We know, we know, Halloween might not be nearly as fun when it arrives on a Monday, but we’re going to celebrate nevertheless! First and foremost, we, like the lawyers we are, direct your attention to the image above, which features the Halloween yard decorations of Chris Kelly, litigator and partner in charge of our Charlotte office. Each year, we post photographs of his epic efforts, and this year, of course, is no different.

Additionally, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. wish all of you a Happy Halloween. Be festive, but be safe, if you venture out into the world tonight, or if you celebrated this past weekend, rest easy.

Many, many congratulations to our own John Cuttino, who was just elected to serve as the president of DRI. You’ll see a photograph of him depicted above as he takes the reins of the organization at DRI’s Annual Meeting last week in Boston, Massachusetts. Congratulations, John! Your friends here at Abnormal Use and GWB wish you well!

Everyone have a safe weekend if you are engaging in Halloween festivities early!

The new Leonard Cohen album is out! This is not a drill!

Don’t forget that you can follow us on Twitter at @GWBLawfirm! Say hello to us over there!

Speaking of Twitter, you won’t mind if we engage in a bit of self promotion with our legal tweet of the week, will you? In addition to our firm maintaining an account, you can also follow some of our bloggers on Twitter, as well.

You can follow our Abnormal Use bloggers on Twitter, as well! They are: @Kyle_J_White, @NAFarr, @StuartMauney, and @JimDedman.

— GWB Law Firm (@GWBLawFirm) October 27, 2016

Step 9 – Stay Emotionally Healthy

In Step 9, Judge Carl Horn reminds us of the need to balance not only the hours in our lives but to balance our rational and cognitive side with our feelings, emotions, heart and imagination. Simply put, it is important that we stay emotionally healthy. Lawyers spend much of their time disconnected from daily life and often disconnected from themselves. While even highly successful, many lawyers can feel lonely among their fellow citizens. Horn encourages lawyers to “educate their passions and invigorate their imaginations with the same dedication they apply to sharpening their analytic skills.” He quotes George Kaufmann who has written about his experience as a lawyer. Kaufmann notes that imbalance occurs in the lives and personalities of many lawyers because “our training honors our cognitive skills and dismisses information gathered through other channels. As such, we tend to exploit our rational capacities and ignore other parts of ourselves that offer different ways of learning.”

Kaufmann says lawyers should reflect on what our foundational values are, and “then to be honest with ourselves about whether and how well we are putting them into practice.” Lawyers’ experiences often make it difficult for them to find emotional help and balance. Taking the other steps recommended by Judge Horn is certainly helpful in this area, including developing and practicing good time management, implementing healthy lifestyle practices, living beneath our means, not letting technology control our lives, and just saying “no” to some clients. The stress will not resolve on its own; reducing it is an ongoing struggle in which we must actively and continuously engage.  

Horn concludes that we must seek a healthy balance between our rational, cognitive sides, on the one hand, and our feelings, emotions and imagination on the other. We must pursue balance not only in how we spend the limited hours of our lives but also between our outer and inner selves. We must strive to stay emotionally healthy. 

Next week we will address Step 10 – Embrace Law As a “High Calling.”

According to reports, a New York woman, Anna Wurtzburger, has filed suit against Kentucky Fried Chicken in which she seeks $20 million from the fast food chicken giant. If you are like us, you must be thinking that if Wurtzburger is seeking enough money to buy a French chateau, she must have been severely injured by some atrocious KFC conduct. Well, not exactly. In fact, Wutzburger hasn’t been “injured” at all. KFC’s atrocious conduct? Allegedly skimping on a bucket of chicken.

Wutzburger purchased a $20 “Fill-Up” bucket of chicken from a KFC in Hopewell Junction, New York. When she got home, she opened up the bucket and discovered it was only filled about half way. A half-filled bucket stunned Wutzburger because she was expecting “an overflowing bucket of chicken” as shown in KFC advertisements (depicted below).

Wutzburger then contacted KFC to discuss the dispute wherein KFC explained that the chicken was depicted as overflowing the bucket in the advertisement so that viewers could see the product. Wutzburger wasn’t buying it. She alleges that KFC was “intentionally misleading and deceiving the public when it advertised an overflowing bucket of chicken on television but knew that they would only sell 8 pieces of chicken to the public.” KFC has denied the allegations. In a statement to Fortune, a KFC spokesperson stated:

The guest received exactly what she requested. She purchased an eight-piece bucket of chicken and she indeed received eight pieces of chicken.  Our menus and advertising clearly show our $20 Fill Up meal includes eight pieces of chicken.

To be fair, Wutzburger claims the pieces were small.

We here at Abnormal Use certainly understand Wutzburger’s frustration. Commercials and print media always seem to depict food in its best possible light when, in reality, it always comes out looking somewhat less than ideal. Nonetheless, even assuming this is a matter of false and misleading advertising, what are the real damages? Wutzburger paid for 8 pieces of chicken and received 8 pieces of chicken. She voiced her frustration to KFC, and they offered her a coupon as a means of reimbursing her for the chicken. But, that was apparently not enough.

Truth be told, Wutzburger has probably lost her case before it even began. She violated the Pig Chicken Rule. By demanding $20 million in her complaint, she has damaged her credibility and tarnished the views of people who otherwise may have had some empathy for her claim (including us).

We are seeing an increasing number of opposing experts requesting advance payment of an estimated amount of fees/expenses in exchange for the expert agreeing to appear for the deposition as scheduled. As lawyers, bloggers, and lawyer bloggers, we take issue with this approach for a number of reasons. First and foremost, how can anyone possibly know how long a deposition is going to take before you take it? What if the expert agrees out of the gate with your position and the deposition takes five minutes? What if the expert digs in and offers only evasive testimony, and the deposition takes twice as long as it should? Also, how can you estimate the expert’s actual travel time to/from the deposition without knowing traffic and weather conditions, et cetera?  Basically, there does not appear to be any reasonable way to estimate fees and expenses until the deposition has concluded and the expert has arrived back home from the deposition. But we have nonetheless searched for support for the argument that an expert is entitled to prepayment, and we are unable to find any authority on the issue.

While most state rules follow the federal rules and require the party deposing the expert to pay the expert’s reasonable hourly rate and expenses for the deposition, we are unable to find any requirement that the deposing party pay in advance, and the case law we have found suggests that deposing parties are not required to do so.  See, e.g., Regions Bank v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 U.S. Dist. LEXIS 108820, at *6 (M.D. Fla. Aug. 18, 2015) (finding that “Fed. R. Civ. P. 26(b)(4)(E) does not require payment in advance of the deposition of the expert.”).

If anyone has any support for the proposition that experts are entitled to prepayment, we would appreciate you passing it along, but until then, we will continue to refuse to prepay for expert depositions, and we will take the position that an expert must be present and prepared to give the deposition as noticed without prepayment.

Okay, so we here at Abnormal Use love music, and we dig comics, but we’re a bit confused about Archie Meets the Ramones #1, the cover for which is depicted above. Released just a few days ago, the comic features Archie and friends meeting the Ramones (all of whom are dead). We understand there may be a time travel component to the series, so that makes some sense we suppose. We’ve already gotten our hands on an issue, and if there are additional curiosities to explore, we will let you know, dear readers.

We welcome Thomas Lamm, the brand new associate in our Charlotte office! Learn more about him here.

If you didn’t read this piece about Leonard Cohen from The New Yorker, you should probably do so.

For our legal tweet of the week, we direct your attention to this tweet from our editor thanking everyone for attending the Mecklenburg County Bar’s annual Halloween CLE (which he planned).

Great times this afternoon at the second annual @Meck_Bar Halloween CLE! Thanks again to our speakers and everyone who joined us! pic.twitter.com/GB1UJzdFEk

— Jim Dedman (@JimDedman) October 20, 2016

Step 8 – “Just Say No” to Some Clients.

We are continuing our series on Judge Carl Horn’s 12 Step program for lawyers. In Step 8, Judge Horn begins with the proposition that there have been significant changes in lawyer-client relations, and generally, those have not been for the better. Many lawyers find that the lawyer-client relationship has become increasingly stressful and problematic. Many lawyers have recognized that their clients are increasingly demanding, and therefore, are now choosing their clients more carefully.  

Judge Horn refers to an ABA study which addressed the increased client influence over the pricing and execution of legal projects. This has become a major pressure point in the profession. Clients tend to be more project, than relationship, focused. Projects are often bid out to multiple firms rather than turning to one trusted counselor. Clients also demand fast turn around and 24/7 access to lawyers. Many clients want to be directly involved in the process; billing is more carefully scrutinized. There has also been a proliferation of formal billing guidelines and a lack of uniformity across the industry for those billing procedures.   

According to the ABA study, the results of these changes include more time and resources being spent on administrative tasks and relationship management. Lawyers have less control over the pace of work and less ability to escape the pressures of the job. There is often ambiguity as to what and how to bill. Lawyers often feel more like a “hired gun” rather than a respected counselor.  

Horn then cites a book by Walt Bachman, Law v. Life: What Lawyers are Afraid to Say About the Legal Profession. Bachman has a chapter titled “The APC Factor: The Truth About Clients.” The APC Factor stands for “Assholes Per Capita.” Bachman proposes a formula to determine the APC factor in a given situation. As Horn jokes, Bachman no doubt engaged in “highly sophisticated social science” and utilized his intellectual and academic skills sharpened during his years at Harvard on a Rhodes Scholarship to generate this formula.  

Tongue now firmly in check, Bachman proceeds to apply what we might call AA (Asshole Analysis), to the world of law. In the instance of American litigation clients, this formula would be more specifically stated as:

For example, if we take the total number of new litigation clients in America last year (say 2,000,000) and determine the number of those litigants independently and objectively determined to be assholes (say approximately 800,000), the APC Factor is derived as follows:

Conceding the need for further research, Bachman draws on his own experience and that of his lawyer friends to suggest an APC Factor for litigation clients “in the vicinity of .4 and rising”. Estimating the APC Factor for society at large as “closer to .1”, Bachman reaches the compelling conclusion that “the APC Factor for [litigation] clients is four times that of the overall populace”. Of course, it remains with each individual lawyer to decide how this seminal research should be applied to his or her practice!

Horn concludes by suggesting that we can increase the inherent satisfaction in the lawyer-client relationship by keeping in mind a few key principles. First, be scrupulously honest with our clients, including but not limited to the work we choose to do and how it is billed. Further, be careful not to cross ethical lines and to keep a measure of professional distance, particularly where an objective third party might see our client’s conduct as deceptive. Strive to provide wise counsel, which requires more of a “big picture” approach to problem solving and conflict resolution. Finally, perhaps applying Bachman’s brilliant AA, we should simply “just say no” to some clients.   

Next week, we will cover Step 9 – Stay Emotionally Healthy.  

As attorneys, it is often difficult to explain to young children what we do for a living. I have two children, ages 7 and 4, who have no conception of what I do on a daily basis. They know that I go to work, that I have an office, and that my job title is that of a “lawyer.”  But, that is about it. There is just no way to explain lawyer life to a small child that doesn’t leave him/her looking completely bored. Being a lawyer can just never be as exciting to a child as a firefighter, a teacher, a dump truck driver, or an Avenger. Or can it?

Recently, my 4-year old son came into my bedroom with my 7-year old daughter trailing not far behind. My son told me that his sister hit him on the back, and, of course, my daughter denied the allegations, stating that it was an accident. In turn, my son denied that the conduct was anything but intentional. In trying to siphon through the dispute, it dawned on me that I had the perfect opportunity to show my kids what a lawyer does. We decided to have a trial.

Before doing so, we conducted a “pretrial conference” with myself presiding as judge. I explained to my son that he had the burden of proof as he was accusing my daughter of battery, an intentional tort. As such, he would need to prove that his sister intended to commit the act, that there was contact, and that the contact caused him harm. We then discussed evidence and the different means my son could use to prove his case. In turn, I explained to my daughter that she would have the opportunity to cross-examine the plaintiff’s witnesses and to put up her own case if she chose to do so. It appearing that they understood the procedure, I set the case for trial 10 minutes after our pretrial conference (we have a rocket docket in our house).

When the trial began, the parties decided to waive opening statements as we were proceeding non-jury and the judge had already been thoroughly briefed on the case. My son, appearing pro se, called himself as his first witness. He was very direct in his testimony, stating emphatically that his sister hit him. Unfortunately, that was his only testimony. As such, the judge (me), exercising the powers of the bench, decided to question my son directly. Regardless of the question, my son gave the same response, “Because [my daughter] hit me.” Well, consistency does have its merit in the courtroom.

Thereafter, my daughter took her turn at cross-examination. She asked one simple question, “I didn’t hit you, did I?” Her technique lacked the sort of set-up and back the witness into a corner method I usually prefer, but, despite my son’s denial, she made her point. I guess.

My son, perhaps feeling strongly about the weight of his own testimony, decided not to call any more witnesses. I was a little disappointed because it was rumored that Optimus Prime, a potential witness to this accident if you can believe it, was slated to be the plaintiff’s star witness. Perhaps, in choosing to keep him off of the witness stand, my son knew that Optimus was susceptible to “more than meets the eye” questioning on cross-examination. But, this is only speculation.

For my daughter’s case, she, too, called herself as her sole witness. She testified that she was walking through the living room and accidentally stepped on Optimus Prime, who had been left by my son in the middle of the floor. In doing so, my daughter stumbled, fell into my son, and accidentally elbowed him in the back. After making contact with his back, my daughter apologized, but my son immediately began making his false accusations.

The testimony was very telling and really left the judge wishing he would have had the opportunity to hear Optimus’ testimony. Certainly, my son would have a plan on cross-examination. Boy, did he ever. Just as my daughter had done with him previously, my son grilled her with one question statement, “You hit me.” Her response was well thought out:  “No.  I fell into you after stepping on your toy.  You didn’t witness anything because you were facing away towards the TV watching ‘Paw Patrol.'” No more questions.

Thereafter, I gave my son the opportunity to call any rebuttal witness (still hoping to hear from Optimus), but he declined. Each party then had the opportunity for closing arguments which consisted of a mere recitation of their own testimony. When the arguments were completed, perhaps because he was over-confident or because he simply no longer cared about the outcome, my son took the unprecedented approach of leaving the courtroom. In any event, the decision was clear. In considering all of the evidence before me, I found that the plaintiff did not carry his burden of proof and, thus, I found in favor of my daughter.

The result is still pending post-trial motions.

While I am not certain the trial necessarily had the desired outcome of showing my kids what I do for a living, it certainly gave our house a new means of deciding disputes and cut down on the occurrence of tattle telling.  After all, Optimus’ eyes are always open and ready to crack the next big case.

So Bob Dylan won the Nobel Prize for Literature? How about that? Unlike many, we will resist the urge to offer a pun using his lyrics. (We will note that his non-album single, “Positively Fourth Street,” remains conspicuously absent from Spotify).

Don’t forget that this weekend marks the 950th anniversary of the Battle of Hastings!

When is the last time you said hello to us on Twitter? Follow and interact with us at @GWBLawfirm!

Our editor, Jim Dedman, has once again planned this year’s Mecklenburg County Bar Halloween CLE. Titled “Ghosts, Graves, and The Occasional Murder House: A Halloween CLE,” the event will be held this coming Wednesday, October 19, 2016 at The Rabbit Hole in Charlotte, North Carolina. Topics include cemetery law, “statutory horrors,” and the law of haunted houses. Attendees can earn up to 1.5 hours of CLE credit, although lawyers and non-lawyers alike can attend at a lower rate if no credit is sought. For more information on this program, please click here.

Step 7 – Care About Character and Conduct Yourself Accordingly

We are reviewing Judge Carl Horn’s 12 Steps. This week, we explore Judge Horn’s encouragement to establish a solid ethical and moral foundation, to care about character and conduct ourselves accordingly. Much has been written about the erosion of professional courtesy and the refusal to extend common courtesies in our profession. This has led to a less pleasant and more stressed work environment. In the past, lawyers from various professional backgrounds would meet in more relaxed settings like bar meetings or a lounge at the courthouse, where they could get to know one another on a more personal basis. It was in this setting that codes of behavior were established and conveyed to younger lawyers. While a sense of community still exists, it now occurs more often at the specialty level. Lawyers now think of themselves as trial lawyers, or defense lawyers, beholden only to the rules of their specific community. Younger lawyers who have never been taught by mentors or the community at large about the professional codes of behavior may confuse advocacy with aggression. All of this leads to a pervasive distrust by lawyers of other lawyers.

Judge Horn says we should vow to do what most of us already know is right: strive to conduct ourselves honorably. We should treat others, including opposing counsel, as we ourselves would like to be treated. We should refuse to lie, cheat, or steal, however much pressure we are under, or however profitable the wrong choices may appear to be at that moment. Judge Horn also talks about the “slippery slope of ethical compromise” from which it is “awfully difficult to prevent a full slide into shameless dishonesty.” We become more cynical about the whole idea of right and wrong. An overall sense of fulfillment, difficult to achieve at best, will become more elusive still.

What are we to do? Do not pad your time sheets. Do not tell lies to partners, clients, or opposing counsel. Do not misrepresent legal authority to judges. Do not break your promises. Do not do anything else that is contrary to the values that you now hold. Promptly return phone calls and correspondence. Cooperate during discovery.

If we care about character and conduct ourselves accordingly, we will be able to sleep well at night. And, we will have taken one more important step toward finding satisfaction in the practice of law.

Next week, we will talk about Step 8 – “Just Say No” to Some Clients.