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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

Evidence of Lack of Insurance Irrelevant

Evidence of Lack of Insurance Irrelevant and Inadmissible in Negligent Hiring Claim

In Perry v. Asphalt & Concrete Services., Inc., No. 27, the Court of Appeals of Maryland was asked to determine whether evidence of insurance (or lack thereof) is admissible to establish a negligent hiring claim. The Court held that evidence of lack of insurance coverage was irrelevant and inadmissible in a negligent hiring claim where that evidence did not establish the proximate cause of the complaining party’s injuries. The Court therefore concluded that the trial court erred in admitting such evidence because it prejudiced the jury’s verdict.

On April 28, 2009, Moran Perry (“Perry”) was struck by a dump truck while crossing an intersection in Frederick, Maryland. The dump truck was driven by William Johnson, II (“Johnson”), and owned by Higher Power Trucking, LLC (“Higher Power”). Asphalt & Concrete Services, Inc. (“ACS”) had hired Higher Power to haul asphalt and stone to a church where ACS was paving a children’s play area. Perry sustained head trauma and rib fractures as a result of the accident. An investigation after the accident revealed that neither Johnson nor Higher Power had liability insurance covering the dump truck. The investigation also revealed that Johnson had a suspended drivers’ license and the registration on the truck had expired. The Court only considered the lack of insurance in its analysis.

In April 2011, Perry filed a complaint in the Circuit Court for Prince George’s County. Perry alleged negligence against Higher Power, Johnson, and ACS. Perry also alleged that ACS was negligent in its hiring and supervision of Higher Power. Perry later sought to dismiss Higher Power as a defendant after learning that Higher Power was simply a trade name under which Johnson was unlawfully operating a dump truck business. ACS filed a motion for summary judgment on the grounds that it did not have an employer-employee relationship with Johnson. The trial court dismissed ACS’ motion for summary judgment. Before trial, ACS filed a motion in limine seeking to exclude evidence that Johnson had a suspended drivers’ license and that the dump truck and Johnson were uninsured at the time of the accident. The trial court reserved ruling on ACS’ motion in limine.

At trial, Perry needed to establish a foundation for an employment relationship between Johnson and ACS before the Court would rule on the admissibility of the evidence of lack of insurance. Perry called Burt Maggio (“Maggio”), the president of ACS, to testify. Over ACS’s objection, Maggio read aloud a message on a fax cover sheet, in which ACS advised Higher Power that it had not yet received a certificate of liability insurance and requested that the materials be sent as soon as possible. Maggio testified that it was ACS’s policy to request that a truck operator provide a certificate of liability insurance. Maggio also testified to the nature of ACS and Higher Power’s relationship. Specifically, Maggio testified that ACS paid Higher Power hourly and that ACS did not dictate any of the specifics of Higher Power’s performance other than where to dump the materials when they arrived on the job site. Maggio also testified that ACS’s employees received a salary, health care benefits, 401(k) participation and paid holidays. Johnson did not receive any of these benefits. Based on this testimony, the trial court determined that there was enough evidence to establish a foundation as to ACS and Johnson’s employment relationship. The trial court subsequently allowed evidence of the lack of insurance to be admitted, over ACS’s objection.

At the conclusion of the case, the trial court denied Perry’s request to strike a jury instruction regarding the requirement of liability insurance. The jury subsequently returned a verdict in favor of Perry on both the negligence and negligent hiring claims. ACS appealed to the Court of Special Appeals, which reversed the judgment in favor of Perry.

The basis of ACS’s appeal was (1) that the trial court admitted Johnson’s lack of insurance in violation of Maryland Rule 5-411, which prohibits the admission of evidence of insurance to prove fault or liability, and (2) the evidence was irrelevant to Johnson’s claim of negligent hiring. Perry argued that the evidence of Johnson’s lack of insurance demonstrated that ACS violated its duty to use reasonable care in hiring Johnson. On appeal, neither party disputed that Johnson’s lack of insurance was irrelevant to the issue of negligence.

The Court of Appeals first examined Maryland Rule 5-411. Under Maryland Rule 5-411, evidence that a person was or was not insured is not admissible to demonstrate whether a person acted negligently. Such evidence may be admissible, however, for the purpose of proving agency, ownership, control, or bias of a witness. Rule 5-411 is designed to prevent undue prejudice that may result when liability insurance is admitted.

Next the Court turned to the elements of a negligent hiring claim. To support such a cause of action, the Court noted, a plaintiff must prove (1) the existence of a duty owed by a defendant to him, (2) a breach of that duty, (3) a legally cognizable causal relationship between breach of duty and the harm suffered and (4) damages. To demonstrate a causal link in the context of negligent hiring, a plaintiff must demonstrate that (1) the failure of an employer to undertake a reasonable inquiry lead to the hiring and (2) the hiring was a proximate cause of plaintiff’s injury.

Initially, the Court determined that ACS breached its duty to Perry when it hired Higher Power/Johnson, because ACS’s failure to verify that Johnson had liability insurance constituted a failure to use reasonable care. The Court ultimately found ACS’s breach of duty to be inconsequential because ACS’s failure to verify whether Johnson had liability insurance was not the proximate cause of Perry’s injuries. Rather, Perry’s injuries were proximately caused by Johnson’s negligent driving and poor driving skills.

The Court then concluded that the trial court erred in requiring Perry to establish a foundation for an employer-employee relationship as a threshold for admitting evidence of lack of insurance.

This was an error because the inquiry in the nature of ACS and Johnson’s relationship did not address the issue of proximate cause. The trial court therefore failed to consider the proper legal standard in admitting the evidence, and as such abused its discretion.

Finally, the Court considered the prejudicial effect of the wrongly admitted evidence. ACS argued that the admission of such evidence prejudiced the jury’s assessment of liability because, in violation of Maryland Rule 5-411, it suggested to the jury that ACS was the only insured defendant. Having previously found evidence of Johnson’s lack of insurance to be irrelevant and immaterial to the claim of negligent hiring, the Court determined that the admission of that evidence probably influenced the jury in its determination of liability. Because the determination of liability was a prime issue in the case and the jury was not instructed to disregard the evidence in reaching its verdict, the Court determined that there was a reasonable probability that the jury considered the irrelevant evidence in finding ACS liable for Perry’s injuries. The Court therefore affirmed the Court of Special Appeals’ decision and remanded the case for a new trial.

Moran Perry v. Asphalt & Concrete Services, Inc., No. 27, (Court of Appeals of Maryland, March 28, 2016), available at: http://www.mdcourts.gov/opinions/coa/2016/27a15.pdf.

Submitted By: Marisa A. Trasatti and Caroline E. Willsey, Semmes, Bowen & Semmes

Marketing Tips - Handwritten Notes

The best investment you can make in your associates is to buy them personalized stationary and ask them to write at least one personal note a week.  It could be to someone they met at a conference or reception.  It could be to a colleague they haven't spoken to in a while.  It could be to congratulate a friend for a new bar position or trial victory.  The idea is that handwritten notes are rarely received and when they are, they make an impact.  An e-mail is not the same.  We get too many e-mails.  Hand written notes are different.  They're personal.  They took time to compose.  They say you thought enough of the person to take out stationary to write a letter and send it to them.  If you want your associates to make peronal connections and build personal relationships, encourage them to get into the habit of writing hand written notes and provide them with the stationary to do so. 

By: Francisco Ramos Jr

Facebook for Lawyers

 I recently attended a talk by Brian Tannebaum, author of the Practice (which you should buy for your associates) who referred to Facebook as the forum for small talk for lawyers.  I have many attorney friends and their personalities came through on their posts.  For example, if you're my friend, you know I brag about my boys (too much), comment on jazz (not enough) and critique movies (usually spot on).  When you see me at an event, you feel like you already know me because we have already had the small talk online, even though we may never had an actual conversation about my interests.  Those self revelations go a long way in bringing us lawyers closer together, building relationships and having the "conversations" that we may only have a few times a year at cocktail receptiions and conferences.  As lawyers, I encourage you to reveal yourself a bit on Facebook and avoid the law firm posts about recent victories and just be the person you are.  Brian also mentioned he never "likes" law firm pages, because they're little more than firm PR, that reveals little about the individuals that form that firm.  If you're looking to monetize Facebook, appreciate it for what it is.  A place to share a little about yourself, have a conversation (always polite and respectful) and share in your friends adventures, triumphs and grief.  It's only through personal relationships that we build ties that may turn into business.  The relationship always comes first though. 

By: Francisco Ramos Jr

Fair Debt Collection Practices

Creditor Did Not Violate Fair Debt Collection Practices Act in Using a False Name

In a recent opinion, the United States District Court for the District of Columbia held that an entity that qualified as a “creditor” under the Fair Debt Collection Practices Act (“FDCPA”) did not violate the FDCPA because it used the same false name in all interactions with the plaintiff.

Plaintiff, Paul A. Mahon, alleged that he incurred a debt of $1,320.00 owed to a company named Certified Anesthesia Services as a result of treatment he received at Sibley Memorial Hospital in Washington, D.C.  Subsequently, Certified Anesthesia Services assigned that debt to Defendant, Anesthesia Business Consultants, LLC (“ABC”).  Plaintiff’s insurer paid ABC $1,207.94.  ABC then sought payment of the outstanding amount, requesting that Plaintiff pay $112.06 with a check addressed to “Surgical and Anes Assoc.”  Plaintiff did so on May 6, 2014, and ABC deposited his check.

Approximately two (2) months later, on July 2, 2014, ABC again billed Plaintiff for $112.06.  Over the next two (2) months, ABC contacted Plaintiff regarding the alleged debt no less than four (4) separate times, despite Plaintiff’s attempts to dispute the debt.  In each interaction with Plaintiff, ABC sought payment to “Surgical and Anes Assoc.”  In October 2014, ABC sold Plaintiff’s debt to another company for debt collection purposes. 

In July 2015, Plaintiff sued ABC, setting forth causes of action for violations of the FDCPA and the District of Columbia fair debt collection statute.  ABC moved to dismiss the lawsuit, arguing that it was not a debt collector within the meaning of the FDCPA, and that Plaintiff’s debt did not arise from a consumer credit sale and therefore did not fall within the ambit of the D.C. fair debt collection statute. 

Judge Rudolph Contreras, writing for the Court, granted ABC’s motion.  The Court noted that the FDCPA applies only to “debt collectors” – a term defined under the statute to include “any person who uses . . . interstate commerce or the mails in . . . the collection of any debts” and “any person . . . who regularly . . . attempts to collect . . . debts owed or due . . . another.”  15 U.S.C. § 1692a(6).  The FDCPA, however, expressly excludes from this definition “any person collecting . . . any debt . . . asserted to be owed or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person.”  Id. at § 1692a(6)(F)(iii).  In this case, under the allegations in Plaintiff’s Complaint, ABC fell into the foregoing exclusion because Plaintiff’s debt was not in default at the time ABC obtained it.  Specifically, Plaintiff alleged that ABC obtained his debt before any payment was due.  As a result, ABC was not acting as a debt collector within the meaning of the FDCPA.

In response to this analysis, Plaintiff argued that ABC violated the FDCPA by using a false name (i.e., “Surgical and Anes Assoc.”) in attempting to collect his debt.  In this regard, the Court noted that “creditors” may be held liable under the FDCPA if, “in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting . . . such debts.”  Id. at § 1692a(6).  The Court, nevertheless, concluded that ABC did not fall within this definition.  Although ABC was a creditor collecting its own debt and used a name other than its own in the process of attempting to collect its debt, the circumstances of its collection attempt did not indicate that a third person was attempting to collect the debt.  In fact, every communication that Plaintiff received from ABC was set forth as having come from “Surgical and Anes Assoc.”  Plaintiff apparently did not ascertain ABC’s correct entity name until he filed this lawsuit.  Because ABC consistently used the name “Surgical and Anes Assoc.,” it did not indicate to Plaintiff that a person other than the owner of the debt was attempting to collect it.  As a result, the Court granted ABC’s motion to dismiss Plaintiff’s FDCPA claims.

Turning then to Plaintiff’s claims under the D.C. fair debt collection statute, the Court noted that Plaintiff’s only avenue to federal jurisdiction on these non-federal claims was through supplemental jurisdiction under 28 U.S.C. § 1367.  A District Court’s exercise of supplemental jurisdiction, however, is discretionary where “the claim raises a novel or complex issue of State law.”  Id. at § 1367(c).  In this case, the Court noted that Plaintiff’s remaining claims depended primarily on the interpretation of a term contained in the D.C. fair debt collection statute that only two (2) D.C. cases had even tangentially addressed.  Because the issue was therefore a novel question of local law, the Court declined to exercise supplemental jurisdiction.  Accordingly, the Court granted ABC’s motion to dismiss without prejudice so that Plaintiff could re-file the case in the District of Columbia Superior Court.

Paul A. Mahon v. Anesthesia Business Consultants, LLC (April 13, 2016)

https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2015cv1227-29

United States District Court for the District of Columbia

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

Wrongful Termination Claim

Wrongful Termination Claim by Minister Barred by Ministerial Exception

In a recent unreported opinion, the Court of Special Appeals held that the First Amendment’s “ministerial exception” barred courts from considering the merits of a wrongful termination claim asserted against a church even though the claim was not specifically predicated on matters of religious doctrine.

Beginning in 2009, Plaintiff, Edwin R. Melhorn, was employed as a pastor at Cedar Grove United Methodist Church, a church governed by the Baltimore-Washington Conference of the United Methodist Church (collectively, “Defendants”).  On October 16, 2012, Defendants informed Plaintiff that they were terminating his employment because they had “lost faith” in his spiritual leadership.

Subsequently, Plaintiff filed a wrongful termination lawsuit against Defendants, alleging that he was discharged because he refused to commit unlawful acts in connection with the administration of a trust of which Cedar Grove was a beneficiary.  Specifically, Plaintiff averred that, on May 16, 2012, Cedar Grove was informed that it was scheduled to receive a bequest of over $1.2 million from a trust.  Under the terms of the trust, half of that amount was to be used for the operation of the church, and the other half was to be used for the upkeep of a cemetery maintained by the church.  Cedar Grove, however, had sold its cemetery.  Consequently, Plaintiff informed the church that it would be a breach of trust, fraud, and tax evasion to accept the half of the trust bequeathed for the purposes of the cemetery’s upkeep.  Despite Plaintiff’s advice, Cedar Grove instructed Plaintiff to request the full amount of the bequest.  Plaintiff refused to do so, and in August of 2012 he informed the Baltimore-Washington Conference of his concerns.  Two months later, he was informed that his employment was terminated.

Defendants moved to dismiss Plaintiff’s complaint, asserting that the First Amendment’s ministerial exception bars courts from hearing disputes over church doctrines.  In this case, Defendants argued that courts would necessarily be required to ascertain the veracity of Defendants’ statement that Plaintiff was fired because they lost faith in his spiritual leadership.  The trial court agreed and dismissed the complaint.  Plaintiff appealed.

The Court of Special Appeals affirmed.  Judge Reed, writing for the Court, explained that there are two elements that must be shown in order for the ministerial exception to apply: (1) the employee making the claim must be a minister; and (2) “the claim must be the type of claim which would substantially entangle the court in the church’s doctrinal decision-making and internal self-governance.”  In this case, it was undisputed that Plaintiff was a minister. 

As to the second element of the exception, the intermediate appellate court was persuaded that Plaintiff’s claim would involve an entanglement with Defendants’ doctrinal decision-making.  Under Maryland law, the ministerial exception is somewhat broader than the Supreme Court’s holding in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S. Ct. 694 (2012).  Specifically, the Court of Appeals has applied the doctrine to wrongful termination claims, whereas the Supreme Court has only applied it in the context of employment discrimination claims.  In so doing, Maryland has embraced the concept that “religious organizations must be allowed to hire and fire their clergy members without government interference.”  In this case, the Court of Special Appeals believed that it would be impossible to adjudicate Plaintiff’s claims without addressing Defendants’ position that Plaintiff was fired due to Defendants’ lack of faith in his spiritual leadership.  Accordingly, the Court of Special Appeals affirmed the trial court’s decision that the ministerial exception barred Plaintiff’s lawsuit.

The Court also rejected Plaintiff’s argument that he should be permitted to conduct discovery prior to any ruling on Defendants’ motion to dismiss.  In contrast to cases from other jurisdictions that had held discovery was permissible under similar circumstances, in this case, the question of Plaintiff’s termination would necessarily involve inquiry into religious matters.  Because, on its face, Plaintiff’s claim involved such matters, no discovery was warranted. 

Edwin R. Melhorn v. Baltimore Washington Conference of the United

Methodist Church, et al. (March 7, 2016)

http://www.courts.state.md.us/appellate/unreportedopinions/2016/2065s14.pdf

Court of Special Appeals of Maryland

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

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