October 2013 – Creditors Rights 101

You Say I Can’t Cite Unpublished Opinions: I Say Free Legal Research in Tennessee!

One of the most useful things about my Tennessee Bar Association membership is the “TBA Today” daily email, which has links to Tennessee legal news and blurbs/links to the recent Tennessee Appellate Opinions.

Just like I did earlier this week about quantum meruit, I frequently blog about the opinions, regardless of whether the opinion is going to be published. Invariably, some dummy comments that I shouldn’t mention the case because, under Tennessee Supreme Court Rule 4, an opinion that is designated as “Not for Citation” shall not be cited as authority in court pleadings.

Well, first off, I’m giving them too much credit: the dummy commenters never actually cite Rule 4. Secondly, they miss the point. Even if unpublished cases aren’t binding authority, they are still great resources for the most up-to-date statement of the law on a topic.

Nearly every day, new cases are posted, and those cases provide incredible overviews of a Judge’s very up-to-date research on issues of law.

Want to learn what the Tennessee Dead Man’s Statute? Look at this case from last week.

How will a court rule on a Motion for Judgment on the Pleadings? Here’s a case from two weeks ago.

Want to be shocked and amazed at how horrible divorce cases can be? Well, basically, the Court issues an opinion every other day with facts and attorneys fees that will make your hair raise, so I’m not going to cite to those.

Well, I’ll cite to the one from last week about the guy who married a blackjack dealer and brought her back to Tennessee. And, also, check out this one about the millionaire who has basically lived the past 20 years of his life trying to not pay anything to his ex-wife. Marriage!

If you aren’t a TBA member, you can still look at the cases at the Tennessee Courts website. Even better, the website has a “search” button, so if you’re looking for a specific topic, you can search the case summaries. Up-to-date and free legal research can’t be beat, published or unpublished.

Service of Process: Just Like the Movies

There’s a reason that there’s never been an epic movie about Bankruptcy lawyers: To the rest of the world, it’s not very exciting work.

In fact, the only movie about it (that I know of) is Heart and Souls (1993), starring Robert Downey, Jr. as a creditor bankruptcy attorney who goes after struggling companies and shuts them down when they can’t pay their bills. The premise is that his four childhood guardian angels come back to visit him and are shocked at the work he does. (Yikes).

But, there is one aspect of my practice that is just like the movies: Service of Process.

Under the Tennessee Rules of Civil Procedure, a lawsuit and summons must be physically served on an individual (Per Rule 4.04).

This part of the process can be frustrating to clients, because, until you get the other party served, they have no responsibility to answer and the case doesn’t move forward. Obviously, the other party in the lawsuit has every incentive to dodge, evade, and generally run from you when you go to serve them.

I wrote about this on Paid in Full–some of my clients get so upset that they want to serve the process themselves (which they can’t).

My advice: Find a really good process server, one who is willing to be creative in order to get the job done.

Have you ever seen the movie Pineapple Express? In that movie, Seth Rogen plays a sneaky process server, who has a car full of costumes and disguises. That’s who you want working for you.

I have a guy right now, who is great. He’s gone to the door with a big bouquet of flowers. He’s used a pizza delivery guy disguise. Around the holidays, he doesn’t serve “process”–he delivers “gifts.” Who doesn’t like gifts?

Sometimes you get efficient and good results because you’re a great lawyer. Sometimes, it’s because the other side thinks they have a secret admirer.

Creditors Rights 101: Double the Content, Same Low Price!

In addition to this fine blog, I now will also be blogging at a second location, on my law firm’s website.

That blog is called Paid in Full.

Paid in Full will cover some of the same ground that this blog covers, but, as corporate blogs sometimes do, that discussion may tend to have the “top button buttoned,” if you know what I mean.

I know, I know. The internet is littered with the carcasses of abandoned blogs. So, you might ask, why on earth keep two blogs?

I enjoy this forum and appreciate the growth I’ve seen in the three years I’ve been posting here. A surprising number of you subscribe via email or follow me on WordPress, and the Google search results I get show that people want to see what I’m talking about here.

So, now, congratulations. You’ll either get double the content or, equally likely, you’ll get to see me slowly kill off two blogs.

Be sure to check out Paid in Full, subscribe to that blog via email as well, and keep Creditors Rights 101 bookmarked.

Remember how they did a spin-off of the TV show Baywatch, called Baywatch Nights? Well, this is sort of like that, except Paid in Full is the spin-off, and this blog is the fun one, with all the bikinis.

Think Before You Tweet: Your Online Rant Could Get You Sued in Tennessee

You do it. I do it. Everybody does it.

Your steak is burned.Your cable goes out. You have to wait 30 minutes too long in the waiting room.

Out of boredom, anger, or some mix of it all, you go on twitter or Facebook and complain. If you really want their attention, you link your target’s twitter account. That will get their attention, you might think. Maybe they respond and apologize.

Or, maybe, they file a lawsuit against you for defamation or invasion of privacy. Yes, in Tennessee, a twitter or Facebook rant can get you sued.

The Tennessee Court of Appeals recently considered this issue in the opinion of Jennifer Patterson v. Natalie Grant-Herms, decided on October 8, 2013. In that case, the Defendant (accomplished Christian music performer Natalie Grant) posted a number of complaints about the Plaintiff’s service (the Plaintiff is a boarding agent for Southwest Airlines), in which Defendant: mentioned Plaintiff by name; complained about a boarding decision involving Defendant’s child; and generally made a mountain out of a molehill regarding a trivial inconvenience.

(Edited to add: The underlying lawsuit had more of the tweets, including one from Natalie Grant where she bragged that her baby had a “MAJOR blowout” which was left as “a gift on the plane.”)

Ultimately, the Court found that the tweets did not rise to the level of actionable defamation (but, instead, were complaints showing “frustration”), but the Court found that the personally identifiable statements about the Plaintiff could constitute actionable false light/invasion of privacy.

The real take-away is this: Plaintiff brought a viable claim against Defendant as a result of tweets. Defendant had to hire a lawyer to defend herself, and the matter was litigated to the Court of Appeals (and, now, it’s remanded back for more proceedings).

Frankly, between you and me, I think the tweets, which were directed to Southwest, the Plaintiff’s employer, would constitute actionable defamation.

I tell my clients all the time to avoid any meaningless, unnecessary action that will result in exposure to a lawsuit. This is a classic example of a person letting anger lead them to action that invites a lawsuit.

It’s Not Me, It’s You: My Thoughts on Dealing with “The Clients From Hell”

I can remember the email like it was yesterday, even though it’s been a few years now.

I’m sitting on my couch, at 7pm on the Friday night before New Years Eve. I check my work e-mail to find this long, mean request (demand) from a client. The client wanted updates on about a dozen matters, and they wanted them right then. The e-mail had the red exclamation point and a condescending tone that was unmistakable.

This client had long before decided that I was over-paid, too slow to respond, and, despite the great success I’d had for them, not very good at my job.

In the spirit of New Years Eve Resolutions, I decided right then that the next year would bring one specific change: I was going to fire my largest paying client.

The next week, I did just that. There was no conciliatory or touchy-feely “let’s work this out” effort. Instead, I thanked them for the work and gave them a list of 3 lawyers who I sincerely thought would do a fine job for them.

You can imagine my interest, then, in the recent articles about “How to Handle the Client from Hell.” Here’s the original article, “How to Deal with a Toxic Client.”

I’m fortunate to be a very busy lawyer, and the risk I took by firing a big client was tempered by my ability to focus my efforts on my other clients (who actually appreciated my work and results).

Not every lawyer has that luxury, but I question the advice in the articles, like asking the ranting client “What was that all about?” Open hostility rarely makes for a good working relationship, especially one that involves hourly billings that the client is complaining about.

My ultimate take-away on my decision was this: I screen new clients thoroughly, to make sure that their expectations fit in with my abilities (including costs, results, and time). If they want constant updates on minor developments, they might not be for me (unless, of course, they are willing to pay me for those constant updates).

Angry, ungrateful, and cheap? No, thank you.