Is there a reason lawyers are hesitant to use the media against an adversary? I'm not a lawyer, so I'm only familiar with a small cross section of civil suits, but it seems to be a general trend that lawyers are very hesitant to publicize any part of a case. Even when the adversary has huge vulnerabilities because of the nature of the civil suit, the lawyer insists you keep quiet, in order to "not make them mad." Instead, you pay the lawyer to keep filing documents and orders, asking for "christmas lists," etc, while they other side does the same, and in the end, it's often a war of attrition, and the little guy loses. However, anecdotally, it seems that a number of cases resolve themselves within hours or days after an appropriate post on social media or call to a journalist. Corporations that rely heavily on their public image and understand their exposure will suddenly see that balance shifted against them and do everything they can to settle as humanely and quickly as possible. My first conclusion is that using social media cuts into the usual business of lawyering, and so culturally, this would not be welcome around law firms. Is there a better explanation for this?
This appears to be a complaint about lawyers using the legal process to achieve what their client wants. Forgive me, but this seems to be like complaining that doctors only want to cure the client's disease, architects only want to design the client's buildings and generals only want to kill the client's enemies. Your lawyer is not your business strategist or your life coach! A civil case is always about the money. If you are pursuing a civil case over a principle then you are going to spend a lot of money and probably lose. The use of a lawyer should always be part of your wider negotiation strategy in the same way that your armed forces are part of your diplomacy; in both cases the threat of use is usually better than the actual use. A civil case always follows a failure to successfully negotiate. Not all by any means, but most, civil cases would be better settled by agreement than litigation by all parties. If you believe that your objectives can best be served by a social media campaign, political pressure, etc. then go for it. Your lawyer can advise you what the risks are wrt to defamation etc. but ultimately how you choose to pursue your goal is up to you. Lawyers, understandably, look for legal solutions. A public relations professional is far better placed than a lawyer to inform your media strategy.
That book provides advice on legal writing; it is not a source of rules for legal writing. Rather than repeatedly identifying themselves using their full name, parties customarily refer to themselves in the third person, e.g., &quot;The defendant refused to waive his Sixth Amendment right to a speedy trial.&quot; In practice, though, pro se litigants regularly refer to themselves in the first person, and there is no formal consequence for this.
Typically in defamation law, claims made persuiant to litigation are not defamatory, since they are going to be tested for validity if the case goes to trial. I'm not familiar with any differences in what is generally done in settlements between the U.K. and the U.S., but since both are Common Law countries, and Settlements are very common in civil proceedings in the U.S., it's a good start. Generally a settlemant can occur anytime before the verdict of the case is rendered, although usually it will happen after preliminary hearings during the Discovery phase. In the U.S., Discovery is very broad and one need not prove that the requested items contain evidence but might contain evidence. This means that, for example, you could request a substantial amount of e-mail records from the opposing party because somewhere on the company e-mail server, there might be something to help your case. And even if after you sift through the emails and find no smoking guns related to your case, you could find some dirty laundry that's unrelated but still damning... if not more so than the initial case. Many people, especially big compainies, would rather just give the ex-employee some what he/she wants, if it means they don't get to see the proverbial man behind the curtain. Additionally the practice might fall into a legally gray area of the law that, if it reaches trial, could hurt the company or even the industry if a judge rules against the company, effectively saying that this gray area is now definately illegal. Better to eat the loss of capital with the settling out of court than to take the much larger hit of the buisness practice being illegalized all together. Typically in settlements, both parties agree to terms and sign a contract. While the whole of the terms are never discussed, almost all include that the plaintiff will drop the case and never bring the matter to court again and that both parties will sign a non-disclosure agreement (NDA) meaning that they won't discuss the rest of the settlement terms with anyone not party to them. If the plaintiff does break the NDA, the defendant can sue for breech of contract and recover at the least the monitary compensation they awarded in the settlement. Conversely, if the respondent breaks the NDA, the plaintiff can refile their initial suit with the addition of breech of contract (and this time it will get to court... and all the dirty laundry sees the harsh light of day.). While the respondent in a settled case can possibly sue for defamation if the plaintiff said the respondent did what the initial suit claimed they did (legally, it was never proven or disproven), or they were guilty (again, since no verdict was reached at trial, no guilt was established), the breech of contract is a much more airtight case and doesn't open up discovery to the respondent's cupability in the settled case (since the breech is about discussing the settled case at all, not the validity of the accusations of the settled case). Typically they would not go this route because then it opens the can of worms the settlement was trying to keep a lid on.
The warning notice is intended for viewers and participants, not for the court to make its own official record of the proceedings. Presumably, it was this court record that the judge released for educational purposes under his own Order via Twitter. In which case, there has been no contempt of court.
The language that you're referring to, where it states that if they do not provide responses to legitimately served discovery requests in a timely manner, that they would be responsible for attorney fees, this does not refer to your attorneys fees that you incurred in defending the suit. It refers to attorneys fees that would (actually could) arise out of a hearing on a motion to compel, in the event they never answered. If that occurred, the law allows you to ask the court to award you reasonable attorney's fees as well as sanctions, but only those having to do with getting the court to make them answer. Importantly, despite the rule that states this is a potential repercussion for continually failing to answer, they rarely get awarded. This usually only occurs when the court has already warned them, after you (i.e., your attorney) has willingly given them extensions, the court has given them further extensions, and they still failed to produce/respond. Typically an attorney will allow the other side substantial extensions of time, and this is something you may not even know about. When you say they completely ignored the deadline, I'm assuming you mean the deadline on the discovery notice that gets served with the papers. Interrogatories and Requests for production of documents rarely get done anywhere near the deadline in the rules, which is a mere 3 weeks. Many times, it takes much more than this to track down everything that was requested. This is why extensions happen all the time and unless you're asking, this isn't something your lawyer will even discuss with you. When you say they "didn't offer a remotely reasonable settlement until after the deadline and didn't finally dismiss the case until months after the deadline," I'm assuming you mean they didn't make a reasonable demand (it sounds like you were the defendant). This is actually very common, and in fact, it is very early on to make (or reduce the original) demand low enough that the Defendant will accept it prior to the discovery deadline and all the depositions have passed. (When I say deadline, I don't mean the one you're talking about, I mean the actual discovery deadline, which is set forth in the scheduling order; this can easily be 9 months from the time an Answer to the Complaint is filed.) If you're referring to the token deadline put in the first set of interrogatories served, this not a "real" deadline anyone of the attorneys expects to be adhered to. Further, this a very quick settlement and you should be happy your attorney disposed of your case so quickly. As you pointed out, you are paying a lot of money every day the case lives on. In fact, the money you saved by settling early is substantial. If your attorney had gotten the documents and responses and had to wade through all of them, organize them, send follow up requests, take depositions, etc., you would be out easily another $10,000. Your lawyer did you a favor, because a less honest attorney would tell you to wait, to see if there is a defense, just so they could pad their bill. Many times when it is clear that the case is going to settle, the lawyers will serve pro forma discovery, and will say to each other not to bother answering while they attempt to settle. They are timely served if you cannot settle, but it's clear that settlement is the ultimate goal. This is very typical when the defendant almost certainly has exposure, but when the plaintiff's case also has some holes. Because of issues on both sides, they agree a modest settlement to dispose of the matter, quickly, is the best course. When you say the settlement explicitly involved each party paying their own attorney's fees, all settlements contain this clause. I have never seen a settlement agreement where a party agreed to pay the other's attorneys fees. It's just not done. In the rare case it is, it's part of the structure of the settlement and it flows to the Plaintiff, not the Defendant. This may occur in a civil rights case where there are no real damages, but the statute allows for attorneys fees to be awarded if even one-dollar is awarded. So, in a case like this, sometimes the plaintiff will accept their attorney's fees being satisfied as the settlement, (usually along with some sort of consent decree), so as to curtail the abhorrent behavior. If you want to discuss these issues with your attorney, they are not billable: they are administrative pertaining to your bill; hence, you can do so without fear of being charged. If you're nervous, tell him ahead of time you'd like to discuss your bill. He won't try to bill you for this, as he can't, and furthermore your case is settled so your file is closed. To answer your question explicitly: No - your fees are not recoverable. This is not only because you've already settled, but you were never entitled to them anyway. To answer your question about the point of sending discovery at all if you are not going to expect answers and the goal is to settle, (1) is to preserve the right during the discovery period, in the event settlement negotiations break down; (2) to give the other side a picture of how sharp your attorney is, and that he/she will be asking the right questions and they will be invasive; and (3) this is just how it is done. What you've described is how almost all low level cases proceed. Lastly, just to address what you said about it taking a few months from reaching a verbal or "handshake" agreement and having the settlement actually be recorded by the judge and a dismissal issuing, this is just something that takes a little while. Depending on the type of case it is, the court may need to approve the settlement. Even when it's not necessary for the court to approve the settlement, it takes a while to go back and forth on the language, draft the stipulations of dismissal and so on. A few months is right on target. It sounds to me like you had a pretty effective and honest lawyer who could've dragged this out for much longer. Advice for the future, in case you ever find yourself needing the services of an attorney again: If you have these types of questions, you should ask them as they come up. Again, it's not something that you can be billed for, and your lawyer should be happy to answer. Some lawyers are better than others in remembering to explain what the technical stuff means, and what the game plan is. However, the client has a responsibility too, which is to ask if you don't understand.
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.
One reason is that in a German civil suit, the cost for lawyers and for the court (court isn't free) is set according to the value that the parties are arguing about, which would be the value that one party demands, minus the value that the other party is offering to pay. Then the cost is divided between winner and loser according to the percentage of the value the claimant was awarded. So if I ask for €1,000,000 and I am rewarded €10,000 then the cost is calculated based on my €1,000,000 claim, and since I was rewarded only 1% of the claim, I'll pay 99% of the cost. The defendant will pay my €10,000 and 1% of the cost, that is my lawyers, their lawyers, and the court. With these rules, asking for the sky and then not getting much is a very, very bad strategy. On the other hand, if a huge company sues me for €10,000 then they can't snow me under with an army of lawyers: The court will get only a small amount of money for the case, so at some rather early point the judge would tell the huge company: Stop right now; I'm not paid enough money to listen to your army of lawyers.
Sometimes In general, intentionally false speech gets less protection than other speech, and in some cases it is unprotected. The classic example of speech that is unprotected is "Falsely shouting FIRE in a crowded theater". Note that this is both intentionally false and highly likely to be seriously harmful to multiple uninvolved people. On the other hand, the classic case of New York Times vs Sullivan said that, at least when the subjects were public officials (later broadened to public figures) it was not enough to prove simple falsehood in a defamation case, one must prove "actual malice" (an unfortunate term) which in this context means statements that are either knowingly false or are made with reckless disregard for the truth. The court in that case said, in effect, that if a newspaper had to be sure that its every statement could be proved true in every detail, it would be unwilling to vigorously report on matters of significant public concern (this is a paraphrase, I'll add a quote later). Opinions are considered legally not to be either false or true. "President Jone is the worst leader the US has ever had" Is a statement of opinion, and so is not defamation. Moreover, in political contexts, attempts to punish false statements of fact that are not defamatory have been held unconstitutional. One example was the "Stolen Valor" act, which punished falsely claiming to have been awarded a medal by the US armed forces. This was held to be against the First Amendment. In general, regulation of speech (which here includes writing and other forms of communication) must be fairly narrowly drawn and must have good reasons behind them to survive a court challenge. How much so depends on the nature of the law, and particularly whether it is "content-neutral" or not. Details and cites to come when i have a little more time.