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Wednesday, July 16, 2008

Employment Agreements and One-Way Provisions Regarding Attorneys' Fees; and Batman in Every Way

Here's one for you that may come as a surprise to some (it surprised me). A number of states have rules under which, if a contractual provision provides for attorneys' fees for one party (e.g., if the party prevails, prevails on one issue, is not the initiator of the suit, brings a suit in good faith, etc.), but not the other, the provision is converted, maybe even unwaivably, into a mutual/bilateral prevailing-party provision. E.g., Cal. Civ. Code § 1717. Notwithstanding the facial equity of the provision, it can be a dangerous one in the employment-contract context. Corporate attorneys' fees can be much higher than those charged to an individual and, regardless, an individual may not be inclined or otherwise well-positioned to want to take the risk of bankrolling another's attorneys' fees in the event of a litigation loss. Thus, a legal rule imposing required bilateral reimbursement of attorneys' fees can operate onerously as a practical matter, and even serve as an effective barrier to an employee's willingness to pursue enforcing a contract or resisting a claim. I would suggest that state legislatures, which presumably have not focused on the application of this rule in the David-versus-Goliath world of employment contracts, should pass legislation excepting services contracts (including consulting contracts) from otherwise applicable statutory prevailing-party mandates in those cases in which a fees provision in an employment contract runs in favor of an individual service provider (or the individual's own services vehicle). Maybe there should even be an organized multistate effort from the bar on this one - the present result in some of the states, if a court would indeed read a bilateral result into a contract even in the employment context, seems quite wrong, and even dangerous, to me.

Now, about that Batman thing (no ERISA tie-in - sorry), I'm going to do the rest of this posting contemporaneously, first before the movie starts, and then once it's over. So here I sit on Thursday the 17th in The Dark Knight with my older son. The movie starts soon at midnight, Batman Eve. We've arrived more than an hour early, and we got the last two decent seats in the entire theater (had to move a couple of people around). We're here at 11:00 p.m. for a midnight show, with showings all through the night, and there are no seats left? This is nothing short of a phenomenon. Indeed, my concern is that people are going to attribute this hysteria to Heath Ledger's tragic death (which grows in sadness with each passing minute), but, having seen a chunk of the movie as a special feature before I Am Legend (that movie had to be good for SOMEthing), I fully expect that this movie would've generated every bit as much buzz as it has were he still around to bask in the glory. From the looks of it, Titanic's record US gross will finally fall . . . and may even fall based on tonight's ticket sales alone! This movie had better be The Best Thing Ever; I don't think I'm mentally prepared for anything less.

[Blackberry down - the movie's on]

Well, the movie's just ended. It's 3:00 in the morning, the huge suburban parking lot is full of cars and people, and everyone's buzzing. The multiplex is sold out straight through to the next morning. I think that the whole world's been turned into a bustling Times Square, just for one night. This isn't a movie - it's an Event.

As to the movie itself, . . . wow. First, and foremost, the performance by Heath Ledger truly is, I think, one of the finest things ever filmed. I don't recall being as in awe of acting as I was while witnessing the manner in which this utterly and completely unreal character was so fully and vibrantly brought to life. Every moment Ledger was on the screen was a carefully crafted moment, complemented beautifully by the diabolical makeup and oh-so-perfect (as Warren Zevon might have noticed) hair. Ledger's nuanced performance, right down to the way he licked those diabolical lips, was unforgettable. I've seen him in other movies, and couldn't even find him while staring at The Joker he had become. The world will hopefully acknowledge that this performance was as good as it was without regard to the tragedy that befell him, even if the tragic events make that performance almost intolerably bittersweet thereby. OMG, how big would this incredible actor have now become? There won't be a dry eye in the house when he wins the Oscar.

It turns out that The Black Knight is epic and riveting, and lives up to the hype. One can say that The Dark Knight would not be the movie that it is without Heath Ledger, without diminishing the movie's greatness. Thus, while he is the best and most special part of the movie, he doesn't overpower it; rather, he completes it and ultimately makes it what it is. For me, the arc that is most unforgettable starts with the nurse in the hospital and ends with the exit therefrom. (I'm being purposefully cryptic here, so as to avoid any spoilers.) But the movie is more than any piece or portion and has to be seen to be appreciated, as Christopher Nolan fulfills the potential he first revealed with the incredible and creative Memento. It's way too late in the morning (early in the morning?) for me to go into any further detail, and, in any event, the real movie reviewers out there can go through the plot for you if that's what you want. Just go see it - at any Bat Time and on any Bat Channel you can find. I'm thinking you won't be disappointed.


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