A settlement agreement and a contract are synonymous.  So the question is really, is there a contract to settle the case?  What are the elements of contract?  Offer, yep.  I will dismiss my case if you dismiss yours and pay me the money we agreed you owe me.  Acceptance?  Yep.  I agree to dismiss and to pay you the amount we agreed on.  Consideration?  Yep.  Both cases are dismissed and they agree to pay the money.  Is the settlement agreement enforceable like any other contract?  Yes indeed.  It certainly is.  And you will really anger the judge if you have to sue to enforce a settlement agreement.

I’ve been practicing for over 20 years now. Amazing. So I thought I would list some of the pieces of advice I’ve gotten over the years that have helped me become a better lawyer and (maybe) a better person:

• Learn the client’s business

• Ask the client questions

• If the client wants to help, let him

• Don’t let the client tell you how to try the case

• Do let the client control the facts

• you don’t have to repeat yourself

• when the judge talks shut up

• say “thank you” even when you don’t agree

• if you don’t try cases you have no business telling others how to try cases

• there is no mistake that can’t be fixed. The trick is knowing how to fix it

• if you do criminal defense work: it is not you who needs to bring a toothbrush to the courthouse

• You get into more trouble talking too much

• get paid. Money or satisfaction but get paid.

• As I get older I yell less

• If you ever are less than candid with a judge the whole world will know it and you will never ever get another chance in court. Judges know.

• stretch yourself

• Moderation is for monks. To enjoy life take a big bite.

• quantity is not quality. Don’t mistake number of pages for quality of arguments

• check their citations. Sometimes they make mistakes

• put it in writing

• take lots of notes

• know when to shut up

• No case is perfect, find the flaw

• there’s always something new to learn

• there is nothing “civil” about “civil litigation”. That’s why I call it “business brawls”

If a client gets a cease and desist letter (telling you to stop doing something like using the phrase “dirty brawls” on your website) what should you do?

The first thing to do is to check the law. What does the law require?  Then you check the facts:  who did the work?  Was there some agreement about who would do the work and who would get the credit?  Is the phrase or work copyrighted?  Is it trademarked?  Is there some other protected act taken.  Then you check the dates all these things occurred.  And check when you can prove you started using the phrase or work.

Once you have done those things, I would write to the lawyer who sent the C&D letter.  I would try to educate him/her in what the law requires for them to win.  I’ve found that the best response to a C&D letter is to let them know that harassing my client is a waste of time, will cost too much and they will lose anyway.  Usually they don’t bother writing back, they just go away.  But remember, knowing the facts and the law are critical.  If the client forgets to tell me something important this won’t work. So what’s important?  Everything.  Answer my questions fully, completely and hold nothing back.  The volunteer more information I didn’t ask about that you think might be important.  Frequently it is.

Some attorneys like to appeal every case that the client can afford to pay for.  Others don’t agree and file an appeal only when they see clear error.  I don’t agree that there is a blanket rule for appeals.  It should be a case-by-case decision, made by the client with input from the attorney.  Keep in mind, an appeal is not a do over, different standards apply than applied in the trial court. If, for example, the trier of fact (jury or judge) found a critical fact against your client, then, with only very limited exceptions, the appellate court will defer to the finding, even if the appellate judges might have found the fact differently if they had the power to do so.  Thus, a case where you might have had a fighting chance at trial might be unwinnable on appeal.   Appeals courts really don’t like reversing a lower court too.  Consider this quote:  “We will not reverse a determination for clear error unless it strikes us as wrong with the force of a 5 week old, unrefrigerated, dead fish.”  S Industries, Inc. v. Centra 2000, Inc., 249 F.3d 625 (7th Cir. 2001).

I like to discuss with my client whether or not a loss on appeal will make things worse (not counting the extra legal fees and costs).  Keep in mind that trial court decisions are not precedent, appellate decisions may be.  If we lose the appeal, will having a precedent set against your client be bad for the client?  This question needs to be carefully analyzed in cooperation with the client.

My rule of thumb is simple:  what are the merits of the appeal?  If the judge made a bad decision, you appeal it. If the judge made a borderline decision and there’s enough at stake and client can afford it, you appeal it.   Most often the appellant will lose. But not always. It’s an uphill battle.  I always analyze things carefully and work closely with my clients to make that decision.

Sometimes you run into lawyers and clients who just don’t seem to have any idea of proportionality.  I won’t name names, but a couple of national firms are that way.  So they might take case worth a few thousand and a) hire investigators to check out the other side, including credit checks and interviews with others to deal with them; b) spend unlimited amounts of money on depositions, research and other discovery; and c) litigate rather than settle even though the amount in question is far exceeded by the legal bills.  After a while you know who these lawyers and clients are and (at least I can) warn the client about how the estimated costs of the case just went through the roof.

This seems to be unbusiness-like.  So why do they do it?  Well, some clients take the attitude that they will spend whatever it takes to win, but never settle (pay tribute).  Sometimes this strategy is deliberate as it is intended to frighten off other disputants.  Sometimes it is driven by the lawyers.  In either case, the client needs to be aware of it.

But does a lawyer have an obligation to tell his client that the client is engaging in overkill?  I think the lawyer has to tell the client that this use of their money may not be cost-effective.  Ultimately however it is the client’s decision as to how hard to fight.

I was all set to try a case in Federal court tomorrow.  About 3-4 days of trial.  The issues were not complicated-it was a simple contract case– but the background was highly technical so the judge could understand why my client did not breach the agreement.  So I’ve been working myself and staff really hard.  The adrenaline is pumping and I’m getting all set to try a good case.  I’m sure I’ll get to try the case because settlement discussions are over–the 2 parties are far apart and then some.

Friday afternoon I go over to co-counsel’s office. As I get there he asks me if I’ve seen my emails.  “No, I checked them about an hour ago before I came over.”  “Check them now.”  “OK”  Glory be!  A settlement offer. A big change in their position!  I call my client and we talk.  Then the negotiations start.  To make a long story very short, the case settles at about 6:30 p.m.  The client is happy with the settlement.  O Joy!  Right?  Wrong!  I’m depressed.

What’s the matter with me?  I really wanted to try the case.  I had been practicing and training and working on mastering the facts and knowing the exhibits (their 83 exhibits and our 113 exhibits) completely to the point where I knew which email was which exhibit and could quote accurately many of them.  And then I can’t use this knowledge and win.  The adrenaline rush falls to zero.  The energy rush drops to zero.  I go into a complete crash.  I sleep all day Saturday and finally have enough energy yesterday to do household chores.  Today I’m back to normal.  The client is happy so I’m happy. But I still really wanted to try the case and win it.  I thought I could but it made good business sense to settle so that’s what I advised the client to do.

But I still really want to try that case.

Gee:  Guess I was right after all.  I’ve been saying for years that a person can be identified as a likely target for attack based on how they walk and their general body language.  People laughed.  Now science validates me.  See: http://www.slate.com/blogs/crime/2013/04/09/journal_of_interpersonal_violence_study_suggests_attackers_choose_victims.html

In defamation cases there is always a fine line between what is defamatory (a false fact) and what is merely opinion, albeit offensive.  This fall the Virginia Supreme court will attempt to thread this needle in Cashion v. Smith where some of the allegedly non-defamatory (opinion) statements were “”He could have made it with better resuscitation”; “This was a very poor effort”; “You didn’t really try”; “You gave up on him”; “You determined from the beginning that he wasn’t going to make it and purposefully didn’t resuscitate him.”  This could substantively alter Virginia’s law of defamation and might offer more opportunities to sue for scurrilous statements that used to be protected as “opinion.”

PKO Ventures v. Norfolk Redevelopment & Hous. Autho. Will address whether a finding of blight is appropriate when the finder has a financial interest in that finding  I’ll be interested in PKO Ventures since this occurs so often.  I could result in a major decision favoring landowners, increasing what the condemnor must pay.  Given the recent Amendment to the Virginia Constitution, this could be very interesting indeed.

I don’t usually post personal items here but I decided it was time you got to know me a bit.  So know this:  Generally I don’t like team sports.  I love MMA, wrestling (Olympic and Greco-Roman), judo, Tae Kwon Do, gymnastics and most other solo sports.  But I’m not big on team sports. Not big at all.  But there are exceptions.  I’m coming to like the Washington Nationals because of their “all for 1 and 1 for all” mentality.  They don’t trash the ones who left.  They treat each other with dignity and respect.  I like that.