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miniBar Talk: This Week’s Top Post

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Event Networking Tips for Legal Professionals

By Andrea L. Ciobanu, Ciobanu Law PC

Warmer weather means more events and opportunities to socialize with other professionals in the field. Savvy lawyers know how to make the most of their chances to network effectively. This means they plan ahead, research, know their audience, and network intelligently whether they’re in person or utilizing modern technology and social media. Read these quick tips to learn how to network more efficiently and effectively so you can make most of your events this spring and beyond!

This post was written by Andrea L. Ciobanu, Ciobanu Law PC. If you would like to submit content or write an article for the Indy Attorneys Network Section, please email Rachel Beachy at rbeachy@indybar.org.

To subscribe to more Indy Attorneys Network Section news like the article above, click here to update your news subscriptions. Your news subscriptions appear in your bi-weekly E-Bulletin and on your personalized IndyBar homepage.

Keep an eye out for our newest e-newsletter for members, Bar Talk, featuring the top IndyBar posts each month!

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On Tap at the IndyBar: April 27 – May 3

Everybody loves a local bar, so check out what yours is serving up this week with upcoming IndyBar events and happenings below!

On the Docket

Social Media Investigations: Effectively Monitoring and Capturing Relevant Data
Tuesday, April 28 from noon to 1 p.m.
IndyBar Education Center, 135 N. Pennsylvania St., Suite 1500
Information and registration can be found here.

Family Law Section Spring Open Meeting
Wednesday, April 29 from noon to 1 p.m.
IndyBar Education Center, 135 N. Pennsylvania St., Suite 1500
Information and registration can be found here.

Child Support Modifications and Expungements: A Primer for Providing Legal Assistance to the Homeless
Wednesday, April 29 from 1 to 4 p.m.
Horizon House, 1033 E. Washington St.
Information and registration can be found here.

Indy Attorneys Network Quarterly Coffee
Thursday, April 30 from 8 to 9 a.m.
Paradise Cafe, 8540 Castleton Corner Dr.
Information can be found here.

Advanced Consumer Bankruptcy Roundtable
Thursday, April 30 from 8:30 a.m. to 4 p.m.
BMO Harris Bank Plaza Conference Center, 135 N. Pennsylvania St., 7th Floor
Information and the sign-up for the wait list can be found here.

Don’t forget to check out the IndyBar on Facebook for the latest event photos. If you attended the Estate Planning & Administration Section and Business Law Section’s seminar on exit planning recently, you might see yourself in this album!

Check out the full slate of IndyBar events here.

News You Can Use

  • Bar Talk April: Legal News You Need to Know - This month’s top five posts from members are featured in the latest Bar Talk. Check it out here for articles on RFRA, an interview with Judge Steven Eichholtz and more.
  • IndyBar Member Headlines: Thursday, April 23 – IndyBar members have been on the go all month. Check out the most recent updates in this post.
  • Help the Homeless: Pro Bono Training and Free CLE Available at Upcoming Program – Many people who call Indy home need legal assistance – even those without a home to live in. An upcoming IndyBar seminar on April 29 will provide training and CLE credit for those who are interested in volunteering to assist this underserved population. Learn more here.
  • Trimble: The Time for a New Justice Center is Now – IndyBar President John C. Trimble’s latest article urges local government leaders to face the justice system facilities crisis head on. Find out what he has to say about the current issues here.
  • Email Privacy and Privilege in the Workplace – Questions about privacy and privilege for employee emails have been in the headlines for years and continue to present legal issues for employees across many industries. An IndyBar CLE on May 5 will explain what attorneys need to know about these issues. Find out more here.
  • Practice-area specific Bill Watch reports are available. Click here for the most recent updates!
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Bill Watch Report for April 24 Now Available

The practice-area specific Bill Watch reports for April 24 are now available. The reports highlight the pending bills of particular concern to different sections within the bar. See below for this week’s posts, and click here to access the full Bill Watch reports.

Business Law
Criminal Justice
Estate Planning & Administration
Family Law
Litigation
Real Estate & Land Use

Don’t forget: You can update your news subscriptions to conveniently receive information like the practice area-specific Bill Watch posts in your bi-weekly E-Bulletin! Click here to learn more, and click here to update your profile.

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Financial Damages Expert Opinions: What’s the Difference?

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By Jay R. Cunningham, CPA/CFF, CVA

Oftentimes, it is curious how opposing financial damages experts, when presented with the same set of facts in a contested matter, can arrive at opinions with such wide disparities in their respective quantifications of damages.

As damages experts, one of the first things we often do after receiving the opposing expert’s report is to identify where we agree and where we disagree. This allows us to see where our opinions diverge and effectively “boil down” our differences to the inherent assumptions upon which our opinion is based.

While differences are frequently found in the “mathematical” basis of the opinion – differences (or errors) in formulas, reliance on different sources and assumptions, even discrepancies in the underlying data – the source of many disagreements between litigation damage experts are conceptual in nature.

Generally speaking, the goal of the damage expert is to calculate the monetary award that would make the injured party whole again. Therefore, it is necessary to quantify how the alleged harmful act damaged the party making the allegation. Most damage calculation theory arises from what is commonly termed the “but-for” approach to damage quantification. That is, the damage model seeks to measure the loss suffered by the injured party (such as lost profits, lost earnings, lost royalties, etc.) by computing the difference in value between what would have transpired absent any wrongdoing (or the but-for scenario) versus what actually transpired. Simplistically, isolating the difference between the hypothetical but-for scenario as compared to the actual scenario accounts for the damages suffered by the injured party.

While the theory of the but-for approach in damage quantification may sound simple, it is the proper application of this approach that can lead experts astray. Differences in the way experts measure and define the but-for scenario often accounts for the large degree of variance between financial experts’ opinions. Such differences are often found in the expert’s application of the following concepts:

  • Legal damage remedies
  • Causation of damages
  • Standard of reasonable certainty

Legal Damage Remedies

A common reason for disparities in financial experts’ damage opinions can be premised in the measure of damage applied. For example, contract law generally recognizes three separate theories of damages for remedying a breach of contract:1

  • Expectation Damages: afford plaintiffs the benefit of the bargain by placing them in as good a position as they would have been in had the contract been performed by the defendant.
  • Reliance Damages: compensate the plaintiff for losses caused by relying on a contractual obligation that the defendant did not perform. They return plaintiffs to the position they would have been in had they not entered into the contract.
  • Restitution Damages: is the amount that returns defendants to their position before they entered into the contract. Unlike expectancy and reliance damages, it focuses on the breaching party, requiring that party to disgorge any benefits received from the plaintiff’s performance under the contract (often termed unjust enrichment).

As a result, the multiple legal damage remedies available for plaintiff to pursue can lead to wide variances in opposing financial experts’ damage opinions.

Causation Damages

When the financial expert constructs the but-for scenario, measurement of the alleged wrongdoing requires an isolation of the harmful act in order to properly quantify damages. The resulting damage calculation must quantify only the loss caused by the wrongdoing. Financial expert testimony quantifying the amount of damages is not reliable if it cannot show how damages resulted from the defendant’s wrongful acts. In evaluating the admissibility of expert testimony under Rule 702, courts must consider whether “expert testimony…is sufficiently tied to the facts of the case that it will aid the jury in resolving a factual dispute.”2

Consideration of all factors impacting the but-for scenario is essential, including consideration of economic and market forces. One common observation of an expert failing to prove causation occurs when the expert ignores the impact of economic conditions at play in during the recent economic recession. The expert may project the but-for profits the plaintiff would have earned absent the defendant’s alleged wrongdoing, but failure to consider that these profits would likely have included depressed results as a result of the economy could render the expert’s report unreliable.

Standard of Reasonable Certainty

Generally, damage law prescribes that plaintiffs must prove their damages to a reasonable degree of certainty based on the preponderance of the evidence. Although the estimation of damages do not need to be mathematically certain, they cannot be held as speculative in nature. Expert opinions must be based on objective evidence from which the damage calculation can be determined.

Along those lines, the plaintiff is not permitted to recover damages that are deemed too remote. For example, as a result of a city’s delays in approving a new residential development, the residential development company claimed it has been denied lost profits from selling the lots during the period of the delay. However, if the plaintiff further claimed that it could have reinvested those lost profits into yet another venture, thereby denying them profits for the second investment, the defendant will assert that its damages are too remote and speculative and only limited to lost profits related to the timing of selling lots in the first development.

Conclusion

While there are a myriad of ways that discrepancies exist in opposing financial expert opinions, oftentimes there are conceptual differences that offer insight into reasons for the experts’ variances. For the reasons described above, it is critical that the financial expert pay careful attention to these conceptual legal standards to provide a credible and reliable expert report and opinion.

Jay Cunningham is a director in KSM’s Litigation Services Group. Jay’s background includes providing a wide range of consulting services in the context of disputes or litigation. He has extensive experience in the application of accounting, finance and economics to commercial damage analyses.
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1 Litigation Services Handbook: The Role of the Financial Expert, Fourth Edition, page 2.7.

2 United States v. Downing, 753 F.2d 1224, 1242 (3d Cir. 1985)

 

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IndyBar Member Headlines: Thursday, April 23

Share your news with the IndyBar by contacting Rachel Beachy, Communications Coordinator, at rbeachy@indybar.org

Jon Laramore has joined Indiana Legal Services Inc. as executive director.

Charnette Garner has joined the Marion County Prosecutor’s Office as chief counsel.

Ryan Mears became supervisor of the Major Felony Division in the Marion County Prosecutor’s Office.

Michael Wilhelm was elected partner to DeFur Voran LLP.

Joseph O. Hankins of Hahn Loeser & Parks LLP has been appointed a member of the Tocqueville Council of the United Way of Central Indiana’s Tocqueville Society.

Leah Silverthorn of Wooden & McLaughlin LLP was elected to the board of directors of Dig IN.

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Help the Homeless: Pro Bono Training and Free CLE Available at Upcoming Program

Many people who call Indy home need legal assistance – even those without a home to live in. Attorneys have the opportunity to help homeless individuals with their legal issues, and an upcoming IndyBar program on April 29 will provide the training to do so.

Attendees of this program will be prepared to provide pro bono assistance through the IndyBar Homeless Project for two of the most common case type needs experienced by Horizon House homeless clients: expungements and child support modifications. Stale minor criminal convictions and loss of driver’s licenses due to child support arrearages are two of the most common limitations on homeless persons’ ability to break the cycle of property through employment. By helping homeless individuals with these cases, attorney volunteers can have an immediate and lasting impact on their lives.

The seminar covers everything a volunteer will need to know, from common issues in communicating with the homeless people who don’t always convey pertinent information succinctly, to an analysis of the process for obtaining expungements in Indiana and more. In addition to getting prepared to help some of the city’s neighbors who need it the most, attorneys will also be able to report pro bono hours from the project under the Indiana Supreme Court’s new reporting requirements.

This program is free for those who attend and agree to take a case through the IndyBar Homeless Project upon completion of training. For more details and online registration, visit indybar.org/events.

One longtime volunteer describes his Homeless Shelter Project participation like this: “Offering limited representation can be equally rewarding for the client and the attorney. For example, one client not only was homeless and trying to raise his son after his wife died, but all of his possessions other than the clothes on his back were being wrongfully held by a storage company. It is hard to describe the joy in the client’s eyes when he received his property back from the storage facility at no cost.

It is more than just answering legal questions—it is providing hope and encouragement to individuals who many times have no reason to hope. Just volunteer and you will experience joy in helping people every time equal to the joy experienced handling your first case out of law school.”

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Trimble: The Time for a New Justice Center is Now

By John C. Trimble, Lewis Wagner LLP

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Your Indianapolis Bar Association continues to advocate for local government leaders to face the justice system facilities crisis head on, urging prompt action on whatever financing model can be agreed upon to move a project forward toward construction. Our Justice Center Task Force Chair, John Kautzman, accompanied by IndyBar President-Elect, Judge Robyn Moberly, delivered the following message to the City-County Rules Committee on April 14th :

“My name is John Kautzman and I am the Chairman of the Indianapolis Bar Association’s Justice Center Task Force. I come to you on behalf of IndyBar President John Trimble, President-Elect Robyn Moberly and the IndyBar Board of Directors to share with you our position concerning the important issues before you. The Indianapolis Bar Association is a volunteer organization of nearly 5,000 legal professionals, including lawyers, judges, and paralegals, committed since its inception to promoting justice in Indianapolis and Marion County.

A significant part of serving that mission encompasses ensuring safe, dignified and equal access justice facilities for all of the citizens in Indianapolis. Judges, lawyers, clients, witnesses, jurors, and indeed every visitor to the courthouse should be able to expect facilities that have sufficient capacity to handle the people’s business while providing a safe and secure environment for visitors and employees alike.

The current concerns with the City-County Building are hardly a new concept. In fact, in 1998, the Indianapolis Bar Association originally commissioned what was then called the “Security Task Force” due to mounting safety concerns in the City-County Building as a result of prisoners being transported through the public corridors every day. The Indianapolis Bar Foundation provided a $50,000 grant to pay for a one-month pilot project that installed metal detectors at each of the entrances to the City-County Building to finally provide much needed security for the building’s occupants.

At the expiration of that trial run, city and county officials had begun to dismantle the metal detectors, citing the inability to pay for the much-needed security. However, only a few days after the pilot project ended the world as we knew it changed on Sept. 11, 2001. City and county leaders, to their credit, quickly reinstalled the metal detectors which have become an inconvenient yet necessary fact of our daily lives.

Since then, the Indianapolis Bar Association has mounted several campaigns asking that the inadequate space and ongoing security concerns within the building be addressed by the construction of a new justice center facility. Yet administration after administration, Republicans and Democrats alike, have never been able to find the right time or the right funding to proceed with a project that all agree is badly needed.

As of this date, the need for a new jail and new justice center facilities cannot seriously be debated. We urge the City-County Council to act promptly so that we do not have to wait for another life-changing tragic event–occurring within these walls–as the catalyst for a project that should have been addressed long ago.

Indeed, a 2002 letter to the editor from the Indianapolis Bar Association wrote about the public safety crisis existing in the City-County Building at that time. The article noted that the then-40-year-old government office building that had been retrofitted to serve more than 30 courts in a building that was designed for 16 was bursting at the seams. This letter stated that “prisoners are transported in the midst of jurors, judges, witnesses, parties, victims, and even children; hearings and even some trials are conducted in tiny ad hoc hearing rooms where security risks are great and justice is cheapened; jurors are moved about like cattle, at times even having to sit on the floor awaiting their next move; many hearings on contentious matters take place without law enforcement officers even on the same floor; lawyers have no choice but to counsel their clients in the midst of crowded hallways with opposing counsel or parties nearby.”

Now, nearly 15 years have passed, and despite the well intentioned efforts of our civic leaders, the hodgepodge of Band Aid approach fixes is simply not keeping pace with the demand. The only solution is a new jail and courthouse facility.

There are many divergent views on the current proposal, put forth by highly respected individuals on both sides of the aisle. The Indianapolis Bar Association does not take a position regarding this particular funding approach and financing proposal before you tonight. We are prepared to leave the details of appropriating sufficient funding for such a project to this legislative body and the financial advisors who you rely upon.

However, we are here to say that the need for a new jail and justice center facility is undisputed, and the time for such a project is now. We believe it is incumbent upon our civic leaders to leave the politics at the door and craft a bipartisan solution to whatever financial challenges exist so that the people who visit the courthouse and the various individuals working in the legal process are provided with adequate and safe facilities to carry on the daily business of promoting justice in our community.

It must be specifically noted that we have consistently avoided any endorsement of any particular plan, focusing instead on the clear need for a solution that needs to happen now. We feel that it is the duty of our elected leaders to solve this dilemma responsibly–but promptly.

The answers are not easy and the solutions may not be obvious, but providing reasonably secure and adequate space for the judicial system of the 12th largest city in the United States is an essential function of government and should be one of the top priorities for the city’s resources.

Again, we take no particular view on any proposed financing model, and we applaud your efforts to insist upon fiscal transparency. Yet, the Council must once and for all deal with the ongoing challenges presented by our current facilities. We thus urge immediate steps be taken to develop and implement a plan that eliminates inefficiencies, ensures safety and establishes well designed, appropriately dignified and spatially adequate facilities–a plan that will work for the judiciary, the men and women who work in the justice system and the thousands of Indianapolis citizens who visit the courthouse every year.

It is certainly appropriate to question the costs associated with any public project. But one must also not lose sight of the cost of inaction. The Indianapolis Bar Association respectfully requests that you not allow this can to be kicked any farther down the road, and that you act promptly to face this challenge and work diligently on a plan that makes these much needed public facilities a reality.”

As I submit this message for publication, we do not know the final fate of the project. But regardless of the outcome, our association needs to continue to push for immediate steps to be taken to solve the ongoing challenges. We plan to reach out to the courts, other stakeholders and civic groups to join with us in demanding that this issue not be shelved. The council needs to work with the current and/or incoming administration to quickly resolve the practical and philosophical roadblocks in order to put some workable plan back on track NOW.

If we allow the decisionmakers to turn back to the procrastinating inertia of the past, we will continue to put lawyers, judges and the public in harm’s way. Further delays are not an option. We owe it to our members, our profession and the community we serve.

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Bar Talk April: Legal News You Need to Know

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The latest legal scoop to keep you in the loop: Here are the top five stories from the IndyBar this month.

Please note: IndyBar news and updates are provided as a member benefit. You may be prompted to log-in to view some articles.

U.S. Supreme Court Issues Opinion on Young v. UPS
Provided by the Labor & Employment Law Section Executive Committee
The Supreme Court of the United States issued an opinion on Young v. UPS, the case involving a UPS worker’s claim under the Pregnancy Discrimination Act. Read two different perspectives on the opinion in this post.
For more Labor & Employment Law Section news, subscribe to this content here!

RFRA and the Criminal Case Implications
By Shaunestte Terrell, Marion County Prosecutor’s Office
This post provides an explanation of Religious Freedom Restoration Act (RFRA) and its potential implications for future criminal cases. Also included are several resources for more information about SB 101, the federal legislation and more.
For more Criminal Justice Section news, subscribe to this content here!

Court Reaffirms Insurance Coverage Available for Abandoned Sand
By Seth Thomas, Ice Miller LLP
The Indiana Court of Appeals reaffirmed its prior decision in FLM, LLC v. Cincinnati Ins. Co., concluding for the second time that insurance coverage was available in an environmental case. Read more about the decision in this post.
For more Environmental Law Section news, subscribe to this content here!

Getting to Know Your Judicial Officers: Judge Steven Eichholtz
By Keith L. Hancock, Hollingsworth & Zivitz PC
Check out the second installment of Getting to Know Your Judicial Officers, a year-long Q+A series provided by the Solo/Small Firm Practice Section that features local judicial officers. This entry features Judge Steven Eichholtz of Marion County Superior Court 8.
For more Solo/Small Firm Practice Section news, subscribe to this content here!

Resources for Filed Rates for Title Insurance Coverage
By Russell Brown, Clark Quinn Moses Scott & Grahn LLP
Filed rates for title insurance coverage within the state of Indiana are compiled by the Indiana Department of Insurance. This post provides resources with the most updated information about filed rates that are currently available, including a title insurance rate comparison tool, filed rates for owner’s policies and more.
For more Real Estate & Land Use Section news, subscribe to this content here!

*If you’re hanging out with people who aren’t lawyers, here’s something even they will find interesting: Facebook information is now cited in one third of all divorce cases. Just one more reason to walk a straight line when it comes to social media usage.

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Email Privacy and Privilege in the Workplace

Questions about privacy and privilege for employee emails have been in the headlines for years and continue to present legal issues for employees across many industries.

So who can expect their work email to be private? The secretary of state can’t. Harvard professors can’t. And for many people, monitored email is just one of the ways employers legally spy on their employees.

As attorneys, it’s important to understand the laws behind these issues. Whose property are the emails? What happens if an employer gets a subpoena for an employee’s email? Does the attorney-client privilege apply if the client emails their attorney from work? These are the questions that go beyond the headlines and take an in-depth look at the privacy and privilege of employee email in the workplace.

Those questions – which you will face in your career, if you haven’t already – will be answered at an upcoming IndyBar CLE. On Tuesday, May 5, the Family Law Section will host Electronic Pitfalls: Metadata 101 and Privacy and Privilege in the Workplace, featuring F. Anthony Paganelli of Paganelli Law Group and Sergeant Christopher Cecil of the Indiana State Police. In addition to email privacy and privilege issues, this program will provide a general explanation of what metadata is and how it can be deleted or altered.

If you’re an attorney who is currently practicing, you know how much technology is shaping not only the law field but the work field as a whole. Stay on top of the legal issues involved so that you can best serve your clients when they need you! Register today to learn more.

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On Tap at the IndyBar: April 20 – 26

Everybody loves a local bar, so check out what yours is serving up this week with upcoming IndyBar events and happenings below!

On the Docket

Navigating the Waters of Juvenile Court: A “How To” from the Folks Who Should Know
Monday, April 20 from noon to 1 p.m.
IndyBar Education Center, 135 N. Pennsylvania St., Suite 1500
Information and registration can be found here.

Spring Social with the Solo/Small Firm Committee
Monday, April 20 from 5 to 7 p.m.
Katz & Korin PC, 334 N. Senate Ave.
Information and registration can be found here.

Exit Planning: A Collaborative Approach CLE & Networking Reception
Tuesday, April 21 from 4 to 7 p.m.
Market Table at The Alexander Hotel, 333 S. Delaware St.
Information and registration can be found here.

Primer on HIP 2.0 and Other Medicaid Care Programs
Wednesday, April 22 from noon to 1 p.m.
IndyBar Education Center, 135 N. Pennsylvania St., Suite 1500
Information and registration can be found here.

Applied Professionalism Course
Thursday, April 23 from 8:30 a.m. to 4:45 p.m.
IndyBar Education Center, 135 N. Pennsylvania St., Suite 1500
Information and registration can be found here.

Unwind After the Applied Professionalism Course
Thursday, April 23 from 5 to 7 p.m.
Adobo Grill, 110 E. Market
Information and registration can be found here.

What IndyBar Members Need to Know to Assist Families in IEP Case Conferences – Level 301
Friday, April 24 from 8:15 to 9:45 a.m.
Joseph Maley Foundation Enrichment Center, 7128 Lakeview Parkway West
Information and registration can be found here.

Free Video Replay CLE: Secure Retirement Strategy
Friday, April 24 from noon to 1 p.m.
IndyBar Education Center, 135 N. Pennsylvania St., Suite 1500
Information can be found here.

Great Indy Cleanup: YLD Keep Indianapolis Beautiful Volunteer Event
Saturday, April 25 from 8:30 a.m. to noon
West Indianapolis
Information and registration can be found here.

Check out the full slate of IndyBar events here.

News You Can Use

  • Another Bench Bar Conference Scholarship Announced – The IndyBar Solo/Small Firm Practice Section announced an additional scholarship for Bench Bar Conference attendance this year. There are over 15 scholarships available for full conference registration and lodging in Louisville, KY on June 18-20. Check out this post for more information or register today.
  • Guidance for Giving Back: Two CLE Training Programs in April – Lawyers can make a difference by lending their legal expertise to under-served populations. The IndyBar is offering two CLE training programs this month to prepare attorneys to assist families with IEP case conferences and the homeless. Find out how you can get involved here.
  • IndyBar Sections are Teaming Up for April CLEs – Don’t miss your chance for increased networking opportunities and more well-rounded analyses by attending one of the joint-hosted CLE programs this month! Check out the full lineup here.
  • Practice-area specific Bill Watch reports are available. Click here for the most recent updates!
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