Lawyer's Advice Research Articles

Inside the mind of the client: An analysis of litigants' decision criteria for choosing procedures

This article presents findings from the first longitudinal study to ask civil litigants prospectively what criteria they plan to consider when selecting legal procedures and then retroactively assess the criteria used to make those decisions. The most commonly referenced ex ante criteria are lawyer's advice, cost, and time. The retrospective reasons also include these factors, but the list is narrower and more practical. Litigants who initially listed a desire to reduce costs or follow their lawyers' advice were later significantly more likely to report using procedures for these reasons, suggesting the stability of these criteria. However, the same stability did not manifest for other criteria. Implications for improving protocols for counseling litigants about procedure are discussed.

Disclosure and Legal Advice

This paper examines how the advice that lawyers provide to their clients affects the disclosure of evidence and the outcome of adjudication, and how the adjudicator should allocate the burden of proof in light of these effects. Despite lawyers' expertise in assessing the evidence, their advice is found to have no effect on adjudication if the lawyers follow the strategies of disclosing all favorable evidence. A lawyer's advice can influence the outcome in his client's favor, either if (s)he can credibly advise his client to suppress some favorable evidence or if legal advice is costly. The effect is socially undesirable in the former case, but it is desirable in the latter case. Our results provide a general perspective for understanding the role of private information and expert advice in disclosure. (JEL C72, D71, D72, D82)

Personal Accounts: On Being Possibly Sane in Possibly Insane Places

Personal Accounts: On Being Possibly Sane in Possibly Insane Places

Damage-Based Contingency Fees in Employment Cases: A Survey of Practitioners

'American-style' contingency fees are often thought not to exist in the legal system of England and Wales, but in fact have existed for many years in employment tribunals (and other areas defined as 'non-contentious' business). Similarity with the American system is two-fold. Firstly, in employment tribunals there is generally no 'loser-pays' costs rule: each party normally bears their own costs. Secondly, in employment tribunals contingency fees can be 'damages-based': the adviser's fee can be calculated as a percentage of damages. The development of damage-based contingency fees (DBCFs) has been vigorously resisted in civil litigation for fear that American-style fees would open a floodgate of dubious litigation which corrupted the quality and ethics of our legal system. Intriguingly, whilst tacitly permitted, the introduction of DBCFs outside of court-based litigation has escaped regulatory attention. As such, employment tribunals present an interesting example of the apparent Americanisation of a significant element of our justice system. It is also an area that is significantly under-researched. We know very little about how DBCFs operate in England and Wales.This Study aims to go some way in rectifying that absence of knowledge. It provides in-depth data on the use of 'American-style' DBCFs amongst employment practitioners based on a telephone survey of 191 employment specialists working in solicitors firms and claims consultancies. It also reviews existing literature and conducts original analysis of the Survey of Tribunal Applications (SETA) data 2003. It examines levels of access to justice in employment tribunals and the impact of DBCFs on that including the vexed area of equal pay and the issue of weak or spurious cases. It also considers whether DBCF charging exploits consumers and associated consumer potection issues particularly around settlement and 'handcuff' clauses which de facto require clients to accept their lawyer's advice.

Wedded to Race: Charles Chesnutt's Stories of the Color Line

Wellington, title character of Charles W. Chesnutt's 1899 short story Uncle Wellington's Wives, must grapple with an unusual marital problem. (1) It is problem absent from most nineteenth-century fictions regarding marriage, and yet it was confronted by thousands of those whom Chesnutt called the newly emancipated race. Wellington learns from the only colored lawyer in North Carolina that Aunt Milly, woman he had married when he was in slavery, or befo' de wah, is not his lawful (219). The lawyer informs him that although Aunt Milly be [his] wife in one sense of word, she is not so from legal point of view. Without any legal ties binding him to Aunt Milly, Wellington is free to leave her. He anticipates material benefits from his leaving and even imagines some moral ones. Along with load of legal jargon lawyer freely dispenses, he also advises Wellington not to act on his opportunity, [he has] very good wife now (219). But Wellington does not heed lawyer's advice. The news has given him a feeling of unaccustomed lightness and freedom. He had not felt so free since memorable day when he had first heard of Emancipation Proclamation (219). However, that feeling of freedom is soon curtailed with his efforts to cross color line by marrying white woman in North. Wellington learns that even though he is not legally married to Aunt Milly, he is bound to her by force more powerful than the sanction of law (219). Their attachment, based upon their shared experience of slavery, is less concrete but more profound than terms of legal Uncle Wellington's Wives is one of nine stories in Chesnutt's short story collection The Wife of His Youth and Other Stories of Color Line (1899). As its title suggests, collection is distinguished by connections among slavery, race, and marriage that Wellington's matrimonial experiences exemplify. Like Wellington, characters of Chesnutt's Stories of Color Line exhibit remarkable ignorance regarding laws and conventions of marriage that is inevitable consequence of slavery. Chesnutt's stories function, at least in part, as way of illustrating significance of marriage to former slaves and their descendants--those who, as Ann duCille points out, generations were denied hegemonic, 'universal truth' of legal marriage. (2) Marriage, Wellington learns by abandoning his slave wife to pursue greater wealth and social status in North, is partly, and yet not simply, matter of individual freedom and choice. If multitudes of former slaves were to choose their marriage partners so as to cross color line, line itself would be eliminated over generations. But if same choice were made merely by an individual or subset of former slaves, result would be, at best, frustration and lack of progress. As Wellington finds, individual's marriage choice may incite discrimination by observers from other side of color line should he attempt to cross it. Alternatively, as Chesnutt illustrates in other Stories of Color Line, an intra-racial color line, dividing light-skinned blacks who have option of intermarriage from dark-skinned blacks who do not, may be substituted for interracial one. Yet latter possibilities are not only ones representing how, to Chesnutt, newly-won freedom of marriage is qualified by unsettling consequences. Nor, I will argue, are they even most notable ones. When former slaves decide not to cross line with their marriage choices--opting instead to secure and protect relationships formed before war, and thus to demonstrate loyalty, honor, fidelity to their slave pasts and commitment to race--Chesnutt suggests that outcome is no better. In fact, Chesnutt casts surprisingly critical eye on movement to legitimate slave marriages during Reconstruction, movement celebrated by historians of marriage and slavery alike. …

Ending Patent Law's Willfulness Game

Author(s): Lemley, Mark A.; Tangri, Ragesh K. | Abstract: Patent law turns the attorney-client privilege on its head. Patent law punishes willful infringers by subjecting them to treble damages. An odd set of legal rules stemming from patent law's effort to determine what constitutes willful infringement effectively requires companies confronted with a patent first to obtain a written opinion of counsel and then to disclose that opinion in court. To do that, the accused infringer will have to waive its attorney-client privilege in virtually every case. Even worse, the law puts the question whether an accused infringer will have to waive privilege in the hands of the patent owner, who can send a carefully crafted letter putting a potential defendant on notice of the patent. A patent owner thus triggers the obligation to obtain a written opinion of counsel without actually threatening to sue anyone. In turn, accused infringers who are aware of these rules respond to such letters by obtaining a sort of pseudo-legal advice that both they and their attorneys recognize to be a construct. Both plaintiffs and defendants are playing a costly game.The rules of this game have perverse consequences for patent law. Some of these consequences affect litigation - lawyers and clients who know that the lawyer's advice will be disclosed to the other side will behave differently, withholding information and candid advice from each other. But other consequences extend beyond litigation. They infect pre-litigation advice, essentially making it impossible for a competent lawyer to advise a client that a competitor's patent should be avoided. The rules of the willful infringement game set traps for the unwary, who may not realize the consequences of failing to obtain the necessary written opinion of counsel. They interfere with a client's ability to choose counsel. And they discourage engineers and companies from reading a competitor's patents at all, thereby undermining the disclosure function that is at the foundation of the patent system.One possibility is to abolish the willfulness rule entirely. We ultimately reject this approach because we worry that ordinary patent damages alone will be insufficient to deter infringement optimally in many cases. Another possibility is to abolish the rule that requiring disclosure of opinions of counsel. While a good idea, this option would not solve the problems created by the willfulness game, because many defendants will still need to rely on the opinion of counsel in order to disprove willfulness.Instead, we think the better approach to willful infringement is first to redefine it as adopting a technology with knowledge that it was derived from the patentee, and second to adjust the premium charged for it. Many of the problems with the willfulness rules stem from the fact that willfulness is an ongoing inquiry. The ongoing nature of the inquiry adversely affects a defendant that develops or adopts a technology in good faith but later learns it is infringing a patent. Changing the focus of the inquiry to the time of adoption is consistent with the ordinary understanding of willfulness outside of patent law and would help end the willfulness game. An independent developer could never be a willful infringer, and thus would not need either to obtain or disclose in court a written opinion of counsel merely because it later learned of a patent. By contrast, an accused infringer would need advice of counsel if it was aware of a patent and affirmatively sought to design around the patent. Such an accused infringer therefore would have to waive privilege. But since only the accused infringer's intent at the time of adoption would matter, the scope of privilege waiver would be limited to communications at the time of adoption, and would not infect the advice given by litigation counsel.

Ending Patent Law's Willfulness Game

Patent law turns the attorney-client privilege on its head. Patent law punishes willful infringers by subjecting them to treble damages. An odd set of legal rules stemming from patent law's effort to determine what constitutes willful infringement effectively requires companies confronted with a patent first to obtain a written opinion of counsel and then to disclose that opinion in court. To do that, the accused infringer will have to waive its attorney-client privilege in virtually every case. Even worse, the law puts the question whether an accused infringer will have to waive privilege in the hands of the patent owner, who can send a carefully crafted letter putting a potential defendant on notice of the patent. A patent owner thus triggers the obligation to obtain a written opinion of counsel without actually threatening to sue anyone. In turn, accused infringers who are aware of these rules respond to such letters by obtaining a sort of pseudo-legal advice that both they and their attorneys recognize to be a construct. Both plaintiffs and defendants are playing a costly game. The rules of this game have perverse consequences for patent law. Some of these consequences affect litigation - lawyers and clients who know that the lawyer's advice will be disclosed to the other side will behave differently, withholding information and candid advice from each other. But other consequences extend beyond litigation. They infect pre-litigation advice, essentially making it impossible for a competent lawyer to advise a client that a competitor's patent should be avoided. The rules of the willful infringement game set traps for the unwary, who may not realize the consequences of failing to obtain the necessary written opinion of counsel. They interfere with a client's ability to choose counsel. And they discourage engineers and companies from reading a competitor's patents at all, thereby undermining the disclosure function that is at the foundation of the patent system. One possibility is to abolish the willfulness rule entirely. We ultimately reject this approach because we worry that ordinary patent damages alone will be insufficient to deter infringement optimally in many cases. Another possibility is to abolish the rule that requiring disclosure of opinions of counsel. While a good idea, this option would not solve the problems created by the willfulness game, because many defendants will still need to rely on the opinion of counsel in order to disprove willfulness. Instead, we think the better approach to willful infringement is first to redefine it as adopting a technology with knowledge that it was derived from the patentee, and second to adjust the premium charged for it. Many of the problems with the willfulness rules stem from the fact that willfulness is an ongoing inquiry. The ongoing nature of the inquiry adversely affects a defendant that develops or adopts a technology in good faith but later learns it is infringing a patent. Changing the focus of the inquiry to the time of adoption is consistent with the ordinary understanding of willfulness outside of patent law and would help end the willfulness game. An independent developer could never be a willful infringer, and thus would not need either to obtain or disclose in court a written opinion of counsel merely because it later learned of a patent. By contrast, an accused infringer would need advice of counsel if it was aware of a patent and affirmatively sought to design around the patent. Such an accused infringer therefore would have to waive privilege. But since only the accused infringer's intent at the time of adoption would matter, the scope of privilege waiver would be limited to communications at the time of adoption, and would not infect the advice given by litigation counsel.

Lawyer's advice on physician conduct with malpractice cases.

The conduct of the orthopaedic surgeon can directly influence his or her risk of a malpractice lawsuit. Communication and caring for the patient summarize positive conduct. Filing of a lawsuit requires certain procedures and the physician must respond to these correctly. The surgeon must completely educate himself or herself about the case and be prepared by his or her lawyer for the deposition and possible subsequent trial.

The Physician's Guide to Medical Malpractice

Becoming involved in a lawsuit can be a significant event for anyone, including a physician. It can require a great deal of the physician's time and effort, can be emotionally draining, and can serve a psychological blow to the physician's professional psyche. When legal claims arise, physicians must trust their lawyers to address them, just as patients must trust their physicians to treat disease. As with the physician-patient relationship, the effectiveness of the lawyer-client relationship depends on the physician's absolute candidness about the events surrounding the legal claim. These communications between lawyer and client are protected as confidential to encourage this necessary candidness. And, just as patient compliance promotes effective treatment, a physician must heed the lawyer's advice and instructions to ensure an effective defense. This guide is designed to give physicians a context for understanding the impact of a legal claim so that, if a claim does arise, the physician can react appropriately and know what to expect. It focuses on the 3 phases of a legal claim: the presuit notice period, the life of a lawsuit, and trial. And, because legal claims invoke the issue of insurance, this guide initially attempts to familiarize physicians with the nature of a medical malpractice insurance policy.

Lawyer's Advice

To the Editors: Lo and Steinbrook's fine article on the Cruzan case (1) suggests troubling issues about physician consultation with hospital attorneys. The authors say lawyers might advise caregiv...

Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries

My subject is the story of the entry of lawyers into the English criminal courts and their impact on trial procedure. Until the eighteenth century lawyers played little part in the trial of felonies in England—in the trial, that is, of those accused of the most serious offenses, including murder, rape, arson, robbery, and virtually all forms of theft. Indeed, the defendants in such cases were prohibited at common law from engaging lawyers to act for them in court. In the case of less-serious crimes—misdemeanors—defendants were allowed counsel; and those accused of high treason, the most serious offense of all, were granted the right to make their defense by counsel in 1696. But not in felony. Accused felons might seek a lawyer's advice on points of law, but if they wanted to question the prosecution evidence or to put forward a defense, they had to do that on their own behalf. The victim of a felony (who most often acted as the prosecutor in a system that depended fundamentally on private prosecution) was free to hire a lawyer to manage the presentation of his or her case. But in fact few did so. The judges were generally the only participants in felony trials with professional training. They dominated the courtroom and orchestrated the brief confrontation between the victim and the accused that was at the heart of the trial.

The Ordering of Justice: A Study of Accused Persons as Dependants in the Criminal Process

From the point of his arrest through to the final disposition of his case, the authors follow the accused as he proceeds through the criminal control system. They draw a picture of one who is dependent upon the orders and decisions of the police, crown attorney, defence lawyer, and judge and not a defendant with significant autonomy. Substudies conducted under a program of the Centre of Criminology provide empirical material on patrol police, detectives, crown attorneys and defence lawyers and are complemented by the authors' own interviews of accused persons. They produce a unique picture of the person who stands accused: unlike the official agents who are regular and experienced participants in the criminal process, the accused is a `one-shot' player. As a dependant he is subject to the orders and decisions of the official criminal control agents; he fails to exercise what appear externally as his formal rights because the apparent costs exceed the advantages. He complies with police searches, fails to remain silent, fails to call a third party, gives a statement, often does not obtain a lawyer, routinely accepts his lawyer's advice, rarely demands a trial, often remains silent in court, and very rarely considers an appeal. The ordering which the accused meets out of court is reproduced in the public forum of the court. Through the display of formal legal rationality there and in the belief that matters `could have been a lot worse,' he experiences the `majesty, justice, and mercy' of the criminal process and, in turn, accords legitimacy to the actions taken against him. The authors discuss prospects for changing the criminal process and conclude that the range of reforms that have been advocated, and sometimes implemented, does not lead to an alteration of the accused's position within the ordering of justice because the system is not truly adversarial. Rather, it serves the interests of the state in ordering the population as well as professional interests of those who man the system.

Malpractice: A Trial Lawyer's Advice for Physicians

Malpractice: A Trial Lawyer's Advice for Physicians

Malpractice: A Trial Lawyer's Advice for Physicians

Alton's book is quite entertainingly written and includes many very interesting cases from his own practice. His discussions of such practical matters as medical records are excellent. His chapters on the preliminary steps in and the trial of a malpractice case are extremely clear and well worth the price of the book for any physician who wants to know quite simply, What if I get sued? Over-simplification of the legal principles and concepts behind the what happens is, however, the book's downfall. In the first place, Alton is a New York lawyer discussing New York law. When the jurisprudence in that state conflicts with the rules in some or all of the other states, he does not mention it. In fact, in the preface, he says there may be minor variations in the law of other states but they are inconsequential to the basic understanding he seeks to impart.