A woman lawyer I know started getting very strange letters (weird, incoherent) from a person she had never met. The letters apparently were an attempt to discuss a case she had never heard of and referred to people she had never heard of. What should she do?  Well …..at least she has options:

I.                   Do not respond initially;

II.                Send letter saying that she does not represent anybody and will not represent anybody and suggesting the sender call the local bar association;

III.             Write “REFUSED” on subsequent letters (if you can) and return to sender

IV.              Do not open subsequent letters

Call police if you feel threatened or if the letters you have read appear to threaten some one or some thing.

Generally, it is still enforceable.  This is because almost every non-compete I’ve ever seen has in it a clause which specifically indicates that the non-competition (and non-solicitation and confidentiality) provisions survive the employment relationship.  But it doesn’t have to be that way.  Another lawyer has pointed out that there is at least one case in Virginia where the specific wording of the agreement permitted the employee to void the agreement with 60 days notice under some circumstances.  So read the agreement carefully and be sure you understand it.

These actually come in 3 flavors: (1) you may not use confidential information; (2) you may not solicit our clients or employees and (3) you may not compete against us.  Each has different limitations. Worse, the limitations depend on what jurisdiction you are in.

Nonetheless, here are some basic facts:

(1) “confidential information” can be anything.  Customer lists, pricing techniques, the formula for Coke, cost information.  So be sure you know what you are calling “confidential information.”  Generally, if it is information that is not widely known and that you work to keep private, it could qualify as “confidential information.”  But not always.  At the same time, some information which is widely known can be confidential too.  Facts are important.

(2) “Soliciting” clients or employees sounds explicit but isn’t always.  For example, calling the client of a former employer and asking them to transfer their business to the new firm is “soliciting.”  But how about merely sending out a notice that you have changed jobs and how to contact you if they want to?  The same applies to “soliciting” fellow employees.  Again, facts are very important.

(3) You may not compete against us.  In most states, this blanket statement cannot be enforced.  Why not?  Because the 13^thamendment to the Constitution outlawed slavery.  If this simple statement were enforced literally, you could never change jobs and still work in your chosen profession.  So the courts (those that will enforce any non-competition clause) limit the clause to what is “reasonable” in geographic area and “reasonable” in time.  So what’s reasonable?  That depends on the profession and expertise. For example, a hairdresser at a fancy salon might be 5 miles and 1 year while a doctor might be 25 miles and 2 or 3 years.  Every state has its individual caselaw on the definition of “reasonable” for each profession.

You should know something else: If the agreement is being signed as a pre-requisite to being hired it may be valid. But if the employee has already been hired and only now is being handed the agreement and told sign or be fired, it may be void for what lawyers call “lack of consideration.”  In other words, the employee is being told to give the employer something but is not getting anything back.  (But some states say that being allowed to keep your job is adequate.  Again, it depends.)

The answer to this question is “it depends”.  It depends on what state you are in, what company you work for, what the company handbook says, what your undertanding of the handbook is, what others do, and (perhaps most importantly) who your judge is.  Decisions on this subject are all over the map and are likely to continue to be confused (to put it mildly).  The best answer is to have a private email address and not access it from work. Since they are free, that shouldn’t be much of a problem. If you absolutely must access it from work, don’t download the emails and don’t save copies in your “sent” folder.  Do everything on the web.

Decisions, decisions. Do I wear high heels and look taller? Or do I wear bright colored clothes to force folks to look down at that bright patch below their nose. I make those decisions every day.  But when I go to court and particularly if I go into a courtroom, I need to be sure the clothes I wear are appropriate. For me, at least, appropriate is a jacket, skirt or pants, and a white shirt with a splash of color around the neck. And flat shoes are a must so I can slip and slide around the crowds on days when the whole world seems to be at the courthouse.

Mom was right, first impressions do matter. When choosing your outfit, think of what your fussy old-fashioned grandmother would make you wear to church. You don’t have to go out to buy a new outfit. You just have to be dressed in clothes are cared for, clean, pressed and put together properly. This advice goes for whether you are a casual ambler at the courthouse or whether you are involved in a case itself. It even applies to jury duty. So plan ahead the night before you go so that you can touch up collars and shine shoes and pick out hats or ties.

And remember, smiling is the best outfit you can ever have. Smiling encourages your friends and confuses your enemies. Confusing enemies is always a good strategy.

Martial Arts and Litigation or It is not the Size of the Firm in the Fight, It is the Size of the Fight in the Firm

In the last blog post I referred to litigation as a brawl. I should know.

In addition to being a paralegal for Kaufman Law, I also a hold a third degree black belt in Mu Duk Kwan Tang Soo Do with Grand Master James Roberts. Back in the day, I told people that I stopped at third degree because I wanted to give my opponents the “third degree.” But the real truth is that Mr. Roberts’ also ran a weapons school. I fell in love with the weapons school. Only students who had gotten to first degree black belt in the Mu Duk Kwan Tang Soo Do school were allowed to apply for acceptance in this school. You can bet that as soon as I got that black belt, I was petitioning Mr. Roberts for admission.

Had Mr. Roberts opposed my entrance on the grounds that I was the first female to request entry, I would have told him that 100 pounds of fighting fury always works better when augmented with a large stick. But happily Mr. Roberts was enlightened enough in the 1980s to let me in. I worked hard and became the first woman weapons black belt his school ever had.

Let me explain about weapons. Think of it this way — weapons training is ballet with an edge.  We studied sword, kendo, bo, sai, and spear forms. We practiced line work with the shinai.  I haunted yard sales and thrift stores for any kid sized uniforms I could use. There is something utterly timeless about the split skirt hakama and the heavy weave of the keikogi that makes any movement you make in uniform a meditation in motion.

What I loved most, though, was the kendo practice. Nothing was cooler than putting on the chest plate, the gloves, the head gear and walking into that ring. Since I was always the smallest person there, I learned how to fight bigger people. When I’d fight my 6’6″ kendo teacher, I had an advantage as long as I stayed focused enough to crowd inside his defenses and then slip away from him. I was so much shorter that I had to dart in to strike while he would have to back up to take a strike at me.

Focus, focus, slip, slide and strategize are second nature to kendo players. Staying in the moment is essential. The most important thing I learned in kendo was that life is all practice.  Those hard-earned abilities I learned then serve me well these days as a paralegal. Each day brings new challenges and because of kendo, I stay focused and deal with them.  That is why you have heard me say, “Train hard, fight easy.” It is even truer outside the dojo in the ring of life.

Why am I sharing this? Because when you are in a litigation, don’t always think bigger firms are better. When I would weave a web of strikes around taller opponents, I would win.   Big firms may not always be the best for your litigation. Check out the smaller firms and find a good fit.

A “learned treatise” is something (usually a book) that is supposed to comprehensively cover a subject, usually a legal subject but sometimes a scientific subject. It is the kind of book that an expert would rely upon. So usually you use your expert to testify about how important the treatise it, how what it says is authoritative, and how it helps your case. But sometimes you don’t have an expert. Now what do you do? Well, if the other side has an expert, you try to get the other side’s expert to validate your learned treatise and then get your facts in using their expert. This is risky, but it can work with enough preparation. Another way to do it (but it does not work very often) is to get the judge to take “judicial notice” of what the treatise says. Judges hate this if there is any controversy attached to the subject of the treatise. But sometimes it can work.

In addition to whatever else the lawyer has to do in court (listen to the Judge, listen to the witness, watch the jury, prepare objections, prepare for the next step in the case, and take notes) now we have to watch out for what the Court deputies and baliffs do. This is posted without comment except to say that, so far as I know, the deputy was not disciplined.

http://www.youtube.com/watch?v=UIoyJ-LyAaE

Have you read the Terms of Service on Gmail?  Know what I’m talking about?  It’s the click-through button you have to click on before you can sign up. Did you know that Google’s “privacy statement” says that they will search all of your email, categorize it, and use that information later? There is not even a hint of a reasonable expectation for privacy for Gmail.

By the way, what about attorney’s clients and their email use? Perhaps more attorneys should do what I’m starting to do: give each client their own, private email account on my domain. Then we can communicate with some enhanced security and no waiver of privilege.

How can that be, you ask? Actually, for some judges who don’t really understand the Internet and technology, it’s easy. According to them, after the email leaves your computer, it moves into the public arena and, because of that, you have no expectation of privacy.

Why is an expectation of privacy important?  Because the Fourth Amendment to the U.S. Constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Courts have interpreted “unreasonable” (at least in part) as depending on whether or not you have a “reasonable expectation of privacy.”  This, then, depends on many things, including whether or not you are private.

Are your emails private? Well ….  Maybe. You might want to review (among other things) what GWU LawProf Orin Kerr says (he’s a former Justice Department prosecutor) in “Applying the Fourth Amendment to the Internet: A General Approach” (to be published shortly in the Stanford Law Review).

Abstract: This article offers a general framework for applying the Fourth Amendment to the Internet. It assumes that courts will seek a technology-neutral translation of Fourth Amendment principles from physical space to cyberspace, and it considers what new distinctions in the online setting can reflect the function of Fourth Amendment protections designed for the physical world. It reaches two major conclusions. First, the traditional physical distinction between inside and outside should be replaced with the online distinction between content and non-content information. Second, courts should require a search warrant that is particularized to individuals rather than Internet accounts to collect the contents of protected Internet communications. These two principles point the way to a technology-neutral translation of the Fourth Amendment from physical space to cyberspace. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1348322#

Fortunately for us all, the appeals courts are divided. The 9th Circuit Court of Appeals (in California and the West) has ruled that email can be searched. The 2nd Circuit (in New York) has disagreed. You can expect this one to go to the U.S. Supreme Court. Anyone who uses gmail, hotmail or any similar mail service should pay attention.