Wednesday, May 2, 2018

If Your Business Relies on Independent Contractors, Watch Out!

The California Supreme Court just radically changed the rules as to when someone who works for you is an employee rather than an independent contractor. Read all about it in the New York Times. You might want to make them all employees right away rather than risk litigation about it.

Saturday, March 3, 2018

Three Facts You Need to Know About Litigation

By Walter Whitman Moore

1. "Litigation Attorneys" Aren't Always "Trial Lawyers"
You know those flight simulator games, where you pretend you're flying a fighter jet or a jumbo jet? Those games very realistic, but when you travel in the real world, you want a real pilot in the cockpit, not someone whose only experience is on a flight simulator. "Realistic" and "real" are two different animals.

Likewise, when you buckle up for the bumpy ride that is a lawsuit, you want a real trial lawyer fighting for your rights, not a "litigation attorney" who has never actually tried a case. You might be shocked at how many "litigation attorneys" out there have never taken a case all the way to trial -- including lawyers at big firms.

These "litigation attorneys" will charge hundreds of thousands of dollars to represent you or your company for a year or two of pretrial litigation. If they win summary judgment in your favor, terrific. But if they do not, they may pressure you to take crummy settlement that you could have had on Day One, because they are terrified of going to trial. Alternatively, on the eve of trial, they will charge you to bring in a real trial lawyer who won't know anything about your case, and who will charge you to "cram" for a few weeks to try to do at least a passable job of protecting your rights.

Life lesson: hire a real trial lawyer to represent you in a lawsuit, so that you and your adversary will know that you're fully prepared to go all the way to trial if necessary

2. Why Lawyers Love the "Scorched Earth" Strategy

Litigation can be insanely expensive. Seriously. You can spend millions of dollars on legal fees for one lawsuit. Well, you can't, but someone who actually has millions of dollars can. Your adversary will almost certainly try to make the lawsuit prohibitively expensive, in hopes that you surrender just to stop spending so much money on litigation. Lawyers love to recommend that kind of "scorched earth" litigation strategy, because it runs up legal fees: the only way for a lawyer to run up legal fees for the "other guy" is for the lawyer to run up fees for his own client, too. You therefore need a lawyer who not only understands this dynamic, but who has strategies and tactics to protect your rights efficiently.

3. It's Complicated
You've heard of bomb-sniffing dogs, right? Some dogs find bombs, others find drugs. These dogs find things that ordinary human beings miss, because the dogs have a superior sense of smell. Better noses. Better ears, too.

When it comes to litigation, you want to make sure that your lawyer has a better brain than your adversary's lawyer.  You want the lawyer who will spot issues that your adversary's lawyer will overlook. The law is incredibly complicated, full of fine points, traps for the unwary, legal mine-fields -- metaphors abound. Some legal matters are pretty straightforward; there are apps that let you prepare your own will in a few minutes, for example. But litigation is complicated, so hire the smartest trial lawyer you can find.

Saturday, September 30, 2017

What is a Trial Lawyer's Best Secret Weapon?

By Walter Whitman Moore

Can you guess what a trial lawyer's best secret weapon is? Go ahead and take a guess.

If you said, "a background in public speaking," you made a very respectable guess. Debating in high school and college is excellent preparation for trying cases, but that's not really a secret, is it? The same goes for: getting a good education; observing other lawyers' trials to look for do's and don'ts; attending seminars on trial techniques; and staying current on developments in the law.

I'll give you a hint. In any given lawsuit, a trial lawyer must typically keep track of:
  • Dozens of claims and defenses (e.g., fraud, estoppel), each of which may have three or four different elements (e.g., representation, reliance, damages); 
  • Hundreds or thousands of pages of deposition testimony, portions of which will tend to prove or disprove the elements of those claims and defenses; 
  • Hundreds or thousands of pages of documents, which will likewise bear on those same elements; 
  • Scores if not hundreds of discovery requests and responses; 
  • Numerous deadlines and projects that must be completed by those deadlines; 
  • Hundreds of pages of cases and statutes that bear on the key issues in the case; and
  • The time the lawyer spends working on the case, along with the expenses incurred.
Before you can try a case, you must know what you need to prove, and how you're going to prove it. You must know which questions to ask which witnesses, which documents to have them authenticate, and how to show in closing argument that you have proved or disproved the key elements in issue.

Now do you know what a trial lawyer's best secret weapon is? Of course you do. It's the ability to design and use a database. Database software lets you link issues, documents, facts and witnesses to one another, so you can keep track of what you need to prove, and how you're going to prove it.

Database software, used properly, not only saves enormous amounts of time, but gives you a unique command over the facts and law in the case. Your database lets you find the documents, testimony and authority you need instantly, and lets you prepare easily an outline of your trial presentation so that you will efficiently and persuasively prove your client's case. 

I have been using a database called FileMaker Pro since the 1990s. Whether you use a PC or a Mac, it will run on your computer. (FileMaker Pro will sell you an individual license for $329.) I have used it to design a number of databases that I use to keep track of witnesses, documents, testimony, discovery requests and responses, facts, law, time, expenses and projects. 

If you're thinking about becoming a lawyer, I strongly recommend that you take classes on how to use database software -- along with just about every other kind of software, including word processing, spreadsheets and presentations. And if you're already a lawyer, you will not regret spending your valuable time learning how to make databases, because you will wind up saving far more time than you spend, and you will do a much better job of protecting your clients' rights efficiently.

I've tried using other companies' software that was "made for lawyers" (e.g., CaseMap and Amicus), but they seemed to consume more time than they saved. There are plenty of other similar packages that you can try. However, I am really glad that I took the time to learn how to make my own. If you learn to make your own databases, you give yourself the ability to make software that works best for you. Give it a try.

But don't tell anyone. After all, it's a secret weapon.

Walter Whitman Moore is a trial lawyer in Beverly Hills. His website is

Sunday, July 23, 2017

Fight Back Against Frivolous Lawsuits

By Walter Whitman Moore

How can you fight back against a frivolous lawsuit?

In California, your lawyer can ask the plaintiff to admit, in writing, that each of the false facts alleged in the complaint is, in fact, false.

Sounds idiotic, huh? After all, you know that the plaintiff and his lawyer will, of course, refuse to grant the requests. Their case is built on those false allegations.

But here's the good part: if you hang in there and fight for your rights rather than paying them "shake-down" money to go away, then when you win at trial, you may -- repeat, "may" -- recover all or nearly all your attorney fees from the plaintiff. That's because California law lets the Court award you the attorney fees that you incurred to prove the false facts that the plaintiff insisted were true.

There's more: if the plaintiff has sued you under the Labor Code, you may also recover your fees if the Court finds that the lawsuit was frivolous.

The "bottom line" is that you don't have to surrender to a "shake-down" lawsuit. You can fight back.

Walter Whitman Moore is a trial lawyer in Beverly Hills. His website is

Wednesday, June 7, 2017

Radio Alert! Tune in KABC 790 Thursday 8:00 a.m. to 10:00 a.m.

Tune in KABC 790 Thursday 8:00 a.m. to 10:00 a.m. to hear my color commentary Comey's Congressional testimony.

Thursday, April 6, 2017

Litigation Strategy: Leave No Stone Unturned?

By Walter Whitman Moore

Some lawyers file every motion they can think of, and ask for every bit of discovery permitted by law, in every single case, regardless whether it makes any economic sense for the client. If you're a lawyer, don't be that lawyer. And if you're a client, don't hire that lawyer.

Often, the most cost-effective approach is just go to directly to trial. No motions. No elaborate discovery. No thousands upon thousands of pages of documents being indexed. Just show up for trial, present your case, and ask the jury or judge to do what the law and evidence require them to do.

Suppose, for example, that you represent a defendant who has a strong case that rests on the introduction of a few key documents and perhaps an hour or two of testimony. Don't run up your client's bill by filing demurrers, motions to strike and summary judgment motions, and by asking for thousands of documents and days of testimony that you do not need. It will take you less time -- much less time -- to try such a case and win it than to draft an elaborate motion to try to convince a busy judge to throw the case out of court without a trial.

Are there cases where it makes sense to move for summary judgment? Absolutely. If the trial would take four weeks, and your client is entitled to judgment as a matter of law based on some simple and indisputable fact, go for it. But do the math before adopting your strategy. Sometimes it's best to leave nearly all the stones unturned.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is

Wednesday, March 22, 2017

Litigation "Life Lesson" from Trump's Travel Ban

By Walter Whitman Moore

Trump would have won in the litigation over his travel ban if different judges had been assigned to his case. The Chief Justice of the United States Court of Appeals for the Ninth Circuit and four of his colleagues issued a dissenting opinion in which they argued that the Court of Appeals erred by refusing to let President Trump enforce his travel ban. 

On the Ides of March, the five justices filed a 26-page dissenting opinion, explaining why they believe the Court should have reconsidered "this case en banc for the purpose of vacating the panel's opinion." They summarized their position as follows:
The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).
You can read their entire opinion by clicking here.

The litigation "life lesson" for you is that there is always an irreducible element of risk in litigation. No matter how strong or weak you think your case is, the outcome may depend not on the facts, the law, or the lawyers, but on the judges and justices assigned to your case. That is one reason that parties sometimes opt to submit their disputes to arbitration, where both sides pick the decision-maker.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is