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Proof of a Negative Not Required for Summary Judgment
Opinions |
2012/02/28 10:03
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The Indiana Court of Appeals has issued a decision that may have a large impact on summary judgment practice in Indiana. In Commr. of the Indiana Dept. of Ins. v. Black, ___ N.E.2d ___ (Ind. Ct. App. 2012), the Court essentially held that Indiana will apply the standard set forth in Celotex v. Catrett, 477 U.S. 317 (1986), at least in some circumstances.
Tim Black alleged that Dr. Harris and others rendered negligent care to his wife after she complained of chest pain. The negligence allegedly resulted in severe cardiac arrest and resulted in the need for a heart transplant. The medical review panel unanimously concluded that Dr. Harris failed to comply with the applicable standard of care.
After the panel decision, Black filed a petition seeking payment of $1 million from the Patient's Compensation Fund and asserted that he had settled with Dr. Harris for $250,000, thereby satisfying the qualifying amount to get to the fund. The Commissioner sought discovery of the settlement agreement but Black refused to produce it, saying it was confidential. Black did produce a copy of an unauthenticated check in the amount $250,000 from the Medical Assurance Co., made payable to Black and his counsel. Black also produced some correspondence between counsel that discussed a prospective settlement.
The Commissioner moved to dismiss the petition claiming that he needed the settlement agreement in order to make payment. It was not clear from the check whether the payment was for settlement with Dr. Harris or other defendants. The trial court denied the motion to dismiss and after conducting a hearing on damages, ordered the Commissioner to pay Black $1 million. The Commissioner appealed.
In considering the motion to dismiss, the Court of Appeals observed that matters outside the pleadings were submitted in support of the motion to dismiss and were relied on by the trial court. In light of this fact, the Court of Appeals, pursuant to T.R. 12(B), treated the motion as one for summary judgment. In a footnote, the court recognized that T.R. 12(B) requires that "all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56." Although no such "opportunity" was given, the court found there was "no prejudice" and proceeded to consider the appeal as a summary judgment case.
The court noted that the Commissioner's position on the motion required him to prove a negative?-that there was no settlement with Harris for $250,000. In Jarboe v. Landmark Cmty. Newspapers of Indiana, Inc., 644 N.E.2d 118 (Ind. 1994), the Indiana Supreme Court rejected the view that a party seeking summary judgment could simply point to the opponent’s burden of proof at trial and prevail unless the non-movant produced evidence supporting its claim or defense. This ruling has for many years been perceived as being at odds with Celotex, in which the U.S. Supreme Court reached a different conclusion under the federal rules. In 2000, Justice Boehm, in dissenting from a denial of transfer in Lenhart Tool & Die, Inc. v. Lumpe, 722 N.E.2d 824 (Ind. 2000), expressed the view that a party who puts forward evidence that a non-movant will be unable to present evidence to prove an essential element of its claim or defense, should be entitled to summary judgment if the non-movant fails to present such evidence. In Black, the Court of Appeals held: "Today, we accept Justice Boehm's views on this subject expressed in his dissent."
Having adopted this new standard, however, the Court of Appeals found that in this case, based on the unauthenticated check and the settlement correspondence, there was a genuine issue of fact as to whether a $250,000 settlement on Black’s claim against Harris had been accomplished. So, the Commissioner was not entitled to summary judgment. Black was also not entitled to a judgment on his claim since it was not clear that the required settlement with Harris for $250,000 had been consummated.
The Court held that the Commissioner is entitled to discovery of the settlement agreement and that the confidentiality term in the settlement agreement would not trump the Commissioner's right to such discovery. The case was reversed and remanded for further proceedings. |
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Law Firms Keep Squeezing Associates
Opinions |
2012/01/29 13:04
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Law firms are finally starting to recover from the recession, but they aren't taking their young lawyers along for the ride.
Even as profits return, cautious partners with one eye on damaged balance sheets and the other on stingy clients plan to hang onto the lean silhouettes they acquired during the downturn.
That means little relief for young associates—who took on hefty law-school loans, only to run into layoffs and stagnant pay in the years since 2008—and fewer chances for new law-school graduates to get in on the ground floor. And the elusive brass ring of partnership has grown more remote.
"What happens if Greece falls apart again?" says Greg Nitzkowski, managing partner at Paul Hastings LLP, an international firm that has reduced entry-level hires by about a third since 2008. "We just think it's prudent to plan as if this coming year is going to be a relatively flat year.…We're not planning for a big upsurge in demand."
Conditions at law firms have stabilized since 2009, when the legal industry shed 41,900 positions, according to the Labor Department. Cuts were more moderate last year, with some 2,700 positions eliminated, and recruiters report more opportunities for experienced midlevel associates.
But many elite firms have shrunk their ranks of entry-level lawyers by as much as half from 2008, when market turmoil was at its peak. Salaries and bonuses for those associates have remained generally flat. Meanwhile, a degree at a top law school can cost $100,000 or more.
Associates at prominent law firms say some of their peers hired during the boom years are happy just to have jobs at all. "The world has changed," says a senior associate at a top firm.
Read full article: http://online.wsj.com/article/SB10001424052970203363504577186913589594038.html |
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Law Firm Website Design Companies: The Good, The Bad, and The Ugly
Opinions |
2012/01/17 12:09
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At our law firm's most recent staff meeting, I was assigned the task of finding a law firm website design company for creation of a website for our firm. I've had previous experience researching companies online and I thought it would be simple to turn to Google and find the right website design company in a flash. As simple as it sounded, the task was not as easy as I thought it would be. In fact, I felt defeated after a few hours searching online.
While conducting an extensive research on law firm website design companies, it was brought to my attention that all website vendors will try to claim the title of being the "best". What exactly does that mean? I searched, I called, and I spoke with a wide variety of the "best" website design companies, only to have them set me back one step. For one, I was extremely confused when I asked one of the more important questions: PRICING. Many companies provided me a quote varying in range with monthly service fees and charges for unnecessary features. In my opinion, a website design should be a one time contract work. This means you own the website and the website development is paid for at once, not over a year or longer.
I found some law firm website design companies willing to charge you a whopping $10,000 in addition to a one year website contract that required a monthly fee. This fee covered their client's access to using their website's unnecessary bells and whistles. Cool? Sure! Well, that's if your boss doesn't have a problem with burning through your firm's budget. Some other law firm website design companies I ran into offered a "cheap" and more budget-friendly price around a few hundred dollars to develop a website. The only problem was that, well, we get what we pay for-- a cheap looking website. Their portfolio showed their client's website and immediately turned me away. Their design and development skills were far from something worth showcasing and reflected a mediocre and unprofessional look.To my disappointment, finding a good and reputable law firm website design company proved to be more than a few clicks away. I knew it would take a lot more time to find something that would appease my boss' standards. Initially, I was too shy to ask for a longer time period to finish this seemingly easy task. But after two weeks, I had sufficient time (just barely!) to gather all the information I needed to determine what features a good law firm website design company should possess.To save some of you in the same position a little time and grief, I would like to share some important components I felt were necessary in finding a good law firm website design agency.
The Good:
All good law firm website design companies should:
- Have specialized and skilled website designers in house. Experience is key in understanding the professional look needed for attorneys and their law firms.
- Have a user-friendly and reliable content management system (CMS) to update the website.
- Be familiar with all the latest Search Engine Optimization techniques in order to gain maximum potential for your website to rank at the top of search results.
- Offer a robust web-hosting and maintenance plan. Law firms are busy as it is and having the website design company not only host, but maintain the website is an absolute plus.
- Not charge for any unnecessary bells and whistles.
- Have reliable testimonials that can prove real client satisfaction.
- Provide good customer support service. Exceptional customer service should be all about the customer satisfaction. They should be able to answer all inquiries in a swift and thorough manner and reduce the technical website design jargon to a level anyone could understand.
- Charge you by project base (a straight forward, one time website design cost instead of monthly payments).
I know the pressing question on every one's mind is, well, how do you know? Spending extra money doesn't necessarily mean better. There were quite a few law firm website design agencies in this category, asking for a pricier sum and delivering decent products, however; there are reasonably priced website design companies who deliver even better websites. Of course, my opinion is mine. But if you want your investment in a website design company to be worthwhile, just heed my advice. Remember, I had to ask for an extension on my task in order to really understand what separates the good from the bad.
The Bad:
Just like there is yin to yang, black to white, and hot to cold, there unfortunately has to be the good law firm website design companies to the bad law firm website design companies. I don't know about you, but doing the research alone to complete my task took a lot of time. You know how that saying goes, "Time is money and money is time"? Well sure, this is one of the big differences from the good website design companies versus the bad website design companies.The bad law firm website design company:- Includes a contract that obligates you to pay an overpriced rate for a law firm website design or a technology license fee on a monthly basis. I personally don't like contracts. I mean, it binds me and limits my flexibility if I'm unhappy with a company's services. This can pose a problem later if you decide your business and law firm needs a change and want to part ways.
- Has many over-priced service fees. They will milk you with all kinds of unnecessary website features that you weren’t even aware of.
- Is able to deliver a decent website design layout but seem to get lost in their cookie cutter design elements. Every client's website may look clean and professional but lacks the uniqueness and branding of why clients should choose THEIR law firm instead of the firm across the street (whose website looks and repeats the exact same information as yours by the way).
- Shows poor SEO track records that give you a slim to none chance to rank at the highest position on top search engines like Google, Yahoo!, AOL and Bing.
Let's get down to the nitty-gritty and do a little math here:For the purposes of this article, we will be purchasing a website for a small firm with 20 attorneys and 2 offices. And if we break down the website design costs from the good and the bad, you can immediately see the major downfalls of the bad.The Good Law Firm Web Design Company: 1-time website design cost averaging $5,000 - from a reputable GOOD law firm website design company. And you get to own it!
The Bad Law Firm Web Design Company: An annual 1-year license cost averaging well over $6,000 that you must continuously keep paying on a year to year basis. If you do the math here, you can say you're wasting an incredible amount of money that can go to other marketing resources to help further your business. Since your website will end up costing you too much, you will have a limited budget for marketing campaigns through organic SEM or PPC.With that said, generally "bad" website design companies are hard to distinguish because they will deliver a decent product but in turn try to take advantage of prices. In this case, everyone should be cautious and careful. This especially may be a slippery slope for new start-up firms who believe that only the best law firm websites will be delivered by paying a huge amount of money. The Bad more than likely will result in a poor return on investment. To prevent getting stuck with the bad law firm website design company there is a golden rule to remember: just because it's out there, doesn't mean it's the best! Don't get sucked into paying for overpriced fees for a law firm website design that may not even be the best.
The Ugly
And (finally!) we get to talk about the law firm website design company that has every aspect of just plain ugly. No matter how much you end up paying for it - or even if it's completely free - don't be a victim of building a law firm website that will make your firm look "unsophisticated", "inexperienced", and "out-dated". Yes, these words usually do a good job of scaring off potential clients who come to visit your website. Many potential clients will walk away and go to other law firms that they see as better competitors. However, it's surprising to see how many law firms still go along with ugly law firm website design companies. Some think having any website would benefit their business, but little do they know... it is doing quite the opposite.Business is all about status and if you have a law firm website that costs your business because it's ugly?...well, that is literally just UGLY.
Most people are always on the go, have minimal time to fit everything in their schedule and are not patient. Web users form first impressions of web pages in a matter of 50 milliseconds, according to researchers. Human beings are very visual creatures, so in a blink of an eye, we will make an instantaneous judgment of a websites "visual appeal". We like things that are aesthetically appealing and through the "halo effect", first impressions can color subsequent judgments of perceived credibility, usability, and professionalism. Ultimately these factors influence a web user's purchasing decisions and whether we want to use your law firm to represent our needs.First impressions count immensely in the legal industry and should be considered in law firm website design. If the website design is difficult to read, intrusive, or poorly signposted, your visitors will go elsewhere. We've all experienced trying to navigate through a less-than-friendly website and reading a screen that strains your eyes versus printed paper. We get impatient quick- it's because we're only human!Remember, law firm websites are all about providing information and services, not for over-the-top advertisement!
Below are what some typical ugly website designs for law firm websites would consist of:
- Excess usage of generic graphics; basically this constitutes anything you can find in clip art like Lady Justice, the gavel or scales of justice.
- Text that is too small to read
- Multiple items that blink or animate - this causes too much distraction!
- Text crowding against the left edge
- Text that is stretched all the way across the page
- Multiple frame scroll bars in the middle of a page
- Unclear and overly complex navigation
- Poor color combination of text and background that make the text hard to read
- Orphan pages - where given links do not link back to where they came from and give no identification
- Any website design look that is extremely out-dated and looks as if it were dug up from a late nineties time capsule
A clean, professional look is a MUST for law firm websites - don't get sucked into the ugly website category that will cost your business (even if it's FREE!), I like to view ugly websites comparable to that of a parasite, where the website design company benefits at the expense of your law firm and business. In this case, your law firm is being harmed. Some elements make a law firm website design good, some make them bad, and some make them ugly.
The great line between these elements can determine whether your website is:
- Interesting or boring
- A good design or bad design
- Has good color or bad color
- Has a good layout or bad layout
- Is imaginative or unimaginative
Though my research was fairly time-consuming, I did my due diligence and have found one particular law firm website design company that stood out from the competitors. “Law Promo" impressed me with their eye-pleasing design skills, SEO capabilities, customer service and overall pricing, and was the agency that I recommended to my firm.
I urge you to do your own research and wish you the best of luck on your law firm website design company search and here I leave you with my two cents on what separates The Good, The Bad, and The Ugly in the world of law firm website design.
Business Development Manager
Jessica S. Murray |
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When is a Person an Employee of Another?
Opinions |
2011/07/19 09:40
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On July 19, 2011, the Indiana Court of Appeals issued a decision which I found surprising in McCann v. City of Anderson, ___ N.E.2d ___ (Ind. Ct. App. 2011), Cause No. 48A02-1009-PL-1060. At issue was whether a trial court had properly granted summary judgment on the question of whether a warrant officer was an employee of the Anderson City Court. Despite the procedural posture of the case and factors that weighed in favor of finding an employer-employee relationship, the Court affirmed a decision granting summary judgment to the defendants.
In this case, McCann was a police officer, who eventually became warrant officer for the Anderson City Court in 1998. He held that post until 2005, when the judge asked that McCann be reassigned. As a result of this dismissal, McCann filed suit based on the Indiana Wage Statute, arguing that he had been an employee of the Court and was entitled to funds that had been allocated to the position of warrant officer by that court. The parties filed cross-motions for summary judgment and the trial court granted the defendants' motion.
On appeal, the Court quoted GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind. 2001), for the seven factors that a court should consider when determining whether an employer-employee relationship exists. The Court then analyzed each of these factors and determined that three weighed in favor of the existence an employer-employee relationship and four against, with the "most important" factor weighing against.
Thus, over all, four of the seven factors, including the most important, "Control over the Means Used," indicate McCann was not an employee of the City Court. Because the City Court was not McCann's employer, he cannot be due any "unpaid wages" from the City Court. Therefore, he cannot assert a claim against the City Court under the Indiana Wage Statute.
The aspect of this decision that is most surprising is that the Court reached this conclusion despite the procedural posture of the case. It could have easily held that, viewing the facts in the light most favorable to McCann, the seven factors weighed both for and against a finding of an employer-employee relationship between McCann and the City Court created a genuine issue of material fact. This indicates that the factor the Court identified as being "most important", whether the purported employer exercised control over the means used by the purported employee to perform work, is very important indeed.
Lesson:
1.It will be exceedingly difficult to prove the existence of an employer-employee relationship if the purported employer did not exercise control over the means that the purported employee used to perform his work.
Brad A. Catlin
Price Waicukauski & Riley, LLC
http://www.indianalawupdate.com/entry/When-is-a-Person-an-Employee-of-Another |
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Court Shows It Is Serious About Appellate Procedure
Opinions |
2011/06/10 23:42
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On June 8, 2011, the Indiana Court of Appeals demonstrated it is serious about enforcing the Rules of Appellate Procedure in Garrard v. Teibel, Cause No. 45A04-1003-PL-229, a memorandum decision, uncitable as authority under App. R. 65(D). In this case, a pro se appellant failed to include any statement of the case after 2007 (although summary judgment proceedings occurred in 2009) and failed to include any of the designated evidence from the summary judgment proceedings in his appendix. The Court found that the pro se appellant had waived all arguments on appeal and affirmed the trial court's order.
Lessons:
1.Although the Court cuts people a lot of slack in the form and content of their brief, its generosity has bounds.
Brad A. Catlin
Price Waicukauski & Riley, LLC |
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| Law Firm Web Design Information |
| Law Promo has worked with attorneys, lawyers and law firms all over the world in designing beautiful law firm websites that look great on all devices, from desktop computers to mobile phones. Law Promo can construct your law firm a brand new responsive law firm website, or help you redesign your existing site to secure your place in the mobile world. Solo Practice Law Firm Website Design |
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