleet facility.

We also continue to make impressive progress on many other fronts, including the recruitment of new physicians and hiring of new Physicians Assistants and Nurse Practitioners. OCHS has now become a place that providers WANT to work, thanks, in part, to our CEO, Sally Deane and our Medical Director, Barbara Prazak, M.D.

Although progress continues, we have much to do.  However, with a dedicated and committed board, great CEO,  and a superb team of providers and staff, we're on our way.

Bruce A. Bierhans

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Cape Cod Patients: Know Why You're Taking that Prescription

Disclosure: I'm a lawyer not a doctor. However, I have represented many clients in "Big Pharma" cases throughout the years. I occassionally like to remind readers and clients to be aware of not only what medications they are taking...but why they are taking them.

Further disclosure: I presently represent the family of a 55 year old woman that committed suicide after being prescribed mutiple SSRI anti depressants (i.e Zoloft, Celexa, Lexapro, Prozac) in a very short period of time. The case will likely be tried in Barnstable this summer. Hence; I do have some difficulty being completely objective about this subject matter.

However,  a recent lawsuit against Forest Labs by federal prosecutors in Boston illustrates why patients should always research what they are being prescribed.  The suit essentially alleges that Forest hired doctors, including thousands of psychiatrists and primary care doctors, to inform other doctors about the alleged benefits  of the anti depressant Lexapro. The patent on the drug Celexa was expiring, so Forest modified Celexa and renamed it Lexapro. They then marketed Lexapro as superior to Celexa. In fact, in another lawsuit filed by "whistleblower" plaintiffs, it was alleged that the company also promoted "off label"  use of Lexapro and Celexa in children.

Lexapro sales hit $2.3 billion in 2008.  Of course, Celexa is now "off patent" and sells for $14.99 a month while Lexapro sells for $87.99 a month. However, the FDA has concluded that they are essentially the same drug.

We've read recently that some doctors are leaving their medical practices because they make more money marketing prescriptions. In 2004, Forest paid $24.7 million to over 2,000 psychiatrists  and primary care docs to give marketing lectures.

Many hospitals are responsibly implementing policies that prohibit their physicians from being employed by big pharma. However, as in all things, the consumer must engage in self education. Know what you are taking and why you are taking it. Ask questions. Big pharma is trying to sell you something!

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