Category: Legal Profession

Read the Davidson County General Sessions Court Local Rules Before You Go There

Many lawyers (or pro se) litigants are uncomfortable in Davidson County General Sessions Court (where the jurisdiction/amounts at issue are below $25,000, with some exceptions).  Justice moves really fast in small claims court, and that’s the general complaint, that the 50-100 cases on each docket make practice there difficult.

That having been said, before you step into that fast paced world, take a moment to read the Davidson County General Sessions Court Local Rules.

Those Local Rules have answers to the following issues that come up every day:

  1. Do I need a lawyer to represent me in General Sessions?  A person can represent himself, but a non-attorney “will not be permitted to represent anyone other than him or herself in the General Sessions Courts.” See Rule 2.01. This means that a non-lawyer cannot appear and defend a case for a corporation or other business entity.
  2. Can I get a continuance on the first court date setting? Maybe. “In civil actions the Court may liberally grant a continuance on the first setting of a case or on the first setting after an indefinite continuance.” See Rule 5.01.  But, you should always call the other side and tell them you want or plan on asking for a continuance. See my # 4 advice from last year.
  3. Can cases be continued “indefinitely”?  No.  You have one year to resolve the case, and you only get three continuances. Rules 6.01 and 6.02.
  4. If I’m the Plaintiff and I don’t show, what happens to my case?  “When a case is dismissed without a trial for want of prosecution, said dismissal shall be without prejudice to either party’s right to re-file.” Rule 4.01.

That’s just a sampling of the 4 most common “rules” that everybody cites, but not everybody knows where to find the rules. If you have a sticky issue in small claims court (or if you don’t go there much), be sure to read the Local Rules before you go.

One final piece of advice: There aren’t enough elevators for the crowds that show up for Court. To be sure get into the courtroom on time, get there at least thirty minutes early for your docket.

Davidson County Chancery Court Case and Pleading Access Online

Last year, I noted that the Davidson County Chancery Court had started a service that showed case dockets online. This Chancery Court Public Records Access site provided the names and dates of filings, but not copies of the actual pleadings. Last year, I predicted that electronic copies of pleadings can’t be far behind.

I was right. Now, the Chancery Court has a second site, called Chancery Information Access, on which you can actually view copies of pleadings. It is a subscription service. Here is information on how to register.

It costs $15 a month. If you think that’s expensive, well, wait until you need a copy of pleading and have to walk to the Courthouse to get it.

Now, I’m hoping that the next step will be for Chancery Court to accept remote electronic filing of pleadings.

Erin Andrews files Lawsuit for Invasion of Privacy in Nashville Circuit Court

If you’re a sports fan, you know Erin Andrews. You’ve probably also heard that a stalker allegedly followed her across the country, asked to be placed in the room next to her in various hotels, and took unauthorized video footage of her in her room.

One of these instances occurred while Ms. Andrews was in Nashville, covering a Vanderbilt Commodores football game in September 2008.

On Thursday, December 1, 2011, Ms. Andrews filed a lawsuit against the hotel and others for invasion of privacy, negligence, and negligent infliction of emotional distress.

Attached is a copy of the Complaint filed by Erin Andrews in Davidson County Circuit Court. See Erin Andrews Complaint.

Collection Advice for Lawyers: Use Detailed Invoices as a Way to Justify your Fees and Get Paid

I received a collection notice in the mail last week, from a Georgia law firm that domesticated a judgment for one of my Tennessee bank clients. I had subconsciously sat on their invoice for a month, mainly because I hated their invoice and didn’t want to forward it to my client.

It wasn’t for a lot of money, but I hated it because it didn’t tell a compelling story showing the value my client received.

The invoice didn’t have the hourly rate of the person providing services. The time spent for each task wasn’t itemized. The invoice provided only minimal details about the work provided. In short, it didn’t prove that value was given, and it didn’t tell a story.

If a lawyer is ever going to advocate, the time is when he’s asking to be paid. When I send out a bill, I always keep in mind:

  • Always provide (too much) detailed information about the work you do for a client on a bill.  Leave the client no question that they are getting lots of great legal work.
  • Include all the “technical” information on the invoice, showing how much time is spent on each task, who performed it, and how much was charged for the task.
  • Most important, craft your time entries in a matter that tells a story, which will show the client the value of your time.

Compare:  the below one (1.0) hour billing entries:

                       “Legal Research on jurisdiction”

                       “Legal Research in Tennessee statutes and cases on issues related to Delaware corporation doing business in Tennessee and whether internet website justifies lawsuit filed in Tennessee”

                        Which one is more likely to be paid?

Collection on Unpaid Legal Invoices in Tennessee: One Really Good Reason to Wait One Year

The Tennessee Court of Appeals issued a recent opinion discussing the elements of legal malpractice claims. The case is Tucker v. Finch,No. E2010-01704-COA-R3-CV, Slip. Op. (Tenn. Ct. App., Aug. 30, 2011).

The case provides a good summary of the statute of limitations on legal malpractice actions, which must be “commenced within one (1) year after the cause of action accrued.” Tenn. Code Ann. § 28-3-104(a)(2). The one year clock starts ticking “pursuant to the discovery rule “when (1) the client suffers an actual or legally cognizable injury, and (2) the client knows, or in the exercise of reasonable diligence should know, that the injury was caused by the attorney’s negligence.”

How is this relevant to collections? According to the ABA, most attorney malpractice claims are filed in response to attorneys taking collection actions against clients. Once you sue or threaten to sue a client for unpaid bills, it’s exponentially more likely that that client is going to attack the value of your legal services.

But, don’t forget, the statute of limitations for collection on unpaid debt–including unpaid legal invoices–is six years in Tennessee.  Malpractice actions must be filed in one year.

As I’ve written before, this is why lawyers wait at least a year to collect on unpaid invoices.

If the underlying lesson to aggrieved clients in the Tucker case is “don’t sit on your malpractice claim rights,” the flip side of the coin may be “let sleeping dogs lie, at least for a year.”

(Side-note: I’m not condoning malpractice or encouraging attorneys to avoid responsibility. But, I know from experience, you can provide world-class services and, faced with a bill for world-class services, some clients are going to allege you did something wrong. On those clients, wait a year.)

Even Lawyers Have to Collect Their Bills: Best Practices for Increasing Realization

Once upon a time, when money grew on trees, unpaid invoices and aged accounts receivable were nothing more than a casual nuisance.  Then, of course, the economy turned, and businesses re-examined their books to search for any income source they could find. This includes law firms (see my tweet from yesterday).

Here are a few billing tips for increasing law firm collections on invoices:

1) Tell a story in your invoices. Craft time entries in a manner that tells a story and shows the client the value of your time.  Don’t say: “Legal Research on jurisdiction.” Instead, say: “Legal Research on issues related to Delaware corporation doing business in Tennessee and whether internet website justifies lawsuit filed in Tennessee.”  Which one looks like it took an hour of legal time?

2) Advise clients in advance of costly new developments. “No surprises” is the rule. If a big Motion gets filed against the client, tell the client immediately, even if you have thirty days to respond. One, the client should know about case developments, but, two, they should know that the case is getting ready to get expensive—before they receive the bill for the expensive legal work. Better to know that the client is (or isn’t) financially ready for an expensive fight earlier, rather than later.

3) Effectively manage resources. This means assigning the right person to handle each task. Clients don’t want to pay for the time it takes an associate to type, organize files, and manage his or her calendar–an assistant does a better job of those things. Clients don’t want to pay top rate for basic tasks, and they’ll appreciate the efficiency you can create by having workers with lower rates handle routine matters. Spend the client’s money like it’s your own.

4) Don’t be afraid to give occasional discounts or time write-offs. Sometimes, you’ll do work on a task that takes far longer to complete than you can justify, whether it’s a simple pleading, a day of phone-tag, or anything else that you know a client wouldn’t pay for. Be fair on the easy tasks, and the client may remember that when faced with a $5,000 invoice for that huge brief.

5) Call the Clients who aren’t paying. In this economy, a late paid invoice is probably the result of issues with the client’s cash flow. But, it could be the result of the client being unhappy with your services and/or billing. Implement a standard system by which you routinely follow up with late invoices, whether it’s after 30, 45, or 60 days. If it’s a problem with your services, you need to know that immediately. If the client is having trouble paying for your services…well, you need to know that immediately too.

6) Review your own bills to remind yourself how expensive lawyers are. In many firms, younger lawyers never see a bill until they get a few years of practice under their belt. Bill review is for the older, established “rain-makers.” As a result, lawyers don’t realize that all the 0.3s and 1.7s are real billing events, that cost real money. Nothing puts those billing entries into the proper perspective like seeing the actual monetary amounts. Ask yourself, “Were the services that I provided worth $1,200.00?”

At my firm, one of my hobbies is being a back-seat driver on the invoicing and collection tasks. It’s my area of practice and what I do all day long, and, if my firm gets it right, it means more money for me. These best practices are easy ways to increase realization on invoices. Because, in the end, if we’re not going to get paid, wouldn’t we all have preferred to spend that time at the beach?

Davidson County Chancery Court Case Information Now Online

For a few years now, all of the Davidson County Circuit Court’s records have been online at the Davidson County Caselink (subs. req’d).

Now, the case records of the Davidson County Chancery Court are online on the Court’s website. Although it doesn’t provide scanned copies of pleadings (yet), the website contains party information and the dates of relevant pleadings.

As the world moves entirely online, it’s great to see this move from Chancery Court. Will electronic filing of Court pleadings be next?

Speaking Engagement: 5th Annual Law Conference for Tennessee Practitioners

The Tennessee Attorneys Memo is hosting the 5th Annual Law Conference for Tennessee Practitioners in Nashville on November 3 and 4, 2011.

They advertise it as “[f]eaturing an all-star cast of prominent Tennessee judges and attorneys and 15 hours of CLE credit, including 3 hours of DUAL credit.”

They’ve invited me to speak on issues surrounding Tennessee collections and Judgment Enforcement, and I always agree to anything where I can be described as an “all-star.”

I’ve spoken at this conference before, and it’s a good event, with tons of materials and smart presenters. I’m planning on jazzing up this year’s creditors rights presentation with a discussion of social media law and the interplay between social media and the Fair Debt Collections Practices act in collections.

You can sign up for one or both days here. I’ll be speaking on Friday.

Using Social Media to Collect Debt: If You Can Navigate the Ethical Minefield, It Works 5% of the Time

A new trend in lawyer Continuing Legal Education are seminars advocating use of Social Media to Collect Debts. The seminars either advocate for social media as the tool of the future or caution that it is an ethical trap for debt collectors.

It’s a hot issue in debt collection. NPR did a story on this last year, and the Federal Trade Commission recently conducted a “Debt Collection 2.0” workshop on the issue. Frankly, it’s such a new issue that the Fair Debt Collection Practices Act (FDCPA) doesn’t exactly fit, but it’s close.

It’s definitely a trap for the debt collector, especially given that the FDCPA seems to apply to all communications, regardless of whether it’s a letter, e-mail, or friend request. Does a creditor have to identify themselves as a debt collector under the Act in an initial friend request? Does the friend request (i.e. an “initial communication”) have to be followed by the Act’s required debt validation warning (15 USC 1692g)?

I have no idea. My philosophy is, when in doubt about ethics, choose the safe route. Here, the safe route is avoiding affirmative contact but, if the profile is public, then by all means use whatever you can publicly find.

Just yesterday, I was trying to locate a defendant who had disappeared–all of the searches kept going back to his old house, where the residents swore he no longer lived. But, I found an online profile for him on Map My Walk, a site that allows people to track their running and walking routes. You can guess the rest: everyday, his walks started and ended at the address that I had, providing confirmation of his address (and what time he was home in the afternoon).

At one time, I saw social media as the future of debt collection, especially in the early days of social networking sites (Myspace, Friendster, early Facebook), when people didn’t think twice about privacy settings. Now, people are more savvy about online privacy. (And it’s not necessarily to dodge debt collections–it’s more likely to avoid the boss seeing your party photos.)

Even though people can post pictures of their new car or brag about their promotion at work, most people know better. But, not everybody knows better–and, if they are going to put it online where anybody can see, they can’t complain when a debt collector finds it.

My final take? It’s not the wave of the future in collections. It’s a box to check in the process, but not the solution to finding debtors or their assets.

Proposed Tennessee Legislation Seeks to Alter Liability for Attorney’s Fees and Expenses in Litigation

An interesting bill, House Bill 1156, Senate Bill 651, is making its way through the Tennessee legislature, which will radically shift the risks of litigation by awarding litigation costs and “reasonable and necessary attorney fees” to the prevailing party, even where no agreement to pay such fees exists between the parties. Today, the legislation passed in the House Judiciary Subcommittee–unanimously.

This would be very different than the current law. As it is now, a party cannot recover attorney fees in Tennessee litigation unless they have a written agreement granting the right to recover those fees or unless they sue under a statute that expressly provides those rights.  Absent either of those, a creditor can’t recover attorney fees.

This bill, which would be the new Tenn. Code Ann. 20-12-119, awards “reasonable and necessary attorneys fees” (as well as other litigation expenses) in civil cases to the “prevailing party” (as long as the party did not hire its counsel on a contingency fee basis). The text says that the “judge shall” grant this recovery–it’s not discretionary.

The ability to recover attorneys fees is a big deal in litigation, as the potential of paying for the other side’s lawyers is often a detriment to prolonged fights. On creditor actions, especially smaller claims, creditors often base their decision on whether to sue on whether they can recover their expenses. Without that, the cost of suing on debts and small claims doesn’t make sense.

This proposed legislation is certainly a drastic change to Tennessee practice and, as much as I think it would benefit creditors in general, I question the fairness of the law. Frankly, litigation isn’t always “Right Versus Wrong,” and matters sometimes get tried not because of stubbornness, but because there is no clear answer to an issue. To award fees in such disputes without any such agreement seems unduly punitive.