A Recipe For Implementing a Diversity and Inclusion Program in Any Law Office

This article has been republished by permission of the Cleveland Metropolitan Bar Association

By Sanford E. Watson

This article is written for those committed to starting or maintaining a diversity and inclusion program within their law office. I have not yet met the lawyer who disagreed with me about the business case for diversity. But when the discussion turns to implementation, concerns about costs, consultants, and staffing tend to make the way forward less clear. This stone soup recipe offers a simple and effective way forward for starting a diversity and inclusion program.

The Story of Stone Soup

stone-soup2Stone Soup is a very old folk tale. Different versions of the story can be traced back to Africa, Asia, and Europe. In all versions of the story, a traveler arrives in a village seeking food and lodging. The traveler goes from house to house in search of a meal but he is turned away at every door.

The traveler then goes to the village square, where he builds a fire, fills a large kettle with water, and places the kettle over the fire. He removes a common smooth stone from a velvet bag and begins to polish it as if it were made of gold. A curious villager comes along and asks the traveler what he is cooking. The traveler proclaims that he is making the most delicious stone soup and offers to share it if only the villager could contribute something to the kettle. Intrigued, the villager hurries home, and returns in matter of minutes with a bunch of carrots.

Another villager comes along and has a similar conversation with the traveler, and returns with some meat. The conversation gets repeated over and over again until the traveler has added to the kettle a bounty of meat, produce, and spices. The group of villagers anxiously awaits a chance to taste the stone soup, and when the soup is done, they feast long into the night reaping the benefits of contributing to the pot and working together.

The Key Ingredient

The key ingredient in stone soup is the stone. The “stone” in every diversity and inclusion program is the boss – the managing partner, partner in charge, or law director. The law firm are top-down organizations. If the boss or leadership team makes a visible commitment to diversity and inclusion, others are more likely to follow. Exponentially, the more that law firm partners make a visible commitment, the more law firm associates in staff will follow.

A visible commitment may include something as simple as participating in one of the firm’s diversity in inclusion activities. Visible commitment can also be demonstrated by serving on the law firm’s diversity in inclusion committee, taking a leadership role in a bar association diversity and inclusion initiative, or severe on the board of a civic organization that promotes diversity and inclusion. By making a visible commitment in whatever form, the leader sets the example for others to follow. Once the stone is introduced, making stone soup is easy.

Prepare a Shopping List               

Prepare a shopping list of diversity and inclusion best practices to customize your soup recipe. Rest assure you need not create this list from scratch. Best practices for diversity and inclusion are easily accessible from many sources for free and many are available on the web. Here are a few examples:

  • Minority Corporate Counsel Association (MCCA) publishes research publishes research on its website that covers a broad range of diversity topics and best practices. MCCA is not limited to covering issues of race; it also covers issues related to gender, generation, LGBT, and work – life balance, among other diversity and inclusion issues. MCCA also identifies best practices for law departments as well as for law firms. The most important note about MCCA is that much of its research is free and available for public access on its website. See mcca.org.
  • The Defense Research Institute ( DRI ) offers a Diversity and Inclusion Manuel that includes a list of best practices of any law office can implement. See dri.org.
  • The National Association of Law Placement ( NALP ) also offers a Diversity Best Practices Guide that covers a broad range of topics beyond recruiting. See nalp.com.

Once you have survived a number of websites, group the best practices into categories. Many of the websites will have already put them into categories. The most common categories are ( 1) leadership and accountability, (2) recruiting, (3) diversity training, (4) mentoring and retention, (5) work-life balance, (6) affinity groups, (7) pipeline programs, and (8) supplier diversity.

Take Inventory

Take inventory of the best practice ingredients in your cupboard. Before you go shopping, you need to know what best practices have already been implemented in your office. Compare these ingredients with your shopping list. Use this exercise to evaluate what your firm has already accomplished. It will also identify diversity and inclusion categories where attention is needed. In those areas requiring attention, the list will provide ideas of new best practices to adopt.

Add Programs from the Village

Before creating any programs from scratch, consider joining the ones available in your village. For those law offices in your local village (of Northeast Ohio ), the bar associations have a number of excellent programs. Most notably, the Cleveland Metropolitan Bar Association (CMBA) provides a number of diversity and inclusion programs. CMBA’s Diversity Career Fair is a great recruiting tool. CMBA also offers pipeline programs worth exploring, including the Minority Clerkship Program, 3Rs Program, and Louis Stokes Scholars Program. Other business organizations such as the Greater Cleveland Partnership Commission on Economic Inclusion provide diversity researches to the entire business community including law firms. Other organizations such as the Diversity Center of Northeast Ohio provide a broad array of services. One of the biggest advantages to having a local village with diversity and inclusion programs is convince of simply signing up rather than having to create a new program.

Optional Ingredients

Diversity and inclusion conferences and seminars are an option for training and continuing legal education. These conferences can be a great source of cutting-edge best practices and a forum for the exchange of ideas. Some conferences offer networking and client and career development opportunities for women, minority, and LGBT lawyers.

Some of these conferences are hosted by organizations primarily dedicated to diversity in the legal profession including MCCA, the Leadership Council on Legal Diversity, Center for Legal Inclusiveness. Many national bar associations have diversity committees of their own and offer quality diversity and inclusion programing. Finally, there are affinity bar associations –both locally and nationally – that support and address the unique interest of their members. Some examples are Corporate Council Women of Color, National Asian Pacific American Bar Association, National Bar Association (locally the Norman S. Minor Bar Association), National Hispanic Bar Association, and National LGBT bar Association.

Finishing the Soup

How stone soup is finished depends upon the culture, size, and resources of the law firm. The beauty of this recipe is its simplicity. It is up to each law firm or law office to figure out which ingredients fit its best practice needs and add them to the pot. Once you figured it out, you’ve got stone soup.

Stone soup is an economical way of getting started. Because hiring consultants or diversity and inclusion professionals can be so costly, it is not part of the basic recipe; however, consultants do play a valuable role in shaping diversity and inclusion policy. They may be the best resource for training – particularly unconscious bias training – because they are independent of the organization being trained. Some diversity and inclusion consultants can do it all, including making stone soup.

At Tucker Ellis, we started our stone soup using the basic recipe. Taking inventory for the first time was rewarding because in highlighted all of the things we were doing right. We also found our culture of community service made joining CMBA pipeline programs and working with students a natural fit each year, we take inventory and as we change as a firm, our recipe for stone soup changes. The most important thing was making the commitment to get started by making stone soup.

Sanford E. Watson is a partner with Tucker Ellis LLP where he practices in the areas of business litigation, medical products liability, and public law.  As chair of the Tucker Ellis Diversity Committee and through his community and bar association activities, he works to improve the diversity of the legal profession.  He has been a Cleveland Metropolitan Bar Association member since 1996.  He can be reached at (216) 696-2385 or sanford.watson@tuckerellis.com.

 

 

New Court Reporting Documentary Debuts at SXSW Festival in Austin

A new documentary about court reporting will debut at the SXSW Festival this weekend in Austin, TX.

The documentary, titled For the Record, is built around the effort of Mark Kislingbury to break his own Guinness World Record as the fastest court reporter on Earth.

The documentary also takes a look at the culture of court reporting and where the industry is heading.

Take a look at the trailer, and watch for Chuck Cady of Cady Reporting in Cleveland, OH at the six second mark in his trademark bright green shirt. To find out more about the documentary, visit the official website for For the Record.

 

Debbie Weaver, Midwest Litigation Services, Receives Enterprising Women of the Year Award

Debbie Weaver

Debbie Weaver

January 29, 2015 (St. Louis) – Enterprising Women, the magazine for women business owners, has named Debbie Weaver as a recipient of it’s 2015 Enterprising Women of the Year Awards, an annual tribute to top women entrepreneurs from North America and around the globe. Weaver will be recognized at the 13th Annual Enterprising Women of the Year Awards & Conference, March 29-31, 2015 at Disney’s Grand Floridian Resort & Spa in Lake Buena Vista, Florida, USA.

The annual Enterprising Women of the Year Awards is widely considered one of the most prestigious recognition programs for women business owners. Nominees must demonstrate that they have fastgrowth businesses, mentor or actively support other women and girls involved in entrepreneurship, and stand out as leaders in their communities. Many honorees also serve as leaders of the key organizations that support the growth of women’s entrepreneurship.

Weaver co-founded St. Louis-based Midwest Litigation Services, a court reporting and trial services provider, in 1988 with her late partner and mentor, Kelly Willis. With 49 full-time employees, 100 independent contractors, and 250 litigation service partners nationwide, Midwest has now expanded to 11 locations throughout Missouri, Kansas and Illinois providing seamless support service, regardless of client locations. Weaver currently serves as the President of the St. Louis Chapter of the National Association of Women Business Owners (NAWBO). The Small Business Administration named Weaver as “Small Business Person of the Year” in 2002 and in 2001 Weaver was selected as one of St. Louis Business Journal’s “Most Influential Business Women”. Weaver also received the prestigious Women’s Justice Enterprise Award from Missouri Lawyers Media in 2010.

“It is an honor to be recognized and included in this incredible group of talented women business owners, entrepreneurs and leaders from throughout the world. I look forward to meeting and networking with my co-honorees at the celebration in March. ”, said Weaver.

About Midwest Litigation Services: Headquartered in St. Louis, with ten additional regional offices and over 250 nationwide affiliates, Midwest Litigation Services provides comprehensive court reporting and transcription services, video conferencing, litigation support and advanced trial/ technology services.

About Enterprising Women Magazine: Enterprising Women magazine headquartered in Cary, NC, is celebrating its 15th anniversary in 2015. As the nation’s only women-owned magazine published exclusively for women business owners, Enterprising Women provides a friendly meeting place, a public forum, and an international stage for the critical issues confronting women’s businesses and daily lives, all from the unique perspectives and experiences of entrepreneurial women. To learn more, please visit, www.enterprisingwomen.com or call, 919-362-5151.

For additional information, please contact: Lisa Herder, Director of Business Development Midwest Litigation Services, Midwest Trial Services lherder@midwestlitigation.com

711 North 11th Street
St. Louis, MO  63101 (314) 754-7900

www.midwestlitigation.com

Professionalism in Depositions

The Importance of Local Practice and Common Courtesy

By Angela D. Lydon

Professionalism In DepositionsPRO HAC VICE Admission is an invaluable tool when a client seeks your counsel for an out-of-state matter. Normally, a review of the local rules and adherence to generally accepted practices are sufficient to enable a successful appearance. However, a recent case from the Northern District of Iowa illustrates that practicing in an unfamiliar jurisdiction can be far from straightforward. Even defending a deposition – an act which few seasoned lawyers would consider daunting – can have serious, unintended consequences for an outsider who does not understand the court’s (sometimes unwritten) customs and preferences.

The Security National Case

In Security Nat’l Bank Labs. Of Sioux City v. Abbott Laboratories, 2014 U.S. Dist. LEXIS 102228 (N.D. Iowa July 28, 2014), Judge Bennett recently sanctioned a well-respected, out-of-state lawyer for what he characterized as “obstructionist” deposition conduct. The opinion was noteworthy for several reasons, not the least of which is the fact that Judge Bennett took issue with counsel’s repeated use of “objections as to form” without offering any grounds for the objection. In Judge Bennett’s view, “form” objections are improper because they merely refer to a “category of objections” that includes leading, lack of foundation, assuming facts not in evidence, non-responsive answer, and witness’ answers that were beyond the scope of the question. According to Judge Bennett, “form” objections “are inefficient and frustrate the goals underlying the Federal Rules because they contain no information about a question’s alleged defect and make it difficult or impossible for a reviewing court to determine whether the objection was proper or frivolous.

Judge Bennett is not alone in his view that “form objections are inappropriate. For example, Cuyahoga County Court of Common Please Local Rule 13.1 provides: “Counsel may interpose an objection by stating ‘objection’ and the legal grounds for the objection.” Several judges agree that “form” objections merely refer to a category of objections. See, e.g., NGM Ins. Co. v. Walker Const. & Dev., LC 2012 U.S. dist. LEXIS 177161, at *2 (E.D. Tenn. Dec 13, 2012) (explaining that “form” objections refer to objections to leading questions, a lack of proper foundation, questions assuming facts not in evidence, and argumentative questions.”); Rakes v. Life Investors Ins. Co. of Am., 2008 U.S Dist LEXIS 10996, at *5 (N.D. Iowa Feb. 14, 2008) (permitting the objection “to state in a few words the manner in which the question is defective as to form(e.g., compound, vague as to time, misstates the record, etc.)”).

Conversely, many judges condone or even prefer the sue of unspecified “form” objections. See, e.g., Cincinnati Ins. Co. v. Serrano, 2012 U.S. Dist. LEXIS 1363, at *5 (D. Kan. Jan. 5, 2012) (objections to vagueness “should be limited to an objection ‘to form,’ unless opposing counsel requests further clarification); Druck Corp v. Macro Fund (U.S.) Ltd., 2005 U.S. Dist. LEXIS 16721, at *4 (S.D.N.Y. Aug 12, 2005) (“[A] ny ‘objection as to form’ must say only those four words, unless the questioner asks the objector to state a reason.”); Turner v. Glock, Inc., 2004 WL 5511620, at *1 (E.D. Tex. Mar. 29, 2004) (“All other objections to questions during an oral deposition must be limited to ‘Objection, leading’ and “Objection, form.”’); In re St. Jude Med., Inc., 2002 U.S. Dist. LEXIS 28020, at *5 (D. Minn. May 24, 2002) (“Objecting counsel shall say simply the word ‘objection’ and no more, to preserve all objections as to form.”); Auscape Int’l v. Nat’l Geographic Soc’y, 2002 U.S. Dist. LEXIS 16675, at *1 (S.D.N.Y. Sept. 6, 2002) (“Once counsel representing any party states, ‘Objection’ following a question, then all parties have preserved all possible objections to the form of the question.”)

This difference in opinion among judges may be attributed to the fact that the Federal Rules of Civil Procedure are far from clear on this issue. Rule 30 (c)(2) of the Federal Rules of Civil Procedure provides: “An objection must be stated concisely in a nonargumentative and nonsuggestive manner.” Fed. R. Civ. P. 30 (c)(2) (emphasis added). Rule 32 (d)(3) cautions that certain objections are waived if not timely made during the course of the deposition, including those objections that “relate [] to the manner of taking the deposition” and the “form of a question or answer.” Fed. R. Vic P. 32(d)(43) (emphasis added). The advisory committee notes add that “objections on grounds that might be immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer” must be made at the time of the deposition. Based on this language, “many lawyers – and courts for that matter – assume that uttering the word ‘form’ is sufficient to state a valid objection.” See Security Nat’l Bank.

Giving the conflicting precedent, Judge Bennett did not sanction the out-of-state attorney specifically for her use of “form” objections. Instead, he stated, “lawyers should consider themselves warned: Unspecified ‘form’ objections are improper and will invite sanctions if lawyers choose to use them in the future.”

Judge Bennett was not so tolerant, however, in addressing the attorney’s overall behavior during the deposition. Indeed, he sua sponte imposed sanctions on the attorney and her firm for obstructionist deposition conduct,” explaining that the improper “form” objections “amplified two other issues: witness coaching and excessive interruptions.” Judge Bennett explained that he was “shocked” by the out-of-state attorney’s hundreds of unnecessary objections and interruptions during deposition questioning. Most of the objections were meritless and often influenced the witnesses’ responses: “Counsel’s improper objections, coaching and interruptions went far beyond what judges should tolerate of any lawyer, let alone one as experienced and skilled as counsel.”

Local Implications of the Security National Case

Cuyahoga County Court of Common Pleas Judge Michael P. Donnelly shares Judge Bennett’s desire to curb unprofessional conduct during depositions. Judge Donnelly is committed to advancing the ideals of professionalism throughout all facets of our legal system. To that end, he is a member and (and two-time former chairman) of the Ohio Supreme Court’s Commission on Professionalism.

Judge Donnelly noted that the Ohio Supreme Court’s Commission on Professionalism considers unprofessional conduct during depositions a serious and growing problem. In his opinion, unprofessional deposition conduct not only adds unnecessary delay and expense to litigation, but also erodes public confidence in attorneys and the entire judicial system. He expressed his disappointment over the fact that YouTube has become riddled with videos showcasing unprofessional attorney conduct during depositions.

In an effort to deter obstructionist deposition conduct, the commission published the “Do’s and Don’ts of Depositions.” Ohio Supreme Court Commission on Professionalism, Professionalism Do’s and Don’ts: Depositions, http://www.supremecourt.ohio.gov/Publications/AttySvc/Depositions.pdf (last visited 9/26/14). This publication begins: “If there is one area of the practice of law that consistently gives rise to an inordinate number of complaints about lack of professionalism, it is the area of depositions.” The guidelines include the following: (1) do arrive on time; (2) do be prepared, having multiple copies of all pertinent documents available; and (3) don’t “engage in conduct that would be inappropriate in the presence of a judge.” Cuyahoga County Local Rule 13.1 (I) incorporates these guidelines and conveys the expectations that “all attorneys practicing before the Court … adhere to the best practices contained in this document.”

Judge Donnelly and Judge Bennett agree that judges must demonstrate their willingness to sanction attorneys for unprofessional and improper deposition conduct. Judge Donnelly stated that ‘it is incumbent upon the bench to take a stand against obstructionist discovery conduct.” Similarly, Judge Bennett wrote in Security Nat’l Bank that “[u]nless judges impose serious adverse consequences, like court-imposed sanctions,” these discovery abuses will continue to occur because obstructionist discovery tactics will continue to succeed.

However, Judge Donnelly believes professionalism is a shared responsibility; “Attorneys must also be willing to stand against unprofessional deposition conduct.” He advises attorneys to create a record of all unprofessional conduct that occurs during depositions. An accurate record enables the court to take corrective action, if necessary.

Judge Donnelly also urges attorneys to keep the court apprised of discovery disputes. He believes judges must remain accessible to the attorneys practicing before him or her. To that end, he makes it a priority to be available to litigants during all phases of litigation, including discovery. While most judges, including Judge Donnelly, frown upon discovery disputes, it is often easier to call the court to resolve an issue during a deposition rather than engage in costly and time-consuming motion practice thereafter.

In conclusion, the Security Nat’l Bank opinion serves as a useful reminder: Not only are attorneys required to zealously represent their clients, but they are also required to uphold certain professional standards. The importance of becoming familiar with local practice and using civility and respect during depositions cannot be overstated.

Angela D. Lydon is an associate in Frantz Ward’s Litigation Practice Group. Angela handles a broad mix of general litigation issues, including business torts, breach of contract and warranty claims, and products liability. She has been a CMBA member since 2012. She can be reached at (216) 515-1670 or alydon@frantzward.com

Angela would like to thank Hon. Judge Michael P. Donnelly of the Cuyahoga County Court of Common Pleas for donating a substantial amount of time to answering her questions and offering his invaluable advice and opinions for use in this article. Judge Donnelly has been on the bench since 2005. Prior to serving as a judge, Judge Donnelly was in private practice and served as an assistant county prosecutor.

This article has been republished with permission by the Cleveland Metropolitan Bar Association.

The Death of Business Casual

by Robert Madelmayer 

It boils my blood to see how some “men” get dressed in the morning and head to work. The baggy shirts, ill-fitted pleated khaki pants and square-toed shoes with thick rubber soles; business casual is dead.

Enough.

Years ago, men from pretty much every profession would get suited up daily and head to work. The popular AMC show Mad Men does a good job depicting the modern male dress code in the 1960s. They looked sharp, well put together, and professional. These guys killed the game back in the day.

the-death-of-business-casual

Somehow though, we have lost our way.

What happened?

I’ll tell you what happened … the dot-com era happened. In the late 1990s and early 2000s, tech companies started to hire younger talent. This younger workforce didn’t want to wear suits and ties like their fathers did, and these companies recognized that. So, they loosened up the dress code in order to entice this younger workforce to join corporate America. The problem is that men became increasingly lazy and they started to care less and less about what they wore. This slippery slope brings us to where we are today, and it’s a mess.

Going-out-of business casual looks like this.

The Death of Busienss Casual

Take a look around next time you head to the office or go out for lunch during the week. These men are everywhere and people think its okay to leave the house looking like this.

Exposed undershirt. Ill-fitting button down, and pleated pants. Cell phone holster. Square-toed shoes. All of it needs to go.

 

When it comes to professional attire, there is a Catch-22 for guys. If a guy leaves the house too well put together, he runs the risk of people thinking he is some sort of hipster metrosexual (which is fine if you are, but not every well dressed guy should feel this way). If a guy leaves the house looking like he just left a party, he is a slob.

So, now what?

The Death of Business Casual

There is nothing more versatile than a well-tailored blazer, nice jeans, and a crisp button down. This combination is quite literally the backbone of any mans wardrobe, assuming he takes his style serious. It’s a youthful look, but when done right, you can blend into pretty much any social scene.

Meeting a client? Check.

Happy Hour after work? Check.

Date night? Check.

More importantly than what you are wearing though, is how it fits. Women pay attention to these kinds of things and the Modern Man should do the same. Men should have (at the very least) a basic relationship with a tailor they trust. If you don’t know where to start head to this site to find one near you.

Don’t want to spend a ton of money on a bunch of new clothes? No problem. Grab a handful of shirts, and a few pairs of pants you already own and have them tailored. It will feel like you have a brand new wardrobe. I promise.

You can’t look bad if you look good.

 

Reach Robert via Twitter, Instagram and LinkedIn

 

Give the Reporter a Hand to Get a Clean Deposition Transcript

by Julie Brook, Esq.

This material is reproduced from the CEBblog™, Give the Reporter A Hand To Get A Clean Depo Transcript, (http://blog.ceb.com/2014/12/15/give-the-reporter-a-hand-to-get-a-clean-depo-transcript/) copyright 2014 by the Regents of the University of California.  Reproduced with permission of Continuing Education of the Bar – California.  (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).

give-the-court-reporter-a-hand-to-get-a-clean-deposition-transcriptWhen you’re taking a deposition, you know that ensuring a complete and accurate record is vital. So don’t take the person who’s dutifully taking down the proceedings for granted: Assisting the court reporter is not only polite, it might be the key to a clean depo transcript to use at trial.

Helping the court reporter starts even before the deposition begins by

  • Showing up early to organize documents for convenient reference and mark them as exhibits.
  • Giving the reporter a copy of the case caption so the transcript will include the correct case name and court number.
  • If the deponent is an expert, offering the reporter a written glossary of unusual terms that will be used during the deposition.

Once the deponent and other counsel show up at the deposition, you can help the court reporter by identifying everyone there, including the party each counsel represents.

During the deposition, help out the reporter by:

  • Spelling technical words or proper names into the record;
  • Controlling the examination so that two people aren’t talking at once (and if they do, ensuring that the reporter records the deponent’s statements before others’);
  • If you’re working with a relatively inexperienced reporter, making sure he or she understands that interrupting the examination to ask for an answer to be repeated is preferable to guessing at what was said;
  • If you are uncertain whether the deponent’s answer was recorded correctly, asking the court reporter to read back the last question and answer and, if the answer is incorrect, asking the deponent to repeat the correct answer;
  • Checking in with the reporter at a break about any transcription problems; and
  • During unusually long or technical depositions, occasionally asking if the reporter would like to take a short break.

Dual Agency: A Hazardous Real Estate Practice

Douglas Whipple

Douglas Whipple

“Dual Agency” is a practice used
routinely in many residential real estate
transactions, and the liability risks often are
not recognized by the parties or the real estate
licensees (both agents and brokers). Many
licensees are ill-equipped to know how to
identify a conflict between the interests of the
buyer and the seller after the Dual Agency
Agreement has been signed and, when such a
conflict happens, how to proceed.

The potential hazard of dual agency
relationships has been recognized in the
industry for years but those warnings have
not necessarily been heeded. According to a
survey of legal issues conducted by the National
Association of Realtors® (NAR) in 2011, 57% of
respondents stated that the issue of dual agency
is the basis for a “moderate” or “high” number
of disputes, and more than 83% placed the issue
among their top three current legal issues. The
survey disclosed a belief that agents and brokers
do not understand dual agency. When the NAR
survey was conducted again in 2013, breach of
fiduciary duty lawsuits accounted for the largest
single number of residential real estate-related
court cases, including conflicts over the duties
owed in a dual agency relationship.

An excellent example of this legal minefield
is the recent case of Martha v. Black v. Stouffer
Realty, Inc. & Relic, Summit Cty. Common Pleas
Case 2010-11-7671. Conflicts arose between the
interests of the seller of a home in Richfield and
the buyer after they had signed a Dual Agency
Agreement. These conflicts served to posture the
Agent on the side of Seller and adverse to Buyer.
Eventually the transaction fell through. Seller,
disgruntled, sued Buyer for breach of contract.
Buyer in turn sued Agent and Broker for fraud,
breach of fiduciary duty and breach of the Dual
Agency Agreement. The jury returned verdicts
against Agent and Broker on all three counts
and the court entered judgment on the three
verdicts. This judgment was affirmed on appeal.
Black v. Stouffer Realty, Inc. & Relic, 9th Dist. C.A.
26550 (Dec. 26, 2013).

The Ohio Department of Commerce Division
of Real Estate publishes a standardized form
that defines “dual agency” and provides a list of
actions that the licensee shall and shall not take,
outlined by R.C. 4735.57(B). A dual agent may
not, among other things, advocate or negotiate
on behalf of either party or engage in conduct
that is biased on behalf of either party.

By signing the Real Estate Purchase
Agreement, Seller and Buyer had expressed their
common objective to conclude the transaction.
Agent thus perceived her fiduciary duty to
the parties as doing whatever was necessary
to consummate the transaction. But a dual
agent’s obligation is more complex than this.
Agent’s misperception resulted in considerable
conflict, trouble and expense for all concerned
— particularly for Agent and her Broker.

The transaction was peppered with mistakes
by Agent from the beginning. Buyer testified
that only after she had submitted her initial offer
on the Purchase Agreement form did Agent
present Buyer with the Dual Agency Agreement
form, stating authoritatively “Oh, I have this
form you have to sign. This is so I represent both
the buyer and seller fairly.” Buyer was under the
impression that signing the document was a
requirement — not a choice.

By this point in time Agent should have
presented Buyer with the “Consumer Guide to
Agency Relationships.” OAC 1301:5-6-05; R.C.
4735.56(D). At trial Agent admitted that failing
to give the Consumer Guide to Buyer until
weeks later was wrongful.

Buyer’s initial offer was $500,000, with the
deal being contingent on her ability to sell her
present home in Green. Seller formulated a
written counteroffer of $515,000, and delivered
this counteroffer to Agent. However, Agent
never presented the $515,000 counteroffer to
Buyer. Agent instead presented a different
counteroffer to Buyer four days later, after
Agent and Seller secretly conferred with each
other. The revised counteroffer provided
for a purchase price of $510,000, with Agent
waiving $5,000 of her commission. It also
provided that the contingency clause would
be removed. When Buyer accepted the
revised counteroffer she did not know that the
original counteroffer had ever existed. Agent
concealed the initial counteroffer from Buyer
and suggested the revised counteroffer so as to
accommodate Seller’s afterthoughts about the
contingency clause.

An agent in a dual agency relationship
may not engage in any act of advising on or
advocating the price of the property — no
matter how well intentioned. Here, Agent
appreciated how important it was to Seller to
remove the contingency clause but ignored
how important the clause was to Buyer. Agent
was duty-bound to convey to Buyer, as Buyer’s
agent, Seller’s original counteroffer. Had
Agent done so, Buyer could have accepted the
purchase price of $515,000 and retained the
ability to terminate the transaction if she was
unable — in a soft housing market — to sell her
present home. Agent presumably understood
that the contingency clause was desirable to
Buyer and undesirable to Seller. Agent believed
that her willingness to waive some of her
commission to facilitate the transaction was
commendable; when in fact any effort by a dual
agent to influence an agreement on the price
terms is prohibited.

Another problem was the physical appearance
of the Purchase Agreement. Agents often
direct the parties to hand-write their offers
and counteroffers in the margins and spaces
of the original purchase agreement form. The
final version of the Purchase Agreement in this
case was virtually indecipherable due to the
numerous revisions that had been scribbled
throughout the document. The quagmire of
notations created ambiguity as to whether Buyer
was to make a down payment of $148,000 or
only $103,000.

Once the parties agreed to the terms of the
deal in principle Agent could have prepared
and had the parties sign a clean, readable
copy of the Purchase Agreement. This is what
most lawyers would do if finalizing a contract
containing countless revisions. Had Agent
done so the ambiguity would have come to light
and the parties could have resolved it early on.

The ambiguity as to the down payment, which
Agent could have prevented, was a major reason
why Seller sued Buyer for breach of contract.

Agent also crossed the line by trying to
facilitate financing. Because the purchase
of the property was no longer contingent on
the sale of Buyer’s home, Buyer sought to
obtain a mortgage loan. The bank’s appraisal
of the property came back at $25,000 less
than the $510,000 price in the Purchase
Agreement. Agent informed the loan officer
that she disputed the initial appraisal. Agent
requested that the initial appraisal be appealed
and supplied the loan officer with several
additional comps for consideration. But Agent
failed to obtain Buyer’s permission to pursue
this appeal.

As a result of Agent’s appeal, a revised
appraisal established a value of the property
that was even lower than the first appraisal —
$58,000 less than the purchase price. The loan
officer informed Agent that the revised appraisal
was controlling. Agent protested and suggested
that yet a third appraisal be obtained — again
without Buyer’s authorization.

At this point it was in Buyer’s best interest
to abandon the anticipated deal. Buyer had no
motivation to pay $510,000 for property that
appraised for $58,000 less. A loyal advocate
would have helped Buyer find a permissible way
to terminate the contract rather than continue
to pursue the transaction aggressively. The
positions of the parties were irreconcilable;
Seller wanted to keep the deal and Buyer wanted
to kill the deal. Agent could no longer serve the
interests of both sides.

The bank eventually denied Buyer’s loan
application based on the low appraisals. Agent,
still oblivious to the concept of neutrality,
promptly put Seller’s property back on the
market and served as dual agent for Seller and
the eventual purchaser of the property. When
all was said and done, Seller ended up with the
Agent and Buyer ending up with a Summons.
There were many times that Agent should have
informed Seller and Buyer of a conflict and
that she was unable to proceed in a manner
that was unbiased as to both parties. This
case is an important teaching tool for brokers
and agents as to their obligations to both sides
after the Dual Agency Agreement has been
signed. It demonstrates the sobering fact that
the principles of dual agency sometimes require
the licensees to notify the seller and buyer of
their right to terminate or revoke the agency
relationship. See, e.g., R.C. 4735.57(B)(7),
R.C. 4735.71(A) and R.C. 4735.72(E)(1).

Dual agency is not an effortless maneuver to
score a double commission; it fundamentally
changes the agent’s relationship with both
seller and buyer. For prospective sellers
and buyers, this case illustrates why they
should not casually consent to a Dual Agency
Agreement that an agent has asked them to
sign. The case demonstrates that brokers have
a responsibility to ensure that their agents
understand the Dual Agency Agreement well
enough to explain it to sellers and buyers and
to implement it conscientiously.

Lawyers ordinarily refuse to enter into dual
representation relationships with potentially
adverse parties; and once in such a relationship
they proceed with considerable caution. In
matters involving dual agency, the real estate
sales industry would do well to emulate the
laudable principle of restraint that is exercised
by the legal community. Real estate licensees, for
the benefit of their clients as well as themselves,
should not view the Dual Agency Agreement
as a routine practice but, rather, a contract
laden with serious risks that may outweigh its
potential value.

Douglas Whipple has been a civil
trial lawyer for 33 years, providing
legal services to businesses, families
and individuals. He represented the
Buyer in this litigation. Mr. Whipple
is a Life Member of the 8th District Judicial
Conference, and has been a CMBA member since
1982. He can be reached at Whipple Law LLC,
whipple-law.com, (216) 912-8479.

Boston Court Reporting Firms

Boston court reporters are helping law firms meet emerging challenges.

Boston court reporters are helping law firms meet emerging challenges.

Today’s legal professionals need every edge as they take on the complex cases that have become staples in today’s legal system. More cases, more clients, crowded court dockets, and less time have all become the norm for today’s attorneys, and they need technology to help them work at their highest level.

Boston court reporters can help lawyers who want to maximize their time and talents. These court reporting professionals offer all of the tools that today’s busy legal professionals need as they guide their cases from preparation to presentation in the courtroom.

Connectivity has enhanced our lives in many ways, and it has changed the way people work in many fields. New tools like videoconferencing, realtime reporting, and online repositories take advantage of connectivity as the cornerstone of a new way of working that can alleviate travel burdens and help lawyers work more effectively.

Even with all of the technology available, Massachusetts court reporters remain the reliable source for accurate and timely court reporting and transcripts that are crucial to attorneys’ work every day. These reporting professionals have also now evolved to bring innovative ideas and new technology into the work of legal professionals both in the area and across the country.

Court Reporting in Canada

Court Reporting In Canada

Keep your court reporter aware of special needs you may have.

by Kimberley Neeson

When conducting depositions in Canada, it pays to do a little research before booking a court reporting firm. What is considered the “norm” in your state or country may not be the “norm” in other jurisdictions.   Here are a few quick points to bear in mind:

  • In many provinces in Canada, stenography is not the method of court reporting. Many court reporting firms employ digital recording with monitors, and typists prepare the transcripts (and not necessarily the monitor who sat in your deposition!)
  • Court reporters do not have to be licensed in Canada in order to certify transcripts.
  • Court reporters who swear in the witness should have a Commissioner of Oaths from the province they are working in.
  • Rates differ dramatically from province-to-province and even city-to-city (think New York City rates versus Small-Town-USA rates, for example).
  • Qualified legal videographers are few and far between. Only a handful of videographers in Canada have actually obtained their CLVS certification.
  • The technological abilities of court reporting firms varies widely in most provinces. Some reporters still use WordPerfect 4.2 from the late 1980s in order to produce transcripts!

How do you locate a qualified court reporter and videographer in Canada?

  • Choose a reputable court reporting firm with affiliations to associations where they have been independently vetted, i.e. National Court Reporters Association, National Network of Reporting Companies, etc.
  • Ask what method of reporting your court reporter will be providing; in other words, if you need a steno reporter, make sure to ask for one and indicate that digital recording is not acceptable.
  • Ensure your court reporting firm can provide you with the tools you require to meet your needs; i.e. hyperlinked exhibits, synced video media, transcript formats that will work with legal software databases, etc.
  • Ensure your court reporting firm can meet your transcript turnaround deadlines; i.e. ask for a rate sheet that includes turnaround times in advance of booking.
  • Inquire whether conference rooms are available and complimentary; this is standard offering in most Canadian court reporting firms
  • For videography, inquire in advance if you can get your media on a DVD; you don’t want to deal with the old school VHS system!
  • Last but not least, because you are an out-of-country customer, ask if prepayment is necessary.

By creating a quick checklist of absolute musts for your court reporting and videography services, you’ll save yourself a nasty surprise in a location where “fixing” the problem will be very difficult, if not impossible, to achieve.

About Ms. Neeson:

With over 30 years of court reporting experience, Ms. Neeson has been at the forefront of the advanced technologies of reporting. She was one of the first reporters in Canada to actively use and promote realtime reporting in the litigation setting.

Ms. Neeson is a Registered Professional Reporter, a Certified Realtime Reporter, a Chartered Shorthand Reporter, a Certified CART Provider and a Certified Broadcast Captioner, and was recently awarded NCRA’s Certified Realtime Administrator designation in July 2011.

neesoncourtreporting.com

 

It’s Not What You Said, It’s What They Remember

It’s Not What You Said, It’s What They Remember

Video is one way to reach jurors using new media.

At trial, the key oftentimes is getting complex issues that the parties have lived with for years to be comprehensible and memorable for juries whose understanding of the issues start from scratch and may only last for a couple of weeks.

The use of demonstrative evidence has progressed from a simple poster board drawing to animation showing accident scene recreations, all with an eye to making an impression on the collective jury’s mind of what each advocate wants the jury to remember most.   An homage, perhaps, to the saying that “A picture is worth a thousand words.

That may be fine when the point to emphasize can be reduced to one or a series of images, but it becomes more challenging when the point can only come across from oral testimony.   Studies have shown that the brain dedicates approximately five times more space to remembering sound (echoic memory) than it does to what you see (iconic memory).   The key word here is “remembering.” The image can make complex concepts concrete and easier to understand, but the spoken word actually has a better chance of being remembered.

The good news is that there’s a readily available technology that not only can combine the aural and visual, but complements it with reading comprehension. When video and synchronized text is combined in the form of closed captions, you get as close to the perfect world in information retention as possible in a trial setting (if you could have the witnesses sing their testimony to the tune of “Mairzy Doats” it would be even better).

If you’re interested in learning more, contact your local NNRC Trial Presentation Expert and they’ll be happy to give you a demonstration on how you can make sure that the jury not only hears what you said, but remembers it.