The New York Law Journal reports that a New York Judge will seek authority to require all state courts to implement mandatory electronic filing.  E-Filing is mandatory in Federal Court and in commercial cases for lawsuits over $100,000 in New York County.

Foreseeing “vast” cost savings to the courts, litigants, and the bar, Judge Lippman said Tuesday he will seek authority to require all state courts to implement mandatory electronic filing. “In the year 2011, this is not a pipe-dream, but rather the very least we should be doing to move the courts boldly and efficiently into the 21st century,” the judge said in a statement.

Nearly every lawsuit asks for recovery of attorney fees, costs and expenses for bringing the action.  When potential clients contact my office for the first time for a civil litigation matter, the most common question asked is whether attorney fees are recoverable.

Attorney fees are generally not recoverable.  There are exceptions to this rule, such as when authorized by statute (ie some employment discrimination cases), court rule, or as agreed to by the parties. The case law is rather exhaustive on this subject. I still recall my contract professor in law school engaging my first year contract class on this issue through the use of the socratic method.

Under the English system, the loser of a lawsuit pays for attorney fee’s. However, this was changed in the United States, and under the the American rule, each party has to pay for their own legal costs.  This law was established to protect people and businesses who have small budgets who would not be able to start a lawsuit against a company or individual who has deep pockets.

Following a judgment, your lawyer can include a bill of costs.  This legal document will list the costs and expenses that you can recover in addition to your judgment.  They include the following:

• Filing fee for the summons and complaint
• Jury Fees
• Depositions used at trial
• Service of summons by Officer or Process Server
• Service of subpeona by Officer or Process Server
• Statuatory Witness Fees
• Lay Expert Witness Fees and Expenses. But regular expert witness fees, such as for a medical doctor in a personal injury action or a forensic accountant in a trademark claim, are not recoverable.

If you have a question about what fees and expenses are recoverable in New York State, contact me at the Law Office of Frederic R. Abramson at 212-233-0666.

The above is for informational purposes and does not constitute legal advice.  This is free. Legal advice is something you pay for.

Social Media is an ongoing experiment.  Both people and companies are using this new tool to connect with people that they have never met in person.  The main goal of all of this activity is to generate new business.  The million dollar question is how to convert your Twitter followers and Facebook friends into paying customers.

The answer, according to members of the panel convened on October 23, 2009, at the Trust Summit, is to build trust. In front of a packed room of tweeps at the Harvard Club in NYC, social media rockstars Chris Brogan, Julien Smith, David Maister and Charles H. Green, discussed the issue of trust and how it relates to social networking.

According to Chris Brogan, the relationship economy will move the future. The goal of using social media is to create sustainable relationships over time.

In his book Trust Agents, Chris explains that on the web, groups of highly motivated people within every circle have already joined together, helping each other reach a higher ground. I asked Chris, through Twitter,  how professional service businesses (ie law) can harness this group to become clients. I am skeptical that lawyers and other service businesses can use social media to achieve this goal. Chris responded that you need to be a priest and build a church. What he means is that you should use social media to be part of multiple groups that will help your access each group.  Your goal is to be in the center and be the priest.

The trust paradigm is not new. Charles H. Green lectured that you shouldn’t view business through the lens of competition.  The purpose of companies is to serve society.  He argued that competitors should work together to serve the public.  Cooperation between competitors serves everyone interests.

David Sax, writing in Save the Deli observed this spirit of cooperation in the thriving Los Angeles Jewish Deli scene.  Throughout the country, Jewish Delicatessen is an institution that is in decline.  The pastrami is expensive and people are worried about the impact of schmaltz on their cholesterol.  But in LA, the Jewish Deli is thriving because deli owners cooperate.  If Nate N’ Al’s is out of stuffed derma, they call over to Greenblatt’s  for help.   You should do the same when using social media.

As Julien Smith eloquently put it:  “Social media is still an experiment. Be curious of other people when using social media. Only by risking can we create greater things for everyone.”

Today I had a discussion with a friend who works as an insurance defense attorney for a large insurance company.  While sitting on a comfy sofa at Book Review in Huntington, Long Island, I began perusing a copy of The Whuffle Factor by Tara Hunt.  The book is about the importance of creating and implementing social capital. We then discussed its applicability to her job. Does social media have any place for an in-house insurance defense attorney?

Her opinion was a resounding no.  As an employee at an insurance company, she has no clients.  Why bother with social media if you are not looking to connect with anyone? I then asked whether she thought it was important to find out more about opposing counsel through researching their profiles on social networking sites?  She said that it was not worth the effort.

Lastly, I asked whether it should be common practice for her to view the social profiles of opposing plaintiff’s.  For example, wouldn’t it be helpful to view the Facebook page of an injured plaintiff?  What if the there is a current photograph of him playing soccer if he is claiming injury to a torn meniscus?  Wouldn’t it help your case?  She said that she thought that there would be a problem in getting the page into evidence (I certainly don’t agree with her there.)

Do you think my friend is right?  Is there a place for social media for Insurance Defense Attorneys?

Once upon a time your lawyer was a person. Potential clients would walk into an attorney’s ornate office to hire him based on a referral from either his accountant,  mother or hairdresser.  Then your attorney became software.  Think Nolo books and Blumberg forms.   With the advent of LegalZoom, your attorney became software on the web and the costs to the consumer were reduced dramatically.  LegalZoom has been able cut into the business of lawyers by offering cheap forms.  Why pay a lawyer $500 to draft a simple will when they can do it themselves?

According to Chris Anderson, author of Free, the marginal costs of distributing content is now zero. This is a game changer.  Lawyers can now give away free content on their blogs and charge for legal services. Bandwith costs nothing.  This has radical implications on how legal information is disseminated.  With a simple free content management system such as WordPress, lawyers can post legal forms for free on their blog and create free podcasts and videos.

The goal now is for lawyers to use free to reach the broadest range of people as possible.  Once a consumer  has a complicated legal matter, they are n0t going to want to settle for the free legal form online. They are going to want to go to a person and that person is going to advise them. That person can charge  more for offering up more specialized work.  You can charge more than the commodity because it is unique and customized and it takes advantage of the lawyer’s brain. Things that are simple can be turned into software and would become free.  They become marketing for something else.

The goal for lawyers is to get potential clients to use their product online, experience their product and put their data into the product. When it comes time to make a more complicated transaction, are they going somewhere else to finish the work, or are they going to go to place where the data is already entered and pay into it?

What are your thoughts? Is free really a game changer for lawyers? Do potential clients really care about free information when hiring an attorney? Will free ever take the place of referrals?

Article of the Week:

10% of Twitter users account for 90% of tweets: http://tr.im/n54w

The latest Law Reads:

@Turkewitz Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with “& Associates” Name? http://bit.ly/eF4jU

@VBalasubramani blogged: “Tony La Russa’s Legal Claims Against Twitter Look Tenuous” http://bit.ly/eDcSe

Social networks increasingly leading to questionable firings http://twurl.nl/w1kyhn

Facebook Friend Earns Judge a Reprimand http://bit.ly/3XUE7a

Small Businesses Take Tentative Steps Toward Online Networking http://bit.ly/2KVVF (via NYT)

6 tips for landing big customers http://bit.ly/fvJsr

@jowyang In the age of Twitter, blog posts start to matter more and more, see this wraup of #TWTRCON http://bit.ly/XKLyA

Google giving small businesses local search data http://bit.ly/yF09I

10 Ways Twitter Will Change Business: http://twurl.nl/7310i5

The Twitter Marketing Debate:

Larry Bodine: Twitter Not Effective for Law Firm Marketing

@barrettdavid: Is Twitter “Effective” for Lawyer Marketing? The “Bodine Debate” – http://twurl.nl/zxg53t

@glambert “Legal Marketing, Statistics and Hard Work” – http://is.gd/N9kT

@nikiblack “Legal Tweets: Kevin O’Keefe on social media for lawyers at the “Get a Life” conference” ( http://bit.ly/RYohc )

@lancegodard My take on esq & twitter hasn’t changed http://bit.ly/17cI6s but ways they use it have: http://snurl.com/j1tea via @jdtwitt

Breach of contract occurs when a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other party’s performance. If the party does not fulfill his contractual promise, or has given information to the other side that he will not perform his duty as mentioned in the contract or if by his action and conduct he seems to be unable to perform the contract, that party is said to breach the contract.

An example of a breach of contract lawsuit is when a web designer that you hired failed to deliver the new web 2.0 apps on your website as agreed to in your written contract failed to deliver your app. What should you do?  First you should see whether the other side has any defenses. Should you call a lawyer and start a lawsuit?

Below, is quick guide that summarizes the basic steps, legal process and expenses of a breach of contract lawsuit.

Legal Steps:

1. Prove existence of Agreement;

2. Prove breach of Agreement (failure on one side to perform or pay);

3. Prove damages due to breach (loss of profit, damage to business).

Legal Process:

1. File Complaint with the Court;

2. Defendant answers the Complaint, and could start a counterclaim;

3. Period of Discovery which are oral and written questions from each side. Interrogatories and Bills of Particulars are written discovery. Depositions are discovery interviews.

4. Discovery conferences. For example, in New York County, you will have a preliminary conference and a series of compliance, status and settlement conferences.

5. Motions requesting certain relief. For example, a party may make a summary judgment motion if they believe that there are no issues of fact and that they are entitled to judgment as a matter of law.

6. Trial

Expenses:

1. Timeframe: Between 1 and 5 years.

2. Retainer: A common breach of contract retainer is between $5 and $20 thousand dollars.

3. Court costs: Between $500 and $10,0000.00.

4. If a case proceeds to trial, $20-$100,000 is not uncommon.

If you have any questions regarding a breach of contract, contact me at the Law Office of Frederic R. Abramson at 212-233-0666

@fredabramson

Frederic Abramson

New York Civil Litigaton Attorney

Author of Frederic R Abramson’s New York Law Blog

Today, we’re tweeting with business lawyer @FredAbramson, a trial attorney based in New York City and author of a business law blog

1. @FredAbramson, thank you for joining us today on Twitter. Tell us: who is the person behind @fredabramson?
   I am a dad, a foodie, a huge reader, music fan that is passionate about business.
2. Tell us about your law practice.
   I am a New York business law attorney. My practice entails litigating cases and drafting legal documents.
3. What type of clients do you represent?
   I represent entrepreneurs, business owners, consultants and individuals. Many of my clients are in tech.
4. What’s the most important legal issue affecting those clients?
   Every business has its own issues. Some don’t have proper contracts. Others have problems getting paid. Its varied.
5. What do you tell every new client before you start working for them?
   I will give them a detailed plan of how their case will proceed. All correspondences will be answered w/in 2 hours.
6. How is the economic crisis affecting your clients?
   Entrepreneurs and small biz owners are having a difficult time raising funds. Credit has dried up for many.
7. What’s the most significant client representation you’ve had?
   Representing a hedge fund that invested in a complicated startup venture.
8. Why was it significant?
   There were many parties involved, the product was unique, complex ip issues, and significant sums of $ were on the line.
9. Significant sums have a way of raising the stakes…. Why do your clients hire you?
   Reputation. I am experienced, tech savvy, innovative, accessible and diplomatic. I could also be a bulldog if need be.
10. That’s a pretty good calling card. How do you sell your practice?
    Referrals, social and in person networking, e-newsletter, community involvement, Google adwords and friends
11. How much time do you spend each day developing / enhancing your brand?
    newsletter: 2hrs/wk, networking events 1 eventwk, blog: 2hrs/wk and tweet all the time for fun.
12. You publish the “New York Business Law Blog” How would you describe it? Why do you write it?
    I write about legal issues facing businesses, highlight what is newsworthy for biz owners and provide Twitter tips for esq.
13. What benefits have you realized in blogging?
    as per @kevinokeefe blogs work together with Twitter. Tweet a link to your blog + write a detailed post. Long form tweet
14. What value have you seen as a result of being on Twitter then?
    I have been able to connect with some fascinating people, share information, help others and have learned quite a bit
15. Beyond Twitter and your blog, what other social networking tools do you regularly use?
    I use facebook and linkedin. FB has been more usefull bc 95% of my connections are friends, family and reconnections
    only 5 of my facebook friends are on Twitter and none use it extensively. Totally different audience.
16. That’s interesting re FB. What do you see as the most significant issue currently facing the legal profession?
    Law firms, both big and small are downsizing due to the economy. Lawyers need to be creative to thrive and survive.
17. What will the legal landscape look like in 10 years?
    Law firms may shed the overhead of the office due to tech advances. Lawyers using social media to create virtual law firms
18. What would you do if you weren’t a lawyer?
    I would be an entrepreneur/chef/musician/artist.
19. A fairly unique job title, I’d have to say…. How do you want to be remembered?
    as someone who helped others, made people laugh, made them smarter and made a difference.
20. I have an inkling of what your answer will be, but I’ll ask anyway. What do you do when you’re not working?
    I tweet! Family time with wife and 2kids, cook, read, explore NYC, run, watch sports, spend time with friends
21. Sounds like you maintain a full schedule. What languages do you speak?
    I speak English and Twitter. 6 yrs of spanish classes didn’t help. I can read the 4 questions in Hebrew and culinary terms.
22. Our last question for you: what advice do you have for people going to law school today?
    Lawyers don’t just practice law. Your value increases if u can bring in cases. Rainmaking is not taught in law school.

Sound advice. Thank you so much for tweeting with 22 Tweets and answering our questions today

thank you for tweeting with me! Great idea Lance.

Back in August 2006, Seth Godin released Small is the New Big. Seth stated that being big isn’t what it used to be for business. Mega status once mattered in all kinds of ways. Sprawling buildings, giant law firms and big accounting firms were the vogue. “And then small happened,” wrote Seth Godin.

Seth Godin may have been a bit of ahead of his time when he wrote this passage back in 2006 in regard to the legal field. However, there is now concrete evidence that Big law firms are shedding lawyers and support staff in record numbers. What company wants to pay an inexperienced attorney $400 an hour to perform simple document review? Are these novice lawyers worth the money just because they aced their first year law school exams and “earned” law review. To paraphrase Warren Buffet, the economics of Biglaw appear to have fallen off a cliff. Here are just a few facts:

-On March 9, 2009, the ABA Journal reported that Morgan Lewis, K & L Gates and White & Case announced total cuts of a total of 731 attorneys and staff .

-Akin Gump axes 47 Associates and 57 staff;

-King & Spalding cuts 37 lawyers and 85 staff;

-Latham & Watkins announced plans in late February to cut 440 lawyers and staff.

What’s occurring in the legal field is a massive de-leveraging by the large law firms, that is mirroring what large corporations have been doing during this recession. As a result, more attorneys are starting their own law firms. The evidence:

-UberSolo Carolyn Elefant (on Twitter as @carolynelefant) released her new book Solo by Choice which hit #1 today in the legal profession category on Amazon;

-Law.com reports: Large Firm Layoffs lead to Small Firm Startups;

-The Washington Post reports:  Recession Sends Lawyers Home Firms Trade Brick-and-Mortar Prestige for a Better Business Model.

What does this all mean for small firms and solos? The jury is still out. Solos appear well positioned to weather the storm because they are nimble. For example, many have embraced social networking platforms, such as Facebook, Linkedin and Twitter. Just take a look at the top attorney’s on Twitter. Nearly all are solos or work in small firms. Twittesqs (my word) such as Dan Harris (on Twitter as @danharris), Andrew Mayoras (@probateblogger) and Brian Tannenbaum (@ miamicrimlaw) are using Twitter in innovative ways that are raising their profile that may lead to more business.

Solo’s also have the ability to change the focus of their practice to suit the economic climate. Real Estate attorney’s reposition themselves as foreclosure experts. Corporate lawyers become Bankruptcy Attorneys.

However, the competition for new business is fierce. With more lawyers hanging a shingle and less business to go around, when the dust settles only the most innovative may survive.

You can find me on Twitter @fredabramson