Clio’s a solid choice. The few things I wish they did differently will probably eventually iron out; I respect Clio for printing my remarks insofar as they were contained constructive criticism regarding the need for a few tweaks.

Recently the county attorney’s office for Multnomah County, Oregon (basically Portland and a few of its inner suburbs) signed up with Clio as their practice manager for a 20-attorney office.

1)  Practice growth has led the Law Office to sign a short-term lease with Businessuites for space that overlooks the Owings Mills Mall. at 10451 Mill Run Circle.  After the lease expires, the Law Office will probably either remain in its current space, move down the hall to another unit.  So far, it’s working out well.

2) The latest edition to the Law Office is a high-powered Fujitsu ScanScap S1500M scanner, a highly-rated piece of office equipment that earns its reputation through lightning-fast performance.  The device is helping the Law Office to go mostly paperless (some documents must remain in dead-tree paper, but most can simply scan and shred.) Client files are maintained in electronic format in a secure, off-site server for access by the firm’s practice management platform, and are simultaneously synced with the Law Office’s local drive, so that both are correct, both are complete and if one gets destroyed, the other is secure.  The Law Office uses a very similar storage tool to handle non-client document.

The bane of attorneys is clutter and I am naturally no organizer at all.  But the ScanSnap has already made the move towards (mostly) paperless practice so easy; it’s a better document-trapping model in a busy office.  It’s the gold standard and my clients and I are both reaping the benefits.

3)  As previously noted here,. on June 14, 2012, I will be giving a presentation at the “Gone Geek” section of the Maryland State Bar Association Annual Meeting in Ocean City on “30 Tech Tips in 30 Minutes.”  It’s early in the program so I will be staying over in Ocean City for at least the night before and possibly for the full convention, my docket permitting.  Although the Bar Association has the rights to the final, full 30+page presentation, I am posting a small excerpt here:

4) My online lessons at the Solo Practice University video course on Unemployment Insurance: Law, Practice and Procedure continue.  I have gotten a little bit better at handling the video editing deftly and a little better at handling “me” well, if not deftly, somewhat more smoothly on the video.  A new lesson on state-by-state comparisons of unemployment insurance procedures and regulatory environments is coming up.

5) The Law Office has joined the American Prepaid Legal Services Institute, a trade association for legal plans.  I worked for a number of years with a law firm that handled an account with a major plan within that trade association; while I am not and will not be affiliated with that specific plan, I do serve as a referral attorney for several of the member plans already and will be working with additional such plans in the near future.

6) As a matter of practice, I am reluctant to discuss the specifics of my cases on this blog because it’s difficult to judge how much privacy is necessary to secure client anonymity and confidentiality.  I can state, however, that the Law Office  reached a major Title VII discrimination settlement in the last 60 days.  The case involved a large employer and a sales professional.  It was a case in which the Equal Employment Opportunity Commission had made conducted a meaningful investigation leading to an ultimate finding reasonable cause to believe that illegal discrimination occurred.  We (my client and I) were successful in reaching a settlement with the counterparty shortly before the right to sue letter 90 day expiry date.  That’s all I can say.  I am extremely proud of this case because the claimant in question was and is, like myself, a father who worked very hard as a provider.  Handing him his settlement check was my 2nd or 3rd happiest professional moment of my career to date, on par with my most important trial victories.

7) A personal note.  I am writing from the 4th floor of 10451 Mill Run Circle in Owings Mills late at night from my compact but comfortable, professional office.  15 years ago I used this office complex as my base when I was first starting out and when the Rouse Company owned the operation; I didn’t have permanent space here and only recently did I commit here to hard space this spring.  Now I have a window with a gorgeous view over the Owings Mills Mall (soon to be demolished and, per plans, rebuilt into a Town Center in the manner of Hunt Valley or White Marsh.)

If I had had any idea that the practice of law could bring me this much fulfillment then, I have no idea what I would have done differently.  If I knew then what I know now, ugh….! In the intervening 15 years, I have survived a house fire in my parents home, a reformulation of my practice model, relocated how many times, gotten married, gotten divorced, became a Daddy, done an immense variety of work.  I have lost a few friends along the way, a few by estrangement, a few for reasons I actually don’t know and one to a drunk driver.

I discovered that an ex-wife – more politely but equally accurately – the mother of my beautiful children and even her husband can actually be my good friends despite, well, history and personal shortcomings (specifically mine.)  I discovered that not only does life go on, but it oddly goes on quite well.

While I am non-religious, I feel oddly fortunate in the way that sincere, decent religious people do when they offer prayers of thanksgiving.  Despite problems, life is going eerily well.  What a fortunate man I am.  I can say that I could die happy today – not that I want to die, as I have a lot of important things to do for my boys, my family, my clients!  But how fortunate I am.  I don’t know if I am at the “I am the luckiest man on the face of the Earth” level of Lou Gehrig’s famous speech.  But I feel peculiarly fortunate – fortunate to do work I enjoy for clients who seem grateful for the work done.  How lucky I am.

Thank you for bearing the inconvenience of this message.

g_______________@gmail.com

and

l_____________@gmail.com

are now deprecated email addresses and are being discontinued. This is to reduce overall email, streamline accounts and clean the Augean Stables of spam.

All clients, government agencies, courts, personnel, CURRENT vendors, Bar Associations and colleagues in the Bar: Please use g_____@brucegodfrey.com with my thanks.

Prospective Vendors: please mail your advertising materials or proposals to Box 444, Reisterstown, MD 21136. Please do not contact this office by phone, fax or email. If you must send an email, please send it to

“VendorSpam@brucegodfrey.com”

I will check this email file for amusement purposes upon my retirement or disbarment.

Vendors of legal marketing services: Please email me, if you must and only if you must, at

“LMClassAction@brucegodfrey.com.”

I will post your emails on my website and ask my mentees to grade them according to tastelessness, moral and ethical depravity, punctuation and violation of federal and state laws. I wish all of you the best of bankruptcies and a fresh start afterwards in honest work.

Family and friends: you may email me at my Facebook account for “fun stuff”. If you are not on Facebook, call me for the forwarding address.

Bruce Godfrey

Branding or marking serves a useful purpose in commerce: to identify a series or multiple series of goods by a manufacturer with that manufacturer, to identify services with a given provider, and from the manufacturer’s or provider’s viewpoint to convey common positive qualities among those goods or services. For goods, the mark may continue to advertise the company’s identity not only at the point of sale but during its use, such as the Heinz ketchup bottle on the picnic table at the family reunion barbecue or the can of Natty Boh visible from halfway across the bar in Baltimore. While branding services may be more challenging, we know some service brands very well: the brown shield of UPS all over the company’s uniforms, packaging and fleet vehicles.

For some goods and services, their need or use may embarrass the consumer if known to others. It is merciful and proper that most prescription medicines are usually sold in uniform, brand-less containers. Although Preparation H has (presumed) value to its buyer, has a mark and distinctive packaging, one rarely finds contests with the mark prominently displayed where winners can get a lifetime supply and their names and pictures proudly displayed on the cover of Preparation H magazine. Alcoholics Anonymous has some service marks and trade marks for its publications and activities, but its anonymity and policies make anything but the most perfunctory, utilitarian and limited references to its very existence inappropriate to its stated purposes.

Ultimately, is the practice of law something more like Alcoholics Anonymous, or more like the companies who plaster their trade and service marks all over a racing car at the Indianapolis 500? Is one’s identity as a solo attorney something ideally staid and reliable, such as that of a classical perception of an traditional rabbi or priest, or is it more like an XBOX 360 or Budweiser or, perhaps less aggressively, like UPS or FedEx?

The first purpose of branding – to establish the sourcing of goods or services – is barely needed if at all in the practice of law. Most documents written by lawyers have the lawyers’ letterhead or lawyers’ signatures included or attached either by law (pleadings, deeds in some states including Maryland) or by practice. Usually the envelope in which the work product is delivered has a watermark, label or return address from the lawyer or law firm on it. Most importantly, clients know who their lawyer is, whom they hired to do what negotiation, drafting or litigation work on a given case. It’s not like a can of soup without a label, in which instance finding out what’s in the can is not possible without opening the can and finding out who made the soup is probably impossible even after opening. Since legal services are usually confidential, the universe of people who need or want or have the right to know whom some person retained for a given legal matter is either tiny or non-existent and when there is such a right, there’s a lawyer’s signature, letterhead or card nearby on the handiwork.

The second reason to brand goods is not merely to identify but to induce and maintain loyalty or to dislodge the loyalty of a competitor. If Domino’s Pizza and Papa John’s go to war in a given market, each will use their brand, their marks, to identify themselves not only regarding a given boxed extra-large veggie pizza but to assert and win brand superiority and to maintain customer loyalty. Brands are descriptive but also proscriptive tools; they mark, enhance and move forward against resistence the battle lines between competing market players. For pizza and soup cans and detergent, this is fine and good.

As attorneys we are under many regulatory constraints that keep us from acting like Coke and Pepsi. We mostly cannot discuss our clients’ business in public or otherwise with outsiders (although some damn fools try, such as every lawyer whom George Zimmerman has hired to date.) We cannot compare our services to those of other attorneys unless those claims can be factually substantiated; since we cannot usually discuss our clients’ business outside the firm, it’s hard to make an ethically permitted comparison. We cannot solicit or otherwise speak to a represented party and we cannot solicit in person; this makes grocery store-style “Pepsi challenges” to loyal “Coke” clients impossible as clearly prohibited under ethics rules. We cannot call ourselves “specialists” or, in many jurisdictions including Maryland “experts” without a serious risk of a violation or a guarantee of one. Brand identity isn’t very useful in this context; I would argue that it’s absolutely useless.

Some attorneys have commented online about the need for an “identity.” I don’t know precisely what they mean. It could be that they literally don’t know who they are; this is known as amnesia. It could be that they don’t know what their identity means or should mean professionally; this is a crisis of meaning or existential crisis. It could be that they don’t know what their perceived identity is or should be; this is a descriptive or proscriptive marketing issue.

It’s clearly not amnesia as this is real life, not a soap opera whose writers hit a dead end. It may well be an existential crisis, such that these often young attorneys are humming along unironically to Eminem’s lyrics “And I am, whatever you say I am” but missing the point of that piece of hip-hop. The practice of law is no place to resolve an existential crisis; that belongs to more personal realms of philosophy or religion or whatever. But like young people who glom on to religious movements as an imperfect puzzle piece curved and jammed into the identity “hole”, some of these low-identity attorneys may be looking to fake it until they make it – until they cannot see or feel the hole any more.

Other attorneys might indulge the maluse of “identity” and “branding” perhaps not so much to sell themselves but as a sales tool to the clients. In this pursuit ethical violations petty and hard-core may ensue, though the likelier result is mere time-wasting. Clients aren’t looking for the brand; they are looking to pursue or achieve dreams, slay or reduce nightmares, protect their property or cash flow or freedom or good name or privacy, continue their legacy, find peace, inflict horrible misery on their enemies, etc.

The “brand” or “identity” is even more of a BS layer for lawyers than it is for pizza – ironic, as we owe a stronger duty of care and candor to clients than Pizza Boli’s does to me when I indulge, to my detriment, the occasional purchase of a pizza with pineapple and hot peppers. At least the Pizza Boli’s sign and box help customers find pizza; then again, almost all non-vegan Americans eat pizza occasionally and it’s a fun, impulse purchase with no lasting bad effects (if it’s occasional or if you are Michael Phelps training for a meet.) Plus, Pizza Boli’s is a chain; consistency in the product from store to store is confirmed by common ingredients, recipes, equipment, etc. There’s only one you or I as solo attorneys; we don’t need to confirm any multiple-office common standards like a pizza chain.

Your identity as an attorney was issued to you by your mother or other relatives at or near birth or otherwise per lawful name change or name registration upon entering the Bar. My identity is T[heodore] Bruce Godfrey, attorney; if I forget that, call the doctor (and if I keep forgetting it, call Bar Counsel.) In most jurisdictions, law firms may not practice under a law firm name other than that composed of one or more attorney names without special clearance. You have no need for an identity; you have it.

What you need is a reputation, but the only ways to earn that are through consistent competence or, ideally, excellence in one or more practice areas and through solid performance on aspects of law practice other than mere competence, such as efficient return of phone calls, diligence, respect for the value of clients’ money (this is NOT to suggest low-balling your fees, but to bill intelligently and consistently with the Golden Rule.) You know – actually doing your job well, as you would expect of a mechanic or a plumber or an electrician. This isn’t to say that you shouldn’t aim to get really good at a practice area quickly; indeed that’s commendable, it’s where you should be aiming your efforts Without solid mentors and peer-apprentices of similar mindset and habits, however, you are unlikely to have a solid basis to judge your skills or to know when you are out of oxygen.

In due course, through persistent skill development, you can become competent and indeed excellent in a given area of practice. Not “competent”, but competent: you know it well enough to do it well and efficiently. Above competence is the ability to teach others, or to correct others’ errata or to engage in well-grounded debate in the gray areas of your practice area. (Part of competence is knowing when something is not knowable but mostly or entirely a matter of judgment calls or opinion.)

I am not Jewish or otherwise religious but I am informed that in the tradition of Torah study in traditional Judaism, it is customary not only to have mentors but also consistent Torah study partners to bring out the best from the student.  In law school we do not do so in the same way, though in fairness the purpose of law school is quite different from the purposes of religious study.  In the practice of law, though, we probably need “study partners” – good ones – more than in law school itself.  The economic demands of practice and ethical restraints on confidentiality make getting a “study partner” in a law practice tricky, but doable.  At a minimum, list-servs from Bar associations can help.

“Branding” simply isn’t part of the business of developing your craft and repute as a solo attorney.  Florida criminal defense and ethics attorney Brian Tannebaum got it dead right over at Above the Law.  Believe no social media hype or existential pangs suggesting the contrary.  Far better to spend the day in study over the unsexy, uncool Rules of Procedure.

The real problem, however, with allowing vendors to get leverage over your marketing presence goes beyond mere costs. We as attorneys cannot afford to surrender the professional independence of our judgment on how to practice.

I have seen attorney after attorney fail to think three steps ahead. It’s a serious mistake to allow some internet marketing company (disclosure: I use a couple of the least obnoxious ones for limited purposes) to control your identity online. It’s a serious mistake to allow some landlord to own your outward-facing phone line.

If you want to get a phone number, go to voicenation.com and get a forwarding number for $10.00 a month. Don’t let the office suite, internet marketing hack or any such materially interested vendor get control of your phone. Forward that phone to a phone that has no identity or whose number you unambiguously control (cell phone, whatever.) It’s fine if the office suite or landlord will provide you a desk phone number – great. But you are not only a fool but a damn fool if you allow them to own your outward facing number.

Similarly, if you want to have an online presence, go buy the domain name(s) that you want and maybe even buy hosting before you talk with any of the internet marketing mafia. I use ICDSoft.com; they have been down, to my knowledge, for a total of 24 hours in the last 7 years. Don’t let the internet marketing mafia get away with murder by offering to “let you have” 15 pages on your site and charge you hundreds of dollars per month in rent for additional pages. A page is a one-shot draft job in most cases; charging you monthly rent on your site is like charging your client $75.00/month for the rest of his life on a divorce decree, on the grounds that it’s still in the courthouse, still effective and the client is still divorced. 115 pages costs minimally more than 15 pages.

Consider doing your website yourself. While that’s a big task (I know, I installed and designed every wart and scar on this site), it’s not fundamentally different from typing your own letters which most attorneys do from time to time and some always do. My hosting with ICDSoft costs $6.50/month for more bandwidth and storage than I can use. Ask yourself whether years of commission are morally fair to the sales reps for the high-priced monthly charges for the web pages that took minimal effort to augment. Even if you do use the web design services more extensively, ask yourself whether it is reasonable to allow an outside non-attorney corporation to own your professional image – not just to service it for fee like an honest for-profit plumber, but to hand them “Fee Simple Absolute” in exchange for their sales hack claims of effectiveness.

Nobody owns Bruce Godfrey, and only Bruce Godfrey owns www.brucegodfrey.com. I use lawyers.com and avvo.com as flat-footed advertising media, but note well that I am absolutely happy to tell both of those companies to take their services elsewhere on a moment’s notice. They don’t get the chance to have a “seat at the table”, to quote the severely unfortunate phrase of the “Legal Marketing Association” because it’s not their goddamn table. Seven women and men in red robes didn’t issue Lexis Nexis or Avvo’s Mark Britton a Maryland law license; these corporations are plumbers, not roommates or family.

You know what’s better than the coolest blog post or social media gimmickry? Doing something actually useful and (to the extent permitted by ethical strictures) discussing its real-life usefulness online (paraphrasing Hugh MacLeod of the Gaping Void). Knowledge and deeds – those no vendor can revoke if you stop paying their Danegeld.

[Gee, hope that's H_____ D______ calling me re: my piece of the S_____________ settlement.] “Good morning, this is Bruce Godfrey; may I help you?”

“Hi, may I speak to the owner of the Law Office of Bruce Godfrey?”

[Christ, one of these.] “Yes, I am Bruce Godfrey; this is my law office. May I help you, sir?”

“Yes, I am Jake and I am calling from Lexorrhea, the legal marketing solution for the social media age. And who might you be?”

“My name is Godfrey and you may call me “sir”. What is the purpose of this call to my law practice?”

“Oh, well, good morning, Bruce? Bruce. I am calling to make sure you know about how Lexorrhea’s slots for Baltimore City are filling up. You are in Baltimore City, right?”

“Jake, let me ask you – you are not from Maryland, are you?”

“Our company is a national company using legal marketing experts to help you with your practice.”

“Let me try this again, Jake – do you live at Lexorrhea’s headquarters, or do you leave at the end of the day and go home to an apartment or home somewhere?”

“I live in Austin.”

“I see. I have never been to Texas, and probably will die having never visited. Have you spent at least 30 days of your life in Maryland?”

“Ahem, no, though I once went to a football game at Camden Yards.”

“Nice. Ok, my office is in Baltimore County, 15 miles from downtown Baltimore.”

“And that’s great that you are in Baltimore. We would be happy to help you become the top attorney in your field in Baltimore City, so you should act quickly before the slots fill up for our social media marketing plan.”

“In which fields do I practice, Jake.”

“Why don’t you tell me, Bruce?”

“Jake, you should have researched who I was and what the geography of the state is before you picked up the phone. Baltimore City and Baltimore County are distinct, and somewhat mutually indifferent, jurisdictions. I don’t live in the city.”

“Well, maybe you can market also for Annapolis and Anne, A-run-dale?”

“Anne Arundel, Texan. And no, if you are in Owings Mills, you probably won’t get a lot of traffic for Annapolis litigation as they are about an hour apart.”

“Oh, I see. Well how about the Prince George area?”

“That’s Prince George’s County with an apostrophe. Tip for you Jake: don’t call it ‘P.G.’ and don’t mess up the name, lot of local pride. And again, that’s 45-50 miles from my office.”

“Well, that’s not that far.”

“You aren’t in Texas, Jake”

“Well, Bruce, I am.”

“No, you are calling me, and this call is happening here, not at your desk. Do you know this state at all?”

“Well, we have had a lot of success with our Maryland area attorneys. We have attorneys in Rockville, Salisbury, Boa-ie-”

“That’s Bowie, rhymes with Huey and Louie.”

“Ok, well, we help our attorneys by making sure your clients know what you specialize in.”

“Jake, no attorney in this state can ethically claim to be “specialist” or to “specialize” in anything; this is Maryland. Haven’t you taken the trouble to read the Maryland advertising ethics rules under Rule 7 before you picked up the phone? You are an internet marketing company, surely you could spend 5 minutes Google-ing them?”

“Well, that’s not that big a deal, is it?”

“Jake, an attorney named Turkewitz in another state once said that outsourcing marketing is outsourcing ethics. Not only do you bastards not know your market, you don’t know the regulatory environment. When did you go to law school?”

“Well, I took a business law course at Austin Community College, got an A- in it.”

“Goodbye Jake – nothing personal but I hope both you and your company go out of business tomorrow. Never call me again. Really.”

[Click]

[20 minutes later] – “Hey, D – it’s Godfrey. How’s it going with my piece of the S______________ settlement? BTW – stay away from Lexorrhea.com…..”

My legal opinion doesn’t amount to much; I am perhaps slightly competent to discuss the basics of 4th and 5th Amendment issues in the case if they appear (since those involve federal law), but felony work isn’t my forté and I have neither a law license in Florida nor experience pro hac vice in that state nor the ambition to practice there.  (Don’t get mad, Alan, I am going to come visit you in Jacksonville.) I am unashamed to admit I don’t know anything about Florida law; knowing Florida law isn’t the competence that I promise to my clients.

Many attorneys, including myself, have expressed shock and disbelief at the media conference held by Mr. Zimmerman’s prior attorneys Sonner and Uhrig.  While Florida ethics rules are not identical to those of Maryland, both states use versions of the ABA Model Rules of Professional Conduct.  Rule 1.6 protects confidentiality of information obtained during the course of representing a client – not merely information from the client in a narrowly-defined attorney-client privileged communication but other information.  No interest of Mr. Zimmerman appears to have been protected or advanced by that press conference; there was no need for it.   Further, they should have anticipated that representing a homicide case involving an adult shooter and an unarmed teenage dead body would bring some media attention; if they couldn’t handle the cameras, they should have declined the case or brought in someone who can control communications (such as by not having any communications.)

At the personal level, the Zimmerman case was for me a cause of reflection as a recent survivor of a gunpoint robbery in Owings Mills near my apartment.  Three men are now locked up no bond awaiting a June 6 trial date in Circuit Court for 21 counts each, seven felony and misdemeanor counts against three victims (or “survivors” which more accurately expresses my attitude), myself and two others in a late January rolling robbery spree in Owings Mills.  In that armed robbery spree, one other victim was apparently pistol-whipped; I was not battered by the robbers.

I don’t know – and really cannot know – what George Zimmerman experienced mentally before and during his encounter with 17-year-old Trayvon Martin.  Among the unexpected good effects of aging, however, is the realization that things can be good despite shortcomings, but that shortcomings are real.  My eyes are not what they were; reading the screen on the iPhone that I bought to replace the one that the thugs robbed at gunpoint is not easy, even with the “retina screen.” (My retinae are probably fine; it’s the muscles controlling the shape of my eyeball and lens that plague us old folks.)  My endurance isn’t what it was; my mind might be slower though it’s hard to tell.  It’s easy for me to believe that I could, in arrogance (among my many shortcomings), decide that someone were a threat and needed killing.  The State of Maryland would probably issue me a carrying permit and I have the resources, if I really chose to, to buy a gun and walk around with it as an epistemologically flawed disaster waiting to happen with the full blessing of the law (and, of late, the federal courts) as a violent crime survivor.

George Zimmerman probably didn’t wake up that day intending to kill someone, and Trayvon Martin didn’t go to a neighborhood convenience store with the intent to purchase his last meal there and get killed en route back.  Yet one man is dead and another may die in prison.  I don’t want to let bad epistemology lead me to kill someone with a gun.  As an attorney, I am used to 10-day, 15-day, 30-day deadlines.  Not 2-second deadlines; those are for fighter pilots and folks who defuse bombs for a living.  Can I, in two seconds, tell the difference between some obnoxious Gen-Yer in a hoodie who means me no harm, and one with a gun ready to rob me?  Can I get my car keys, let along a snub-nosed .38, pulled out and aimed for their proper target in 2 seconds?  No – fallible in eyesight, fallible in reflexes, fallible in split-second judgment and perception, fallible in epistemology.

I’d rather assume the risk of living an unarmed life – and there is a risk to that, make no mistake – than to attempt to handle not only a firearm against some aggressor but the decision-making and perception in that 2-second .  Play to my strengths – negotiations, defusing situational “bombs” by manipulating the players, not by superior gunplay.  I am a potential George Zimmerman, whether admitting it makes me feel good or not.  At least I can choose to disarm (as others may, for their good reasons, choose to arm themselves.)  That, not the procedures or substance of State v. Zimmerman, matters most now.

Plaintiffs Zenobia and Dickerson in the original cases were victims of asbestos exposure and sued several defendants who produced, supplied or installed products containing asbestos.  At trial, the only theory of liability was strict liability. The jury awarded both compensatory damages against five defendants for Dickerson and four defendants for Zenobia and awarded further punitive damages against three defendants in favor of Dickerson and against two Defendants in favor of Zenobia. Pursuant to a stipulation, all defendants were considered to have cross-claimed against each other,  and one defendant with whom Plaintiffs had struck a settlement found itself in bankruptcy.  The procedural posture of these cross-claim awards is relevant to the case but not to the ultimate precedential value of this case as a major Maryland case.

On appeal by the five of the Defendants to the Court of Special Appeals, that Court upheld all of the compensatory damage awards but did reverse the punitive damages against one defendant only, Porter-Hayden Co.  Zenobia and Dickerson cross-appealed

Owens-Illinois, Inc, Porter-Hayden Co. and defendant MCIC petitioned the Court of Appeals for certiorari on several issues involving improper jury instructions on duties to warn, improper admission of deposition evidence and, in the case of Owens-Illinois, the propriety the punitive damage award.  Zenobia and Dickerson filed conditional cross-petitions for certiorari on the issues of contribution and indemnification among the Defendants, issues that they had raised before the Court of Special Appeals; the petitions were conditional upon the granting of the prior certiorari petitions.  In response to Zenobia’s and Dickerson’s conditional cross-petitions, Anchor Packing Co. then filed a petition for certiorari on four issues.

Confused yet?  The Court of Appeals granted all petitions for certiorari.

The Court’s opinion addressed issues involving the admission of deposition testimony and the denial of a motion for a new trial in its first three sections, but those issues do not constitute the primary precedential value of the case i.e. what makes this case a “Important Maryland Case.”  In section IV of the opinion, the Court engaged in a lengthy discussion of the standards for punitive damages in a strict liability products liability case, with the intent to examine the characterization of a trial defendant’s conduct in such cases, define precisely the standard which in a non-intentional tort case may give rise to punitive damages and in fact to heighten that standard.

The court discussed and, for non-intentional tort purpose, ultimately dismissed the “Testerman-Wedeman” standard, named after two prior cases.  In those cases, the Court of Appeals had ruled that in the context of a contractual relationship, conduct occurring before the formation of a contractual relationship could give rise to punitive damages on a finding of “implied malice”, i.e. wanton or reckless disregard, whereas under that prior standard punitive damages for conduct occurring after the formation of a contractual relationship could lie only on a showing of “actual malice,” that is, “evil motive, intent to injure, fraud, or actual knowledge of the defective nature of the products coupled with a deliberate disregard of the consequences.”  The Court of Appeals explicitly abandoned that rule in this case because the purpose of punitive damages is to punish heinous conduct by a defendant, regardless of when that heinous conduct occurred.

The Court proceeded to examine the historical standard of “actual malice” for punitive damages, noting that in one 1972 case involving a motor vehicle accident the Court had allowed punitive damages upon a showing of mere implied malice, i.e. gross negligence, but warned in that case against the broader application of a more liberal standard.  Notwithstanding the limitation warning, a number of subsequent cases in Maryland relied on Smith v. Gray Concrete Pipe Co., 267 Md. 149 (1972), more liberal standard outside of motor vehicle cases.  The Court proceeded explicitly to overrule Smith upon a review of the policy arguments against the inconsistent results that had occurred in facts with similar cases and after examining how Maine’s Supreme Court had recently modified its implied malice standard in similar cases.

The Court proceeded to note that in a products liability case, it is difficult to show “actual malice” by a manufactureras previously defined as evil intent, intent to injure, ill will, or fraud.  The Court then stated that actual knowledge of a defect and associated danger connected therewith, and a conscious or deliberate disregard of that danger to consumers, together constituted the product liability standard for “actual malice.” The Court emphasized that mere constructive knowledge or “substantial knowledge” are not enough to meet this standard.  The Court stated further that a punitive damages claim was possible from a strict liability or negligence-based tort theory, if the facts otherwise met the punitive damages standard.  Perhaps most significantly, the Court followed the reasoning of several other U.S. courts in applying a heightened standard of “clear and convincing evidence” to any tort claim for punitive damages, reflecting their penal nature and potential for debilitating harm.

The Court noted that its change of the evidentiary standard for punitive damages was a change to the common law within the Court’s constitutional jurisdiction, and would apply prospectively to all trial started from that day forward.  On the other hand, the Court deemed its overturning of Smith and the Testerman-Wedeman standard not to be a change to the common law but rather an overruling of decisions that were decided erroneously, and therefore the law would apply retroactively to any case where the issue had been properly preserved for appeal.  The Court remanded the plaintiffs’ claims back for a new trial under the narrowed legal standard and the heightened evidentiary burden, to the extent applicable under the evidence presented by all parties that the new trial.

Judges McAuliffe and Bell (the latter later Chief Judge) issued separate opinions.  Judge McAuliffe concurred in the result of the majority opinion but urged that in cases where a defendant met a standard of depraved indifference short of “intent” which could satisfy the “malice” standard for common-law murder, punitive damages should be at least theoretically available since in both cases the intent of the law was to punish.  Judge Bell concurred with the majority in the overruling of Smith and the Testerman-Wedeman doctrine but dissented strongly as to the raising of the standard for punitive damages to “actual malice”:

“In cases where there is no actual malice, the totality of the circumstances may reveal conduct on the part of a defendant that is just as heinous as the conduct motivated by that actual malice and, so, for all intents and purposes is the same.”

Zenobia‘s influence on tort law in Maryland has been rather strong.  One year after Zenobia, the Court of Appeals went on to hold in Komornik v. Sparks (which this Important Maryland Cases series will cover at a later date) that even in cases involving drunk driving – which criminal courts can punish with incarceration – punitive damages cannot lie in the absence of a finding of actual malice.  A cautious person may ask: if a court can punish a wrongdoer with punitive jail to prevent a harm, why not with punitive civil damages that go to an actual human victim of the conduct which the criminal statute seeks to deter, restrain and punish?  Regardless of one’s opinion of the opinion, Zenobia is a mandatory read for any Maryland tort litigator and definitely qualifies as one of the most Important Maryland Cases.

1.  Know (i.e. identify) what it is that what you don’t know – make the unknowns known unknowns, in the words of philosopher Rumsfeld of Pentagon.
2.  Get up early; you aren’t a bar bouncer and the day remains to be seized and used.
3.  Return phone calls.  My two best cases of this year came when I was the second attorney that the client called, and one already resulted in a substantial settlement.  Had the other attorneys had better phone discipline, I’d not have heard from the clients.
4.  Make a “rainy day” projects list and review it every 90 days.  When business is bad, and there will be bad times, advance on your projects.
5.  For the most part, lay off of the booze.  Anheuser’s Disease is a plague on our profession; alcohol is pushed at many Bar events for no good particular purpose.
6.  You know how the attorneys for George Zimmerman, accused killer of Florida teen Trayvon Martin, held a press conference to discuss the legal advice that they gave their homicide suspect client and speculate on his motives?  Yeah, dear Heaven don’t do that, because you are too broke, too old and too dumb to change careers after your disbarment.  If you wanted to be selling used cars, you’d be doing that.

As attorney Eric Turkewitz stated it far before I did and far more succinctly than I could have, “outsourcing marketing = outsourcing ethics.”  If you are a online legal marketing “expert”, please consider this as First Amendment-protected speech inviting you to change careers.  I have seen the damage that these clowns can do in other Maryland attorneys’ practices, and am skeptical of the entire lot of them based on their demonstrated failure to understand the basics of attorney advertising regulations.  While we attorneys are ultimately responsible for anything our hired hacks do, whether they are attorney hacks or non-attorney hacks, the attorney hacks at least got a passing grade in Professional Responsibility and on the Bar exam.

The marketing goofballs, who apparently now have the nerve to demand a “seat at the table“, are just a train wreck, and their sales reps sound like the sleaziest bunch of 25-year-old creeps out there in their voicemail messages.  No, legal marketing kids, you cannot be sued, sanctioned or grieved for your errors but we attorneys certainly can be sued, sanctioned or grieved for your feckless scammery; you are not the grown-ups in this household and you do not sit at the attorney grown-ups’ table.  To quote the philosophical school of Sha Na Na, “Get a job.”

Really, folks, quit calling my office.  Better yet, quit your jobs and learn a clean trade.