Tag Archives: Litigation

The Importance of A Spot Check

22 Wednesday Apr 2015

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Organizational charts are utilized for many purposes, one of which is it ensure the clear understanding of delegated responsibilities and to whom those responsibilities fall to within the company. President Harry Truman famously had a sign on his desk that read “The Buck Stops Here”, telling America that at the day’s end, the responsibility is his. No finger pointing, no more delegating, just responsibility. The statement is in stark contrast to the well-used phrase “passing the buck”, or said differently, pointing the finger to someone else to take blame for a problem.

While we trust our employees tasked with particular responsibilities will complete them without the need for oversight, it would be naïve to think even the best of employees: (i) do not make mistakes; or (ii) may be unknowingly following an improper course of action. The process of spot-checking your employees and policies, from human resource, compliance or other supervisory position, can exponentially limit your company’s potential liabilities.

By way of example, your human resource department has many responsibilities, from conducting due diligence on new hires to ensuring employee conduct falls in line with the law and the company’s work environment policies. This group is undoubtedly pulled in many different directions.

When a complaint is filed by a former employee against the company, one of my first meetings is with the human resource manager. It is critical to understand the path of the former employee before and during employment with the company.   It is just as important to understand the company’s policies regarding particular conduct of its employees and who is responsible for ensuring the proper implementation of the policies.

And here is where spot-checking comes into play to protect your company. Staying with the human resources example, someone should be taking the time on a regular basis to speak to various members of the department and ask them particular questions regarding the company’s policies.   Someone should be tasked with ensuring those responsible for overseeing and implementing the company’s policies actually know the policies and the applicable law.

The last thing you want is to learn, after a complaint has been filed against your company, its policies are outdated or worse, on point but regularly ignored.   While this responsibility may not be yours now pursuant to the company’s organization chart, it certainly will be once the litigation is a new file on your desk.

The Law Offices of Barry M. Bordetsky represents parties before state and federal courts as well as arbitration forums. If you have questions about an issue you are involved with, please contact Barry Bordetsky at (800) 998-7705 or email barry@bordetskylaw.com.  Nothing herein is a guarantee of results.

Don’t Do It . . .

21 Friday Mar 2014

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I have written in the past of the importance for party to a lawsuit to organize documents to present to his or her attorney. This streamlines the process for both the client and attorney, regardless of whether the documentation is gathered before filing a claim or is to be used in the defense of the claim.

This is a process a person should do, but certainly is not required to do.  There are certain things a party to lawsuit should never do, one of which is to destroy documents that relate or refer to a claim or defense.  There is perhaps no greater wrong a litigant can do just before or in the course of a litigation.

Courts do not tolerate this behavior and have a variety of sanctions they can assess against a party that destroys evidence, regardless of whether the evidence is an actual item, document or an electronic file (including emails).  For those instances where the destruction is deemed by the court to be intentional or willfully and/or grossly negligent, courts will dismiss complaints or strike answers and defenses.  In other instances courts will issue orders calling for an adverse inference.  An adverse inference is an instruction to the jury that they may draw a negative inference as to the content of the destroyed items or why the items were destroyed.  By way of example, if a party is being sued for defamation (communication of a false statement that harms another) and the person being sued deleted emails, the court may instruct the jury they may make the adverse inference the emails were deleted because they contained defamatory content.

When it comes to documents stored on a computer or emails on a server, before pushing the delete button, before cleaning your hard drive or accidentally misplacing a computer, think twice, because what you believe will protect you will most likely be the undoing of your case.

Attorneys in most states are required to issue what is called a “Litigation Hold”, which is an instruction to any party, either contemplating a lawsuit or named as a defendant in a lawsuit, to maintain any and all documents relating to the case and to make sure things such as email auto deletion programs are turned off.   Parties to a lawsuit, however, should use common sense and not wait for their attorney’s instruction to do the same.  Before deleting or destroying anything, speak to your attorney first to avoid summarily destroying your case or defense.

If you have questions regarding any of the issues addressed in this blog, please email or call The Law Offices of Barry M. Bordetsky at (800) 998-7705 or email at barry@bordetskylaw.com.

Where Are You Going: Arbitration or Court?

11 Tuesday Mar 2014

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The charge goes out from the client: Sue Them!   Doing the due diligence before drafting a complaint the attorney discovers an agreement between the parties that permits the claim to be filed before an arbitration forum or court.

So where to go?  Choosing which forum to commence the proceeding can prove critical to the case.  The importance of the forum analysis cannot be overlooked.  Factors to be considered include the amount of time it will take to have the trier of fact (judge, jury or arbitrator) render a decision, the type of discovery that will take place in each forum and the costs associated with each forum.

Arbitration includes a generally expedited process where a claim is heard within a year or eighteen months after the filing of the claim.  Conversely, a court proceeding can last from one to three years. Generally no depositions or interrogatories are permitted in the arbitration process. In English, this means unlike a court proceeding a party in the arbitration process has no idea what the other party is going to say when called to the stand. Arbitration attorneys often call the process trial-by-ambush.

An advantage seen in the arbitration process, particularly for individuals as opposed to corporate parties, is the decreased cost associated with the diminished discovery permitted in the forum.   Discovery for an average commercial matter can be the most expensive part of a proceeding. Some, however, do not see the cost benefit of limited discovery.  If the potential claims are believed to be in the range of hundreds of thousands of dollars, then spending tens of thousands of dollars to ensure you acquire the relevant information to prove your case can be seen as money well spent.

Where a party chooses to litigate a case in court, the judge is randomly selected upon the filing of the complaint, where parties to an arbitration will select the arbitrators. This judge in the court case will determine issues ranging from discovery to substantive motions filed by the parties.  In most jurisdictions this will be the same judge that presides over the trial.  In the event a court renders a decision, whether on a pre-trial matter or on the decision from the trial, a party has a right to appeal the issue to an appellate court.

Like a judge, arbitrators rule on various motions including discovery motions such as motions to compel, motions to exclude as well as motions to dismiss certain causes of action.  These are heard prior to the arbitrators ruling on the merits of the case. Importantly, unlike a court proceeding, these decisions by the arbitrators are not immediately appealable.  Moreover, after arbitrators render their final decision, it is very difficult for a party to overturn, or vacate, the arbitration award.  Said differently, the appeal process in arbitrations is substantially more difficult than in court proceedings.

The decision of the forum is critical and should not be disregarded as inconsequential.  Prior to any filing, take the time to determine which forum is better for your matter.

The Law Offices of Barry M. Bordetsky represents parties before courts and arbitration forums. If you have any questions, please contact us by telephone (800) 998-7705 or by email at barry@bordetskylaw.com.

Help Your Attorney Help You

10 Monday Mar 2014

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All too often a party retaining a law firm moves forward with the belief the litigation costs will be minimal because the issues, from the client’s standpoint, are simple, straightforward and should not require a lot of work.  Except all too often simplicity is a mirage of a complicated and often times very expensive litigation.

Clients that provide the attorney with a clear road map of what did or did not happen do themselves, their attorneys and their case a great favor.  This process is done with the client preparing a written description of the facts as he or she sees the situation.  For every point supported by documents, provide those documents.  Don’t take this the wrong way, but it is our jobs as attorneys, playing devil’s advocate, to test your story, try to poke holes to test the points raised if for no other reason than to determine the viability and/or liability potentials of your case.  We will use your description and supporting documents to do that; don’t let us learn the case from the other side’s attorney.

This process begins before the first meeting with your attorney.  Take the time to go through your files and prepare for the meeting just as you would prepare for any other meeting where tens of thousands of your dollars are at stake.  And to be clear, this is the money that you could spend on your attorney to gather and review documents in the course of your case if you do not take care of the initial due diligence.

The lesson here:  avoid or minimize this cost by doing the necessary legwork.  Go through your files and copy (keep a copy of everything) all documents relating to the matter, putting the documents in chronological order to provide to the attorney.  Take the time to review your emails, utilizing relevant keyword searches that relate to all aspects of the issue and keep a log of the keyword searches.  Put the emails in chronological order and include the complete email string together with any attachments that were included in the message.  A key point: it is not your job to decide what is or is not important to a matter.  Give the attorney everything, tell the attorney everything.

What will this work do for you?  By providing an organized package of documents to your attorney (don’t write on the documents!) with a corresponding description of the facts and circumstances relating to your matter, explaining how the documents relate to the issue at hand, you provide a road map for your attorney to follow and understand your case at a much more cost efficient basis for you.  Give your attorney as much ammunition as possible to fight for you.