Plaintiff’s Lawyers Using Freelance Attorneys

Many plaintiffs’ lawyers shy away from or simply aren’t accustomed to using freelance attorneys because ultimate recovery is uncertain. Because freelance attorneys, typically compensated by the hour, must be paid regardless of ultimate recovery, contingency fee lawyers may see only risk. But there are many situations where hiring a freelance attorney makes sense and even creates advantages for the plaintiff’s attorney. 

Maybe you are a solo practitioner thinking of expanding into a new practice area, but you don’t have the time or full-time staff to evaluate the merits of a prospective new case. A specialized freelance attorney can give you a cost effective, concise evaluation of whether you should take the case on a contingency fee basis. This evaluation can include, in addition to applicable law, jury verdict research and opposing party and counsel research. By avoiding a fruitless case early on, you can save money and increase your knowledge of how to evaluate similarly situated prospective clients and cases in the future.

Or perhaps you need to build a library of form pleadings, motions, and briefs to use in the future. An experienced freelance attorney can create time-saving templates for complaints, motions to remand, and oppositions to demurrers that anticipate the most commonly used defense arguments. For example, if you’re getting into wrongful foreclosures, you’ll be facing removals to federal court at every turn. A freelance attorney can create a template motion to remand that takes into account the familiar arguments, which you can conveniently revise as needed.

Because plaintiffs’ bar attorneys are frequently opposite large defense firms with seemingly limitless resources, the contingency fee attorney is already at a disadvantage. You have a big case and know you’re going to get hit with countless discovery and pre-trial motions. You could work your one associate (and yourself) to death, or you can take a long-term view of management and bring on a freelance attorney to assist during busy periods to give you a much-needed temporary boost. In exchange for a high volume of work, you may be able to negotiate a reduced rate.

Major motions often present difficult issues for the smaller firm, especially if you are already spread too thin. If you receive an anti-SLAPP motion, motion for summary judgment or demurrer, possibly with no less than 30 cases cited, what are your options if you already have 5 depositions and two mediations scheduled between now and the opposition filing date? There are simply not enough hours in the day to give an important motion the attention it requires. You can hire a freelance attorney to give you a polished opposition ready for filing, or you can have your staff pull the major cases cited in the brief, create a first draft, and let an experienced freelance attorney revise and polish it. If it helps you defeat the motion and avoid settling for a nuisance sum, isn’t it worth it?

Many times small firms and solo practitioners must focus on a high-value case, but cannot neglect the professional duty to prosecute the smaller cases. Instead of letting them collect dust – an omission which might affect your professional reputation and create unhappy clients – you might consider spending a few hundred dollars to keep your cases moving.  In the long run, it might be less expensive than losing clients and/or your reputation.

Finally, nearly every lawyer encounters a possible appellate issue.  But should you file a writ? Or should you appeal the judgment? These are specialized questions with many considerations, including costs, burdens, relative merits and likelihood of success. You can handle it yourself and hope for the best, can co-counsel with another firm at a high hourly rate to handle the appeal, or you can bring in a much more budget-friendly freelance appellate attorney to help you weight the merits and handle the drafting.  This may be a worthwhile investment if it means you get another shot at settlement or trial.

There are many instances where bringing in outside help may seem costly and risky at first glance, but there are also significant risks in not doing so where there really is a need.  Freelance lawyers provide flexibility and cost-effective assistance to contingency lawyers so that you can get the best recovery for your clients.

The Statute of Limitations for Medical Malpractice Cases Can Be Tolled

The statute of limitations requires that a professional negligence claim against a healthcare provider (aka medical malpractice) be brought within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury. (Code Civ. Proc. § 340.5.) However, Code of Civil Procedure § 364, subd. (a) also provides that “[n]o action based upon the health care provider’s professional negligence may be commenced unless the defendant has been given at least 90 days’ prior notice of the intention to commence the action.” Thus, it is critical to serve this Notice of Intent to Sue prior to filing suit.

A common situation occurs when the plaintiff serves the CCP § 364 notice of intent to sue within 90 days of the expiration of the one-year statute of limitations on a medical malpractice claim. What happens then? Well, CCP § 364, subd. (d) provides:

If the notice is served within 90 days of
the expiration of the applicable statute of
limitations, the time for the commencement
of the action shall be extended 90 days
from the service of the notice.

The California Supreme Court has held that the legislative purpose of section 364, subd. (d), is “best effectuated by construing section 364(d) as tolling the one-year statute of limitations when section 364 (a)’s ninety-day notice of intent to sue is served during, but not before, the last ninety days of the one-year limitations period. Because the statute of limitations is tolled for 90 days and not merely extended by 90 days from the date of service of the notice, this construction results in period of 1 year and 90 days in which to file the lawsuit.” (Woods v. Young (1991) 53 Cal.3d 315, 325.)

Thus, if a plaintiff serves her CCP § 364 Notice of Intent to Sue during the last 90 days before the expiration of the one-year statute of limitations, the plaintiff will have 1 year and 90 days from the date the statute of limitations begins to accrue to file her medical malpractice suit.

To illustrate, assume that the medical malpractice claim accrued on August 1, 2014. The one-year statute of limitations would ordinarily expire on August 1, 2015. On July 1, 2014, which is within the 90-day period prior to the one-year expiration of the SOL, plaintiff serves her CCP § 364 Notice of Intent to Sue on the healthcare provider defendant(s). Because plaintiff has served the Notice, she now has a total of 1 year and 90 days from the date the claim accrued on August 1, 2014, to file her lawsuit. Since one year and 90 days from August 1, 2014 is October 30, 2015, plaintiff must file her lawsuit on or before October 30, 2015.

Disclaimer: Note that laws are subject to change. Furthermore, the individual details of your case may affect your statute of limitations. The date that a claim “accrued” is often disputed, as well. It is best to have an experienced lawyer analyze your case. This blog post does not constitute legal advice.

What’s Appealable in a California Family Law Case

Shadow of Fighting Couple

In California, the right to appeal is conferred exclusively by statute. Code of Civil Procedure section 904.1, the primary statute addressing appealability, allows for appeal from a final judgment, an order after judgment, or “an order made appealable by the provisions of the Probate Code or the Family Code….”

Generally, the one final judgment rule applies to civil cases and provides that unresolved issues prevent a judgment from being final for purposes of appealability. Family law cases often constitute an exception to the one final judgment rule because of the prevalent practice of bifurcating discrete issues for separate trials. For example, an initial judgment dissolving the marriage may reserve jurisdiction over additional issues such as property division, support obligations, custody, and visitation.

If a separate judgment conclusively resolves the bifurcated issues, the judgment is appealable. However, determining whether a ruling on child custody or visitation constitutes a final judgment is not so clear. This is because children mature, parents may wish to move domiciles, children’s and parents’ schedules often change, and so on. Nevertheless, the conclusive nature of a ruling can render it a “judgment” for purposes of appealability even though children’s needs and parental fitness may change.

Finality for purposes of appeal depends on the substantive effect of the family law court’s ruling. When the court has conducted a trial and makes a conclusive ruling intended to adjudicate all pending issues of custody and visitation, the ruling constitutes a final judgment. (See In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1088.) In family law cases, the question of appealability is often more fact-intensive and complex than in other civil cases. An attorney can help you determine whether an order or judgment in your family law case is appealable.

Are California Attorneys Obligated To Return Inadvertently Disclosed and Potentially Privileged Materials?

Return to Sender

There is no Inadvertent Disclosure rule found in the California Rules of Professional Conduct. In the absence of California authority, courts have looked to the ABA Model Rules, and the ABA Formal Opinions interpreting them, as well as the ethics opinions of other jurisdictions or bar associations for guidance. (City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal. 4th 839, 852; Rule 1-100(A) of the Rules of Professional Conduct of the State Bar of California.)

ABA Model Rule 4.4(b) addresses the inadvertent disclosure issue and states:

(b) A lawyer who receives a document
or electronically stored information
relating to the representation of the
lawyer’s client and knows or reasonably
should know that the document or
electronically stored information was
inadvertently sent shall promptly notify
the sender.

 Thus, the receiving attorney is not required to return the inadvertently disclosed material. Whether the attorney should return the email and/or attachments is a matter left to the attorney’s judgment. (See ABA Model Rules Prof. Conduct, Rule 4.4, Comment [3] (“Some lawyers may choose to return a document unread, for example, when the lawyer learns before receiving the document that it was inadvertently sent to the wrong address. Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer.”).) Thus, absent a court order, an attorney is not under a legal obligation to return inadvertently disclosed material. Of course, the receiving attorney should consider agreeing not to review any of the potentially privileged material until a court can rule on the matter.

* Please note that laws can change. These blog posts do not constitute legal advice.

Pros and Cons of Using An Appendix, Rather Than A Clerk’s Transcript, In An Appeal

An alternative to using the clerk’s transcript is to prepare and file an appendix under Rule 8.124 of the California Rules of Court. Within 10 days of filing the Notice of Appeal, the appellant must file his or her intention to proceed under Rule 8.124, along with a Proof of Service on each of the other parties. The appellant gives notice of his or her intention by checking box “1(b)” on the first page of the Appellant’s Notice Designating the Record on Appeal form.

Advantages of using an appendix may include:

More control over presentation of the record on appeal. For example, you can designate portions of documents or exclude Proofs of Service from documents in the appendix. Along with control, you can also make it more user-friendly by using tabs or ensuring that documents are not split between two different volumes.

More control over the timing of the briefing schedule. When you use an appendix, the brief and appendix are due approximately seventy days after the Notice of Appeal is filed if proceeding without Reporters’ Transcripts. If proceeding with Reports’ Transcripts, the opening brief is due within 40 days from their filing. Generally, Reporters’ Transcripts become available more quickly than Clerk’s Transcripts. When you choose to proceed using a Clerk’s Transcript, you must wait for the Superior Court clerk to prepare the Record on Appeal, which could take up to a year.

Disadvantages of using an appendix may include:

Additional time and labor spent choosing and compiling documents, formatting the presentation, and indexing the appendix. In addition to all documents necessary for the consideration of issues in the appeal, the appendix must also include a chronological index of all of the items in the appendix and an alphabetical index of all of the items in the appendix.

Potentially more copying and binding costs.

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