Fees. Certain federal
and state statutes provide for an award of attorney fees to the prevailing
party. State and federal standards
are identical. The “lodestar”
standard multiplies a reasonable hourly fee times the hours expended. If you are a plaintiff, make careful, accurate
and contemporaneous track of your time. If you have multiple claims or multiple clients,
indicate whether the task applies to all. If the task applies to only some claims or some
clients, specify this in your time entry.
are the defense, be aware of the substantial federal law which reduces
attorney fees because of only partial success.
The concept of “prevailing party” is not an all or nothing
Stephen C. Rathke
Lommen, Nelson, Cole & Stageberg PA
Discrimination. Younger employees are protected against
age discrimination in Minnesota and a number of other states. Although the U.S. Supreme Court has ruled that
the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §621, et
seq., does not prohibit age discrimination against younger employees,
the Minnesota Human Rights Act (MHRA)
was recently construed by the 8th Circuit Court of Appeals to provide
such safeguards. In General Dynamics Land Sys. Inc. v. Cline, 540 U.S. 581 (2004) the
Supreme Court, noting that the ADEA specifically applies to employees 40 years of age or older,
ruled that it does not prohibit preferential treatment of older employees
at the expense of younger ones. But
the 8th Circuit, in Ace Electrical Contractors, Inc. v. IBEW Local
292, 414 F3d. 896 (8th Cir. 2005) viewed the MHRA
differently. Affirming the
decision of U.S. District Court Judge Paul Magnuson, the appellate
court invalidated a provision of a collective bargaining agreement
that sought to maintain a ratio of one employee over 50 years of age
for every four employees under age 50 in the workplace. The court
reasoned that the Minnesota statute, which does not have an age threshold,
was intended to apply broadly to any discrimination on account of
age, whether favorable or unfavorable to older employees.
As a result, Minnesota joins a handful of other jurisdictions
that bar discrimination against younger employees under their own
state antidiscrimination laws. The
decision could have bearing on the hiring and firing of employees,
how employers advertise for positions, as well as perfecting decisions
regarding promotion, salary increases, and perhaps even severance
plans that are more beneficial to older employees or those with more
longevity in the workplace.
Marshall H. Tanick
Mansfield Tanick & Cohen, PA
Attorney-shopping Clients. Should you
take a client who is searching for their second, third or fourth attorney
for their pending family law case? It’s best to be very selective.
Inquire in detail about problems the client had with the former attorney
so you’re confident you can offer something more or different; otherwise
you too may disappoint the client. If you agree with the former attorney’s
approach, or can see that the client’s dissatisfaction is due to misunderstanding
why the former attorney did certain things, take the time to explain. I encourage such clients to try again with the
former attorney, both to save the expense of starting over and out
of respect for professional colleagues. I am no more magician than
any other attorney.
do agree to be a subsequent attorney, explain what you will try to
do in the representation and be sure to follow through with the plan.
Encourage the client to deal with the former attorney directly on
any fee disputes, complaints, etc., but make it very clear that you
will not get sidetracked into those issues. Focus on the case for
which you are retained.
Dewalt Law Office
Products Liability. Winning a defective
product case is never easy, but why make it more difficult by bringing
such a case in federal court? According
to recent research by Ned Miltenburg, senior litigation counsel for
the Center for Constitutional Litigation, PC (formerly ATLA’s
Legal Affairs Department), plaintiffs lose 70 percent of Daubert motions to exclude expert testimony. Moreover, Daubert
rulings are overturned on appeal only 5 percent of the time. Miltenberg’s
paper is available from Independent Counsel Resources, firstname.lastname@example.org.
Schneider Law Firm
Trust Fiduciary as Counsel. Many lawyers act as trustee or personal representative
for clients and also retain themselves or their law firm as counsel.
This dual role is permissible.
However, if the lawyer/fiduciary is asked by a beneficiary
or creditor of the trust or estate to also represent them in a matter
then the utmost caution should be exercised.
The issue of the lawyer serving as a fiduciary and concurrently
representing a beneficiary or creditor of the client’s estate or trust
was addressed in ABA Formal Ethics Opinion 02-426 (May 31, 2002). Given the potential for conflicts that this
arrangement poses it is recommended that the lawyer/fiduciary avoid
representing a beneficiary or creditor of an estate or trust while
the lawyer is serving as fiduciary, whether the matter is related
William S. Forsberg
Parsinen Kaplan Rosberg & Gotlieb