Washington Trial Law

Is a covenant not to compete reasonable?

Robert Boggs — Thu, 27 Oct 2011 09:19:18 -0800

In Washington all questions surrounding whether or not a covenant not to compete is reasonable involve the following three factors:

1. Whether restraint is necessary for protection of business or goodwill of the employer.

2. Whether the covenant imposes upon the employee any greater restraint than is reasonbly necessary to secure employer's business or goodwill.

3. Whether degree of injury to the public is such loss of the service and skill of the employee as to warrant nonenforcement of the covenant.

Knight, Vale and Gregory v. McDaniel, 37 Wn.App. 366 (Division II 1984)

iphone 4 now syncs with tasks

Robert Boggs — Thu, 27 Oct 2011 09:13:51 -0800

One of the shortcomings of the iphone 4 was it's inability to sync Outlook Tasks. Now the problem is solved. The software on the iphone 4 has been updated to OS5 and now syncs with Outlook tasks. You can download the new software via itunes.

Apps, apps and more apps.

Robert Boggs — Thu, 13 Oct 2011 08:37:59 -0800

Check this out for a list of apps useful for lawyers.

Blackberry no more!

Robert Boggs — Thu, 13 Oct 2011 07:38:19 -0800

I recently switched from my Blackberry to the iphone 4 and given the recent Blackberry blackout it was a good move. The iphone 4 is fantastic. The only drawback is that it will not sync with Outlook tasks. There is a work around for that but it is beyond my limited tech abilities. Once you switch to the iphone 4 you will never go back.

Keep those prospective jurors talking

Robert Boggs — Wed, 16 Feb 2011 17:42:06 -0800

Years ago when I was a young attorney I would cringe during voir dire if a prospective juror gave a negative opinion of anything that had to do with my case. I would either quickly move on to another prospective juror or try to convince the first juror that they were wrong. Those are the wrong things to do. You want that juror to talk and give you all the negative opinions they have without being afraid of those opinions. The opinions are information. They tell you how that juror thinks and that helps you to possibly challenge the juror for cause or make a wise preemptory challenge. The prospective jurors you should be afraid of are the ones that are quiet.

Federal Courts are hard on employment cases

Robert Boggs — Wed, 16 Feb 2011 17:19:23 -0800

It is common knowledge among plaintiff's employment lawyers the employment discrimination cases filed in federal courts have a short shelf life. It seems as though there isn't a federal judge who doesn't like a defendant's summary judgment motion. Most employment discrimination cases depend on inferences from the facts. That is, rarely do defendants come right out and say they are discriminating agains someone. Therefore, you have to resort to circumstantial evidence from which a trier of fact could infer that discrimination was taking place. Federal judges seem loathe to draw any inferences from the facts and therefor usually find that the plaintiff is wanting in her evidence. I have heard that the judges are "inference challenged." To see how long it takes to succesfully overcome this bias see the post here.

Employment Law: Third Party Retaliation

Robert Boggs — Fri, 11 Feb 2011 17:13:55 -0800

The U.S. Supreme Court last month ruled that a man that was fired just weeks after his fiance filed a sex discrimination claim had standing to bring a retaliation claim. The man and his fiance worked for the same employer. The case is Thompson v. North American Stainless. Normally a retaliation claim can only be brought by someone that is engaged in protected activity. That is those who file a claim, report discriminatioin or somehow assist in the claim. The man had done none of those things. His only connection was that he was the fiance to the woman who filed the claim. To prove retaliation it must be an action that "well might have dissuaded a reasonable worker from making or supporting a charge of discrimination." Firing the worker's fiance certainly fits that bill but that still only makes it a claim that can be made by the person who engaged in the protected activity. Justice Scalia comes to the rescue by ruling that the man came within the "zone of interests" protected by Title VII and therefor he had standing to bring the claim. In the language of the statute he was a "person aggreived". On the one hand that seems to be a stretch, but on the other hand he is the one who was fired and to not give him a claim would undermine Title VII.

Deposition Skills

Robert Boggs — Thu, 20 Jan 2011 17:00:06 -0800

To hone up on your deposition skills I highly recommend the DVD (it also comes in CD) entiled "Deposition Techniques: Strategies, Tactics and Skills" by David Markowitz. You can order the DVD here.

FRCP 30(b)(6)

Robert Boggs — Thu, 06 Jan 2011 09:37:10 -0800

If you are taking or defending a 30(b)(6) deposition remember that there are two different sets of court opinions on the scope of a 30(b)(6) deposition. The majority opinion is that the questioner can ask any question permitted by FRCP 26. The minority opinion is that the questioner can only ask questions relating to the specific areas that were designated in the notice for the 30(b)(6) deposition. So before taking or defending a 30(b)(6) deposition take the time to find out whether your federal circuit or your state courts follow the majority or minority opinion. If your jurisdiction follows the minority rule your best option, if you are noting the deposition, is to set forth in your notice the areas upon which you expect the witness to be prepared to answer in the broadest terms possible.

PDFs

Robert Boggs — Wed, 05 Jan 2011 17:46:06 -0800

If you want to learn about Adobe Acrobat and how lawyers put it to use go to Ernie Svenson's blog: "PDF for Lawyers - Smart tips for busy lawyers and legal professionals". This is one blog where I find myself going through not only the recent posts but also the archived posts. There is plenty to learn from this blog.

One Question

Robert Boggs — Tue, 04 Jan 2011 15:06:17 -0800

The next time you are preparing for a deposition think of the one question you would ask the deponent if you only had one question to ask. This should help you focus on what it is that you want out of the deponent. Also, you might find out if you actually start asking that one question at your depositions that your depositions will be much more productive and efficient.

Watch your language

Robert Boggs — Mon, 03 Jan 2011 17:20:28 -0800

I happened to run across an old posting at Litigation & Trial. The post is labeled "How To Write Your Brief So That The Judge Will Hate You" and can be found here. I think it is well worth reading. It seems to me that the language (sarcasm and sniping at the opponents) found in the brief that is quoted in the article is all too common. My first thought was that the next time I see such language in an opposing brief I would find a way to point it out to the judge, but on second thought it seems that one can "point it out" simply by not doing it your own brief and the stark contrast should say all that is needed.

Some rules to remember

Robert Boggs — Thu, 16 Dec 2010 11:56:18 -0800

There is only one reason that a lawyer can instruct his/her client not to answer at a deposition and that is if the question requires the deponent to disclose privileged communications. So, if you are dealing with an obstreperous attorney who keeps instructing the witness not to answer have Washington Civil Rule 30(h)(3) or FRCP 30(c)(2) memorized. Both rules state that instructions not to answer are limited to issues of privileges. There are however situations where the attorney conducting the deposition may be using the deposition to harass his opponent or for some other nefarious reason, but the aggrieved attorney cannot just instruct the client not to answer. In that situation the aggrieved attorney must make a motion either by getting the court on the phone or walking out with the intention of filing a motion to terminate or limit the deposition. Washington CR 30(d) and FRCP 30(d)(3).

Hostile Work Enviornment

Robert Boggs — Tue, 14 Dec 2010 15:17:20 -0800

This is for the lay readers out there in the blogosphere. I often get calls from potential clients who want to sue their employer for a "hostile work enviornment". When I question them further it usually turns out that their supervisor is a real jerk and is creating a hostile work enviorment. Unfortunately, I have to tell them that I cannot help. The term "hostile work enviornment" has been tossed around in the public without an important qualifier. That is, a cause of action exists only if the enviorment is hostile and the hostility is directed at a member of a protected class because the person is a member of that protected class. Protected classes are classes based on race, religion, gender and so forth. Basically it is a cause of action based on discrimination. Perhaps some day they will come up with a cause of action aimed solely at bosses that are jerks -- we could call it a "boss-ectomy".

Female on Male Sexual Harrasment

Robert Boggs — Mon, 18 Oct 2010 16:36:54 -0800

Female on Male Sexual Harrasment really does happen and these cases can be won. See Ellen Simon's recent post.

Constitution Day

Robert Boggs — Thu, 30 Sep 2010 07:43:51 -0800

You may have missed it. September 17th was Constitution Day. This says it all!

Recession Increases Employment Discrimination Claims

Robert Boggs — Mon, 27 Sep 2010 08:53:38 -0800

Turns out that a downturn in the economy does increase legal work in some areas. See the WSJ Law Blog from last Friday.

The Point?

Robert Boggs — Fri, 02 Apr 2010 16:42:38 -0800

There is a post at the New Legal Writer about immediately getting to the point in memorandums and motions. If the point or your position doesn't become clear until the fifth or sixth page you are wasting time. I have heard a lot of cases as an arbitrator and can attest to the fact that starting right off the bat with your main point or position is very helpful. If I read six pages into the memorandum and then I am told the point, I have to go back to the beginning to read the first five pages so that I can analyze those pages in reference to the main point. Without knowing the point the only thing going through my mind is, "What is this all about?" If I know the point right off the bat then I am reading the first five pages thinking about whether or not he or she is proving their point. That way is much more efficient and it makes the arbitrator or judge's job easier and if you make the judge happy then you might just get edge over your opponent.

Gear

Robert Boggs — Thu, 01 Apr 2010 17:25:47 -0800

One of my hobbies is photography. A common subject in books and magazines on photography is what gear and work flow does the author of the book or some well known photographer use. This kind of information often is a great guide in sorting out what equipment you should or shouldn't have. If you learn that Joe the Famous Photographer uses the cheapo wide angle lens instead of the $2,000 version you can scratch that more expensive lens off of your wish list.

Gear and work flow have now hit the attorney world. There is a very interesting post here at Ernie the Attorney on those subjects. Included in the post is a link to a pdf document that lists and explains his work flow and the equipment he uses. If you ever wonder why in the world you would want to use a certain type of gizmo, you might find out in a post like that. I hope there will be more from other blogging attorneys in the future.

Twitter?

Robert Boggs — Wed, 07 Jan 2009 21:45:14 -0800

As you can see from the date of my last post I have been on another planet for awhile. More on that in a future post. Having returned to earth I have discovered this thing called Twitter where you can create a text message of no more than 140 characters and then send it out to a few or a million recipients. Today I read a post at Deliberations (the post was old - I have a lot of catching up to do) that reporters are sending "tweets" from the court room giving blow by blow reportage on jury trials. Even the Spokesman Review in Spokane is into the act. For those who like to watch jury trials this will be like listening to a baseball game on the radio - well almost.