On the heels of my most recent Avvo post, over the past week, I received the following communications from an attorney who wishes to remain anonymous and who has had his own difficulties with Avvo’s bizarre rating and registration system.  My chief criticism, and why I primarily think it’s a scam, is because you can’t cancel your membership/registration (which is utterly ridiculous), and it’s a system which is biased against solo practitioners and small firms because of the amount of time and labor it takes to complete a profile.

Fri, Mar 19, 2010 at 5:33 PM

I would like to provide you with information on AVVO to update your blog.

I just rated a lawyer who did wonderful work for me and the rating was declined as not acceptable under AVVO’s “community standards.”  My clients have tried to rate me and their rating[s] have been declined.

AVVO gave me 1 star without knowing anything about me except that I had been disciplined for political activities during the farm crisis in 1986.  The discipline originated in Timbuktu and Xanadu was required to reciprocate.  The discipline in Timbuktu is over 20 years old, longer than either Mark Britton, AVVO’s founder, and Joshua King, AVVO’s in-house counsel, have even been practicing law.

I am attaching my CV for your information.

I look forward to sharing my research into AVVO with you. This organization claimed freedom of speech to avoid a damages claim at its inception.  There is now overwhelming information that AVVO libels lawyers and its secret “community standards”  prevent client ratings.  The ratings of Britton and King are from cronies.  These men have never litigated a single case as far as I can tell.

Thank you for assisting in the exposure of this scam organization.

Anonymous

P.S.  I have a telephone conference scheduled with AVVO’s general counsel Joshua King next week.  I refused to even talk to customer service.  I will keep you advised.

Tue, Mar 23, 2010 at 11:58 AM

I will be talking AVVO’s general counsel, Joshua King, tomorrow.  He is rated by his own company as 10:  Superb.  I will send you a complete posting for your blog after that.  You have my permission to post my recent e-mail to your blog and I would like to send you another posting after the discussions with Joshua King.  I am forwarding an e-mail discussion with one of my clients, who is a paralegal and an IRS-EA.  You might find it interesting.  I have deleted her name from the correspondence.

Tue, Mar 23, 2010 at 12:05 PM

Thanks so much, XXX!  Yours is one of 8 known reviews that was actually accepted by the system.  Most were rejected due to their internal “community standards” which are amazingly vague.  You will love this.  AVVO claims to be subjective, but the system rejects client ratings that are not objective.  They won class action lawsuit early in their existence claiming First Amendment rights because the federal court judge gave them a pass on being “subjective” and expressing their “opinion.”  Now, let’s get this straight:  they are “subjective” but client ratings must be “objective.”

Thu, Mar 25, 2010 at 2:45 PM

My legal assistant listened to the telephone conference between me and Attorney Joshua King and myself today.  He is also a computer programming expert and knows how algorithms are created.  It appears that Mr. King and Attorney Mark Britton created the algorithm based upon how they would rate themselves.  Please note that Mr. King is rated 10 and Mr. Britton is rated 9.5 on their subjective rating system’s algorithm.

Many fascinating admissions were made by Attorney King.   Suffice it to say for now that AVVO started out with a subjective rating system.  This was admitted in a U.S. District Court action in the Western District of Washington. See complete decision on link:
http://docs.justia.com/cases/federal/district-courts/washington/wawdce/2:2007cv00920/144356/18/0.html.

Attorneys King and Britton imposed their subjective system on all other attorneys objectively.  Some of what Mr. King told me is outright hilarious.  He certainly does not deserve his self-created rating of 10.  Among other things, his admissions clearly demonstrate both fraud and reckless disregard for the truth.

Anonymous

Although I’ve posted general client testimonials, and will continue to post them, I’ve avoided discussing details about specific client cases and disputes.

Besides, the valid and usual reasons of maintaining the confidentiality and credibility of negotiations and dispute resolution, and other evidentiary concerns, there are additional reasons to not get into specifics.

A client’s competitor or adversary may be able to identify a client by recognizing the facts or circumstances described, and they may use this information against my client.

Furthermore, client advocacy involves representing businesses before government agencies like the Equal Employment Opportunity Commission, the National Labor Relations Board and other similar federal, state and local agencies.  Plus, a lot of this work involves dealing with difficult employees, their representatives and other third parties.  Many of these third parties can be really difficult to deal with due to a lack of transparency in their conduct and labyrinthian rules which usually leads to seemingly arbitrary, illogical and capricious decisions.  In fact, sometimes a client and I can win or lose a dispute, and we may not even be clear as to why we won or lost.  This recently happened with an Illinois case where the judgment went against my client, but the monetary penalties assessed against my client were reduced by 99%!  We don’t know why, and won’t inquire lest we learn that they made a mathematical mistake.

Consequently, in order for my clients and me to maintain productive relationships with all of these parties, I’ve decided not to publicize in detail about the various disputes that we get into.   This way, I don’t risk vindictiveness against my clients due to exposure to their competitors, public embarrassment, vilification and the loss of bureaucratic anonymity.

In business, vindictiveness by third parties, including government agencies, employee side attorneys and unions, is crucial to avoid.  Some may argue that government personnel and other parties such as union representatives won’t be vindictive towards  clients who are small to medium sized businesses, or to solo practitioners like me.  Agencies and other parties won’t care about us because we’re too small to consider.  This isn’t true.

Even in a huge market such as Chicago, the labor and employment law community is relatively small and people get to know one another.  Maintaining a good reputation is crucial for effective client representation.  Consequently, even though I may aggressively, even zealously, pursue my client’s interests, and clients are willing to publicly testify to my ability to successfully represent them, I’m extremely careful as to how I discuss client matters on a public website.  I don’t want to represent a client and find out that my discussing of their case or dispute was detrimental to them.

On the other hand, when giving public seminars and workshops, I’m very candid about my dealings with these agencies and other attorneys.  Although I’m very careful about naming names, or divulging any identifying information, in some instances, I’ve been known to be openly critical of certain identified organizations.  If you’d like to find out how candid I’ve been, feel free to attend one of my seminars or contact me directly.

Of course, as I become more omnipotent and dominant in my field, I may change my position and use all of the information in my possession to crush everyone!  Kind of a Dwight Schrute thing I have going on!

On November 19, 2008, I was interviewed on Blog Talk Radio’s show the Recruiting Animal.

The Recruiting Animal interviewed me on a number of labor & employment law related topics germane to recruiters.  One topic seems to have created a MINOR controversy in the blogosphere.

The issue of ruse calling or “rusing” came up.  In the context of recruiting, this is when an HR person or recruiter (usually an external or 3^rd party person) reaches a company “gatekeeper” (i.e., someone who protects or guards what information is distributed) & pretends to be someone else in order to get past the gatekeeper.  By doing this, the recruiter hopes to get to the person in charge of hiring, or who has the most information about the position, so that they can bypass bureaucracy & get an advantage over other recruiters.  The gatekeeper is usually an administrative assistant or someone else designated to screen phone calls.  Specifically, I was asked whether rusing is legal.

Generally, under federal law it’s not civilly or criminally illegal.  I’ve seen blog posts from professionals, & even another management side labor & employment attorney, saying that rusing violates federal law such as Federal Trade Commission rules.  Others argue that it violates the Uniform Trade Secret Act, but this isn’t federal law.  It’s a doctrine which can be adopted by the states; i.e., unless codified as law, it’s persuasive but not mandatory as an authority.

As best as I can tell rusing only violates FTC law when the recruiter is lying for the purpose of obtaining something of concrete value such as money, trade secrets or inside information in order to gain a direct pecuniary advantage.  There’s potential criminal and civil liability with these types of thefts.  Still, most trade secret & intellectual property law & doctrine doesn’t address the type of conduct I’m talking about here.

My contention is that rusing for the purpose of getting past a gatekeeper to get the real person in charge, & then disclosing that the purpose of your call is for information regarding an open position isn’t the same as what’s prohibited by the FTC or other laws.  Again, it’s worth repeating that there are no other U.S. laws in existence, or even proposed, which addresses rusing in the aforementioned recruiting context.

Now if you change the context to obtaining information regarding the separation of a C-level executive or director that has a substantial impact on that business’ operations, then this MIGHT be illegal under civil law, maybe criminal law too (though that’s a weaker argument and probably only a misdemeanor at best).  Intent to damage the company or someone else’s reputation, & the nature of what’s communicated, could factor into whether or not someone is criminally charged, & any actual resulting damage could factor into civil liability.

Also to be considered is whether the information sought is considered very valuable by the company it’s sought from.  More specifically, if a company has gone to great lengths to protect the information solicited, either through technology, policy, practice or binding agreements, then that might make a stronger case for recognizing it as being legally protected property.

If you change the context to an in-house recruiter for a company trying to steal employees from a competitor, this MIGHT be illegal under state civil law dealing with trade secrets (unlikely illegal per criminal law) or some sort of tortious interference with business, which is more likely a common law argument (i.e., violates case law not statute).  The nature of our legal system dictates that actual damage & intent factor into whether it’s illegal per civil law.  It probably won’t be illegal per criminal law, and if it is, it will probably be a misdemeanor at best.

Ultimately, all the public can do is debate this issue.  It will take at least one court case to start defining in a more definite manner whether or not ruse calling or rusing is illegal in either criminal or civil courts.

If I’m wrong, please correct me.  But so far, all of the research I’ve done, and all of the comments from those who contend that it violates federal law have been unable to point out the specific law that’s violated.  Additionally, relative to state law, I can’t find anything on that either.

One of the amazing things about the Web is the ability to keep in touch with people even years after last seeing them.  Recently, “an “old college buddy” contacted me after coming across this site while doing legal research.  It turns out that he’s an attorney in Los Angeles.

Keith Turner is a litigation attorney with his own Los Angeles based practice.  He co-wrote the following article about choosing a litigation attorney.

Five Questions To Ask Your Litigation Counsel
By Keith Turner & Stephen Kane

When asked, many entrepreneurs state that being sued is among the greatest of their fears.  Litigation has become an inescapable reality of business life – many companies, large and small, will either be sued or have to file a lawsuit at least once during the course of their lifetimes.  As a result, litigation may best be viewed in the same logical way as any other business decision that an enterprise must make.  Successful business people already know how to assess and appreciate risk in making their every day business decisions.  This article will show business professionals how to approach litigation so that they will fully appreciate the risk involved and will then be able to make appropriate, confident business decisions regarding their companies’ litigation matters.

There are numerous ways that a business can minimize the likelihood that it will be involved in litigation.  These include, among many others, properly registering trade names, marks, and other intellectual property; having an employee manual that is prepared, or at least reviewed, by counsel; and implementing a document retention policy and ensuring that all business records are kept in accordance with it.  However, this article assumes that your company is past the point of litigation avoidance and has engaged, or is in the process of engaging, a litigation attorney to represent it.

At the beginning of any case, your litigation attorney should provide you with a comprehensive written evaluation of the known facts involved in the case, the law that will be applied to those facts, a litigation plan for the case and a budget for the costs of implementing the litigation plan.  This initial evaluation letter will set the framework for the entire case.  As the matter develops over time, the evaluation, and the plans and budgets necessary to implement those plans, will necessarily change.  It is crucial that you as the client have a clear understanding from the beginning of the case what can be expected in the matter so that when choices need to be made regarding changes to the evaluation, plan and budget, you will be in a position to make good decisions that positively assist in moving the case forward to a successful resolution.  Ideally, the initial evaluation letter should address the items set forth below.  If it does not, do not hesitate to contact your attorney.  Regardless of how far into a case you may have already progressed, it is never to late or inappropriate to discuss with your lawyer the following questions:

1.         Will We Win?

Whether your business is the plaintiff or defendant in a case, one of the first questions you should ask your lawyer is if you will win.  In order to determine the likelihood of success, a lawsuit is generally evaluated on its objective and subjective elements.  Most cases have three main objective components: (1) the facts that underlie the dispute; (2) the legal claims that form the basis for the suit and the legal defenses to those claims; and (3) the damages that stem from the claims.

The subjective parts of a case include a variety of factors such as witnesses’ credibility and jury appeal, including their ability to convincingly convey the specific facts needed to win; the likeability, legal and trial skills of the various attorneys involved in the matter; and the attitude of the judge toward plaintiffs, defendants, the type of litigation before him or her, and the attorneys in the case.

Naturally, it is impossible to guarantee any outcome – and any attorney who does so should be viewed with skepticism.  However, experienced counsel should be able to provide you with a professional opinion of the merits and detriments of your case.  Based upon his or her analysis of the objective and subjective factors involved in any matter, your counsel should be able to give a percentage likelihood of success, as well as a potential dollar range of verdict and settlement.  As the case progresses through the litigation process, the percentage and range initially provided to you by your attorney should become more defined.  In the event of extremely high stakes cases, professional jury consultants are available to assist your attorney in further analyzing the risk involved in your matter, as well as the chances for prevailing.

Regardless of the outcome provided to you by your attorney, obtaining a second opinion for legal matters is often money well spent.  Whether for a fixed fee or for a budgeted amount, experienced counsel can provide a qualified or limited opinion and recommendations for resolution that may assist you in evaluating the variety of methods that may be available to you when handling your case so that you can then make the best business decision regarding it.  While some attorneys may feel a lack of loyalty if a client seeks or obtains a second opinion, confident counsel should welcome having another opinion on the case.  Most people do not hesitate to get a second opinion when they receive a medical diagnosis that will have a significant impact on their personal lives.  The same approach applies to the impact that litigation will have on your company’s operations.

2.         How Much Will It Cost?

In order to properly make business decisions regarding your litigation, you need to know how much the case is going to cost.  Many businesses require that a budget or estimate of legal fees and costs be approved by the business before the attorney is permitted to implement any litigation plan.  The accuracy of any budget will depend on the type of fee arrangement.  Most litigators prefer the traditional hourly fee arrangement.  However, some business lawyers are more entrepreneurial and will be willing to consider alternative fee arrangements such as contingency, fixed-fee or some type of hybrid.  Even in the defense arena, attorneys may be willing to work for something other than the traditional hourly fee arrangement, such as a reverse contingency.  In any case, it is important to remember that hourly rates, contingency fees and other cost items may be more negotiable than you assume.

The general advantage of the traditional hourly fee arrangement (from the client’s perspective) is that it can provide a relatively accurate estimate of the overall costs of the matter from an early stage in the case.  However, another approach may be for the attorney to provide estimates or budgets for defined phases or time-periods within the litigation, creating a “menu” of legal strategy and activity options that the business can then select from for each defined phase.  Because many litigation activities can be deferred or performed in any one of several of the phases of litigation, this method may provide you as the client more control over when those things occur (and thus when you will have to pay for them).  Alternative fee arrangements can also be structured to create a more partner-like relationship between a business and its attorney so that their respective objectives and goals become more aligned.  This can work to prevent attorneys from feeling that they are merely selling their time, and clients from feeling that their attorney is simply trying to profit from the business’ misfortune.

The accuracy of a litigation budget may be significantly affected by two main conditions your attorney cannot control: 1) the opposing party and his counsel; and 2) the court.  The opposing party and counsel can significantly increase litigation costs if they are particularly combative, uncooperative or unreasonable.  If your opponent’s agenda is not to achieve a quick and efficient resolution of the matter, your counsel may need to adjust strategy to attempt to exercise better control over the case.  Obviously, this change in strategy will necessitate additional work to be performed on the case, which will be reflected in an increase to the litigation budget.

Some judges and courthouses are efficient and sensitive to litigation costs.  Others are not.  Some courts, such as those in Los Angeles County, keep detailed statistics on case disposition factors.  These statistics make it possible for your counsel to more accurately analyze the court factor in the cost equation.  If no statistics are available, then the accuracy of any budget will necessarily be adversely affected.  Additionally, an attorney with actual experience before the judge assigned to your case, or access to other attorneys who are familiar with the judge’s “style” will be able to tailor strategy to fit the judge’s reputation and ensure a bit more accuracy in budgeting.  In any case, make sure your attorney has done his or her homework and considered all available information regarding the judge and court when reviewing a litigation budget.

By far, the most significant “line-item” in an attorney’s litigation budget will be for trial and trial preparation.  However, because 95% or so of civil cases settle before trial, the actual biggest legal expense most parties, including businesses, will incur is usually for activities that occur during the “discovery” phase of litigation.  “Perry Mason” or “Denny Crane” moments make for great television drama, but rarely happen in reality in civil trials due to the discovery process.  The goal of the discovery phase of litigation is specifically “to prevent trial by ambush”.  In order to achieve this goal, each party to a case is required to identify the known facts, documents and witnesses that support its case by taking depositions, exchanging documents and providing responses to written interrogatories.  Counsel should be able to provide a cost/benefit analysis for each phase of discovery.  While the discovery process is supposed to be mutually cooperative, the process will invariably cost more if opposing counsel is unnecessarily combative or uncooperative.  One remedy for dealing with non-cooperative counsel is to file a motion to appoint a referee to supervise discovery for the court.  Of course, the appointed referee also needs to get paid, so this potential fee should be weighed against the cost of dealing traditionally with an uncooperative opponent before any such motion is brought.

Additionally, there are a number of things a business can do to control litigation fees and costs in an hourly fee arrangement.  First, determine in advance exactly who will be working (billing) on your matter.  To the extent possible, keeping the number of timekeepers on your matter to a minimum will increase efficiency and help to ensure cost effectiveness.  Being able to consistently do so is one mark of an attorney who is able to efficiently manage his or her cases.

Second, ensure that you have a clear understanding of not only when your attorney’s “clock” starts running, but also how it runs.  Most attorneys who bill hourly do so in six minute (0.1 hour) increments.  However, some will bill in 0.2 or 0.25 increments.  Most attorneys bill for telephone time.  When attorneys and clients become friendly, phone conversations can slide into personal matters.  Many clients are surprised and upset to find out that they have been billed for a telephone call that they thought concerned mostly personal matters.  Understanding how your lawyer intends to bill you for activities will allow you as the client to avoid unnecessary expenses by addressing these types of situations in advance.

Third, require your attorney to submit to you detailed bills, on at least a monthly basis, which provide the following information: each activity or action, described in sufficient detail so that you understand what it is and why it was necessary to progress the case; the timekeeper who performed the activity and his/her rate; time spent on the activity; and the total dollar value for each separate activity.  You should carefully review your attorneys’ bills to determine which attorneys are working on your case; how the case is moving forward; whether there is any unnecessary duplication of activity; and whether the amount of time (and fees) for each activity is reasonable.  You should feel free to question your attorney regarding any aspect of his or her bill.

The subject of reasonable billing practices is best left for a future article.  However, one last cost control measure you may wish to consider is requiring pre-authorization and time estimates before allowing your attorney to engage in research projects, take or attend any depositions, or bring any motions.

3.         How Long Will It Take

Making a business decision for a litigated matter requires that you understand the lifecycle of the case.  Experienced counsel should be able to provide you with an estimate of how long it will take to fully resolve the case, whether it be through mediation and settlement or by reaching a verdict after trial.  Your attorney should also be able to provide timelines for the major events and decisions that will occur during litigation for which you will need to prepare.  Some of these events will be the trial date, the discovery cut-off date, the deadline to designate expert witnesses, and the deadline for filing any dispositive (case-ending) motions.  Some judges schedule a settlement conference date or deadline to complete some sort of mediation based on the parties’ needs in the case.  You will find that the deadlines set by these events often form the basis for your lawyer’s litigation plan.

4.         Can We Settle?

The answer to this question is almost invariably “yes”.  As set forth above, approximately 95% of civil cases settle before trial.  However, the terms of any potential settlement must first be acceptable to you and your company before it can be effectuated.  Once you are provided with a well-thought analysis of the merits and detriments of your case, as well as the costs associated with litigating it, you will have at least some of the information necessary to begin making a reasonable cost/benefit analysis of whether to settle.  This analysis can also provide information on how best to proceed to posture the case to maximize the potential for settlement and the amount recovered via settlement.

Effectively managing litigation expenses while being sensitive to your opponent’s legal expenses are often a duel set of keys to positioning a matter for the best possible settlement.  On the defense side, many businesses will allocate a single “pot” of money for the costs of litigation as well as any potential settlement.  If the plaintiff’s counsel fails to appreciate that his or her “scorched earth” litigation tactics prior to engaging in settlement discussions are in effect eroding the potential amount that will ultimately be available to settle the case, then the plaintiff will undoubtedly fail to be able to obtain a favorable settlement.  On the plaintiff’s side, the key is often determining when the defendant tires of paying its attorney to defend and becomes more willing to simply pay off the plaintiff to go away instead.

5.         What About Insurance?

One area that is often overlooked is whether there is any potential insurance that may cover some or all of the legal expenses, settlement or judgment for a case.  Both sides to a dispute should be sensitive to and plan their objectives and goals in light of what, if any, insurance may provide.  Good business lawyers will have access to resources that will allow him or her to analyze and inform you of the ramifications of any insurance issues that may arise during your case.

If, as a defendant, you have any potential insurance coverage, your defense of the litigation should be tendered to any of your insurance carriers that may be on the risk for the underlying claim as early as possible, unless your business has a compelling reason to avoid involving your carriers.  The reason for tendering as early as possible is because most policies preclude any responsibility for defense or indemnity before the litigation is tendered.

If your insurance carrier does agree to defend you in the lawsuit, it may retain its own lawyer to represent your business company in the case.  If that happens, your attorney should review the terms of your carrier’s defense to determine and advise you whether there are any potential conflicts of interest.  If so, your carrier may be required to also pay for counsel that your business selects.

If you are a plaintiff, you and your counsel should be sensitive to any potential insurance that your opponent may have, since insurance often fuels the best and quickest resolution of a dispute.  Be mindful that the mere filing of a lawsuit will be insufficient to force a settlement from an insurance carrier.  Your counsel will need to work with you and be prepared to prove what you claim and understand what portion, if any, of any recovery is potentially covered under the policy.

As a plaintiff, you may also have your own first-party insurance that covers some or all of your damages.  Before suing, your counsel should work with you to consider tendering the matter to your own carrier and ensuring to otherwise not impair your carrier’s own rights against any of the parties that may be responsible for the damages.

Conclusion

Litigation should be handled like any business decision.  This means doing the necessary research and working closely with your litigation counsel to ensure that you have sufficient information to make litigation decisions based on the business’ overall objectives and bottom line.  Your business can maximize its likelihood of success by requiring your counsel to provide periodic budgets, evaluations and recommendations so that you can actively manage the litigation.  Ultimately, the best results are obtained by a partnering relationship between your business and your attorney so that your attorney’s fees are aligned with obtaining your business’ goals.

Keith J. Turner
9595 Wilshire Blvd., Suite 305
Beverly Hills, CA 90212
O: 310.785.1710
kjt@kjtlaw.com

Reader Benjamin Wright commented on my 9/14 post concerning workplace emails and other electronic communications at work:

Chuck: Knowing these kinds of smoking-gun records are inevitable, I argue an employer can use technology proactively to make its e-records more benign. It can broadcast intent to be lawful and a request that adversaries come forward as early as possible. What do you think? –Ben
http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html

My response to Ben is:

Hi Ben,

Thanks for the comment.  I appreciate it.

I agree with you, and advocate that employers should go even further.  Because the employer is the leader at the workplace, the employer is obligated to use its technology in a proactive and benign way to protect all assets, including employees.

Specifically, as opposed to a blanket prohibition against employees using an employer’s technology for personal use, an employer might try letting employees save time and energy by using its technology to check on the kids, parents, family, friends, pets, shop, or take care of other personal needs, so long as nothing illegal or unethical is involved.  This could also help to alleviate stress and increase employee productivity.

Also, regardless of HIPAA and similar laws, an employer should strive to maintain the confidentiality of employee medical records.  Consequently, employees won’t have to fear using employer provided online health services (or at least minimally using such services).

Moreover, as you allude to, a company can permit its employees to anonymously (or not) alert the company to legal or ethical issues or other problems.  In this way, retaliation against the complaining employee can be eliminated or at least minimized.  In short, electronic devices are just another means to communicate, but they allow us to save time and money, and if used properly, could save companies money.

During my conversation with the Christine Caulfield of Law360.com, I also indicated that we’re really at the genesis of how all of this technology can help (or hurt) us.  A perfect example is cell phone quality.  We still suffer from dropped calls, murky sounding voices and other related problems.  Eventually, these issues should be resolved.  New issues will obviously arise (e.g., how many clones will each person be allowed to make of themselves, how will we regulate traffic patterns for our flying cars, and how will we prevent people from using invisibility cloaks for improper purposes.  :-) ).