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6 Traits of Great Leaders

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Lawyers Mutual BlogIn this political season, we hear a lot of talk about leadership.

But what qualities make a good leader – in government, business or the law?

The answers might surprise you, according to experts on the subject.

National Public Radio recently ran a three-part series examining leadership from different angles. In one segment, Harvard psychologist and business professor Gautama Mukunda, author of Indispensable: When Leaders Really Matter, says great leaders often come out of left field:

[They] tend not to be battle-tested and experienced. They do unexpected stuff because no one really knows what they’re going to do.

Think of it this way: If the right decision is obvious, it doesn’t really matter who the leader is. The next person in line would make the exact same decision.

“The very best decisions, the decisions that go down in history, [the ones where] we look back at that person and think, ‘wow, they’re a genius,’ is when they say, you know, ‘we’re going to do this,’ and all the experts say, ‘no, that’s an awful idea, you know, don’t do that’ and they do it anyways and it works out,” Mukunda says.

Here are some other qualities that make a great leader, according to the report:

  • They are outsiders. Remarkable leaders rarely rise to the top by climbing the traditional ladder. Likely as not they sneak in through a side window. They have a different perspective because they come from a different place.
  • They learn from defeats. Superb leaders have often felt the bitter sting of failure. But instead of quitting, they survive to become smarter and stronger. Case in point: Abraham Lincoln was widely regarded as a political loser and an ineffective hick right up until he proceeded to save the country from ripping apart.
  • They make the tough calls. Doing what anyone else in your position would do is not the test of leadership. As an example, Mukunda cites President Franklin Roosevelt’s decision to declare war on Japan after Pearl Harbor.  No other president would have done otherwise. Many instances marked President Roosevelt as an outstanding leader, Mukunda argues, but that was not one of them.
  • They have long-range vision. Weak leaders focus on the next battle. Strong leaders have an overriding, passionate goal. They focus on posterity.
  • They don’t always play well with others. In fact, leaders who try too hard to get along with people are more likely to become embroiled in scandal. They shy away from difficult choices that might alienate their best friends.
  • They don’t have to ooze charisma. Or at least they didn’t until radio and television came along. George Washington wasn’t particularly outgoing, charming, socially skilled or energetic, says Dean Simonton, a psychology professor at the University of California, Davis. In fact, by today’s standards, his delivery of his first inaugural address would have been viewed as a career-killer. “He was very timid, visibly nervous, wasn’t very dynamic. People were disappointed,” Simonton says.

In this world of YouTube and Twitter – where every gesture and utterance is dissected, debated and disseminated – George Washington would not stand a chance of winning election, Simonton says.

Some would call that ironic. Others might say tragic.

A leader would probably say it is what it is, and forge bravely ahead.

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6 Tools for Law Office Disaster Preparedness

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Law Office Disaster PreparednessIn the aftermath of Sandy, our thoughts and prayers are with the storm victims and their families.

Life is flickering and fragile. Extreme weather events remind us of this. No one can predict exactly when disaster will strike, nor can we accurately foresee all the consequences.

What we can do is plan ahead, so that we are ready for the worst.

For law firms, disaster planning covers four broad considerations:

  • People. They come first, of course. Priority number one is protecting the health and safety of those who work with us and their families. When should the office be closed and everyone sent home? How do people get out of the building quickly and safely? What happens if some are trapped inside?
  • Work flow. What if we are unable to physically access the office and get our hands on individual case files? How do we prevent work from grinding to an unnecessary or prolonged halt? How to make sure important tasks are done and critical deadlines met?
  • Systems. Are our computers and communication devices adequately backed up? Protected against electrical surges or failures? Mobile technology allows us to plug into our systems and keep working even at a distance.
  • Recovery. How to put the pieces back together after the crisis has passed? Sometimes the aftermath and cleanup is as traumatic as the actual event.

This is heavy stuff.

Fortunately, help is available. Following are some key resources for North Carolina lawyers:

  • Lawyers Mutual Disaster Tool Kit. This comes from the loss prevention professionals. Chock-full of useful information and available for free online here. You don’t even have to be an insured to download it.
  • Lawyers Insurance Agency. Insurance is the cornerstone of an effective risk management program. Are your premises adequately insured? Office equipment and vehicles? How about your health and life. Disability coverage can provide needed income if you are unable to return to work. Learn more about insurance for North Carolina lawyers and their families here.
  • N.C. Bar Association. Call (919) 677-0561 or 1-800-662-7407 and ask for the brochure “Rebuilding After Disaster Strikes.”
  • Federal Emergency Management Agency. Disaster kits and checklists are available here.
  • FEMA Family Emergency Plan. Get a copy here.
  • ABA Committee on Disaster Response and Preparedness. The American Bar Association kicked its disaster preparedness program into high gear after Hurricane Katrina. The result is a goldmine of online information available to all lawyers. Topics range from technical assistance (local and national) to sample “disaster clauses” for inclusion in commercial leases. There is even a hotline for post-disaster technology consultation and tips for advising clients who have been hard hit.

The law is a service profession. Our mission is to help.

Be well.

For more information, follow us on: Twitter, Facebook, & LinkedIn.

Jay Reeves is an attorney licensed in North Carolina and South Carolina. He has practiced in both states and was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He writes the Risk Man column of practice pointers and risk management tips. Contact jay.reeves@ymail.com or phone 919-619-2441.

 

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The State Bar Grievance Process: How Grievances Are Received and Investigated

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Lawyers Mutual BlogChances are you don’t leap from your bed in the morning itching to read up on the State Bar grievance procedure.

Such behavior might in itself be grounds for discipline – or at least a mental competency review.

But statistics show that every lawyer who practices long enough will be on the receiving end of a dreaded letter sent by certified mail from State Bar headquarters. Many of these complaints will be summarily dismissed as frivolous.

Others, however, will be resolved in the lawyer’s favor because the lawyer understood the grievance rules and responded in a timely and appropriate manner.

Here, then, is an overview of the Disciplinary Process:

It Starts at the State Bar

The State Bar is a mandatory, unified bar – meaning all lawyers must pay dues to belong to it. The State Bar enforces the Rules of Professional Conduct.

All attorneys who are licensed to practice in North Carolina are subject to the State Bar’s disciplinary rules. Misconduct by a licensed attorney committed outside of North Carolina might also fall with the jurisdiction of the Bar.

Filing a Grievance

Complaints alleging misconduct against an attorney are called grievances. Anybody can file a grievance with the State Bar. Most grievances are filed by clients, other attorneys, opposing parties, or judges.

The State Bar can investigate potential misconduct uncovered through a trust account audit conducted by its staff of auditors. It can even pursue alleged misconduct that it learns about through the media or other source.

Usually, the complainant completes a written form that summarizes the grievance against the attorney. Pertinent documents or supporting evidence may be attached. In most cases, the complainant’s identity is disclosed. But if the complainant is a judge or another attorney, disclosure is not required.

Grievances must be filed within six years of the alleged offense. However, grievances alleging “fraud by an attorney the discovery of which has been prevented by concealment on the part of the defendant-attorney must be filed within six years from the accrual of the offense or one year after discovery of the offense, whichever is later.” Section .0111(e) of the State Bar Rules.

Investigation Phase

Grievances are reviewed first by the Grievance Committee. This is comprised mostly of members of the Bar Council (who themselves are elected by the constituent judicial districts), in addition to a few non-attorneys.

a) If the grievance on its face fails to state a violation of the Rules of Professional Conduct, it will typically be dismissed without further investigation or action. In such cases, the lawyer is not notified and generally is unaware that a grievance has even been filed.

b) If the grievance on its face states a violation of the Rules, the lawyer is sent a formal Letter of Notice, along with a summary of the alleged misconduct, known as the “substance of grievance.” The respondent must reply to the Letter of Notice within 15 days. Extensions of time to respond are usually granted upon request.

c) Some local district bars have their own grievance committees. These committees work in cooperation with the State Bar in investigating some of the grievances filed against lawyers practicing in their districts. Local committees have no authority to issue discipline or dismiss grievances. They can, however, issue a report and recommendation to the State Bar Grievance Committee for consideration.

d) Once a grievance is received, the matter is referred to a disciplinary attorney in the Office of Counsel. If a Letter of Notice is issued, the Bar counsel will review the lawyer’s response and might request additional information. Witnesses may be interviewed.

e) If the grievance is not dismissed clean and outright, it can be dismissed at the Grievance Committee level by way of an accompanying Letter of Caution or Letter of Warning. These do not constitute formal discipline and are not made public.

f) If the Grievance Committee finds probable cause that a Rule has been violated, it can issue discipline by way of an admonition, reprimand or censure. Reprimands and Censures are public. Admonitions are private.

g) If the Grievance Committee determines that material issues of fact must be decided in a trial before the grievance can be concluded, or if it deems a suspension or disbarment is indicated, the matter is referred to the Disciplinary Hearing Commission.

h) The Disciplinary Hearing Commission has the power to suspend or disbar attorneys. It usually hears cases involving dishonesty, theft, misappropriation, or gross neglect of professional duty.

For more information, follow us on: Twitter, Facebook, & LinkedIn.

Jay Reeves is an attorney licensed in North Carolina and South Carolina. He has practiced in both states and was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He writes the Risk Man column of practice pointers and risk management tips. Contact jay.reeves@ymail.com or phone 919-619-2441.

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10 Creepy Clients To Chase Away

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Legal Malpractice BlogEvery Halloween I enjoy reading the cautionary tips from local police for safe trick-or-treating.

You know – wear reflective clothing, travel in groups, don’t eat any candy that’s moving.

Which got me thinking. Lawyers could use some similar advice.

Following are 10 Creepy Clients To Run From In Terror:

1. The Mummy. This client is not tightly wrapped to start with. But just wait until you go to trial. Once he takes the stand, the real unraveling begins.

2. The Donald. The hair is a red flag. The verbal spew is another. Oh sure, he talks a good show. He’s got schemes to make you both rich beyond imagination. But watch out – before you know it you’ve been Trumped.

3. Zombie. Patiently you go over the terms of the settlement agreement for the twentieth time. But all the client does is sit there in mute incomprehension. How can a person be so dense? Then you notice the vacant stare, the shambling gait. In horror you realize this is no person at all. This is Zombie Client, and it will eat you alive.

4. Bride of Frankenstein. All she wants is a simple divorce. But look closer and you see this case is anything but simple. Alimony, adultery, indignities. You would scream but you’re too exhausted.

5. The Incredible Hulk. At first he was so mild-mannered. Scholarly, even. But the second something goes wrong – you miss a silly deadline or fail to return a phone call – this formerly meek client turns into a raging green monster.

6. Honey Boo Boo. So cute. So adorable. Just wait until she guzzles the Go Go Juice – a mixture of Red Bull and Mountain Dew – and you realize they’re all laughing at you, not with you.

7. Goldfinger. It’s all about the money with this guy. Forget ethics, honesty or following the rules. This client demands that you go for the gold. And woe be unto you if you don’t get it for him.

8. Dracula. This one’s a real charmer with his European accent and silky cape. But once he sinks his teeth in you he will drain every drop of your blood through incessant requests, unreasonable demands, and endless phone calls – especially after the sun has gone down.

9. Ghost. Everything is great at first. No fuss, no muss. This client is so low-maintenance she is barely there. Then you send your first bill, and she disappears into thin air.

10. Justin Bieber. Avoid at all costs. No explanation necessary.

For more information, follow us on: Twitter, Facebook, & LinkedIn.

Jay Reeves is an attorney licensed in North Carolina and South Carolina. He has practiced in both states and was Legal Editor at Lawyers Weekly and Risk Manager at Lawyers Mutual. He writes the Risk Man column of practice pointers and risk management tips. Contact jay.reeves@ymail.com or phone 919-619-2441.

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Five Rules for Discovery of Electronically Stored Information (“ESI”)

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What’s one of the most important steps in trying a litigation case? Discovery. Failure to properly discover electronic documents or maintain your client’s relevant electronic documents can make or break a case. It can also get you into trouble.

Let’s start at the beginning. What is ESI? ESI is any information stored in electronic form. In today’s world, that includes just about everything. ESI can hide in computers, servers, smart phones, tablets, CDs, hard drives, flash drives, and backups. ESI can easily be changed, overwritten or deleted, even without the user’s knowledge. ESI is not static like a physical document is. Destruction of ESI can expose litigants to the possibility of sanctions for spoliation of evidence.

Now that you know why it’s important, here’s some helpful rules for managing it.

1.     Rule 1 – Remember the Scout Moto: BE PREPARED!

Do not wait until litigation to discuss ESI with your clients.  Being prepared requires the lawyer to have a thorough understanding of all aspects of the client’s ESI, from its creation, to its content, to its storage, to its destruction. Make sure the client has a retention and destruction policy in place and that the client carries out its policy consistently.

2.     Rule 2 – Use “Litigation or Legal Hold” Notices

The first and often the best defense against spoliation sanctions is the Litigation or Legal Hold Notice.

a.     When is the duty to preserve ESI triggered?

Once a party reasonably determines that ESI in its custody or control may be relevant to pending or reasonably foreseeable litigation, the party should take reasonable steps to preserve that ESI. Note that the duty to preserve potentially relevant ESI attaches when litigation is reasonably anticipated – not just when litigation is initiated.

 b.    Determine the scope of the Litigation Hold Notice.

The duty to preserve evidence includes any relevant evidence over which the non-preserving entity had control and reasonably knew or could reasonably foresee was material to a potential legal action.” China Ocean Shipping Co. v. Simone Metals, Inc., 1999 WL 966443 (N.D. Ill. 1999).

c.      Who should get the Litigation Hold Notice?

Does your client outsource any of its ESI functions, such as accounting, payroll, web hosting, etc. or share ESI with third parties? They will need to be on the Litigation Hold Notice recipient list. The person responsible for implementing the litigation hold should get the Notice, not just the client’s contact person who may be managing the litigation. The client’s IT person(s) and HR person(s) should also get the Notice. Put it in writing and require recipients to acknowledge receipt. Send reminders for so long as the litigation hold remains in place. Remove the litigation hold as soon as it is no longer necessary. Send a similar letter to the other side putting it on notice of its duty not to alter or destroy evidence.

 3.     Rule 3 – Collaborate Early on a Mutually Agreeable Discovery Plan

Through discussions with your client, and with an ESI management policy in place, you will have an inventory of the client’s ESI. Try to get the same type of inventory from the other side. Having a good inventory will permit both sides to make an educated and reasonable ESI discovery request.

Be careful what you ask for – you may have to reciprocate. Discovery of ESI can be very expensive. Instead of requesting broad categories such as “all emails,” narrow your request to target particular ESI that you contend is important to resolve the case.

 4.    Rule 4 – Agree on a Process for Dealing with Waiver and Privilege Claims

Because production of ESI normally requires reviewing large quantities of data, there is an increased risk of inadvertently producing privileged information. Have a Non-waiver Agreement with a “claw-back” provision allowing the producing party to “claw back” or undo the production of privileged information. Federal Rule 26(b)(5) sets forth a default “claw back” procedure that can be used in the absence of an separate agreement.

 5.     Rule 5 – Don’t let Spoliation Spoil Your Day

Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.

If spoliation occurs during the pendency of the lawsuit or because of the noncompliance with a discovery order, the court can impose sanctions under Civil Procedure Rule 37. Anything from a verbal or written reprimand to default judgment or dismissal of your case is possible. Also within the courts’ authority under Rule 37 is the adverse inference jury instruction.

 By following these five rules, counsel can successfully navigate the dangerous waters of discovery of ESI. Lawyers Mutual offers our “e-Discovery: What Litigation Lawyers Need to Know” handout for additional guidance. If you have questions regarding a specific case, contact a Lawyers Mutual claims attorney for assistance.

 Mark Scruggs is a claims attorney with Lawyers Mutual specializing in litigation, workers compensation and family law matters. You can reach Mark at 800.662.8843 or at mscruggs@lawyersmutualnc.com.

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