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Marketing Tip -- Connectors

Sometimes the best route between two dots is not a straight line.  To that end, take time to make relationships with connectors -those individuals who work with your prospective clients.  Think insurance agents, accountants and financial planners - individuals who work with the principals of companies who from time to time need legal help.  These connectors have trade associations they belong to.  Consider joining one.  They have publications they read.  Consider writing for one.  What's great about connectors is that they connect you with multiple potential clients, several or more who may need you.  So when networking, consider going beyond other lawyers as referral sources. 

By: Francisco Ramos Jr

Marketing Tip - Educating Your Referral Sources

Take the time to educate your potential referral sources what you do, and just as importantly, what you don't do.  Folks who may refer you cases should know what cases they should refer to you.  Having them refer you anything and everything may sound like a boon but it results in phone calls with prospective clients you cannot help.  Also, educate them about what your firm does.  Perhaps you don't do employment law, but your partner is a leading FLSA lawyer.  Help you referral sources help you.  Likewise, get to know what business they're looking for and refer them only that business.  They'll appreciate you for it.  

By: Francisco Ramos Jr

University Owed No Duty

University Owed No Duty to Protect Decedent from Self-Inflicted Harm, but May be Held Liable for False Arrest

In a recent opinion, the United States District Court for the District of Columbia held that a university owed no duty, under the circumstances of the case, to protect a student from his own self-inflicted harm, but that the university may be held liable for false arrest for calling the District of Columbia Metropolitan Police Department (“MPD”) in response to the student’s behavioral issues.  Furthermore, although the Court held that the private university could not be held liable under the Americans with Disabilities Act (“ADA”), it held that the decedent’s parents could proceed on such claims against the District of Columbia due to the MPD’s alleged actions in wrongfully arresting and failing to reasonably accommodate the decedent.

In 2013, Plaintiffs’ son, Gianni Manganelli, was accepted into Gallaudet University.  Due to the fact that Gianni was deaf and suffered from seizures, Plaintiffs engaged in conversations with Gallaudet’s Mental Health Center, housing department, and academic advisor department regarding Gallaudet’s ability to address their son’s health needs.  Gallaudet allegedly assured Plaintiffs that it was adequately equipped to assist Gianni if necessary.  Relying on these representations, Plaintiffs and Gianni relocated to the Washington, D.C. area so that Gianni could attend Gallaudet.

Unfortunately, Gianni began to suffer mental health issues almost immediately.  In August of 2013, he was arrested at the United States Capitol building after approaching a member of the Capitol Police and demanding to speak with Congress.  When he was returned to Gallaudet, campus police were called to his dorm room and reported that Gianni was “disproportionately ‘irate’” regarding pain in his wrists caused by being placed in handcuffs.  Although Gallaudet’s Mental Health Center did meet with Gianni several times over the next few weeks, Gianni soon terminated the meetings. 

In October 2013, several of Gianni’s instructors reported that he acted in a physically aggressive and bizarre manner.  These reports continued until February or March 2014, and Plaintiff’s mental state appeared to deteriorate during that period of time.  Plaintiffs were not notified of these reports, and Gallaudet did not take any action to provide Gianni with further treatment.  Gianni’s behavior ultimately led to a confrontation with his roommate on March 28, 2014 in which Gianni once again exhibited odd behavior.  As a result of the confrontation, Gallaudet’s police force detained Gianni and called the MPD.  After observing Gianni staring blankly and refusing to respond to any questions, the MPD officers arrested Gianni and detained him for approximately twenty-four (24) hours.  In that time frame, the MPD did not provide Gianni with any mental health treatment or an interpreter.  After he was released, Gianni contacted his mother, who picked him up and observed further odd behavior.  Tragically, later that day, Gianni killed himself.

Plaintiffs subsequently filed a lawsuit against Gallaudet and the District of Columbia, setting forth causes of action for wrongful death, survival, negligent infliction of emotional distress, false arrest, and violations of the ADA.  Each defendant moved to dismiss Plaintiffs’ Complaint.

Judge Reggie B. Walton, writing for the Court, granted, in part, and denied, in part, Defendants’ motions.  Addressing first Plaintiffs’ causes of action for wrongful death and survival, the

Court noted that these claims were predicated on the allegation that Gallaudet breached a duty of care it owed as a result of a special relationship with Gianni.  Specifically, Plaintiffs alleged that Gallaudet represented to them that it was adequately equipped to serve Gianni’s health needs, and owed Gianni a duty to do so as a result of its representations.  Although courts in some jurisdictions had applied this principle in holding that educational institutions owe a duty of care to protect students from self-inflicted harm, the Court declined to find such a duty in this case for two reasons.  First, it noted that the Complaint alleged that Gallaudet did provide mental health treatment to Gianni, but Gianni refused further treatment.  As a result, Gallaudet did not increase the risk of harm to Gianni, and Gianni did not rely to his detriment on any services provided and withdrawn by the school.  Second, the Complaint did not allege that Gallaudet knew of Gianni’s suicidal ideations.  However odd Gianni’s behavior, he never expressed suicidal thoughts to another individual.  As a result, the Court dismissed Plaintiffs’ wrongful death and survival claims.  Furthermore, because Plaintiffs’ cause of action for negligent infliction of emotional distress was predicated on the same alleged breach of duty, the Court dismissed that claim as well.

Regarding Plaintiffs’ claims for false arrest, the Court noted that Plaintiffs alleged that the MPD and Gallaudet Police lacked probable cause to arrest Gianni because he only stared blankly at them.  Defendants, however, produced a police report from the MPD which contradicted Plaintiffs’ allegations.  Because the presentation of this additional evidence converted Defendants’ motions into motions for summary judgment, the Court concluded that there was a dispute of material fact as to Plaintiff’s conduct prior to his arrest.  Accordingly, the Court denied Defendants’ motions to dismiss the false arrest claims.

Turning to Plaintiffs’ ADA claim against Gallaudet, the Court stated that the ADA applies only to “public entit[ies],” i.e., “instrumentalit[ies] of a State or States or local government.”  42 U.S.C. § 12132.  Although Gallaudet is a federally chartered institution, the Court had previously held that such institutions are nevertheless not public entities within the meaning of the ADA.  Consonant with its prior ruling, the Court held that the ADA did not apply to Gallaudet.  

As to Plaintiffs’ ADA claim against the District of Columbia, however, the Court reached the opposite conclusion.  First, to the extent that Plaintiffs alleged the MPD violated the ADA by wrongfully arresting Gianni, the Court rejected the District’s argument that the police report sufficed to defeat Plaintiffs’ claim.  Just as with its treatment of the District’s motion to dismiss the false arrest claim, the Court considered the District’s motion a motion for summary judgment and denied it due to a dispute of material fact.

Second, although there was a degree of conflicting authority as to what responsibilities police officers have to provide mentally ill individual with a reasonable accommodation, the Court believed that Plaintiffs had nevertheless stated a plausible claim that the MPD denied Gianni a reasonable accommodation.  Specifically, the Court noted that there were factual issues as to whether the officers knew Gianni was mentally ill and/or disabled, whether Gianni informed the officers of that fact, and whether Gianni was even capable of doing so (as his hands were handcuffed behind his back and he was thus unable to communicate using sign language).

The Court, however, rejected Plaintiff’s argument that the District failed to adequately train its officers to deal with mentally ill individuals.  As an initial matter, it was unclear as to whether such an allegation was sufficient to sustain a claim for an ADA violation.  However, even if it were, Plaintiffs had alleged only conclusory allegations in this regard, not specific facts regarding the District’s conduct.  As a result, the Court declined to let Plaintiffs proceed under this theory.  Nevertheless, because Plaintiffs had set forth other valid theories of recovery under the ADA, the Court denied the District’s motion to dismiss Plaintiffs’ ADA claim against the District.

Terrylene Sacchetti, et al. v. Gallaudet University, et al. (April 20, 2016)

United States District Court for the District of Columbia

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2015cv0455-30

Submitted By: Marisa A. Trasatti and Matthew J. McCloskey, Semmes, Bowen & Semmes

Marketing Tip - Seek out your audience

When it comes to marketing, you want to seek out your audience - those who are in a position to refer you a case.  They could be in house counsel.  They could be outside counsel looking for local counsel or who have a conflict.  They could be HR personnel with employment issues.  Where do you find them? What organizations do they belong to? What are they involved with? Seek out client rich environments, such as national defense organizations, trade associations or chambers of commerce, and join.  But don't simply join.  Get involved.  Start with doing those tasks no one else wants to do - like editing the newsletter, writing an article or marketing an event.  Do the little things, and soon you'll be doing the big things, and meeting and getting to know clients along the way.  Showing your compentence in organizations suggests to others your compentence in handling their matters.  It all starts with seeking your audience.

By: Francisco Ramos Jr

What to Tweet

You may have recently signed up for Twitter and are wondering "What in the world should I tweet?"  Here are some suggestions:

Blog on this website and share a link to your blog post.

Share news stories relevant to your pracrtice area and comment on them.

Share recent cases and opine on their impact.

Retweet another's tweet with your own thoughts on the subject.

Share a link to an article you've written or a presentation you've given.

Share a book or movie review with your thoughts.

Share a press release.

Share motivational quotes. 

Share about your hobby, whether it's golf, jazz or wine.

If you're going to start tweeting, make it part of your routine so that you tweet regularly and build a following. 

By Francisco Ramos

Hosting a Reception

Consider hosting a networking event in the lobby of your office.  Hosting your own event allows you to choose the guests and the dyanmics of the event.  Consider hosting a wine tasting where you invite your clients and potential referral sources to visit your office, have some food and drinks and learn more about you, your firm and your firm's practice areas.  It does not have to be a large event.  An intimate setting where you have 10-20 guests opine on wine and mingle is the perfect size to get to know folks better and learn more about them as they learn more about you and your firm.  Perhaps you turn it into a regular event where your clients or referral sources can try new wines each month and make it a part of their routine.  They will enjoy the night out and you will have an opportunity to stay at the forefront of their minds. 

By: Francisco Ramos Jr

All the Elements Matter

Now and again an appellate decision comes down that doesn’t make any truly new law, but serves as a good reminder why all the elements of claims and defenses are important.  McClatchy v. Coblentz, Patch, Duffy & Bass, LLP from California’s First District Court of Appeal, is one such decision. 

 

California has a “Doe” pleading statute, Code of Civil Procedure § 474, which allows a plaintiff to toll the statute of limitations when it doesn’t know the identity of a defendant.  Doe pleading is just about universal in California; it’s close to malpractice for a plaintiff to fail to name Doe defendants in most tort cases. 

 

A critical requirement of the Doe pleading process is the plaintiff can’t know who the fictitious defendant is and can’t know the facts giving rise to the fictitious defendant’s liability.  Mr. McClatchy, or his attorneys, forgot that and attempted to join the Coblentz firm as a Doe defendant while the action was pending, but after the statute of limitations on claims against the firm had run.  The Court of Appeal concluded McClatchy could not avail himself of the benefits of Doe pleading.  As it explained, there is a distinction between knowing the facts and knowing or believing that a cause of action exists based upon those facts.  The ignorance required by the Doe pleading statute is of the facts; the lack of belief that those known facts support a claim does not entitle the plaintiff to benefit from suing a Doe defendant. 

 

Attorneys often rely on the lack of knowledge of the ultimate conclusion (“X is liable”) instead of the critical fact, knowledge of X’s identity and the X’s acts or omissions.  McClatchy thus serves as a reminder for the attorney, regardless of which side is represented, to analyze fully the case at the outset and not rely upon a procedural safety net which may not be as real as is hoped for.  

Starting Your Own Networking Function

We all receive solications to join networking groups for a monthly breakfast or lunch, where we pay an annual fee for the opportunity to deliver our elevator speech to a roomful of "prospective clients."  The problem is, generally the room is not filled with folks who may become your clients one day.  They're sale people, for the most part, who are much more interested in getting your business than offereing theirs.  The concept, though, a monthly networking meeting, has promise.  My suggestion is to investigate what your law school classmates are doing now.  Find ones in different practice areas, reach out to them and propose a monthly breakfast or lunch to socialize.  Think 6 to 12 attorneys at a local restauarant where you can make a reservation, set aside an hour or two, and talk about your respective practices.  You decide where and when and who attends.  You create, in effect, your own BNI group, with no annual fee, no harassing salespeople, and you start with something in common -your joint experience at the same law school at the same time.  As more folks hear about it and want to join, maybe you start a second meeting time.  It's an opportunity for you to network on your terms. 

By: Francisco Ramos Jr

Marketing Tips -Linkedin

Most of us have Linkedin accounts, but most of us are not particularly active on the site.  What I've found helpful is to took through my contacts who live in Miami, where I live and practice, find attorneys with complimentary practice areas, and ask them to breakfast or lunch.  Sometimes its attorneys I know through voluntary bar associations or cases I've had.  Sometimes, it's attorneys I've never met, but their Linkedin profile suggests to me we have something in common and may make a good networking connection.  My experience has been positive, meeting new people on a one-to-one setting, getting to know each other and laying the foundation for an ongoing business and personal relationship.  Linkedin serves other purposes, but consider using it to ensure, as the book says, to never eat alone. 

By: Francisco Ramos Jr

Loving Networking

In their recent article in the Harvard Business Review titled "Learn to Love Networking," Tiziana Casciaro, Francesca Gino and Maryam Kouchaki state that networking is a necessity.  They cite research where networking not only leads to more business opportunities, it also improves the quality of one's work and job satisfaction.  To change one's attitude toward networking, the authors recommend that we (1) shift our focus from it being a chore to it being an opprotunity for learning and discovery; (2) identify common interests with those we meet, and work on common tasks with them through organizations; (3)  think about what you have to offer to others, including your gratitude; and (4) and find a higher purposes, whether it's supporting your firm or helping your clients.  By changing one's attitude toward networking, one can find it not only palatable, but truly enjoyable. 

By: Francisco Ramos Jr

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