Episode 5: Dec 3, 2024 | Cornered: Out of Court -- Best of 2024

Show Notes

• 0:32 - Episode introduction - Best of 2024
• 1:09 - Adam - noncompete employment agreements
• 5:53 - Doug - fair use in IP law
• 10:52 - Matt - children choosing which parent to live with
• 13:49 - Stephanie - seeking counsel for personal injury
• 21:40 - Wrapping up - happy holidays!

Transcript

00:00:01 Oh, you're an attorney. I have a friend who...

00:00:03 I've been meaning to update my will, but I just bought a new house...

00:00:06 I want to start a business...

00:00:06 So I was wondering...

00:00:08 My brother was fired...

00:00:09 My friend got divorced awhile back. I just don't understand how her ex...

00:00:14 You've been there at a social function, meeting friends of friends. Word gets out that you're an attorney, and suddenly your night is filled with party goers.

00:00:22 Asking you quote UN quote, simple legal questions, the questions are seldom in your area. Some of the stuff you haven't thought about since law school, you're being cornered out of.

00:00:32 Court in the cornered out of court podcast from IICLE®, you'll hear from fellow attorneys about the questions they get and the responses they give to escape being cornered. Although cornered out of court, is a new podcast from IICLE®, the end of the year seems a natural time to rekindle old.

00:00:54 Traditions and in this case, to start a new one as we round out 2024, we've asked the staff at IICLE® to listen back to this year's episodes and pick a favorite answer from the knowledgeable guests we've had the pleasure of listening.

00:01:09 Two first, we have Adam, who is the associate director of Information Systems at ICLE. Adam.

00:01:17 Which guest would?

00:01:18 You like to highlight from this.

00:01:19 Year.

00:01:20 I found that the episode relating to non competes by Jonathan Crook with Fisher and Phillips to be incredibly interesting and timely due.

00:01:30 Who the non compete realm? Drastically changing coming from the marketing and advertising realm prior.

00:01:38 That was a very large piece of finding new positions and working with other firms and things like that on the day-to-day where non competes were very, very large and that's going to drastically change the world of employment for those who work in those industries.

00:01:55 Let's hear from Jonathan Crook about some of those recent developments with non competes.

00:02:01 Sure. So the latest is that the FTC's non compete ban has been set aside for all employers as of August 20th, 2024. And I I think it's probably a little bit helpful to set this stage and explain how we got here, right? So earlier this year the FTC published its final rule.

00:02:20 Planning non compete agreements and essentially what the final rule said.

00:02:25 Was that employers around the country would no longer be able to have non compete after the effective date of the rule which was scheduled to be today September 4th, 2024. There were some limited carve outs to the ban for senior executives to the extent that we're not compete with senior executives, those could still be enforced, but you couldn't enter into do.

00:02:45 Non compete agreements with senior executives after the effective bid rather and the FTC also had a couple of carve outs for non competes entered in the sale of a business.

00:02:56 And the rule would have required employers to send notices to employees other than senior executives by today, September 4th, notifying them that their non compete would no longer be enforceable going forward. But as you might expect, a lot of people in the business community didn't really like the final rule and so.

00:03:16 Essentially, immediately after it was passed, a bunch of groups sued the FTC over their authority, or lack thereof, to issue the final.

00:03:25 So after a couple procedural maneuvers, there were essentially 3 main lawsuits, one in Texas, one in Pennsylvania, and one in Florida. The Texas judge was the court to first rule on these issues and entered a preliminary injunction temporarily enjoining the FCC from enforcing the rule, and the US Chamber of Commerce.

00:03:45 Was the one of the the main intervenor plaintiffs in that case. But the issue with that ruling is that it only enjoined the FTC's rule from affecting just the parties in that case. So there were five entities in the.

00:03:57 This and you know, the US chamber said we'd like for you to stop this rule from applying to all of our Members. But the court said no. Right. So the the sort of first attack wasn't a complete failure, but it also wasn't a complete success.

00:04:12 Another company filed suit in Pennsylvania, challenging the role, but in that case, the court actually sided with the.

00:04:17 See the court held that the FTC had the authority to issue the rule and the rule wasn't arbitrary and capricious or otherwise unconstitutional, so it denied that companies motion for preliminary injunction. So at that point, employers are kind of looking around like, OK, we've got these split decisions. Do we need to start getting ready for September 4th? And then finally, there was a.

00:04:37 3rd ruling in Florida just a few weeks ago, and that judge also enjoined the FCC's rule from applying. But again, just as to that single company that filed suit in Florida.

00:04:49 So as of a few weeks ago, employers were still sort of staring down the barrel of this September 4th day, but then finally, on August 20th, the Texas Court entered its final decision on the merits in.

00:05:01 That case and.

00:05:02 It concluded that the FTC lacked the statutory authority to issue the final rule, and it also ruled that.

00:05:08 The FCC's non compete ban was.

00:05:10 Arbitrary and capricious.

00:05:12 The remedy, according to the court, was that it had to quote set aside the rule under the Administrative Procedure Act, which basically means that the rule doesn't apply to any employers anymore. Until and unless that decision gets overturned. So far, the FTC has not appealed that decision, but we've been monitoring the the docket and.

00:05:32 In some public statements, the FTC has hinted that it might appeal that decision. Meanwhile, the other two cases are still.

00:05:38 Pending the one in Florida and the one in Pennsylvania, I think the war is not completely over yet, but employers around the country could definitely breathe a sigh of relief that at least they don't need to comply with the rule as of the original effective date.

00:05:53 Next Doug, who is an online learning producer, has chosen an episode that tackles a challenging concept for those who don't practice in intellectual property.

00:06:03 R. Mark Halligan of Fisher Broyles did a particularly good job in addressing fair use. I find this to be a pretty nebulous concept for most people. What you can and cannot use from someone else's work, but he did a very good job of clarifying exactly where the guardrails were.

00:06:22 When fair use may prevail and when it just won't, is rather complex, let's listen to how R. Mark Halligan explains it.

00:06:30 Each case involving a question of Fair use requires a very difficult case by case balancing of complex factors. This important doctrine in US copyright law has been recognized since at least 1841.

00:06:47 When the concept was invoked in Folsom versus Marsh.

00:06:51 A case in the district of Massachusetts, though originally it was a judge, a judge, made doctrine, but now the Fairness doctrine has been codified in the Copyright Act of 17 USC Section 107. So what is fair use? Fair use is an affirmative defense that can be raised in response to claims.

00:07:13 By a copyright owner that a person is infringing a copyright, their use permits a party to use a copyrighted work without the copyright owner's consent or permission.

00:07:25 And.

00:07:26 For purposes such as criticism.

00:07:29 Comment news reporting.

00:07:32 Teaching, scholarship or research, and these purposes are just some examples. They only illustrate what might be considered as fair use.

00:07:42 And they're not examples of what we'll always in every case be considered a fair use. So you come in and say I'm using it for teaching it. That's we're gonna have a much more fact intensive analysis, but the purpose is only to illustrate what might be considered as fair use. And our non examples. In other words, there are no bright line.

00:08:01 Yes, and every copyright infringement case where the if fair use comes into play, which is every case, it's fact intensive. There are no bright line rules and deterring their use and it is determined on a case by case basis where the four factors that developed a common law and are now qualified, there's four factors.

00:08:22 Number one, the purpose and character of the use, including whether such use.

00:08:26 Is of a commercial nature, or is an or is for nonprofit educational purposes 2 factor 2. The nature of the copyrighted work. Second factor considers the nature of the underlying work, specifically, whether it is more creative or more factual use of a more creative.

00:08:46 Or imaginative underlying work is less likely to support a claim of Fair use, while use of factual work would come out differently. The third, the third factor considers the amount of the copyright.

00:09:00 The work that was used and compared to the capillary work as a whole when the amount used is very small in relation to the copyrighted work. This factor will favor of finding a fair use. But when the amount used is is not significant, this factor will favor the copyright or this factor also considers the qualitative amount of the copyright.

00:09:21 Work used if the portion used was the heart of the work. This factor would likely away away against the the finding of their use, even if that portion was otherwise a very small amount.

00:09:35 The 4th factor not only considers whether defendants activities may harm the current market, but also considers whether the use may cause any harm to potential markets that could be exploited by the copyright owner if the use were to become widespread. If the use harms the copyright owners, current or potential.

00:09:56 Work it, then it will weigh against various.

00:10:00 Along with the first factor, this factor factor 4 is one of the most important in the in the fair use analysis you have to work at all four factors and the one that often decides and and from my experience is the one that I've seen that's the the.

00:10:15 The winner, I mean a successful affirmative defense, is factor #1 the purpose and character of the use, including whether such use is that is, of a commercial nature or.

00:10:27 Is for nonprofit educational purposes, in other words.

00:10:31 Follow the money.

00:10:33 Look at. Look to see if the infringer is deriving an economic a benefit or commercially he's being paid or receiving income in some way. For as a a direct approximate result.

00:10:47 Of the of the Acts of copyright infringement, that that's a no no.

00:10:52 Matt is up next. He is a managing editor and document automation specialist at IICLE®, which answer from the Sears episodes did you find interesting Matt?

00:11:02 I chose the episode done by Nrupa Patel from Bolin Robinson and Ellis. I particularly enjoyed the way she answered the question having to do with how old does one's child have to be before they can choose which parent they want to live with? And I enjoyed the way how she explained that there are many, many factors that go into making that decision.

00:11:23 In that age is merely 1.

00:11:25 Lots of families have questions about parenting time and living arrangements. Let's listen to Nirupa Patel explain a common misconception she hears often.

00:11:35 In Illinois, there is no age where a child can determine that. At this point, I want to live with Mom. I want to live with Dad. I see lots of things on social media. I see a lot of things on Facebook groups and comments from parents online where they say something to the effect of ohh you all your kids.

00:11:55 14 Or your child's 14, he can decide where he wants to live, or if he wants to live with you, he's now old enough we don't have that in Illinois.

00:12:04 A factor the court can consider is where the child wants to live. That is a fact that the Court has to consider, but that's one of many factors and how old the child is is completely relevant, along with the reason for why the child was the specific parent, for example.

00:12:24 If you have a 5 year old that says I want to live with my dad because my dad gives me candy and lets me eat Snickers bars and tweets for dinner, that's probably not going to be a compelling reason for a judge to place a child with.

00:12:41 Yeah.

00:12:42 However, if you have a 15 year old that says I want to live with my dad because my dad is patient, he helps me with my homework. He takes me to my extracurriculars. He cooks a very nice dinner for us in the evening and in Moms house. She smokes indoors. She has a loser boyfriend that is always yelling at.

00:13:03 Us and my mom is always late to dropping me off at practice. Those would be very good and valid reasons for a judge to consider.

00:13:11 Here, at the flip side, if you if you have a 15 year old that says, well, I wouldn't live with Dad because with Dad I don't have curfew with Dad, I can drive this car even though I don't have a permit. That's not going to be a very good reason. So the aid of the child is a factor, but also the reason as to why the.

00:13:32 Once live in specific parent is relevant as well, but we just don't have one cut off age where it's like this. Is it this this child's 1314 or older and he wants to with mom and that's what's gonna happen. We don't have that. It's just the factor for for the.

00:13:46 Court to consider.

00:13:49 Finally, the staff at IICLE® appreciates opportunities to reflect on how our work helps attorneys assist their clients. There was one answer in particular from this year's episodes that encouraged Stephanie, who is associate director of the programs Department, to reflect on how our work helps.

00:14:08 Others.

00:14:08 The question and answer I like was the first one for Tom Rowland of Ruland Law on personal injury.

00:14:17 The question was my friend got into an accident and thinks he can make a bodily injury claim on his own. The reason I liked this question answer is because in it Tom kind of sums up the importance of attorneys and helping the public to seek justice. His answer points to the necessity of having a depth of.

00:14:38 Knowledge and experience to bring to complex areas each area of the law is unique, with different rules and regulations and nuances to follow someone unfamiliar with the system is not likely to be able to navigate it successfully. You need someone knowledgeable our job at it goal is to help educate attorneys.

00:14:57 And attorneys have an important job to do. They're the bridge between something that's broken or something that has gone wrong in the system that can help get justice, or at least help make the problem better. The attorneys that we work with regularly and the ones who use our products truly want to learn and to be better attorneys so that they can do a better job for their clients.

00:15:18 So for me this question and Tom to answer really kind of sum up the importance of lawyers in our society and why we at.

00:15:26 IICLE® do what we do.

00:15:27 Tom Ruland provides a fitting conclusion for this year's review. Let's listen then.

00:15:33 You mentioned that the friend thinks that he can make the claim on his own. It triggers the old adage that I think of the it's something to the effect of the man who represents himself as a fool for a client. So I think that's important to remember.

00:15:48 And don't represent yourself. Don't bring your own kind of.

00:15:51 Insurance companies love it when people try and handle cases on their own. Sometimes they can take advantage of it, and I have plenty of experience where unfortunately clients or potential clients will call me when it's a little too late. They say, you know, this insurance company is giving me a real hard time then.

00:16:12 They're they're giving me the run around.

00:16:13 Found and I pick up the case and all of a sudden the just by sending a letter just by introducing myself to the insurance company, the offer that the insurance company made to the client was unrepresented. Someone multiplies like 2-3 times and I don't say that to try and say, oh, you know Tom, really you're the greatest.

00:16:33 Person under attorney in the state. It's more speaks a little bit to the sad state of insurance companies and how they like to take advantage of people who are trying to do things on their own. So call an attorney. Most attorneys, including my office, will offer free confidential initial consultation.

00:16:53 Because that calls free because it's confidential. There's no skin off your back. It can be a really meaningful call early on. And the way that I analyze how difficult the case is going to be.

00:17:06 Starts with the question of liability. Liability is really how do you find out who did what wrong, when, where, why, and so.

00:17:15 Depending on the type of case, if it's a slip and fall for.

00:17:18 Example you have.

00:17:19 To watch for a lot of statutory protections that people have or companies might have that protects the owner of a premise, for example, or if it's a slip and fall on ice, for example, you have to be able to navigate the snow and ice.

00:17:34 An Oval act here in Illinois that has a lot of pitfalls for people, so those cases can be tougher to win because liability is more difficult to establish on the other end of the.

00:17:44 Spectrum, though, you know we're in car crash, for example. That's a pretty clear cut case. You know, who's at fault? The person that ends up hitting the person from behind is the one that almost always caused the crash. So it really is a case by case analysis of liability where you start.

00:18:05 So that's kind of the the success point for a client to 1st.

00:18:09 Think about and. I remember when I was really, really in my career. First couple of trials that I had, I came back to the office after winning a trial and I was exhausted cause trials are exhausting no matter who you are.

00:18:23 And you know it was.

00:18:24 It was nice we we had a good jury verdict and you know, I slumped back into my chair at the office and.

00:18:29 Started working out the additional paperwork that was piling up and my boss came in and and said, you know, asked me about the trial. I told him and he said, you know, Tom, that's that's a win win. You said, you know what a win win.

00:18:41 Things and I forced didn't. And I said, you know well. So sure. What? What is the wind means? And you explained, you know, you can lose a trial. That's a loss. You can win a trial where you know the jury gives you your client a good award where you can win, win a trial and a win win is win. You would not only win the trial but you win it in a way or to a certain amount or get some kind of judgment or verdict.

00:19:04 That no one expects you to get even, including the client. You know what's kind of above and beyond the expectations. So do most clients know the difference between a win?

00:19:14 And and win win I I doubt it. But it's it's something that, you know, I as an attorney pay a lot of attention to and it's obviously something that we strive for with with every case that we take on the bottom line is the client really should avoid handling an accident claim or an injury claim on their own. They should talk to an attorney.

00:19:35 And if there is an attorney who doesn't necessarily practice personal injury work, that attorney should carefully, carefully, carefully consider referring the case.

00:19:44 Now the Illinois Institute for Continuing Legal Education just recently published a webinar on this topic, specifically kind of, you know, attorneys who don't practice personal injury law. When and why should you refer a case? And really, there are three full reasons why attorneys who don't practice or specialize in Pi work should send the case out.

00:20:05 First client, you know your client stands to benefit much more if they are working with an attorney who can who knows the INS and outs of that area of the law. But there's also the obvious upside for the referring attorneys referring attorneys in Illinois under the ethics rules are allowed to split.

00:20:25 Attorney fees with other attorneys not in their firm. So if it's a real estate attorney.

00:20:31 Who does a lot of transactional work or a lot of closing work? They might call me and say, you know, can you take on this this case and we'll enter into a fee split where just for picking up the phone and sending that case over to a personal injury attorney who handles those types of cases, they stand to benefit, you know, they they end up getting a referral fee.

00:20:51 Which I which the the actual referral fee can can vary, but sometimes it's really you know, the best business decision from someone else running their law practice to make not only is there the upside of the referring attorney to to.

00:21:03 Make that referral fee.

00:21:05 But also you're protecting your firm against possible malpractice. You know, we all have the duty to be competent attorneys for our clients. And if you're failing to fulfill that duty, you're you're liable for an ARDC claim, possibly a malpractice claim. So really, by sending the case.

00:21:25 Who someone who specializes in personal injury work, you're putting your client in a better position. You're making a good business decision for your firm, and you're also minimizing your malpractice risk. You're minimizing the downside as well.

00:21:40 Thank you, Adam, Doug, Matt and Stephanie for sharing your favorite moments.

00:21:45 From 2020.

00:21:45 Fours cornered out of court episodes and thank you listeners for making this new podcast success we.

00:21:54 Look forward to bringing.

00:21:55 You new episodes starting in January of 2025.

00:21:59 Until then, enjoy the holiday season and.

00:22:02 Have a very happy New Year.

00:22:15 If you have an idea for a topic you would like to hear discussed on the cornered out of court podcast, we welcome your suggestions by e-mail. Our address is info@iicle.com.

00:22:28 IICLE® is a 501(c)(3) not-for-profit based in Springfield, IL. We produce a wide range of practice guidance for Illinois attorneys and other legal professionals in all areas of the law with the generous contributions of time and expertise from volunteer attorneys, judges, and other legal professions.

00:22:44 If you are interested in our many authorship and speaking opportunities, please give us a call at 217-787-2080 or sign up for the IICLE® volunteer network at iicle.com/volunteer. Thank you for joining us for another edition of cornered out of court, brought to you by the Illinois Institute for continuing Legal education.