LINGUISTICS AND THE PRACTICE OF LAW

Linguistics is the study of language. It is reflected in everything we say and what we do. Essentially, it impacts how we communicate with others. In this regard, every word can have significance; many of which are like a double-edged sword, in which there can be two completely different meanings.

To be effective in the practice of law, one must truly understand the impact EACH word has, which includes knowing how and when to be concise instead of wordy; and, to know whether we are in fact, as well as how to be, convincing instead of unpersuasive.

There is a distinction between “effective” counsel and “competent” legal representation in that the latter is legal advice and counsel without errors, such as whether the advice and representation would result in the denial of a fair trial. This is often classified as malpractice or negligence. On the other hand, one may not have departed from the elementary standards applicable to the practice of law and, therefore, not be negligent. However, one can still be “ineffective” by failing to obtain a winning result. In the practice of law and to be effective, a lawyer should strive for superior advocacy; this should apply to how one drafts legal documents; presents oral and written arguments; drafts and finalizes written communications; as well as the basic dialogues we have with those with whom we know and/or those with whom we want to influence by producing a positive response, feeling, or opinion.

It is the “art of communications” to know what to say, how to say it, when to say it, and, where is it acceptable or beneficial to do so. Additionally, one needs to know when to say no more, if only to allow the other individual an opportunity to digest what has been said and to reply, if desired.

Here are some considerations to help illustrate the above:

  • Is the same writing style and techniques in sending or responding to texts satisfactory in writing a letter, greeting card, etc.?
  • Do you communicate the same when conferring with a loved one, family member and/or friend? Are there differences when applying for a job; writing an essay or term paper for school or college; or submitting written arguments to the adversary in a case; to an organization; an arbitrator; judge; and to an administrative agency?
  • The tone of our communications can have a different impact, perhaps one that is not intended at all. The way words are expressed can lead to different meanings. For example, stating “I love you” in an angry or sarcastic voice vs. gently and softly saying the words “I love you.” Can you “hear” the difference? Try saying the same words in a different tone and you will see the reaction [the former angry tone likely will cause  a baby to cry, out of fear].
  • What about language in politics, in newspapers and television broadcasts? Are they fair and balanced?
  • In addition, should one consider the source of the communication; the activity and context in which the communication is made; as well as the credibility of the speaker or writer?
  • When is it appropriate to make a complimentary remark in contrast to ignoring what others may say or do that truly is, or seems improper?

Whether through linguistics and/or superior advocacy, the goal of a lawyer is to evoke an acceptance of an argument or obtain support for his/her argument. It is fair to say, effective legal counsel utilizes a combination of compelling and cogent language with logic and reasoning. Essentially, this involves both the “art of communication (linguistics)” and the “art of negotiation.”

 

Common Legal Mistakes in Transactions

Clearly,  many of us go about our lives without making legal mistakes. Fortunately, many of us never incur legal problems. However, that should not create a false hope in our mind to ignore the fact that legal issues can arise and we have the power to avoid legal mistakes in our transactions, whether routine or once in a lifetime.

It is not very different than a person who has a spare tire in his/her vehicle, but has hardly used the tire or never used it. It makes good sense to periodically have our tires checked for air [and certainly, the spare tire]; in fact, tire manufactures and safety proponents recommend replacing tires after a certain period of time because the rubber and material that comprise tires wear out, even if there is still plenty of tread remaining on a tire [some recommend replacing a tire after six years, while others make the recommendation after eight years).  The same analogy can be made for purchasing home or renter’s liability and fire insurance. Some of us have purchased fire insurance for 10, 20 or even 30 years, yet never had the misfortune of having a fire; yet, there are very few of us  who do not have fire insurance.

If we do nothing to prevent problems and/or fail to realize the expectations in our daily transactions these situations can result in legal mistakes at best; but at worst, they can be the basis of a lawsuit. For example, one may forget the critical importance of having a detailed written contract when having a home remodeled, or when entering into other verbal agreements. However, enforcing our agreements and realizing our goals in many of our transactions can be a challenge if adequate consideration is not given to the scope and purpose of our agreement(s) and the unintended consequences. Moreover, it is hardly a mistake for a business, vendor, contractor, or sales person with whom one enters int a transaction to set forth the least amount of information. Whether this is deliberate or simply a result of being in a hurry or carelessness, we can describe the result as a legal mistake. Sadly, there can be one or more common omissions that are critical to an agreement, whether verbal or written. In this regard, you should consider the importance now and in the future to have a transaction spelled out in full in a written agreement, particularly crafted both in your favor [rather than the third person or business] and with the most number of details as possible.

When you contemplate or are about to enter into a transaction or an agreement, the first step is to have a clear plan of action. This includes making an itemized list of what you desire, along with what you expect to be performed, each of which to be included in the transaction, oral agreement or written contract. Then, you should request each and every one of those important items, facts, services and the steps or process to be used, to each be spelled out in writing, thereby becoming the important content of the agreement. From a legal standpoint, these are often called specifications, details, technicalities, terms and conditions, etc.  Avoiding legal mistakes in the transactions we enter into can not only save us money, but avoid disappointments and heartache.

 

Safeway Grocery Settles Claim of Employee With Disability

On November 2, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) reported a settlement regarding a food services employee on disability leave for a job injury at Safeway Grocery.

Initially Safeway followed the law, Americans with Disabilities (ADA), which requires employers to reasonably accommodate employees with a disability; as such Safeway allowed the employee to work in a different position that did not require heavy lifting as she did in her previous assignment. However, Safeway unilaterally decided to place the employee on unpaid leave indefinitely, making the argument that the employee had exceeded what they deemed an allowable time lime and, therefore, could no longer enjoy the position with modified duty.

The Federal Disability Lawsuit was settled by Safeway because of a legal discrimination claim brought against it. The requirement of reasonable accommodation includes, but is not limited to, the employer reassigning an employee with a disability to another position, unless it can be established this would cause a significant expense to the employer and/or substantial difficulties associated with the same. There is no time limit provided the employee has a qualifying disability.

For additional information on employee related issues, you are invited to view our web site at www.spitalaw.com

Is There Gender Bias in The Movie and TV Industries?

On May 11, 2016, the Los Angeles Times reported a story relating to a previous request by the American Civil Liberties Union for the U.S. Equal Employment Opportunity Commission to investigate a pattern and practice of gender bias in the hiring of primarily male film and TV directors, and more recently to include producers, actors studio executives and agents.

The ACLU had referenced a University of Southern California study in which less than 2% of directors of the 2013 and 2014 top-grossing films were women. The LA Times reporter noted there were nearly a combined 50 new films announced for 2018 by Paramount Pictures and Twentieth Century Fox in which there was not even a single women director. Certainly, these statistics are quite telling, regardless of your position on the subject.

The challenge for the EEOC, and the filing of a civil law suit against and/or mediation involving this industry is complicated by the fact there are a great number of individuals in the hiring process, such as the Directors Guild of America, producers, agents, managers and studio executives.

 

CALIFORNIA SUPREME COURT RULES EMPLOYER MUST PROVIDE SEATS FOR EMPLOYEES

In a unanimous opinion, NYKEYA KILBY vs. CVS PHARMACY, INC., Case # S215614, on April 4, 2016, the Supreme Court of California held an employer must provide suitable seating for its employees as long as it is reasonable to do so in the particular work environment. In other words, the employer must provide seats for their employees:

  1. When the tasks being performed at the location the employee works (physical layout of work place) reasonably permit individuals to be seated;
  2. Utilizing a seat does not interfere with him/her performing any of the tasks that may require standing;
  3. And, it is the burden of the employer to establish the unavailability of suitable seats, rather than the obligation of an employee.

The underlying case arose when an employee at CVS was advised she had to stand while performing her duties and functions, which included operating a cash register, organizing and stocking shelves with products, as well as in front of and behind the sales counter, and cleaning the register. It is not questioned that certain functions, such as gathering shopping baskets, vacuuming, and removing trash are active duty tasks that cannot reasonably be performed while seated. In a companion case, a bank teller performing duties at his/her station, such as cashing checks, accepting deposits,  and processing withdrawals should be contrasted with the duties away from his/her window-counter, the latter including such tasks as escorting customers to the safe deposit boxes in the bank vault or assisting customers at an ATM machine.

The defense tried unsuccessfully to distinguish “standing” from “seated” tasks. However, the court stated:

“There is no principled reason for denying an employee a seat when he spends a substantial part of his work day at a single location performing tasks that could reasonably be done while seated merely because his job duties include other tasks that must be done standing.”

……

“Courts should look to the actual tasks performed, or reasonably expected to be performed, not to abstract characterizations, job titles or descriptions that may or may not reflect the actual work performed. Tasks performed with more frequency or for a longer duration would be more germane to the seating inquiry than tasks performed briefly or infrequently.”

The reasonableness standard allows for more flexibility; hence, an employee would be entitled to a seat if the duration and frequency of the seated task is not negligible (those tasks that are performed briefly or infrequently). Even when employees are not engaged in the active duties of their work but are required to stand at a specific location, an adequate number of suitable seats must be available in reasonable proximity to the work area for employees to use as long as it does not interfere with the performance of their tasks and duties.

Rather than utilizing an employer’s business judgment as to whether the work must be performed while standing, the Court concluded it is rather an objective inquiry that takes into consideration, but is not based solely upon, an employer’s reasonable expectations regarding customer service and the employer’s role in setting job duties. As such, however, it does not allow employers to arbitrarily define which are “standing” tasks.

Do you or someone you know work at a designated location with a suitable seat? If not, the next question is why not?

 

San Diego dating service The Ideal Match faces lawsuit

A California man is suing a San Diego dating service for unfair business practices. The man is one of three unhappy clients who claim to not have received what they paid for. According to the man featured in the story, he was sold on the expertise of the supposed patented matchmaking service. He paid $2,000 for the service and was promised to receive 10 matches. Moreover, the man stated few of his matches were what he requested.

Is a University Liable for Violence on the Campus?

The California Court of Appeals was scheduled  to hear oral argument on Friday, August 7, 2015 in a case filed in 2010 by Katherine Rosen against her attacker and UCLA, which is governed by the Regents of the University of California; at the time she was a UCLA student who was stabbed and had her neck slashed during a class in an unprovoked attack by a fellow student. In the criminal case against the defendant, he was found not guilty by reason of insanity and placed in a psychiatric hospital, Patton State Hospital, for an indefinite period of time.

In the civil action the plaintiff argued the university failed to properly respond to warnings about the potentially violent behavior of the defendant. This was in contrast to the defense arguments that it was a random act of violence. Proponents of civil liability contend a university owes a duty to provide a safe environment to and protect its students from others on the campus, particularly those who get treatment from the college for mental health conditions. It is a sad reality that acts of cruelty that are plainly brutal and  inhumane have become a national scourge.

Women in the Legal System – As a Judge or Judged as a Lawyer

In a recent study published on June 10, 2015, in the Social Science Research Network, the authors look at the significance of male and female participants as judges and litigants in the legal system. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2616502

The authors noted they evaluated empirical data to determine to what extent a male or a female lawyer obtained a better result in front of a male panel of judges. Their research substantiated that female attorneys generally did better than their male partisans in cases heard before an all-male panel of judges; and, male attorneys tended to fare better before a mixed-gender panel hearing the case. In other words, female litigants tended to obtain a better result in front of an all-male panel of judges, and a mixed-panel of judges seemed to be more favorable to male litigants than an all-male panel.

After reading the study referenced herein, perhaps it will offer additional insight into the important question to what extent gender bias impacts the decision making process in our judicial system. In reality, there is the human side of being a judge and, therefore, judges bring their own predilections to the bench as do the majority of all of us when presented with issues &/or narratives. Many commentators will contend the difference is that the goal of judges, among other things, is to be totally objective and unbiased.

Are Contractual Jury Trial Waivers Valid?

On April 16, 2015, in the case of County of Orange vs. Tata Consultancy Services, Ltd. et al, Case #14-72343, the United States Court of Appeals For The Ninth Circuit granted a Petition For Writ of Mandamus from the U.S. District Court (Southern District), and in the facts of this case held unenforceable a jury waiver provision in a contract that was not expressly authorized by statute under California law even though a voluntary and knowing pre-dispute contractual waiver is valid under Federal law.

Since it is not uncommon because of economic factors for lawyers who draft contracts to provide for a waiver of the right to a jury otherwise guaranteed by the Seventh Amendment to the U.S. Constitution and Section 6 of the California Constitution, this opinion will likely have a significant impact when a party waives a right to a jury trial that is not otherwise authorized by Civil Code section 631.

In general, contracts that provide for arbitration in lieu of a jury trial, however, are enforceable as long as a legally proper and complete waiver is set forth therein.

Intoxicated Passenger Unable to Collect from Taxi Service

A taxi company and its driver were sued for wrongful death (negligence) when a passenger who was intoxicated exited the cab, and then within a half an hour walked into heavy traffic and was killed by a drunk driver.

On March 11, 2015, a Santa Barbara Court jury concluded the decedent’s mother could not collect even though the municipal law required a taxi driver to  allow a passenger to exit only at a curb.

The Plaintiff’s lawyer argued the taxi cab was a common carrier and owed a higher standard (duty) of care to ensure the safety of its customers. The outcome was not based upon a lack of negligence by the defendants, and/or any one of them, however, but their neglect was deemed not the proximate cause of the death of the passenger. In other words, the conduct was not a substantial factor causing the death of the passenger in both time and location.

It is noteworthy that the 78 year old driver of the vehicle that struck and killed the victim was arrested and charged with felony hit and run. His blood alcohol was three times the legal limit, he entered a guilty plea and was sentenced to one year in the County Jail and three years’ probation. His insurance carrier paid the family who settled for policy limits of $30,000.

The case is:  Quintanar v. Absolute Cab LLC., et al. (Santa Barbara Super. Ct., originally filed May 13, 2014).

 

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