Words Matter: Language In Retainer Agreement Bars Recovery Of Fees Incurred In Fee Arbitration Proceeding

     by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Words (pd)One of my favorite quotes from a judicial decision comes from the New Jersey Supreme Court in Atlantic Northern Airlines v. Schwimmer: "Litigation proceeding from the poverty of language is constant." I have never understood this to be a knock on the drafter. Rather, I understood it to mean that no matter how carefully you choose your words you can never make a contract, agreement, or other document litigation-proof. You see examples of this nearly every day in the daily decisions, including in the Appellate Division's recent decision in The Law Offices of Bruce E. Baldinger, LLC v. Rosen.

Baldinger involved a dispute between a law firm and its former client over attorney's fees. Defendant retained plaintiff to represent him in connection with a dispute with a contractor over work performed at defendant's home. Plaintiff and defendant entered into a retainer agreement that included an initial flat fee of $1,200 followed by hourly billing. The retainer agreement also dictated that interest at the rate of 1% per month would be charged on any unpaid balances after 30 days. The retainer agreement also contained the following provision, which is most important to our story: "If collection and enforcement efforts are required, you agree to pay counsel fees along with costs of suit." This would become important later on.

After about a month, defendant "became dissatisfied with plaintiff's representation and terminated plaintiff's services." Defendant had already paid the $1,200 flat fee, but plaintiff demanded that he also pay an addition $4,308 for work performed by plaintiff up to that point. Defendant refused to pay.

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“Here’s the mail it never fails . . . :” Judge Posner Criticizes “Rhetorical Envelopes” In Which Judicial Opinions Are “Delivered To The Reader”

by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Judge (pd)[Apologies for the Blue's Clues reference in the title to this post.]

In his concurring opinion in a recent Seventh Circuit decision — United States v. Dessart — Judge Posner agreed with the majority's conclusions, but wrote separately to express his "reservations about some of the verbal formulas in the majority opinion." He did not "criticize the majority for reciting them" because, as he noted, they are "common, orthodox, even canonical." But he did criticize the "verbal formulas" themselves as being "inessential and in some respects erroneous" and thus, he urged, "ripe for rexamination."

What were the "verbal formulas" that Judge Posner was so keen to criticize? Just some of the legal standards that we see recited in opinions every day. For example, the commonly-used "abuse of discretion" standard, of which Judge Posner appears not to be a big fan. In his concurring opinion, Judge Posner noted that the majority defined this standard as including "among other missteps, 'material errors of law.'" This apparently did not jibe with Judge Posner's understanding of discretion and its abuse, as he explained:

Of course, material errors of law are potentially very serious, but what has that to do with discretion or its abuse? Common as the term "abuse of discretion" is in opinions dealing with appeals from district court decisions, I find it opaque. If the appellate court is persuaded that the trial court erred in a way that makes the trial court's decision unacceptable, it reverses. What has discretion to do with it? And "abuse" seems altogether too strong a term to describe what may be no more than a disagreement between equally competent judges – the trial judge and the appellate judges – that the appellate judges happen to be empowered to resolve as they see fit.

Similarly, he challenged the majority's similarly well-settled statement that an appellate court, when reviewing a trial court's decision to issue a search warrant, must afford that decision "great deference." (Among the issues in the Dessart case was whether a search warrant was supported by probable cause.) Judge Posner acknowledged that the standard comes from a Supreme Court decisions holding that "[a] magistrate's determination of probable cause should be paid great deference by reviewing courts," but questioned it nonetheless. First, he questioned why "great" deference should be afforded to such decisions since "warrants [are] usually issued by the most junior judicial officers – and often police or prosecutors can shop among magistrates for one who is certain or almost certain to respond affirmatively to a request to issue a warrant." Second, Judge Posner noted that "[n]othing in the [Fourth] amendment requires warrants – ever," therefore it was not fair, in Judge Posner's opinion, to conclude, as is often concluded, that the Constitution expresses a preference for searches conducted pursuant to warrants or to afford great deference to a trial court's decision to issue one.

Continue reading ““Here’s the mail it never fails . . . :” Judge Posner Criticizes “Rhetorical Envelopes” In Which Judicial Opinions Are “Delivered To The Reader””

Is A Locked, Fenced-In Parking Lot A “Structure”? It is in New Jersey.

by:  Peter J. Gallagher (@pjsgallagher)

I was in law school during the Bill Clinton/Monica Lewinsky drama. When the pundits seized on Bill Clinton's grand jury testimony about what the "meaning of 'is' is," I recall one of my professors saying that lawyers make distinctions like that every day. In practice, I have learned that this is true. At depositions and in court, lawyers often argue over the meaning of certain words that most people would think are fairly uncontroversial. Sometimes these arguments are more for the sake of argument than anything else, but often they are crucial to the issues in the case, like in the recent New Jersey Supreme Court decision in State v. Olivero.

In Olivero, defendant was convicted of third-degree burglary for stealing metal printing rollers used in printing presses from a fenced-in lot that was adjacent to a warehouse. Defendant and his brother cut the chain and padlock that secured the fence around the lot before driving in and taking the rollers. Unfortunately for them, a security guard noticed that the chain and padlock had been cut and called the police, who arrested defendant and his brother as they attempted to drive out of the facility.

Under New Jersey law, "A person is guilty of burglary if, with purpose to commit an offense therein or thereon he . . . enters a structure." A "structure" is defined as "any building, room, ship, vessel, car, vehicle or airplane, and also means any place adapted . . . for carrying on business." At trial, defense counsel argued that defendant could not be found guilty of burglary because the lot was not a "structure." The trial court rejected this argument, holding that the fenced-in area was "a prohibited space not open to the public, as well as a place for carrying on . .  business." The Appellate Division affirmed, noting that the lot was secured from the public.

Continue reading “Is A Locked, Fenced-In Parking Lot A “Structure”? It is in New Jersey.”

Today at SCOTUS – [Insert Bad Fish Pun Here]

by: Peter J. Gallagher (@pjsgallagher) 

 In an interesting case this morning at the US Supreme Court, the Justices will be asked to determine whether a fish is a “tangible object.” No. Really. That is the issue in Yates v. United States.

The Sarbanes-Oxley Act, which was passed in the wake of the Enron scandal, makes it a crime to “destroy, mutilate, conceal, or cover up any record, document, or tangible object” with the intent to obstruct a federal investigation. It is unlikely that Congress had fish in mind when it passed the Act, but this is nonetheless the federal law that was used to convict John Yates — captain of the Miss Katie, a commercial fishing boat out of Cortex, Florida — for throwing 72 red grouper that were allegedly below the legal limit back into the ocean.  

 

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“Swimmers Only Between Flags” (Or The Problem With “Plain Meaning”)

by: Peter J. Gallagher

 

Here is a link to one of my articles that was recently published on Law360.com.  The original title was "'Swimmers Only Between Flags' Or The Problem With 'Plain Meaning'" but the editors shortened it by removing the part about the swmmers. The sign that inspired the article (if "inspired" is not too obnoxious) is at the top of this post, and here is the opening paragraph of the article:

I was at the beach recently and passed a sign that read “Swimmers Only Between Flags.” Being a lawyer, I could not simply nod knowingly at the sign and keep walking. Instead, I thought: “well, that is ambiguous.” Did it mean that swimmers were only allowed between the flags (and not outside them) or that only swimmers were allowed between the flags (and not, for example, surfers or boogie boarders)? I mentioned it to my wife, who told me to make sure I put sunscreen on the kids. But, the sign stuck with me that day, and again when I read the Supreme Court’s recent decision in Abramski v. United States (No. 12-1493), a decision that involved competing interpretations of the “plain meaning” of a statute regulating the purchase of guns.

I hope you enjoy the article.