In a recent New York Times article about the just-starting labor negotiation between the NBA owners and players, David Falk, the NBA's first superagent, said "This is not the time to fight. This is a time to sit down as partners and create a system that is realistic in today's economic climate."

Falk's quote raises an important negotiation question - when should you use Competitive Negotiation Strategies vs. Problem-Solving Strategies?

Generally, Competitive Strategies work best when no future relationship is at stake, when the negotiation involves only one or a few issues, when more for your side necessarily means less for your counterpart (zero-sum) and when your counterpart uses Competitive Strategies against you.

Competitive Strategies include not sharing strategic information, aggressively developing and emphasizing your alternatives, employing your own standards, implementing an aggressive offer-concession strategy and actively controlling the agenda.

Problem-Solving Strategies work best when you have or will have a long-term personal or professional relationship with your counterpart, when the negotiation is complex (it involves many issues), when creative options are present and when your counterpart uses Problem-Solving Strategies with you.

Problem-Solving Strategies include sharing strategic information more liberally, deemphasizing your alternatives and focusing instead on independent standards, implementing a more accommodating offer-concession strategy and openly discussing the agenda.

Here, the owners and players obviously are in a long-term professional relationship, there are numerous issues on the table and creative options, such as yet untapped foreign revenue sources, are present. As David Falk pointed out (and assuming both sides are willing to reciprocate), using Problem-Solving Strategies probably makes the most sense.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

The amount of information the attorney is subjected to every day can be overwhelming. If you want just enough information on today's headlines and top legal news to be able to keep up at that water cooler, then here are some legal shorts to help keep you up to beat:

Did you hear...

• “Jihad Jane,” a Pennsylvania resident, has been indicted for a conspiracy to provide support for terrorist in a murder plot overseas.
• Rodney Alcala, a serial killer who appeared as a guest on “The Dating Game,” has been recommended for the death penalty by a California jury.
• Police will question the Pittsburgh Steeler’s Ben Roethlisberger in regards to accusations of sexually assaulting a woman last Friday in a Georgia nightspot. Authorities are currently reviewing surveillance videos to determine what exactly happened.
• A Greenville, South Carolina woman was charged with homicide after shaking a two year-old child left in her care to death. The woman, Judy Greer, claims that she was trying to rock the child to sleep.
• New York’s own David Letterman is still in the news. His former television producer, Rober Halderman, pleaded guilty for attempted grand larceny. "I attempted to extort $2 million from David Letterman by threatening to disclose personal and private information about him, whether true or false," he said, according to Law.com.
• According to a court filing, former executives of the Milpitas, CA KLA Tencor Corporation settled a $33 million lawsuit regarding stock options backdating four years.
• Lindsay Lohan has sued an extension of E*Trade Financial Corporation, an online brokerage operator, in a claim that the company misappropriated her identity in a recent television ad. Lohan is seeking $100 million in damages and for the ad to be halted. The commercial refers to Lindsay as a “milkaholic.”

Consider this quote from a recent New York Times article about Derek Jeter playing in the last year of his 10-year, $189 million contract: "Per team policy, the Yankees do not negotiate contract extensions during the season."

Jeter, one of the best shortstops of all time, seems perfectly content to abide by the Yankees' policy and wait until the end of the season to discuss a new deal.

Why? The Yankees' policy gains negotiation power from three key objective criteria:

1. Precedent power - the Yankees' have followed this policy in past player negotiations;
2. Tradition power - the longer a practice is followed the stronger it becomes; and
3. Policy power - policies are used in the negotiation context to promote uniformity and consistency.

Good negotiators use objective criteria in negotiations to support their claim that something is "fair and reasonable." Here, the cumulative effect of multiple powerful objective criteria makes it very difficult for a player to argue otherwise.  Other teams which don't have a similar policy or have made prior exceptions would have a much harder time turning down a request from a top player like Jeter to negotiate a contract extension during the season.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

 

The contents of this article have been provided by Fernando M. Pinguelo and Frank Gonnello Jr.

'Trouble lurks when you rely on ‘a pure heart and an empty head’

Now, I know what you’re probably thinking.  “Revisit Zubulake!?  But that was so long ago!  Surely everything has changed!”  (Sarcasm)

To be fair, things were quite different back then – no iPhones, no clouds (in the IT world), no Google Any-Application-You-Can-Think-Ofs.  The technology landscape has certainly evolved since Zubulake became a household name.

But (at least) two things haven’t changed:  Judge Shira A. Scheindlin’s view of eDiscovery due diligence and parties’ (and their lawyers’) continued failure to meet these expectations.

In Her Honor’s latest eDiscovery-related opinion, Pension Comm. of Univ. of Montreal Pension Plan v. Bank of Am. Secs., LLC, __ F. Supp. 2d __ (S.D.N.Y. 2010), Judge Scheindlin provides us all with a much needed reminder that sloppy (i.e., negligent or grossly negligent) document preservation and production will expose parties (and their lawyers) to the court’s arsenal of sanctions: from further discovery, to cost-shifting, to fines, to special jury instructions, to preclusion, to the most severe sanction of all – entry of default judgment or dismissal. 

If you’re looking for scandalous discovery abuses or headline-grabbing fines, you’re not going to find that here.  This case addresses boring, run-of-the-mill – yet all too common and very serious – sloppy preservation and production actions on the part of clients and their lawyers.

In Pension Comm. of Univ. of Montreal Pension Plan, a group of ninety-six investors filed the initial action in an attempt to recover $550 million in losses after the liquidation of two British Virgin Island-based hedge funds in which they held shares.   During the lengthy discovery process, defendants brought to the court’s attention substantial gaps in some (thirteen of the ninety-six) plaintiffs’ document productions. 

These defense allegations led to depositions and affidavits that detailed the steps (not) taken to preserve and produce documents (including electronically stored information). At the close of discovery, defendants sought the dismissal of the complaint or some alternative relief for plaintiffs’ discovery abuses. 

All tolled, the court found thirteen plaintiffs either negligent or grossly negligent in meeting their discovery obligations and issued sanctions that ranged from further discovery (at the low end), to monetary sanctions and an adverse inference “spoliation charge” (at the high end).  In true eLessons Learned fashion, let’s take a closer look at exactly why Judge Scheindlin found plaintiffs’ (and their lawyers’) efforts to be “flawed.”

The ‘Pure Heart and Empty Head’ Syndrome

It’s important to point out from the start that Scheindlin’s assessment of plaintiffs’ acts concluded decisively that this was an instance of careless and lazy preservation of data, as opposed to an intentional destruction of evidence.  Nonetheless, she concludes that “there can be little doubt that some documents were lost or destroyed.”   Thus, Scheindlin begins down the path of determining the appropriate sanctions for such conduct, despite plaintiffs’ “pure heart [and] empty head.”

But, before we solve the final puzzle (SAN_TIONS), here are the plaintiffs’ R-S-T-L-N and E (Reckless Steps Their Lawyers Negligently Endorsed):*

The Plaintiffs

• Plaintiffs did not issue an appropriate written litigation hold until a few years after they should have.
• Plaintiffs failed to execute a comprehensive and orderly search for documents.
• Plaintiffs failed to sufficiently guide, supervise, and monitor their employees' document collection.
• Plaintiffs submitted inaccurate, incomplete, vague, and contradictory declarations that misled defendants and the court about plaintiffs’ document preservation and production efforts.
• Plaintiffs failed to adequately prepare and produce witnesses with knowledge about document preservation and production efforts, including which files were searched, how searches were conducted, who was asked to search and what they were told, and the extent to which employees’ efforts were supervised.
• Plaintiffs’ document preservation and production efforts were found to be “severely deficient.”
• Plaintiffs failed to collect or preserve any electronic documents prior to their belated litigation hold.
• Plaintiffs failed to request documents from key custodians and witnesses.
• Plaintiffs’ memoranda (purporting to be litigation holds) never specifically instructed employees and key custodians not to destroy records.
• Plaintiffs designated employees with no experience conducting searches and who received no instruction on how to conduct searches, had no supervision during the collection, and had no contact with lawyers during the search.
• Plaintiffs unduly limited the scope of persons with relevant documents to the point of excluding many more who did in fact have responsive documents.
• One plaintiff’s representative admitted that she failed to search an executive’s PalmPilot, which may have contained relevant emails.
• One plaintiff’s general counsel at first declared that he supervised his company’s document search efforts; but later testified at a deposition that he delegated the search to a paralegal.  When pressed, he did not know the details of the paralegal’s communication with employees regarding preservation or whether employees complied. In fact, general counsel signed his declaration without fully investigating his company’s search efforts, and he lacked personal knowledge of many of the issues raised in his declaration.

Their Lawyers

• Lawyers’ telephone conversations, emails, and memoranda instructing plaintiffs to be over, rather than under, inclusive and noting that emails and electronic documents should be included in the production were not enough to constitute an effective litigation hold.
• Lawyers’ subsequent monthly case status memoranda, which included additional requests for documents, were not enough to constitute either an effective litigation hold or adequate monitoring.
• Lawyers failed to focus efforts on discovery while a three-year discovery stay was in place.
• Lawyers failed to sufficiently guide, supervise, and monitor their clients’ document collection.

* - On the surface, these actions may appear intentional or wanton to the unsuspecting eye.  However, what “saved” these thirteen plaintiffs was the fact that these errors were corrected later through the filing of amended declarations and other curative conduct.

Wheel of Sanctions

Now back to the sanctions.  Scheindlin stated “a plaintiff’s duty [to preserve information] is more often triggered before litigation commences, in large part because plaintiffs control the timing of litigation.”  Here, as with other cases we’ve blogged about, “the breach of the duty to preserve, and the resulting spoliation of evidence, may result in the imposition of sanctions by a court.”  Recognizing that not all sanctions are created equal, Scheindlin addresses which sanctions would be proper under the circumstances. 

She explains that for fines, cost shifting, and other “less severe” sanctions, the crux of the matter is the conduct of the spoliating party.  For more severe sanctions (i.e., dismissal, preclusion, and adverse inference jury instructions), “the court must consider, in addition to the conduct of the spoliating party, whether any missing evidence was relevant and whether the innocent party has suffered prejudice as a result of the loss of evidence.”

Scheindlin employs the following burden shifting test to deal with the burden of proof in cases such as this one, which seek more severe sanctions for egregious conduct: 

1. When the spoliating party’s conduct is sufficiently egregious to justify a court’s imposition of a presumption of relevance and prejudice, or when the spoliating party’s conduct warrants permitting the jury to make such a presumption, the burden shifts to the spoliating party to rebut that presumption.
2. If the spoliating party demonstrates to a court’s satisfaction that there could not have been any prejudice to the innocent party, then no jury instruction will be warranted, although a lesser sanction might still be required.

The Final Spin

After a lengthy and thorough review of the facts (indeed, Judge Scheindlin estimates that, collectively, almost 300 hours were spent on the motion and opinion), the court found that plaintiffs “failed to execute a comprehensive search for documents and/or failed to sufficiently supervise or monitor their employees’ document collection.”  Scheindlin concludes with the lesson of this case:

While litigants are not required to execute document productions with absolute precision, at a minimum they must act diligently and search thoroughly at the time they reasonably anticipate litigation.

The failure to issue an effective written litigation hold constitutes gross negligence because that failure is likely to result in the destruction of relevant information.  Furthermore, a litigation hold that places total reliance on clients’ employees to search and select what they believed to be responsive records without any supervision from counsel is not “effective.”

In the end, jurors will receive instructions that they are permitted to presume the lost evidence is relevant and favorable to the defendants.  Additionally, plaintiffs must now deal with monetary sanctions on top of their alleged $550 million losses. 

Scheindlin set the precedent for the consequences of this sort of behavior in Zubulake and subsequent decisions.  Courts are not going to accept excuses for disregarding now-standard principles and practices.  Attention must be paid to avoid the pitfalls documented by Judge Scheindlin.  Heed her warning because with one spin of the Wheel of Sanctions, you might not be able to afford buying a vowel.
 

The Legal Beat Takes you Behind The Course to meet faculty member, George Brunelle. Through his course on how to run a law firm ethically and profitably, he remembers the first night that he opened his own firm and why and how he knew he had made the right choice. He also recalls our first meeting and why teaching attorneys through CLE is so important. Go to Lawline.com soon to watch the full course.

On this wild Wednesday, I am changing things up with a bit more serious of a topic with an exclusive preview of new Lawline CLE Course with Seyfrath Shaw attorneys Devjani Mishra and Brian Murphy. In exploring USERRA, The Uniformed Services Employment and Reemployment Rights Act, Mishra and Murphy discuss knowing your rights and obligations under the law for employees' notice obligations and reinstallment rights, compensation, seniority and benefits protections, and state law and family military leave considerations. Go to Lawline.com soon to watch the full course.

Two connotations a Yankees World Series game may bring a baseball fan: an experience of a lifetime and a horrendous hit to the pocket book. However, foregoing the latter has caused New York Governor David A. Paterson a whole lot more of the former, but not in a good way.

On Wednesday, the state commission on Public Integrity charged Paterson with violating state ethics laws by accepting free tickets to the World Series opening game last fall between the Yankees and Phillies. This is in direct violation of the state’s ban on gifts to public officials.

The commission also determined that Paterson lied under oath in regards to his intentions of paying for the tickets. Further, Paterson is charged with violating two provisions of the Public Officers Law and three sections of the State Code of Ethics, according to the New York Times.

Amongst the scandal, the governor and his cabinet insist he will stay in office.

Does ethics study interest you? Be sure to check out Lawline.com Ethics courses.
 

With 6 Taxation Tuesdays to go before Tax Day, April 15, here are 7 new laws from Bankrate.com that you ought to know. From deductions for new homes, new cars, education, and even biking, The Legal Beat is keeping you up to speed as Tax Day  approaches.

In this episode of Behind The Course, Lawline.com introduces one of its faculty members, Criminal Defense attorney, Marc Agnifilo. Agnifilo discusses his passion for bonding with the humanity of every case. He also reflects on how he has changed as an attorney after 25 years of practice and even recalls his first big trial which involved bagels and a Machete! Lawline.com, meet your faculty member, Mark Agnifilo, and for more of Marc's CLE courses go to Lawline.com. 

In Round 2, of Lawline's Legal Beat quiz, So You Think You Know The Law, it comes down to 1 title, 2 attorneys, and 5 questions. Who's knows the law better? Will it be Milton Norman and Adam Denenberg?

In a final round of questions, Alan Schnurman reveals what maybe his own children did not know. With the help of the famous interviewer Bernard Pivot and his questionnaire, Alan answers the tough questions, like his favorite sound or alternative profession considerations. To see Alan's other interviews and courses go to Lawline.com and The Legal Beat.

In recognition for its recent inclusion in Best Companies New York's "40 Best Companies to Work for," Lawline.com's Chief Operations Officer Frank Bastone was featured in the February Edition of the Zweig HR Letter, a publication dedicated to highlighting the most innovative tactics on motivating and capturing the talent of employees. In the article, Bastone is attributed for his motivational innovativeness at Lawline.com and offers insights into the specific programs that led to the company's recent accolade.

Below is the featured article. Also refer here for the original publication from The Zweig HR Letter.

Look for Talent Everywhere and You Will Find It

A legal continuing education company puts brainstorming to good use.

When your firm needs fresh ideas— whether in the human resources department or on the front lines of business development—instead of always looking to the upper levels of management or the principals, how about opening the floor to everyone?

While at first blush it may seem like it invites chaos, one company has figured out how to put the old corporate saw of talent scouting and brainstorming into productive company-wide practices that give its employees a greater stake in idea-generation— and thus a greater sense of pride and ownership in the company.

Lawline.com (New York, NY), a 25- person company that provides online continuing education services to lawyers, was recently recognized by the New York State Society for Human Resource Management (NYSHRM) as one of the 40 Best Companies to Work for in New York. It will be honored with the award in April.

‘Real world school’

“We realize our greatest asset at Lawline.com is our employees and there are many specific examples of how we show this,” says Chief Operating Officer Frank Bastone.

Lawline.com makes it a policy to expose its employees to each department at the company.This allows them “to experience a full spectrum of our business development,” Bastone says.“We encourage them to take greater initiative in areas where they excel, and in return we help them further nurture that talent with increasingly greater responsibilities. “In essence,” he says,“we become a ‘real-world school’ that emphasizes and fosters the process of learning within the company.”

Bastone says Lawline.com’s focus on increasing its employees’ knowledge of the company from this perspective has made it a top place to work.

“We find that our employees develop a real vested interest in our company,” he says. “The passion they portray for their work and the passion they develop in growing our company have a synergistic effect on their motivation.This passion becomes contagious, and the positive environment that results is why we feel we were voted for this award.”

Cast a wide net for ideas

Lawline.com also makes it a point to mine that knowledge. Its HR department provides two ways that all employees can contribute ideas toward the growth of the company.

The first is called Innovation Days, Bastone says.

“During this meeting, we gather our entire staff and brainstorm ideas for new products, programs and innovations, utilizing a white board,” he says.“There are no limits, boundaries, or scope to the brainstorming session.”

Nor are there limits on who attends.

“Everyone, from our CEO to our newest intern, is given the opportunity to share and develop these ideas,” Bastone says. “At the end, we review and decide on the ideas that can improve the company and can be put into actionable steps.”

Exercise employees’ options

While internal idea generation has had great results, the company’s top brass is always on the lookout for new talent to add to the mix as well. It has found it in unexpected places.When Lawline.com’s president was exploring joining a gym for employees near the office, he was impressed with the corporate sales manager.

Lawline.com’s president hired the gym’s sales manager as a consultant to train employees in the company’s daily 8 a.m. meetings, which were eventually expanded into a program for the entire company.

“Our daily 8 a.m. meeting program began for our customer service department, but received such positive feedback that employees from separate departments began attending as well,” Bastone says.

“These meetings serve a multitude of purposes— from brainstorming and idea generation to motivational words and goal formations,” he says.“The results of this have been tremendous. Employee productivity has increased dramatically and the energy afterward has instigated great camaraderie and enthusiasm.”

And the consultant who started the whole idea? Three months later, the company hired him as full-time vice president of sales.

Arlene G. Dubin, a featured faculty member of Lawline.com, was quoted in The New York Post  February 20 article "The New Sweetheart Deals." We at TheLegalBeat and Lawline.com would like to congratulate Arlene on her inclusion and all her success.

Arlene has filmed the CLE programs "Estate Planning for Unmarried Couples and Cohabitation Agreements" and "What's Up with Prenups, Postnups & Cohabs?" at Lawline.com.

The following is a news release from Moses & Singer regarding her quote in the NY Post.

Arlene G. Dubin, co-chair of Moses & Singer's Matrimonial and Family Law practice was quoted in the February 23, 2010 edition of the New York Post. In the article, "The New Sweetheart Deals", Arlene discusses the explosive trend in cohabitation agreements particularly in New York where an increasing number of couples are signing "dating prenups". Please click here to view the article. The article was also referenced by NY1 during its "In the Papers" segment. Click here and drag the play button to minute 1:15 to see the segment.

Arlene literally "wrote the book" on marital agreements; see Prenups for Lovers: A Romantic Guide to Prenuptial Agreements, www.prenupsforlovers.com. She is nationally recognized for prenuptial, postnuptial, cohabitation, paternity/parenting and divorce/settlement agreements. Arlene has appeared on many national TV and radio shows and has been quoted and referenced in numerous national publications. She also lectures extensively on the topic of marital agreements.

If you need counsel in the area of matrimonial law, please contact Arlene at 212.554.7651 or at adubin@mosessinger.com.

Since 1919, Moses & Singer LLP has provided legal services to diverse businesses and to prominent individuals and their families. Among the firm's broad array of U.S. and international clients are leaders in banking and finance, entertainment, media, real estate, healthcare, advertising, and the hotel and hospitality industries.

Students applying for college have one chance to present themselves beyond their GPA, SAT scores, and extracurricular agendas. Traditionally, this platform has been the essay, in which most colleges strive to analyze the student’s writing capability, creativity, personality, and motivations. However, technology presents opportunities, and Tufts University is experimenting with admissions materials to gain greater insight into the indivduality of each applicant.

Tufts University is accepting short YouTube videos for potential students to attach along with their applications. The university has always been known for its unique applications, and it has always pushed for creativity within the  process. This upcoming year for example, according to the New York Times, Tufts essays pose such questions as "Are we alone?", along with the option to "create something" out of a single piece of paper.

The videos do not yet carry the same weight in the application as other criteria yet, and for now are an optional addition. However, representatives of the school state that, unless inappropriate, vidoes generally cannot hinder the student's chances of admission. At the same time, video content allows for a platform that may be a more familiar form of self expression for many students.

Applicants should be wary not to associate innovate with lax, however, as Tufts remains one of the country's most prestigious universities. According to the 2010 US News & World Report college rankings, Tufts ranks as one of the top 20 most selective universities in the United States. Tufts was also recognized in the report as a top 30 undergraduate university in the United States, making it difficult for any traditionalist to argue with their methodology.

For a full report, please visit The New York Times.
 

How do you fix an economic deficit? Usually income tax receipts do the trick, but as the financial deficits in the U.S. are so vast, these taxes may fall short. A new tax, the VAT tax, has been proposed, which will be tacked onto products so that their manufactures directly pay the government, but will the tax add up? For more CLE courses focusing on tax law, go to Lawline.com.

Think about student privacy and what comes to mind? Locker raids? Backpack searches? Parking lot investigations?

How about webcam surveillance?

A Philadelphia school district recently denied allegations after being accused of secretly using the school’s laptop computers to monitor student activities and behaviors at home via webcam. Philadelphia's Lower Merion School District stated their only use of activating the webcams was to find missing property. The district issues Macs to each of its 2,300 students.

Blake Robbins, a student of Lower Merion’s Harriton High School, along with his parents Michael and Holly, filed the lawsuit this past Tuesday. The student claims the school’s vice principal made accusations of him selling drugs off-campus based upon a photo taken on the school's laptop webcam.  Their attorney further supports his defense by acknowledging there was no notification that the school’s laptops had such software installed or could be potential utilized.

The defense claims that the vice principle has been unjustly portrayed, and that the computer tracking feature and webcam’s only usage has been in the recovery of lost property.

The FBI is currently investigating the violation of wiretapping and computer-intrusion laws, according to the AP Press.

 

In this episode of the Friday 5, The Legal Beat is putting you to the test! In So You Think You Know The Law, Attorneys Adam Denenberg and Milton Norman test their legal trivia knowledge of famous attorneys. Who will come out on top and who will not pass? Tune in next week to find out!

Tax attorney, Jany Sabins, didn't plan on practicing tax law, but now it is the focus of her practicing. She also has invaluable advice for females breaking into the legal field.Go to Lawline.com to view Jany's course on estate tax planning,Tax Planning in Wills: Time is of the Essence.

In the last edition of Lawline's LegalTech series, I sit down with Jack Newton, co-founder and President of Themis Solutions' Clio SaaS. Newton discusses building legal technology for the mobile world and the process of launching a new product and business very quickly through customer relationships and feedback. Launching at LegalTech, Clio premiers mobile platforms including support for iPhone, Android and Palm Pre.Check out other LegalTech Interview with Index Engines and Legal Relay on The Legal Beat.

As reported by The Wall Street Journal and MarketWatch.com, now is a good time to die, well that is if you are a multi-millionaire and want to avoid your loved ones paying taxes on your estate.

That's right, currently the US is tax free for at least estate taxes. This tax cut could amount to tens, even hundreds, of millions of dollars for America's wealthiest families. For some, it will be worth billions.
And although Congress may reinstate the tax, the longer it waits, the harder it will be to do.

But is this even constitutional and how are estate tax attorneys planning for the future in this time of the unknown? For answers such as these, just head right on over to Lawline.com for exclusive CLE programming such as that of tax attorney and Lawline Faculty member Jany Sabins.

Lawline.com faculty member Fernando Pinguelo and his 15 law review students of his eDiscovery Course at the prestigious Seton Hall Law students will channel their insights on today's hottest eDiscovery issues right here through The Legal Beat.

Fernando has also published an extensive reviews on the topic of eDiscovery, and will soon be presenting The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses, at The Cardozo Arts & Entertainment Law Journal Annual Spring Symposium, March 4, 2010. Fernando's blog e-Lessons Learned ia an ABA Top 100 blog.

Check in with the Legal Beat to get all the latest briefs of Fernando and his students legal insights.

Congratulations on the following press release to our good friends at SCG Legal PR Network. They have a tremendous service and deserve all the recognition and good fortune that they will undoubtedly continue to find.

The company is celebrating its one-year anniversary with the achievement of 90 percent of its current members being interviewed by the press to date.

Check out the full release.

NEW YORK—SCG Legal PR Network, a service that connects lawyers as sources with reporters seeking legal experts, today marked its one-year anniversary with the achievement of 90 percent of its current members being interviewed by the press to date.

“Law firms are quickly learning that public relations and visibility are essential ingredients for business growth. However, given the current economic climate, law firms, like most businesses, are grappling with how best to get ROI on their marketing dollars. SCG Legal PR Network does this. When I think about all that SCG Legal PR Network has managed to provide, it’s hard to believe it has only happened in one year,” said SCG Legal PR Network Founder Paramjit L. Mahli. “Joining the right lawyers with the right members of the press was not always so streamlined. SCG Legal PR Network’s database of legal experts continues to grow throughout the country.”

Within its first year, SCG Legal PR Network has received over 160 international television and print press requests from media such as Associated Press, Bloomberg, Reuters, Guardian UK, CNN and many more. Thirty percent of SCG Legal PR Network’s lawyer members who have been contacted by the press have been interviewed twice or more within the first year.

“SCG Legal PR Network certainly levels the playing field for small firms that are just getting their feet wet in the world of PR,” said SCG Legal PR Network lawyer member Ginger D. Schröder of Schröder, Joseph & Associates, LLP. “In today’s fast- paced, 24/7 technological world, it doesn’t matter whether your law firm is in Albany, N.Y., or Lexington, Kan. Google has become the first point of reference, and this is precisely where building your leadership as an expert is critical. Services provided by businesses such as SCG Legal PR Network are invaluable. Very affordable for firms starting PR.”

Other accomplishments include SCG Legal PR Network’s law firm member roster expanding from domestic firms to global firms such as Chadbourne & Parke LLP and international legal groups such as the International Lawyers Network. The network also won the Gold MarCom Award for creativity and innovation last October.

About SCG Legal PR Network

SCG Legal PR Network is a global network that connects lawyers as expert sources with reporters and features a 24/7-accessible database of legal experts from a variety of areas. Its team is comprised of former award-winning journalists whose experience spans over three continents and 30-plus years in the field of journalism and public relations. The network was started by a former journalist, Paramjit Mahli, who has worked within news outlets like the Canadian Broadcasting Corporation (CBC), Financial Post, CNN, CNNfn and The Journal of Commerce. For more information about the SCG Legal PR Network,
 

Happy Friday and Happy Valentine's Day! Lawline.com celebrates Valentines Day by remembering our loved ones, which are our faculty members of course!

In the third and final installment of On the Line with Alan Schnurman, Alan discusses the stakes of New York real estate and making patience the key to any success. Go to The Legal Beat to view Part 1 and Part 2 of Alan's On The Line interview, and go to Lawline.com for exclusive Alan Schnurman CLE programming.

Suddenly find yourself at the wrong end of a trade secrets litigation?  Heed this advice: When the court says “preserve,” that means documents, files, data, and BlackBerry® smartphones.  Thus, be sure to instruct your clients not to wipe the memory from their BlackBerrys or other handheld devices before turning them in; or else, your client may be subject to sanctions.

The defendants in a trade secrets theft case learned this lesson the hard way when the District Court in Florida slapped them with sanctions after they turned in freshly “wiped” BlackBerrys.  The court interpreted the freshly sanitized BlackBerrys as evidence of bad faith that justified sanctions.  But you might be thinking: “A BlackBerry wiped clean?  Who cares!  All the e-mails the other side could possibly want are readily available on the server.”  This type of thinking could get you in trouble.  Let’s see why.

After plaintiff Southeastern Mechanical Services, Inc. (“SMS”) prosecuted employees of a construction services company (“Defendants”) with theft of trade secrets, they obtained a court order requiring Defendants to preserve “all computer files, data, documents, or similar information on their computers” until otherwise notified.  The court also prohibited Defendants from “destroying any and all information and documents potentially relevant to” SMS’s claims.  Defendants’ in-house counsel properly requested employees to turn in their laptops and BlackBerrys, but seemingly failed to warn them to refrain from wiping the BlackBerrys’ internal memory.

The BlackBerrys ultimately made their way into the hands of SMS’s computer forensics expert who quickly determined that (a) they had been wiped clean, and (b) the “wiped-clean” condition was no accident.  Even the Defendants’ own forensic expert conceded at a deposition that only “intentional actions” would result in a full BlackBerry data wipe.  That was all the court needed to hear.

The court considered SMS’s requests to sanction Defendants by granting either (a) default judgment, (b) a ruling as to the improper use of trade secrets, or (c) an adverse inference jury instruction.  In Florida, a court may impose sanctions based on evidence spoliation when the opposing party, in bad faith, destroys evidence it had a duty to preserve and that had once existed.  The destroyed evidence must also be “crucial” to the other party’s case or defense.  Thus, for the court to justify issuing the sanctions requested against Defendants, it would need to conclude that the deleted BlackBerry data was crucial to SMS’s case.

With minimal deliberation, the court first concluded that “evidence existed at one time” on the BlackBerrys and that Defendants had a duty to preserve that evidence.  But was that evidence crucial to SMS’s case?  And had Defendants deliberately wiped the BlackBerrys in bad faith? 

The “crucial” requirement was easy.  The court concluded that a “substantial and complete” destruction of data justified a finding that the destroyed evidence would have helped SMS’s case and its loss was prejudicial. 

The court next noted that the BlackBerrys could have only achieved a “wiped” state following deliberate and intentional actions; and that it was “suspicious” that, following months of use, the BlackBerrys contained no “e-mails, text messages, calendar entries, or records of telephone calls.”  It all reeked of bad faith.  The court discounted the Defendants’ suggestion that SMS’s forensic expert could have accidentally deleted the files from the BlackBerrys.

Defendants argued that it didn’t matter that they had wiped the BlackBerrys before returning them because any e-mails that had been deleted were mirrored on their server, and they had already given SMS copies of those e-mails. 

The court, however, was not impressed.  It pointed out that Defendants had used their BlackBerrys for both work and personal e-mail accounts; and the personal e-mail accounts were not mirrored on the employer’s server.  For one Defendant, the court calculated that approximately three weeks’ worth of potentially relevant data had been deleted.  Based on all facts at hand, the court granted SMS an adverse inference jury instruction based on the Defendants’ failure to preserve their BlackBerrys.  

While this case dealt specifically with BlackBerrys, the lesson learned should be applied to any smartphone or other handheld device that can store data, including iPods, digital cameras, and GPS devices.  To avoid spoliation sanctions, make it clear to all employees that they should not perform any data wipes, system resets, scrubs, scours, or other similar actions once the duty to preserve exists.  Bottom line: don’t go near the “Wipe Handheld” choice in the “Security Options” menu. 

eLesson Learned: 
When the court orders your client to preserve data, don’t let employees wipe their BlackBerrys® before turning them in.  A wiped BlackBerry smartphone could translate into “bad faith” and might just induce a court to impose spoliation sanctions.

Author:
By day, Laura J. Tyson handles e-discovery issues for a boutique litigation firm in Roseland, NJ, while at night she completes her J.D. at Seton Hall Law School in Newark, NJ.

Case Citation:
Southeastern Mech. Servs. v. Brody, No. 8:08-CV-1151, 2009 U.S. Dist. LEXIS 85430 (M.D. Fla. Aug. 31, 2009)

This attorney is a self proclaimed ethics geek, who bleeds scarlet red, and is ultimately just a frustrated performer a heart. Who is teaching at lawline? Attorneys meet your faculty member, Stuart Teicher.

Actually we're a little shocked at the facts of this matrimonial action involving Thomas Liotti.  in Coccia v Liotti ;2010 NY Slip Op 00917 ; Decided on February 9, 2010 ; Appellate Division, Second Department  we see some very unusual language from the Appellate Division.  Beyond reinstating [or more correctly put, modifying] the legal malpractice claims, the AD basically granted summary judgment wiping out attorney fees by Liotti on the almost unheard of use of a disbarred attorney and misleading the client into thinking that the attorney was in good standing.

Rather than explain, here is the decisional language:

However, the Supreme Court erred by, in effect, upon renewal, vacating the determination in the order entered September 13, 2007, denying that branch of the initial cross motion which was for summary judgment dismissing the sixth cause of action to recover damages for fraudulent inducement, based upon the defendant's alleged misrepresentation that the person who would be substantially responsible for her case was an attorney. The plaintiff alleged that she later learned that such person was a disbarred attorney, prohibited from practicing law, and that the defendant fraudulently concealed this information. Contrary to the Supreme Court's conclusion, we find that the defendant failed in his initial submissions to establish, as a matter of law, that the plaintiff did not justifiably rely upon his representation of this individual's status as an attorney in good standing.

The Supreme Court erred in denying those branches of the plaintiff's cross motion which were for summary judgment dismissing the first, second, and third counterclaims seeking to recover outstanding counsel fees.

Liability of Subsequent Attorneys in Legal Malpractice

Macaluso v Pollack, 2010 NYSlipOp 30276(U) , Justice Diamond, Nassau County presents an interesting story of how a case can get dismissed. Beyond the storyline, the case presents analysis of liability of predecessor/subsequent attorneys, how the dissolution of a partnership affects legal malpractice litigation, what subsequent attorneys  can accomplish in the Second Circuit, and potential liability of associate attorneys.
The original attorneys were to represent plaintiff in an employment discrimination case, but negligently failed to follow court orders in US District Court.  Eventually, the case was dismissed by the US District Judge, on one particular day in which the attorneys did not appear for a conference.  This was apparently the last straw, as there had been many previous late filings, etc.  So case is dismissed.  Attorneys for plaintiff at that point were a partnership of two attorneys.  These attorneys then file an appeal to the Second Circuit, but leave out several essential filings which dooms the appeal.

Employment Discrimination and Legal Malpractice

Carboni v Ginsberg; 02/02/2010 2010 NYSlipOp 30256(U) Maltese, J. is an illustration of how a potential legal malpractice case underlays almost all activity within the realm of attorney representation, which is to say, everything.

Here, the question is whether plaintiff lost his employment in a wrongful manner, and after that determination, whether he has sued the attorneys within the appropriate statute of limitations time.
In a meticulous, fact specific decision, Justice Maltese writes that under CPLR 3211(a)(1) "the movant is required to demonstrate that the `documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law.'"

No Right to Arbitrate Fee Dispute Despite Retainer Language

In Edelman v Poster;  2010 NY Slip Op 00788 ;  Decided on February 4, 2010 ;  Appellate Division, First Department  we see a situation in which a matrimonial retainer agreement boldly stated a right to arbitrate, yet the Appellate Division, First Department, determined that client has no right to arbitrate

Here is the retainer language:  "While I seek to avoid any disputes concerning the payment of our fee, in the event such a dispute does arise, you have the right, at your election, to seek arbitration, the results of which are binding on both parties. I shall advise you in writing by certified mail that you have 30 days from receipt of such notice in which to elect to resolve the dispute by arbitration, and I shall enclose a copy of the arbitration rules and a form for requesting arbitration. If no action is pending and if you do not timely enforce your rights to enter into fee arbitration, I may commence legal proceedings against you to recover any unpaid fee "
 

In her recent FT.com column, Memory doesn’t matter when you have the net, Lucy Kellaway humorously recounts recent memory lapses and multi-tasking failures.  She considers several solutions, one of which is to make lists.

When preparing for a significant negotiation, we suggest you make three lists regarding your information needs. 

First, list the information you want to get before you meet with your counterpart.  Second, list the information you want to get during your negotiation.  Finally, list the information you want to initially share and withhold.

Making lists will help you strategically and comprehensively think through the information gathering process.  It will also help you avoid forgetting something important in the heat of the battle or when juggling several tasks.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

It's Wild Card Wednesday and The Legal Beat is just wild about the 2010 LTN, Legal Technology News, award winner, Index Engines. Making E-Discovery much more efficient and cost effective, Index Engines is revolutionizing the legal world. I sat down with Vice President Jim McGann at LegalTech 2010 and discovered the secrets behind Index Engine's E-Discovery.

So what is all the fuss about Stengart v. Loving Care Agency, Inc. et al.?  Why are eDiscovelebrities and employment lawyers alike watching the case so closely?  Why should YOU be watching? Privacy! (And eDiscovery, Of Course)

“It” (Stengart, the fuss, the Supreme Court of New Jersey, this post, all this blog attention) all boils down to whether this employee had a reasonable expectation of privacy in emails between the employee and her lawyer sent and received (during work hours) using the employer’s computer and IT systems. 

According to the trial court, Stengart did not have a reasonable expectation of privacy and the emails were properly retrieved and used by the employer and its lawyers in defense of the lawsuit.  According to the appeals court, not only did she (have a reasonable expectation of privacy), but also the appeals court took issue with the way the company lawyers handled the situation and queried whether the lawyers acted inappropriately when they retrieved and used these emails – and whether they should be sanctioned and/or thrown off the case.  Ouch! 

To finish reading this article, click here

Taxation on Carbonation? A state tax on soda could soon hit the shelves. But would you still buy your favorite bubbly beverage if the tax popped and fizzled a few cents more? Or is this potential soda tax, just what the doctor ordered to fight the nationwide obesity epidemic? It's a very tasty Taxation Tuesday on The Legal Beat.

The Beat Down is back, bringing you your wrap-up of Lawline CLE news! In this week's episode: Law Firm Layoffs, Lawline's Live at LegalTech, and an Exclusive CLE promo with attorney and Assistant General Council of the New York Times, George Freeman.

Despite an economic environment that has crippled many small businesses, there is still opportunity to be found. The Wall Street Journal cited Lawline.com today for its ability to take advantage of a suffering real estate market.

Lawline.com has seen its workforce grow beyond the capacity of its current Downtown Manhattan office, and it has used an aggressive but patient approach in order to take full advantage of lower rent prices.

The following is an excerpt from the Wall Street Journal in regards to Lawline.com’s ability to capitalize on the down market:

“Take David Schnurman, president of Lawline.com CLE Inc., an online provider of continuing legal education, who needed more space for his growing work force.

When hunting for a new location last year, he put out queries on an entrepreneurs' mailing list—which netted a number of leads—and saw more than 50 spaces with six different brokers. Working with different agents was crucial, he says, because some had listings that the others didn't.

‘"It seems to be that there are more deals in the market than ever,"’ Mr. Schnurman says. ‘"For any company that's growing, this is a time to be a bit more aggressive.’"

Click here to read the rest of the article from the Wall Street Journal...

In this editition of the Friday Five, Legal Beat Host Meredith Ganzman and Executive Produce Jeff Reekers count down the Top 5 Legal Mistakes in Divorce Cases.

In her recent FT.com column, Memory doesn’t matter when you have the net, Lucy Kellaway humorously recounts recent memory lapses and multi-tasking failures.  She considers several solutions, one of which is to make lists.

When preparing for a significant negotiation, we suggest you make three lists regarding your information needs. 

First, list the information you want to get before you meet with your counterpart.  Second, list the information you want to get during your negotiation.  Finally, list the information you want to initially share and withhold.

Making lists will help you strategically and comprehensively think through the information gathering process.  It will also help you avoid forgetting something important in the heat of the battle or when juggling several tasks.
 

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

 

The Legal Beat's Meredith Ganzman heads to New York's LegalTech to Interview LegalRelay CEO John Gilman. LegalRelay made a splash at the event with the launching of its legal version of Amazon.com Reviews.

There are many times when lawyers who deal with estate planning and taxes will need to use an appraiser for different types of personal property.  Lee Drexler, president of Esquire Appraisals, Inc. of New York City and Westchester, is an experienced appraiser of fine arts, furniture and jewelry and has seen many unique pieces throughout her career.  We spoke with Lee recently and asked if she could share with us some of the more interesting things that she has seen over the years.

One such story that she shares in the video below is of a woman who wanted her to appraise her engagement ring.  It appears the woman had take the ring in to be reset earlier and had never been fully satisfied with the look and feel of the ring afterwards.  Well, as you might suspect, it didn’t take Ms. Drexler long to discover that in fact the ring she was given back was fake.  Both the diamond and the gold that it was set in were no longer real.  An awful fact to find out so many years later, but as Lee says, she is brought in to reveal an ugly truth a lot of times.

Lee Drexler recently filmed a presentation with James Cohen on the legal aspects of appraisals for CLE credit on Lawline.com.  The program covers the issue from both sides, the attorney and the appraiser. Lee has also written a book called Fabulous Finds, where she shares stories like this about finding valuable pieces that nobody even knew existed.

To contact Lee Drexler, call 212-889-2580.  Please enjoy the short video below, and look for the CLE lecture soon.

Taxation Tuesday Times Two- Richard Roth and An Unfortunate Game of Pin The Tale on The Donkey

It's February 2 2010, and this is Taxation Tuesday. I'm Meredith Ganzman with hopefully your least taxing news of the week. Attorney and CLE Faculty Member Richard Roth discussed what CPA's should anticipate and prepare in 2010. In a time of financial crisis and potential economic recovery, will CPA's be stuck in an unfortunate game of Pin The Tale on The Donkey? Go to Lawline.com soon to view Richard's full course.

Taxation Tuesday Times Two- Part 2: Richard Roth and Staying F.I.T. for CPAs

Attorney and CLE Faculty Member Richard Roth discusses how attorneys should stay F.I.T. 2010, and no, that doesn't just mean going to the gym. Go to Lawline.com soon to view Richard's full course.

It's 19 degrees outside, but here in the studio, the Beat Down steams on, bringing your the HOTTEST Lawline CLE news. In this week's episode: California Deadline, The Golden Ticket, and a Lawline Exclusive CLE promo with Rocco C. Cipparone.

I'm taking a guess that, in many cases, the Louisiana attorney has a high chance of also being a Saints fan, or at least caught up in the Saints Super Bowl frenzy.

Word on the virtual street (Twitter) is that the Louisiana State Bar Association will be holding a CLE seminar next Friday, February 5 regarding the "Who Dat?" trademark controversy.

If you aren't familiar, the issue is over vendors selling t-shirts with the phrase "Who dat?" - a long time phrase used in New Orleans from the chant "Who dat gonna beat dem Saints?" The NFL views the sale of these shirts on an infringement of a trademarked phrase that it owns.

If the rumors on the Louisiana State Bar Association CLE are true, then I'm the first to commend them on putting together such a timely and relevant program on short notice.

Check back with The Legal Beat and we'll keep you up to date on the status of the program.

Lawline's Friday 5 brings you the countdown of the world's strangest laws. Bigfoot, Blowfish and Napoleon... oh my! You just have to see it to believe it.

In light of Toyota’s unprecedented decision to recall and stop selling eight car models, this New York Times excerpt caught my attention:  “In its drive to become No. 1 in worldwide sales, Toyota may have left its reputation vulnerable.”  The Tokyo Shimbun went so far as to say, “[t]he discrediting of Toyota could even destroy the world’s trust in Japanese manufacturing, which relies on its reputation for high quality.”  Time will tell what the full consequences will be.

In negotiating and in life, trust is hard to build, easy to destroy and difficult to restore.  Toyota’s plight is a useful reminder that we should always value and protect our reputation.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

Lawline.com is proud to announce The Golden Ticket. The NYCLA Insitue and Lawline.com now offer unlimited online and live CLE programing for just $499. Register now at Lawline.com/goldenticket!

In a historic moment for Continuing Legal Education, Lawline.com and the New York County Lawyer’s Association (NYCLA) have teamed up to provide a combination of the highest quality live and online Continuing Legal Education - but only with an exclusive Golden Ticket. The offer is extended to twenty-five fortunate attorneys who come across the opportunity. Each recipient receives one full year of unlimited access to both Lawline.com and NYCLA courses, which combines for a total of over 275 hours of CLE. The price? Only $499.

Lawline.com has been providing online CLE for over 10 years and has been featured in such publications as Forbes, Crains, Inc., Entrepreneur, and CNBC. Lawline.com has also recently been named one of the 40 Best Companies to Work for in New York State and a Finalist for Customer Service by the N.Y. Enterprise Report

The New York County Lawyers' Association has historically been one of the largest and most influential county bar associations in the country. Having turned 100 years old in 2008, the organization holds strong to its traditions, and their Golden Ticket offering with Lawline.com is another example of advancing the practice and education of attorneys.

Time is short for receiving the exclusive Golden Ticket, and The Legal Beat provides one of the limited routes!

 

It's Wild Card Wednesday on The Legal Beat, and as host and producer, that means it is my pick. Therefore, I picked the very wild topic of cross- examination. Defense attorney Rocco C. Cipparone will review cross-examination tactics from active listening and preparation to creatively dealing with a witness.

Legal Beat host Meredith Ganzman leads attorney Jany Sabins through an analysis of the upcoming year of "No-Law" and uproots the history behind her passion for tax law.

The combination of technology, innovation, and law means one thing: 2010’s 3-day LegalTech Trade Show in New York, NY, beginning Monday February 1. Last year’s dominant theme was eDiscovery, with much attention being given to social media as well. What will stand out this year?

Technolawyer produced a great article on predictions for 2009 after last year’s show, and there’s great reasons to believe those predictions will come to light. The first forecast was a wave of iPhone applications. Is there any doubt about this one? Yes, there are finally other products being released in the market to compete with the iPhone, but competition is negligible at this point. Last year was still the early stages in iPhone potential in regards to applications, and in 2010 there is going to be a host of maturation in the development of downloadable legal applications. Without a doubt, there will be much innovation released in iPhone Applications throughout the three day event.

CourtReportersSchools.com has a great list of current iPhone Legal Applications currently out on the market. Again, look for this list to be greatly expanded throughout 2010.

Social media is another hot topic in the legal industry that will be sure to produce buzz at the event. Blos, Twitter, Facebook, Linkedin – it’s a mixture of excitement, confusion, and growth.  It has been a bit of a hit and miss area of legal application, with some attorneys and firms diving in greatly, and others reluctant, preferring traditional forms of media and focusing solely on their practice. However, there’s no denying its growth within the industry, and with growth comes innovation.

And don’t forget eDiscovery. The big hit at last year’s event will likely be so once again. The question is whether this year’s technology will help sort through the clutter of electronic evidence. The electronic age is producing a constantly expanding set of new law and litigation, and because of this rapid change many still struggle with the concept of the necessity in dealing with electronic forms of evidence. But again, with the growing importance of this form of evidence will come a great influx of legal technology to aid in the process.

The Legal Beat will be attending the three-day event and produce up close interviews with some of the most innovative firms in the industry. We’ll also give you a behind the scenes look at the event itself. For more information visit http://www.legaltechshow.com/

 

ABC had its debut this past week of the The Deep End,  a new television series about first year associates at Sterling Law, a top Los Angeles Law Firm. That’s about all the time I’m going to take delving into the shallow depths of its plot. Instead, I’m just going to list off reasons why if you missed the first episode, you should consider yourself lucky.

1. Everybody is sexy. Apparently the law schools these first-years recently graduated from based their enrollments on aesthetic qualities and time spent at the gym.

2. Everybody is witty. Every character says the perfect line, with perfect diction, and with no delay. It makes me feel like hiding behind my computer, writing blog posts complaining about my inferiorities, and wishing I could accomplish such a feat.

3. I did not hear one piece of legal knowledge in the episode. The most legal term was “pro-bono.”

4. The group of first-years takes “victory shots” after a good day at work.

5. I heard the word “totally” more than any other word. Was this an episode of Dawson’s Creek? It totally could have been.

6. These characters went to top-ranked law schools and passed the California Bar. Really? Totally.

7. Everybody is sexy AND they eat very large cupcakes at work. Combine this with victory shots and the character's wittiness, and now I really just want to hide in a corner.

Billy Zane does star in the show as a competitive head-honcho at the law firm, and his dealing with young the attorneys is at least a comic relief, so that is one plus to the show. However, it doesn’t make up for the rest of the over-dramatization and unrealistic realm presented as an actual daily life in a competitive law firm. The only thing I see coming out of this series is a wave of high school and college graduates applying to law school, only to realize that books are actually involved somewhere in the process.
 

Lawline.com 's Weekly Wrap-up for CLE News. On this week's show, New Developments in Campaign Finance Law , California CLE Deadline, Lawfirm Commercials, and a Lawline Exclusive CLE Preview with Stuart Teicher.

Michael Stutman stars in this week's Family Law Friday on The Legal Beat. Host and Producer Meredith Ganzman leads Stutman through a discussion on Pets in Divorce and Custody Cases.

In December, GE CEO Jeffrey Immelt disclosed NBC would lose an estimated $200 million on the Winter Olympics.  In a New York Times article yesterday, Dick Ebersol, chairman of NBC Universal Sports, said he would have preferred that Immelt wait to reveal the losses until the end of January “so it didn’t cause any disruption of sales.”

“When you say something like that,” Ebersol said, “advertisers think they’ll get a bargain, and we’ve told them there aren’t any.”  In effect, Immelt decreased NBC’s leverage with its advertisers by disclosing that NBC is a bit desperate for revenue due to its expected loss, and that it had fewer competing advertisers for its spots.

What is the lesson here?  All of the key internal stakeholders in a negotiation need to be on the same strategic page.  Problems arise when the left hand doesn't know what the right hand is doing.  To help prevent this, organizations should – for all their significant negotiations – create strategic negotiation plans and implement negotiation best practices. This includes identifying what strategic information should or should not be disclosed and ensuring all of the key stakeholders are aware of those strategic choices. Importantly, our ExpertNegotiator Planning and Management Software is designed to help you do this by allowing you to create online negotiation plans accessible by each stakeholder in your negotiation – thus ensuring you avoid problems like the one created by Immelt.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

 

Tiger Woods: he’s flipped sports, entertainment, and media upside down as of late. But it doesn’t stop there – he’s thrown the legal world into turmoil as well.

In a symposium set for March 4 at Cardoso Law School, in  New York City, three attorneys, Fernando Pinguelo, a partner at Norris McLaughlin & Marcus and Chair of the firm's Entertainment Law Group, Porcher L. Taylor, III, an associate professor at the University of Richmond, and Timothy D. Cedrone, a 2009 cum laude graduate of Seton Hall University School of Law, will lead the topic, The Tiger Woods Effect: The Uncertain and Turbulent Future of Endorsement Deals, Morals Clauses, and Reverse-Morals Clauses? The trio is also focusing on producing a first of its kind law review.

Media, business, and law are industries greatly familiar with moral clauses – a provision in a contract that companies utilize to prohibit specific behavior unto the “talent,” whereby the company can terminate the contract if the talent violates these terms. However, Pinguelo, Taylor, and Cedrone are focusing in on the opposite end of the spectrum. Can the talent hold businesses accountable for unethical behavior?

This is what is becoming referred to as the Reverse-Morals Clause, an area of increasing interest and discussion within the legal community. According to Pinguelo, there is currently no scholarly law research on the subject, and little to no known law review in regards to it. He and his colleagues are out to change that.

“The reverse moral clause allows the talent unilateral ability to terminate a contract if the ethics of a business is called into question,” Pinguelo states. Pinguelo added that these issues date back to examples of Enron, but also have been notable in more recent cases such as Lehman Brothers.

The trio’s research will focus on a phenomenon they have dubbed “The Tiger Woods Effect.” Woods’ climb to fame, stardom, and power, along with a near perfect image, created him into the ideal model to demand reverse-morals clauses. However, the current ethical questions surrounding him in the media have damaged this negotiating power.

“Pre-Tiger Woods scandal, before Thanksgiving, he could write his ticket,” says Pinguelo. “If anyone had the potential for a reverse-morals clause, it would have been him.”

Before the symposium, the three attorneys plan to publish a law review titled, The Reverse-Morals Clause: The Unique Way to Save Talent Reputation and Money in a New Era of Corporate Crimes and Scandal. In the review, they divide the issue into five sections, in which they discuss the necessity of reverse-moral clauses and offer drafting and negotiation insights.

Pinguelo and Cedrone also recently authored what now will serve as a framework for the upcoming material entitled, Morals? Who Cares About Morals? An Examination of Morals Clauses in Talent Contracts and What Talent Needs to Know.

Both the review and the symposium present the potential to be the foundations of a largely growing and increasingly important area of law. We’ll keep you up to beat on all that’s coming up in research and news leading up to the symposium.

Fernando Pinguelo is also a distinguished faculty member of Lawline.com and a lectured in both E-Discovery: What you Technically Should Know and Morals? Who Cares About Morals? An Examination of Morals Clauses in Talent Contracts and What Talent Needs to Know, the latter in which he once again teamed with Timothy Cedrone.
 

It's Taxation Tuesday and hopefully this is your taxing news of the week. President Obama's proposed "Financial Crisis Responsibility Fee" to tax banks is aimed at recovering most of the government bailout’s expected $117 billion loss over the next decade. But is President Obama’s plan a good idea? Is it without its discrepancies? Bank Compliancy attorney and Lawline.com CLE faculty member, ThomasWhitford, phoned in with his take on the tax. Go to Lawline.com to watch Thomas Whitford's Bank Compliancy CLE course, and for all news CLE, stick with The Legal Beat.

Lawline.com 's Weekly Wrap-up for CLE News. On this week's show, The Do's and Don'ts of Law Firm Life, CLE California Deadline, On The Line with Alan Schnurman Part 2, and a Lawline Exclusive CLE Preview with Abram Bohrer.

Bridgewater, NJ (January 12, 2010) – Fernando Pinguelo will speak at the Second Annual Campbell Law Review Symposium, entitled Emerging Issues in Electronic Discovery, on Friday, January 22, 2010, in Raleigh, North Carolina.  His topic will be “How Are Company Legal Departments Positioning to Deal with eDiscovery in the Event of Further Litigation.”  The Campbell Law Review Symposium expects to draw hundreds of practitioners and in-house counsel from across the country.  Pinguelo’s presentation is part of a larger project that will assist in-house counsel address electronic discovery issues in a meaningful and cost-effective manner.  The results of his project will be published within a special Campbell Law Review edition dedicated to electronic discovery.

The Campbell Law Review began publication in 1979 for the purpose of serving the legal community with scholarly articles, notes, comments and other reviews of legal topics.  The Campbell Law Review fulfills this service by placing special emphasis on issues from North Carolina and other states in the Southeast, as well as issues concerning national legislation and Constitutional questions from all circuits and the Supreme Court.

Pinguelo, Co-Chair of the firm’s Response to Electronic Discovery and Information (REDI) Group, devotes his practice to complex litigation with an emphasis on business disputes, electronic discovery, and media and employment matters.  He has experience in all facets of litigation (trial, mediation, arbitration, and appellate) in both federal and state courts. As a former prosecutor, he has tried several cases.  Today, Pinguelo handles a broad spectrum of disputes including copyright infringement, misappropriation of trade secrets, fraud, breach of non-compete covenants, discrimination, and business torts; and is able to address a rapidly evolving crisis or emergency.

A leader in the emerging area of electronic discovery, Pinguelo works with business owners, C-level executives, in-house counsel, and human resources, information technology, and risk managers to develop strategies to manage business and legal issues related to electronic documents. He recognizes that complex contract and statutory considerations impact the evolving business environment. This understanding enables him to help clients comply with the broad array of laws that regulate document management. Pinguelo focuses on preventing claims and pursues strategies that enhance a client’s ability to manage electronic documents because he is keenly aware of the financial and public relations fallout that can result from high-profile electronic discovery abuses and negligence.

Notably, Pinguelo was involved in New Jersey’s first case addressing its new electronic discovery rule amendments, and has lectured numerous times on the topic, including at the Judicial College which provides judges with a wide range of academic programs. He has designed a state-of-the-art electronic discovery law course and teaches one of only a few such courses in the country at Seton Hall University School of Law.  Recently, the Fulbright Program, the U.S. government's flagship international exchange program, designated Pinguelo a Fulbright Specialist for his work in eDiscovery, and he will engage in a project at a university in one of over 100 participating countries.  Pinguelo was also invited to be a member of eDiscovery Group of The Sedona Conference® Working Group Series, a prestigious series of think-tanks consisting of leading experts brought together by a desire to address various "tipping point" issues in each area under consideration.  Pinguelo founded and contributes regularly to eLessons Learned (www.eLLblog.com), an educational blog about electronic discovery best practices that was recently recognized by the ABA Journal magazine as being one of the top 100 law blogs of 2009.

Pinguelo earned his J.D. from Boston College Law School in 1997 and his B.A., magna cum laude, from Boston College in 1994.  He is admitted to practice in New Jersey, New York, and the District of Columbia.

~ ~ ~

Norris McLaughlin & Marcus has been serving the business community of New Jersey and the New York metropolitan area since 1953. Once a humble two-man practice on Main Street in Somerville, New Jersey, Norris McLaughlin & Marcus has become the largest firm in Somerset County and one of the top 20 firms in New Jersey, with a significant presence in New York City and the Lehigh Valley in Pennsylvania.

Norris McLaughlin & Marcus’ clients run the gamut, from Fortune 500 corporations to smaller publicly and privately held companies to start-up companies and individuals. The attorneys, with staff assistance, provide legal services in nearly every area of business law. A full practice area listing can be found at www.nmmlaw.com.

The firm’s more than 150 attorneys come from diverse backgrounds, hold degrees from top U.S. law schools and regularly serve as leaders in bar associations and various trade groups.  With 25 of its members listed as the Best Lawyers in America for 2010, in addition to an active repertoire of speaking engagements and legal publications, attorneys at Norris McLaughlin & Marcus embody large-firm talent in a small-firm setting. This combination of legal talent and personable surroundings allows attorneys at Norris McLaughlin to provide service and value to their clients on an individual level. It is the goal of Norris McLaughlin& Marcus to accommodate the needs of every client through the use of experience, strategic planning and common courtesy.

Norris McLaughlin & Marcus enjoys an international reputation for excellence through its membership in Meritas, the largest worldwide affiliation of high-quality, mid-sized law firms. With Meritas, Norris McLaughlin & Marcus is able to extend its services to clients in every state and in more than 70 foreign countries.

In this Legal Beat edition of the CLE Faculty Spotlight, attorney Abram Bohrer will review his background in and his passion for handling personal injury and airline travel. He will also reflect on his experience as a new addition to the Lawline Faculty. Look for Abram Bohrer's Lawline exclusive CLE course soon.

Lawline.com 's Weekly Wrap-up for CLE News. On This week's show, the first of 2010: Lawline.com Best Companies New York, The California Crunch, Marketing Director Jeff Reekers reviews "The Deep End", and a new Lawline.com Exclusive Course preview.

A friend recently purchased a used car "as is" for around $5,000 from a dealer. About 45 days later the transmission tanked. Unfortunately, the problem appeared after the state "lemon law" warranty expired.  My friend obtained several estimates for the repair, the cheapest of which was $1,400. Not wanting to pay so much, she returned to the dealer to see if they would help.

What negotiation approach should she take?

She could try a competitive approach and threaten to file complaints with the appropriate state regulatory agency and the Better Business Bureau and stop making her payments (the dealer had financed almost the entire purchase price).

Alternatively, she could take a more problem-solving approach and appeal to the dealer's sense of fairness and potential sympathy for her plight (she is a single mother and her car broke down shortly before Christmas).

Based on her positive experience buying the car (the dealer hadn't use overly competitive, high-pressure tactics), she decided to take the latter approach. It worked, and the dealer ultimately agreed to repair the car for only $300 even though they had no contractual obligation to do so.

The bottom-line: picking the right negotiation approach will help you get the best results.

__________________________________________________________________________________________


Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

NEW YORK, Jan. 7 /PRNewswire/ -- Lawline.com is once again being recognized for its excellence and innovation. It was named one of the "40 Best Companies to Work for in New York" by the New York State Society for Human Resource Management and Best Companies Group. This comes just a few short months after being chosen a finalist in the "Best Customer Service" category by the New York Enterprise Report.

Established in 1999, Lawline.com has become one of the nation's leading providers of Online Continuing Legal Education. Focusing on “quality, price and service” has always been its primary mission. Lawline.com has been able to achieve this goal by hiring energetic, highly motivated individuals and exposing them to multiple departments in order to find the best fit for the employee’s skill set.

David Schnurman, Lawline.com's President, believes this is at the core of his company’s success. “Our greatest assets are our employees. We strive to provide them with what they need to excel, and in return we believe that this maximizes their potential."

Lawline.com is always on the lookout for great talent and often meets them in the most unexpected places. One such example is when Schnurman explored joining a gym for his employees near his office. He was so impressed with the corporate sales manager, he hired him as a consultant to train his key personnel in sales and customer service at 8:00AM every day. The response was overwhelming and before long, the conference room was filled with other employees wanting to participate in the morning brainstorming. Within three months, he was hired full time as V.P. of Sales.

Lawline.com will be honored at the Best Companies to Work for in New York at the awards dinner on Wednesday, April 21, 2010, at the Albany Marriot.

If you would like more information on Lawline.com, visit www.Lawline.com or contact Jeff Reekers at (646)448-3265 or Jeff@Lawline.com.

About Lawline.com

Lawline.com was founded in 1999 and was one of the first companies to offer online Continuing Legal Education. Lawline.com now provides hundreds of hours of original online CLE programming to attorneys across the nation.

Lawline.com expanded from Lawline, a well regarded legal television program in the New York Metropolitan area. 
 

ABC is releasing a new legal drama series entitled The Deep End. The show’s premise centers on the cutthroat competition amongst a group of young attorneys as they strive to be accepted into Sterling Law, a prestigious Los Angeles Law Firm.

Here at The Legal Beat, we’ll be watching closely and providing weekly episode reviews.

The Deep End airs January  21 from 8:00-9:00p.m., ET, on Twentieth Century Fox Television.

Check out the clip for an introduction to the series.

In this episode of On The Line, Alan Schnurman discusses his early days as a Personal Injury attorney and also reflects on his the proud moments of his career. He further reflects on what some of the more embarrassing moments in his career has taught him about his work. Even after thirty-eight years of practicing, Alan explains why he still gets nervous in trying a case. Go to The Legal Beat to catch Part 1 of Alan's interview and Lawline.com for all of your CLE needs and to view Alan's CLE courses.

In a Forbes.com article last week, Jerry Kennelly, a 30-year Silicon Valley veteran, described a negotiation he was involved in while at Inktomi, one of the first internet search engines, as follows:  “There were two of us, and when we went into the room we faced 14 people.”

Using the power in numbers ploy is a common negotiation tactic.  For example, if you show up for what you think will be a one-on-one meeting and your counterpart brings along his technical expert and a secretary, you will be at a disadvantage because you lack your own expert and will end up with a less detailed written record of the commitments made during the session.

How can you avoid being strategically outnumbered?

Find out who will attend before the meeting.  Don’t hesitate to negotiate this aspect of the agenda.  If you still wind up outnumbered, ask your counterpart’s decision-maker to go to a nearby room to see if you can reach a deal.  Ask, “You don’t need your entire team with you, right?”
 

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

At Lawline we are very serious about the January 31st California CLE Deadline. It's a team effort at Lawline. Even members of the programming department pitch in and reach out to our California attorneys, some more successfully than others. Take a look at what happens when a host and producer joins the sales team. Go to Lawline.com for all of your CLE needs.

Tonight in New York City, the Times Square Ball will reach its descent at the stroke of midnight, confetti will explode through the air, balloons will become lost in the stars, and cheers will be heard for miles. Some will be celebrating the final moments of 2009. Some will be celebrating the hopes and dreams of the New Year. Yet, the legal community will be embracing the legendary career of Robert M. Morgenthau.

After 35 years at the helm of Manhattan’s District Attorney’s office, the man known as the nation’s premier DA and the inspiration behind the “Law and Order” television series is stepping down at the age of 90.

Many have called him fearless, bringing high profile celebrities, mobsters, terrorists, money launderers, and Wall Street criminals to justice. Likewise, he brought justice between the blocks and cleaned up much of the crime-ridden streets of New York.

Back in 1975, when Mr. Morgenthau took office, New York City was in the midst of a crime wave. Fast forward to 2009, and New York City has one more thing to celebrate this New Year's Eve: fewer murders this year than any in recent history.

According to an article by CNN.com, much of this can be attributed to his restructuring of the prosecution system. In the old system, a single case could see up to five different representing attorneys, making dismissal rates high and conviction rates low. Under the restructured system, known as "vertical prosecution," a single attorney follows the case from beginning to end. The result has been lower dismissal rates, higher conviction rates, and, in the eyes of the district attorney, greater justice.

Regardless of the time and effort necessary to prosecute street criminals, unions and mob-controlled trash-collection companies, Mr. Morgenthau kept his sights clear on white-collar criminals. New York City is at the center of the global financial markets, and thus financial crimes in the city have potentially global implications. Manhattan's DA was aware of this and made it a priority. This past year, according the CNN.com article, the DA’s office received $175 million in a settlement with Lloyd's bank in a wire fraud suit. Last year, the office sent $181 million to New York City and $119 million to the state.

As with all high profile people, he had his critics, but it’s hard to understate what Mr. Morgenthau has done for installing justice in the city of New York. So tonight, as the ball lowers in Time Square, celebrate the passing of 2009 and the welcome the New Year, but also embrace the final moments in office of a legend. 
 

In this episode of the The Legal Beat Tip of The Day, Personal Injury attorney, Gerald Oginski, discusses marketing his legal services. After years of investing in traditional marketing and advertising, Gerald focused his efforts online with viral video media. Go Lawline.com soon to view Gerald Oginski's full course.

Creative thinking and commanding knowledge of the law landed Lawline.com faculty member Gerald L. Shargel into Sunday’s New York Times.  The article, entitled Bail Sitters, discussed the increased privatization of bail, and detailed such high-profile cases as that of Bernie Madoff and Marc S. Dreier, the latter who Shargel defended.

Shargel has produced such Lawline.com courses as Ethical Issues with Roger Clemens and Other High Profile Clients and A Practical Approach to the Rules of Evidence, amongst several others. He has been a member of the New York Bar since 1969 and limits his practice to the defense of serious criminal cases. Over the past several decades, Shargel has handled numerous high profile cases at both the trial and appellate level.

Shargel is cited in the article for his role in convincing the courts to allow his client, Mr. Dreier, to be released into the custody of a team of private guards at his home. “What guards do is put a mechanism in place that reassures the court,” Shargel explained in the article. “There are people on site who are there to make sure that the conditions are enforced.”

Bail generally cannot be denied unless there is reason to believe that the individual poses a danger to the community or is a threat to escape. It is often associated with favoring wealthy individuals; the poor often lack the resources to post bail. As Judge Jed S. Rakoff wrote in his statement for the Dreier case, “This is a serious flaw in our system. But it is not a reason to deny a constitutional right to someone who, for whatever reason, can provide reasonable assurances against flight.”

Shargel has also been the recipient of many awards, including the New York State Association of Criminal Defense Lawyers’ Thurgood Marshall Award for outstanding criminal law practitioner.

Bridgewater, NJ (December 21, 2009) – Editors of the ABA Journal announced they have selected E-Lessons Learned as one of the top 100 blogs by lawyers, for lawyers.  E-Lessons Learned was founded by Fernando M. Pinguelo, a Member of the law firm Norris McLaughlin & Marcus, P.A. and Adjunct Professor at Seton Hall University School of Law.

“Each year, it’s gotten harder and harder to pick the 100 best blogs because so many lawyers are now sharing their professional expertise online,” says Edward A. Adams, the Journal’s editor and publisher. “We’ve never had as strong a group of law blogs as we have this year.”

E-Lessons Learned is an educational blog about electronic discovery and how technology affects corporate governance and lawsuits.  E-Lessons Learned features insightful content authored by young lawyers and law  students from across the country.  Each blog post identifies a case that includes a technology-related mishap, which occurred through negligence, ethical lapses in judgment, too much reliance on outside counsel and vendors, or fraud; exposes the specific conduct that caused a problem; explains how and why the conduct was improper; and offers suggestions to businesses about how to learn from these mistakes and prevent similar ones from re-occurring.

“It seems only fitting that a course in electronic discovery – which teaches students the art and science of using electronically stored files and emails to build a legal case – would use a Web-based tool as a study aid and an opportunity to develop further e-skills,” explained Fernando M. Pinguelo.

Pinguelo described the impetus behind the creation of e-Lessons Learned: “I wanted to create a place where business leaders and corporate counsel could see first-hand how technology impacts lawsuits and learn how common mistakes can be avoided.  I also wanted a place where my students could showcase their skills and contribute meaningfully to the legal discourse of this emerging area.  E-Lessons Learned does just that.  It’s a place where ‘law, technology, and human error collide.’”

Pinguelo, Co-Chair of the firm’s Response to Electronic Discovery and Information (REDI) Group, devotes his practice to complex litigation with an emphasis on business disputes, electronic discovery, and media and employment matters.  He has experience in all facets of litigation (trial, mediation, arbitration, and appellate) in both federal and state courts. As a former prosecutor, he has tried numerous cases. Today, Pinguelo handles a broad spectrum of disputes including copyright infringement, misappropriation of trade secrets, fraud, breach of non-compete covenants, discrimination, and business torts, and is able to address a rapidly evolving crisis or emergency.

A leader in the emerging area of electronic discovery, Pinguelo works with business owners, C-level executives, in-house counsel, and human resources, information technology, and risk managers to develop strategies to manage business and legal issues related to electronic documents. He recognizes that complex contract and statutory considerations impact the evolving business environment. This understanding enables him to help clients comply with the broad array of laws that regulate document management. Pinguelo focuses on preventing claims and pursues strategies that enhance a client’s ability to manage electronic documents because he is keenly aware of the financial and public relations fallout that can result from high-profile electronic discovery abuses and negligence.

Notably, Pinguelo was involved in New Jersey’s first case addressing its new electronic discovery rule amendments, and has lectured numerous times on the topic, including at the Judicial College which provides judges with a wide range of academic programs. He has designed a state-of-the-art electronic discovery law course and teaches one of only a handful of such courses in the country at Seton Hall University School of Law.  Recently, the Fulbright Program, the U.S. government's flagship international exchange program, designated Pinguelo a Fulbright Specialist for his work in eDiscovery, and he will engage in a project at a university in one of over 100 participating countries.  Pinguelo was also invited to be a member of eDiscovery Group of The Sedona Conference® Working Group Series, a prestigious series of think-tanks consisting of leading experts brought together by a desire to address various "tipping point" issues in each area under consideration.

Pinguelo earned his J.D. from Boston College Law School in 1997 and his B.A., magna cum laude, from Boston College in 1994.  He is admitted to practice in New Jersey, New York, and the District of Columbia.

Norris McLaughlin & Marcus has been serving the business community of New Jersey and the New York metropolitan area since 1953. Once a humble two-man practice on Main Street in Somerville, New Jersey, Norris McLaughlin & Marcus has become the largest firm in Somerset County and one of the top 20 firms in New Jersey, with a significant presence in New York City and the Lehigh Valley in Pennsylvania.

From Aha! Jokes

Whereas, on an occasion immediately preceding the Nativity festival,throughout a dwelling unit, quiet descended, in which could be heard no disturbance, not even the sound emitted by a diminutive rodent related to, and in form resembling, a rat; and

Whereas, the offspring of the occupants had affixed their tubular, closely knit coverings for the nether limbs to the flue of the fireplace in expectation that a personage known as St.Nicholas would arrive; and

Whereas, said offspring had become somnolent, and were entertaining re: saccharine-flavored fruit; and

Whereas, the adult male of the family, et ux, attired in proper headgear, had also become quiescent in anticipation of nocturnal inertia; and

Whereas, a distraction on the snowy acreage outside aroused the owner to investigate; and

Whereas, he perceived in a most unbelieving manner a vehicle propelled by eight domesticated quadrupeds of a species found in arctic regions; and

Whereas, a most odd rotund gentleman was entreating the aforesaid animals by their appellations, as follows:

"Your immediate co-operation is requested. Dasher, Dancer, Prancer, and Vixen; and collective action by you will be much appreciated, Comet, Cupid, Donner, and Blitzen"; and

Whereas, subsequent to the above, there occurred a swift descent to the hearth by the aforementioned gentleman, where he proceeded to deposit gratuities in the aforementioned tubular coverings.

Now, therefore, be ye advised: that upon completion of these acts, and upon his return to his original point of departure, he proclaimed a felicitation of the type prevalent and suitable to these occasions, i.e.:
 

The above was provided by Aha! Jokes and can be found at http://www.ahajokes.com/acmas.html

This "On The Line" interview was four years in the making and too riveting to edit down to just one episode. In Part 1 of the interview Alan and I discuss his background and entrance into the legal profession and then his practice . He reviews then how he built his business to include Lawline TV and then Lawline.com.

The PGA Tour’s current television deal with CBS and NBC expires in 2012 and negotiations for a new contract are expected to begin soon.  For obvious reasons, both sides are closely following Tiger Woods’ recent travails. 

So what negotiation lessons come to mind? 

First, leverage is fluid so strike while the iron is hot.  Here, the networks’ leverage improved dramatically with Woods’ announcement that he’s taking a sabbatical from golf.  His absence will almost certainly result in lower TV ratings while he is out, which lowers the value of the broadcast rights, including for the future (for who knows if and when Woods will return and the impact his problems will have on his and the PGA Tour’s popularity).  As a result, the PGA Tour most likely will try to delay signing any new deal until after Woods’ return has been confirmed and some of its impact evaluated. Likewise, the networks may push for a deal sooner not later.

And second, watch the negotiations to see how the networks will rely on objective criteria to support their position.  Specifically, television ratings decreased by half while Woods’ was sidelined by knee surgery in 2008 – and they will very closely monitor their current ratings while Woods is out now. And if the ratings, as expected, drop precipitously, then watch the networks use those to try to get a better deal.

__________________________________________________________________________________________

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

Lawline.com 's Weekly Wrap-up for CLE News. On This week's show: Lawline.com's Tennessee Deadline update, Unique Holiday Gifts for Attorneys, and a new Lawline.com Exclusive Course preview.

The Virginia State Bar has proposed legislation that would restrict attorneys to taking only 8 of their total 12 annual MCLE online. We will be polling members for submittal to the state bar and will  post these results as they finalize later today.

The following is a compilation of some of the feedback we have received from our Lawline.com members. We have kept the comments anonymous to conserve our member's confidentiality.

“I fail to understand why the Bar feels it needs to turn its back on progress.” 

“Online education save on transportation and other expenses, increases productivity and allows me to practice law while staying current.”

“Ridiculous, absolutely ridiculous. Why the Va Bar believes attorneys must be treated like school children is beyond comprehension.”

“With a child at home, I cannot attend live seminars and likely would have to withdraw from the firm and change my license to inactive status.”

“My instructors online are far better than the"in-person" instructors who have graced the podium.”

“I believe this proposal was presented to permit certain organizations to generate more revenue.” 

“There is absolutely no benefit whatsoever from physically attending live CLE courses.”

"Online courses afford me the opportunity to get up, stretch, get a coffee, or even eat during the presentation WITHOUT MISSING A SINGLE WORD presented -- a feat unattainable with live courses."

“It will significantly increase the costs of my CLEs.”

“It would limit the CLE programs I could take to those offered only in the town where I live.”

“Its all about the money for them.” 

“I have no doubt that the initiative is supported by CLE providers, sponsors and presenters with an active interest in real-time formats, all of which are losing market share to pre-recorded programs.” 

“There is virtually nothing to be gained by the proposed restriction.”

"I would be very disappointed if I could not continue taking all my classes on-line.” 

“This is the worst thing the VA State Bar could do."

Feel free to add any of your own comments or feelings.

In this Lawline.com Exclusive CLE Trailer, Attorney Louis Bricklin discusses the fundamentals of Insurance Bad Faith Claims. He further explains the burden of proof in a Bad Faith Claim case. Go To Lawline.com to view the full course.

If you’re in purchasing or procurement, how can you reduce your costs, increase your margins, and still ensure the quality of service required from your vendors?
 
When your vendor contracts come up for renewal, bid out the contract and come up with several alternate plans to renewing the current deal. While you may ultimately stick with your current vendor, this classic leverage move—especially effective in a down economy—ensures you will tap into hungry and possibly desperate vendors increasingly worried about revenue and finding and keeping good customers. The better your plan B, the stronger your leverage; and the stronger your leverage, the higher the likelihood you can negotiate better deals.

And if you’re on the sales or vendor side, reassess your leverage and, as much as possible, incentivize your customers so they don’t bid out your contracts. At the same time, seek out new customers. Challenging times often present great opportunities if you can undercut your competitors’ prices.

__________________________________________________________________________________________


Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.
 

Lawline.com 's Weekly Wrap-up for CLE News.  On This week's show:  Lawline.com's Tennessee Deadline update, Unique Holiday Gifts for Attorneys, Frank Furbacher Jr. of The Frank and Frank Show, and a new Lawline.com Exclusive Course preview. 

These days, everyone is on Facebook and other social networking sites. So what happens when a judge has a Facebook? It goes without saying that a judge must be unbiased. Does being Facebook friends compromise a judge’s impartiality? According to the Florida Judicial Ethics Advisory Committee—not quite. But that doesn’t mean that a Florida judge will be accepting your friend request anytime soon.

The Florida Judicial Ethics Advisory Committee recently ruled that judges may not be listed as being “friends” with local attorneys on social networking sites like Facebook. Of course, being friends on Facebook rarely implies an actual relationship, a fact the Committee acknowledges. However, the issue is not whether an attorney has influence over a judge, but “whether the proposed conduct, the identification of the lawyer as a ‘friend’ on the social networking site, conveys the impression that the lawyer is in a position to influence the judge”.  In this case, the Committee ruled that being Facebook friends gives the appearance of influence and is therefore not permitted.

In her Tuesday New York Times article, "So How’s It Going?," Jennifer Walzer states that she needed “to come up with a better way to track what happens in the office when I’m not there – and even when I am.”  She then recognizes that “if I want to provide my employees with clearly defined expectations and then hold them accountable, I have to have a way to measure their performance.”

We hear these same two concerns over and over again from negotiation managers.  So how can you best address these issues in the negotiation management context?

First, create negotiation best practices for your team. Negotiation is one of the last significant areas in business that remains largely unmanaged. Frankly, the vast majority of negotiators just don't consistently and systematically use proven, research-based strategies.  Fortunately, research over the last 30 or so years has tested various negotiation strategies, and it's now become fairly clear which techniques work and which don't.

Second, require your team to implement those best practices.  More specifically, require them to:
   
1. Complete a best practices-based strategic negotiation plan prior to their significant negotiations (and which should include setting specific, written goals and a number of other proven research-based strategic and tactical elements);

2. Update their plans during their negotiations and send you reports of their key moves;

3. Track and retain all of their strategic plans, including their results and lessons learned, and other crucial intelligence that's been gathered; and

4. Incentivize their changed behavior.

Finally, make this relatively easy for your team to accomplish (if you don’t, it will be very hard to get your team to actually do it). You can start having plans developed with word processing and/or spreadsheet programs at a basic individual level. But at an enterprise level, you will need more, one solution of which is my ExpertNegotiator Planning & Management software.

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

Lawline's weekly wrap-up for CLE news.  

 In her Monday New York Times article, “Trying to Sell Your Business?  Think Like a Buyer,” Barbara Taylor asks, “Why is it so difficult for business owners to put themselves in the shoes of a potential buyer?”
 
One of the main reasons is the vast majority of people negotiate instinctively, not strategically.  In other words, they don’t systematically and comprehensively prepare for their significant negotiations based on the experts’ proven research. Instead, they prepare and negotiate in an off-the-cuff manner.  So not only are they not adequately considering their counterparts’ situation, they’re not even fully exploring their own. 
 
Negotiation research over the past 30 years has proven emphatically that negotiating strategically will improve your results.  Our Five Golden Rules of Negotiation methodology includes all of the key research-based components present in significant negotiations, included understanding your counterpart’s perspective.  What about your counterparts do you need to know?  As a starting point, answer these questions:
 
1.  What are your counterparts’ goals and interests?

2.  What is their preferred negotiation style and what negotiation strategies have they used in the past?

3.  What is their need level (how badly do they need the deal) and what is their best alternative to doing a deal with you (their Plan B)?

4.  What objective criteria (like market value or precedent) will they rely on to justify their position?
 
Investigating and answering these questions will help you get the best deal possible.

__________________________________________________________________________________________


Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 on Latz@ExpertNegotiator.com.
 

Baltimore’s mayor Sheila Dixon was convicted of one count of fraudulent misappropriation, The Associated Press reported Tuesday afternoon. The elected Democrat used or kept gift cards originally intended to be given to the city’s poor.  Although acquitted of a felony, Dixon does face possibly losing her seat in office.

Dixon is believed to have kept $630 worth of gift cards from Best Buy, Old Navy, and Target. After searching her home, prosecutors report finding an Xbox, Playstation, video camera, and DVDs, all believed to have been purchased with the cards.

Dixon’s defense, however, pointed to Ronald Lipscomb, a man who the defense stated has a romantic interest in Dixon, and had been recently providing her with anonymous gifts. According to their argument, Dixon thus assumed the cards had also been from Lipscomb.

Dixon, Baltimore’s first African-American mayor, has brought other controversy during her career. She was indicted in January 2007 for corruption charges as City Council president, the Associated Press states. However, she has been popular during her time as mayor, and she has been recognized with great results in reducing the city’s crime and improving its recycling system.

Other accusations are coming up for the mayor as well, including a perjury charge for not reporting Lipscomb’s gifts. The conviction of these accusations can only lead Dixon closer to being removed from Baltimore’s lead.

Source: Associated Press

Be thankful for attorneys on Thanksgiving. Happy Thanksgiving from Lawline.com  

Attention all attorneys in Alabama, Alaska, Colorado, Delaware, Georgia, Idaho, Indiana, Iowa, Louisiana, Nevada, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Tennessee, Washington, Wisconsin, I have some good and bad news for you. Which one would you like first?

We’ll start with the bad news: your CLE deadlines are approaching fast. December 31 is the day for most of you, and that day is fast approaching. Let me say, it may not be a bad idea to start planning to finish your requirements, because with the Holiday Season starting, life is likely to become only more hectic. That’s the bad news.

The good news, you ask? Online CLE provides a perfect opportunity to finish these requirements well before the deadline while reducing Holiday Stress. What better time to start than Black Friday? While the rest of the country fights, scratches, and crawls into department stores, you can kick back and relax, learn, and check off your CLE deadline.

Using the visual, the advantages to an Online CLE Black Friday are evident:

1)    Stay warm in bed and not cold in the streets.
2)    Be comfortable in your pajamas all day long.
3)    Avoid angry and potentially dangerous mobs.
4)    Have the freedom to grab a snack, be with family, and enjoy home.
5)    Learn in a stress free manner.
6)    Complete a required task before the deadline.
7)    Release any built up stress on pillows, rather on nearby shoppers (plus the latter can come with serious legal repercussions, which you could be learning all about meantime!)

So enjoy the weekend, give thanks, and relax. But know that if you would like to get a head start on some of the tasks for this busy Holiday Season, Online CLE is there for you when you need it!

Lawline.com celebrates its legal professionals and their ongoing commitment to the field of CLE. The Harvard Club, New York City.

Recognized for their innovative and relentless attention to customer service, Lawline.com focused on their distinguished faculty for one special night, celebrating and honoring their contribution to continuing legal education.

For Tim's full article go to

http://www.umcle.com/2009/11/lawline-com-honors-their-cle-faculty-with-a-reception-and-awards-ceremony/

Lawline.com's weekly CLE news wrap-up.

Cloud Computing is the future of technology. Expert Joseph J. Bambara provides what attorney's need to know to prepare in his Lawline.com Exclusive course "Possible Thunder Storm: The Legal Ramifications of Cloud Computing."

In 2005, Texas voters and the state legislature approved a Constitutional amendment banning gay marriage. According to the Democrat Attorney General candidate Barbara Ann Radnofsky, Texas may have inadvertently banned all marriages.
   
The amendment declares that “marriage in this state shall consist only of the union of one man and one woman”, a straightforward enough statement. The confusion arises from a clause in Subsection B, meant to ban same-sex civil unions, which states:  “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Something “identical…to marriage” is, of course, marriage.  Radnofsky argues that the wording of this clause bans, not just gay marriage, but marriage in general. Radnofsky blames the current Attorney General, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution and has called it a “massive error”.  Abbott contends that the amendment does not ban marriage, only same-sex civil unions and domestic partnerships. A representative from the group that drafted the amendment claimed that a lawsuit based on the wording would have little chance of success.

Although the clause is not likely to result in the wholesale dissolution of Texas marriages, Radnofsky maintains that the wording leaves the door open for a host of lawsuits related to marital issues, such as inheritance and spousal rights.  Though this controversy may never be played out in the courts, it will be interesting what effect, if any, this has on the upcoming elections in Texas for Attorney General.

As President Obama continues his first presidential trip to Asia, much attention has been focused on his negotiation approach and whether he has achieved noteworthy results.  Obviously, a whole range of difficult, complex and long-term issues are being addressed, including those in the economic, political, environmental and human rights arenas.
 
My take on the trip so far is that President Obama has focused on long-term relationship building and information gathering instead of short-term headline-generating results.  Why might this be his strategy?    
 
It is critical to uncover the fundamental interests underlying the parties’ positions.  Interests are the parties’ needs, desires, concerns and fears.  They’re the basic driving forces that motivate parties.  The number and type of interests in complex negotiations like those involving China and the United States are many and varied.  For example, the parties’ interests here include maintaining and increasing their political power and influence, both domestically and internationally, and ensuring and improving their security and economic well-being. Plus, I suspect both sides’ here are focused on their long-term relationship interests.
 
Positions, by contrast, are what each side believes or states will satisfy their interests.  At a basic level, positions are what you want.  Interests are why you want it.  In the information-gathering stage of a negotiation, you must do your research and drill down far enough to discover your and the other side’s fundamental interests.  Why?  It will help you define success, leave as little as possible on the table and find the true “win-win” outcomes. Ultimately, I believe the success of President Obama’s trip will be measured more by what he is able to accomplish over the course of his time in office rather than by any specific results achieved this week.


-----------------------------------------------

Marty Latz is the founder of Latz Negotiation Institute, a national negotiation training and consulting company, and ExpertNegotiator, a Web-based software company that helps managers and negotiators more effectively negotiate and implement best practices based on the experts' proven research.  He is also the author of Gain the Edge! Negotiating to Get What You Want (St. Martin’s Press 2004). He can be reached at 480-951-3222 or Latz@ExpertNegotiator.com.

You make plans for dinner at a well-known restaurant, set the reservation, show up on time, and then somehow end up waiting an extra half hour before you actually sit. Then, it takes an additional fifteen minutes before you receive your first drink. Ordering the meal takes equally as long, and don’t even think about a refill on that drink. Your only chance is to manually flag down the waiter, and that’s not something any patron should have to do.

Customer service can make or break a client's experience. Here at Lawline.com, we make our Customer Service a priority. We don’t just offer a product, but a service as well.

Here are just five of the philosophies of Customer Service we focus on every day:

1)    Create an Positive Experience

We don’t want to just sell a product and be done. We want to provide the greatest utility possible to our customers, and every interaction is an opportunity to maximize this. The relationship we establish with each customer is part of what our business offers.

2)    Listen

Who knows customer service better than the customer? We take to heart everything our customers say, positive or negative, so that we can provide a great experience. Listening allows us to create a Virtuous Learning Cycle where we can constantly improve our products and services to fit each individual customer.

3)    Be There when the Customer Needs You

We provide round the clock feedback. We understand customers have different schedules and may need our services at various hours. At Lawline.com, support e-mails are answered on average within fifteen minutes of submission on weekdays. This is something we take great pride in.

 4)    Follow-up

We always seek closure with a client or potential customer. We want to know whatever issue or concern you had was resolved, and we do not want to make any assumptions. We are here to help, and that means seeing your concerns to the end.

5)    Be Passionate

What good does it do to have all these key outlines and goals if employees are not passionate? Here at Lawline.com we have passion. We want to help, we enjoy interaction, and when our customer has a positive experience it means we did our job. This passion creates a continuous improvement cycle and facilitates the necessary environment for great customer service.

Those are some of the foundations of great Customer Service we believe in here at Lawline.com. More importantly, however, what do you think are some additional keys to providing great customer service?

Do you have questions for the Lawline CLE faculty members appearing on our upcoming programs? If so, Lawline wants to hear from you. Send your questions for our CLE faculty to me at Meredith@lawline.com or support @lawline.com. The Lawline team looks forward to hearing from you.
 

Upcoming Lawline CLE Prorgams

David Klein- Email Marketing

Richard Abend and Josh Silber- Hospital and Medical Records Used in Evidence.

Lily Royer- International Custody Dispute

As the host of The Legal Beat, I promised that I would start tweeting. I enlisted the help of Tim Baran, of UMCLE. In this episode of On The Line, he discusses the importance of attorneys being engaged in social networking such as Twitter. He further notes the future relationship between CLE and such social media platforms as Twitter.

A recent New York case is going to have large implications for parties and attorneys relating to e-discovery and litigation holds.

The case, Einstein v. 357 LLC et al., involved plaintiffs Harold Einstein and Jennifer Boyd in an action against The Corcoran Group, a national real estate broker, for the defective design, construction, and sale of a duplex condominium in Brooklyn, New York. The court ruled in favor of the plaintiff, and found that the defendant was in violation on various grounds of discovery. 

In a first of its kind case, the court ruled that failure to preserve electronic documentation upon the commencement of litigation constitutes gross negligence. In this case, The Corcoran Group was unable to submit to the courts electronic documentation, citing that routine deletion of these files was a part of its general business practice. However, upon litigation, The Corcoran Group failed to alter this scheduling and continued to delete potentially relevant electronically stored information (ESI).

As a result, Justice Charles E. Ramos concluded that “[The Corcoran Group] are deemed to have known of the water infiltration problem and to have willfully misled the Plaintiffs by concealing that condition from them during the sales process.”

The discovery issues at hand have been previously reviewed at the federal level under the Federal Rules of Civil Procedure and from the Zubulake decision; however, the court’s decision in this case represents New York State’s adaptation of those Federal rulings. Plaintiff attorney Jay Itkowitz, of the law firm Itkowitz and Harwood, cited the federal courts hand in the decision.

“The Federal Courts had what I would say is persuasive authority,” Mr. Itkowitz stated. “But the Judge also applied New York standards in the decision.”

The standards in New York can be traced back to when paper documentation was the primary source of record keeping. Discarding relevant paperwork while under litigation would violate the concept of protecting key information, and the Einstein decision carries the concepts of paper records over to electronic data. “You have evidence, you have to preserve it,” Mr. Itkowitz explained.

The only separation between the state and federal findings may revolve around the Plaintiff. At the federal level, the party producing the electronic data must pay for its imaging and review; however, in New York State, the Plaintiff is likely to be the one responsible to pay.

Simon Reiff, Itkowitzs’ partner as the Plaintiff’s representative, believes that the decision will have great significance on the way electronic information is handled in New York.

“Any litigator in New York now must advise his/her clients to preserve all relevant data,” Mr. Reiff stated. “But also [he/she] must inquire as to the basic mechanics of the client’s IT configuration and methods of business communications,” Mr. Reiff stated.

The Einstein decision will eradicate the excuse of ignorance in terms of how ESI is saved, deleted, and retrieved. Clients and their legal representative must now have a clear understanding of the involved IT configurations.

As Mr. Reiff stated following the decision, “Those attorneys and parties who fail to take preservation efforts upon being apprised that litigation is reasonably imminent risk severe sanctions.”


 

Director of Customer Experience, Christie LaBarca, reviews Lawline's newest customer service project, Project We Care.

The Legal Beat Clip of The Day features the CLE Faculty Spotlight with Anne Jordan. She discusses her background as an attorney practicing Discovery and Electronic Discovery. Anne focuses on the ethics of Electronic Discovery and also provides tips necessary to preserving these ethics.

If I were to describe a life in which one was served a private breakfast and dinner, given free daily exercise in the California sun, full control over the television and CD player in the evenings, and a private room to sleep in at night, you probably wouldn’t think of a California death-row inmate, but that’s exactly what it is.

Heck, that sounds like a life that most married men would envy. Full control over the remote? That sounds like pretty decent freedom for an inmate. Not to mention, these individuals also receive liberal telephone use and the ability to individualize their cells with entertainment and snacks.

An argument may be that these individuals are given a little extra luxury due to the doom that awaits them. However, with California’s system, many may not live long enough to see their death sentence. Despite having the nation’s longest list of death row inmates with 685 currently sentenced, California has only completed 13 executions since capital punishment resumed in 1977. According to an LA Times article, 75 inmates on death row have died premature of their sentencing date. Good thing they were provided so many special privileges. 

The costs associated with this inefficiency have not been kind to the state taxpayer either. California, a state that has been hit hard financially over the past decade, really does not have the extra cash to fork over for this. According to the LA Times, “A state commission of experts last year estimated that the additional security and legal spending for capital inmates costs taxpayers $138,000 per death row prisoner each year.” Who needs education anyway?

Executions in the state are currently on hold as review possible reform to the lethal injection procedure. Nonetheless, Federal Judges need to get on track with this issue. It’s taking money out of the state taxpayer’s pockets and allocating resources away from a plethora of state issues that could use the funds.

Some of the points in here may be a little extreme. Obviously, a life in the cellar ticking down the days until your execution is not a luxury or a life many of us on the outside envy. Nor does spending even a day in San Quentin sound like anything most us would remotely wish to experience. However, if confronted with the choice between life in prison or the death-sentence, the latter seems to be the better choice.
 

When it comes to patent law, there is much up to interpretation, especially if the patent pending material verges on the side of the abstract. On Monday, the Supreme Court Justices took on a case that has the potential of reshaping the concept of abstract patents.

The case revolves around Bilski and Warsaw v. Kappos, and the issue pertains to an abstract intellectual patent for which the two had been denied. Their proposed idea, in which they applied for in 1997, is a methodology of hedging to cut energy costs. They believe the process would help utility companies, factories, schools, and other institutions have more predictable and stable energy bills. The validity of their idea has not been questioned; however, the ability to patent the proposition has brought great controversy.

Mr. Bilski and Mr. Warsaw’s attorney J. Michael Jakes, received intense questioning and skepticism from justices. Some made it into a laughable matter by comparing the proposed patent to incongruous hypothetical cases, such as patenting teaching methodologies or book ideas. 

State Street Bank v. Signature Financial Group had opened up the patentability of business models, and a model could be eligible if it provided a useful, concrete, and tangible result. Although this temporarily paved the road for many business patents, these findings are no longer in consideration for US patent law.

Concurrently, the US Constitution states that patents should bring protection to authors and inventors alike in order to “promote progress of science and useful arts.” The degree to which this is applicable is material for the court to review.

For more information, go to: http://www.nytimes.com/2009/11/10/business/10patent.html

Interview with attorney Jonathan Schecter

Lawline.com's Weekly News Wrap-Up

Intel’s antitrust allegations had simmered in the United States the past decade. However, on Wednesday, New York attorney general Andrew M. Cuomo filed a suit against the microprocessor giant on the basis of aggressive business tactics and unlawful payments to PC makers.

Intel, the world’s largest computer chip manufacturer, supplies approximately 80 percent of the computerized chips used in creating PCs and servers. Cuomo, according to a New York Times report, believes Intel has abused its market dominance: “Intel has used illegal threats, coercion, fines and bullying to preserve its stranglehold on the market.”

Cuomo also stated in the report specific tactics Intel has used to keep Dell Computers from seeking smaller suppliers, including large rebates and co-marketing arrangements. 

Although there has been little previous activity domestically in antitrust allegations, the company has been fighting suits in Asia and Europe the past five years. Most recently, the European Commission fined Intel $1.45 billion for violating antitrust laws, to which Intel is currently appealing.

Intel has also been involved in a suit with A.M.D., Intel’s longtime competitor, and constantly under the watchful eye of the Federal Trade Commission.

Intel has fought the accusations all along, citing in the report the benefit that they have provided consumers in innovation and low prices.

Many gay-rights activist saw great potential in establishing same-sex marriage in Maine. However, on Tuesday's state ballot, Maine voted against the legislation. Maine is now the 31st state to reject a proposition to legalize same-sex marriage.  

The state was a top prospect for gay-rights advocates. Its New England neighbors, including Vermont, Massachusetts, New Hampshire, and Connecticut, allow same-sex marriage. In addition, Maine’s liberal political makeup made it a seemingly greater prospect for advocates. The loss now places additional pressures on supporters to rethink their campaign efforts.

Currently, gay-rights groups have focused on the creation of new legislature across individual states. However, the loss in Maine brings with it the perspective of gay-rights advocates to campaign through federal efforts.

Concurrently, gay-rights opponents see Maine’s results as a representation of America’s overall beliefs. According to the New York Times report, Maggie Gallagher, president of the National Organization for Marriage, stated, “Maine is one of the most secular states in the nation, it’s socially liberal, they had a three-year head start to build their organization and they outspent us two to one. If they can’t win there, it really does tell you the majority of Americans are not on board with this gay marriage thing.”

For now, individual states will continue to be polled over the potential legislation. Voters in New York, New Jersey, Oregon, and California will all likely see same-sex marriage on ballots in the upcoming years.

GOP members are boycotting a Senate committee’s debate on climate control legislation, the Associated Press reported Tuesday. The proposal aims to cap greenhouse gases generated by industrial plants and curb fossil fuel usage.

Republicans demand further studies on the economic impacts of the proposal. Republic Sen. George Voinovich of Ohio, the only GOP member in attendance at the debate, stated that the GOP’s reasoning for boycott lies in the ambiguity of the future fiscal implications of the potential legislation.

The Environmental Protection Agency has projected costs to be no greater than $111 per year, but the GOP believes this projection needs greater backing. The legislation would utilize tradable pollution permits to create a 20 percent reduction in greenhouse gas emissions by the year 2020 and an 83 percent reduction by 2050.

Senator Barbara Boxer, D-Calif., who serves as the committee chairman, reports that she would like to accommodate the GOP, but also hopes to keep the process moving forward. Currently, Democrats have a 12-7 majority within the committee, which would provide enough votes to send the proposal to the Senate.

Republicans stated in a letter to Boxer that, according the AP’s report, ignoring the GOP’s concerns ''would severely damage rather than help'' the bipartisanship needed to pass the bill through the Senate.

Facebook has taken a strong stances against internet spam in the past, and it has recently strengthened that reputation. This past week, the online social media giant, based in Palo Alto, California, received $711 million in damages after a U.S. District Court Judge ruled Nevada resident Sanford Wallace violated the U.S. CAN-SPAM Act and California’s anti-fishing law on Facebook’s website.

The CAN-SPAM Act, which offers protection against unsolicited emails, not only affects large corporations like Facebook, but also individual users. Although the verdict directly impacts Facebook, it also sets a precedent that can protect all individual email users from unsolicited marketing campaigns.

This is not the first time a large corporation has taken action against spam. In addition to another case involving Facebook in 2008, in which the company received $873 million in damages, Microsoft and AOL have also taken legal action to halt spamming. Just last month, Microsoft filed five suits related to spam and deceptive internet practices. AOL has also been involved in numerous cases throughout the past decade, although none to the extent of the damages awarded in the recent Facebook decision.

Facebook likely will never collect the full sum from Sanford. However, the case sets an important legal precedent against spam, and many, including Facebook, will deem this externality as victory enough.

Lawline.com's Legal Beat's Clip of The Day with David Japha. Look out for the full course on Lawline.com soon.

What's your take on the legal profession and the world it inhabits? Take a look at what New Yorkers had to say on Blogging The Beat.

The last thing a child wants to see on Halloween is a sign reading “No candy at this residence”. But in many states, these signs are meant to protect the trick-or-treaters. Why? Because these residences are home to a sex offender.
 
States, including Missouri, Tennessee, Virginia, New York, California, Wisconsin, New Mexico, Texas, South Carolina, Illinois, New Jersey, Maryland, Arkansas, and Florida, have passed laws restricting the movement of sex offenders on Halloween. These laws are not founded on any specific incident, but are a reaction to the idea that Halloween provides a prime opportunity for sex offenders to interact with children and use costumes to conceal their identity.
Many of these laws require a curfew from 5 P.M. to 10:30 PM, during which sex offenders must remain in their residences (which cannot be decorated for Halloween), with the outside lights off, and a sign posted saying “No candy at this residence”. Some states, like Virginia and South Carolina, even require that sex offenders attend a seminar or treatment session during these hours.  These laws are often enforced with random door checks, and some districts, like Franklin County in Missouri, have detailed a team of officers for enforcement.

But are these measures effective in protecting children? A new study, published in the September edition of Sexual Abuse: A Journal of Research and Treatment, says no. This study found that there was no increased rate of incidents on or just before Halloween and that incidents did not demonstrate any unusual case characteristics. Additionally, the rate of incidents has not changed in response the Halloween crackdowns. According to the Bureau of Justice, only 5% of incidents involving children aged 6-11 are perpetrated by a stranger, rather than a family member or acquaintance. These findings have led some states, like Alaska, to reject such measures as a waste of money.
 
These laws are also being challenged based on the question of constitutionality. Suits have been brought in many states in response to these measures. In Missouri, a ruling by a federal judge has already declared several aspects, such as the requirement that sex offenders remain in their residence, of the Missouri law “unenforceable” for a lack of clarity. However, other parts, such as the requirement for porch lights to be turned off and for signs to be posted, were deemed acceptable. There is currently a challenge pending at the Missouri Supreme Court, and the possibility exists that a ruling could be administered before this Halloween declaring this law unenforceable.

Attorney Bart Basi offers the Lawline Tip in The Legal Beat Clip of the Day. Go to Lawline.com now to view the full course.

Lawline's Weekly CLE News Wrap-Up

Hogan and Hartsen is currently in advanced talks for completing a merger with Lovell, the New York Times reported.  This merger would create one of the world’s largest law firms.

Both firms are already internationally stable, as Hogan owns 14 offices outside of the United States and Lovell 26. Combined, the firm would have an estimated 2,500 attorneys with revenues of approximately $2 billion.

Established in 1904, Hogan and Hartson, based in Washington D.C., is the oldest major law firm in the United States, and currently employ approximately 1,100 employees. In 2006, the American Lawyer listed the company as one of the top twenty firms in the United States. 
Lovell currently has a strong hold in nearly every European district. It has also had an extensive history of mergers, most notably with the German firm Boesebeck Droste in 2000, which has increased its client base.

The two firms have reportedly been in negotiation for two years, and have now engaged in higher talks due to growing legal market opportunities abroad in countries such as Russia, Brazil, and India. 

PepsiCo was a no-show at its court date on Wednesday, October 28, and consequently lost a default decision for $1.26 billion. A lack of representation at such a case is highly unusual, especially for a company with as many attorney contacts and representatives as PepsiCo.

The suit involved two men, Charles Joyce and James Voigt, who accused PepsiCo of using their idea to sell purified water. The two claimed they had met with company officials and presented the idea, but received no feedback despite the decision to launch Aquafina, PepsiCo’s branded purified water that has accumulated billions in profit.

PepsiCo argues that the company has been improperly served, and that the decision should be overturned as a result. However, other sources have cited misplaced paperwork as the reason for PepsiCo’s absence.

A hearing will be held on November 6, allowing PepsiCo to argue its side of the issue.

It was 1987 when a crash in the stock market prompted Personal Injury and Medical Malpractice attorney Ed Ruffo to reconsider a career in business. With an upcoming CLE Course, Ruffo recalls his early days as an attorney and what still keeps him passionate about the profession today. He also imparts invaluable advice to young attorneys and legal associates entering the field.

At 2:30 p.m. today, President Obama signed the 2010 National Defense Authorization Act. The bill will bring Federal protection to the homosexual, bisexual, and transgender community. Many see it as a progressive step in civil rights under the Obama administration, while others view the bill as an attempt to silence religion.

Many conservative Christians are wary of the bill’s implications. Although the bill states that criminal measures will apply only to violent cases, Christian leaders believe this may extend to sermons with a perceived link to violent acts. Furthermore, they believe this extension could ultimately silence those who oppose the law.

The bill explicitly states that “Nothing in this Act shall be construed to prohibit any constitutionally protected speech, expressive conduct or activity… including the exercise of religion.” In effect, the bill stays true to the Constitution, and pastors retain the right to speak their religious beliefs. 

Nonetheless, opponents of the bill have their eyes on the future implications of the bill. Some see the bill progressing to the workplace through the proposed Employment Non-Discrimination Act (ENDA), which would prohibit employment discrimination based on sexual orientation and gender identification.

Supporters  of the bill and people of the homosexual, bisexual, and transgender communities focus on the bill’s impact on the status quo. The bill represents advancement in acceptance, understanding, and equality in America amongst a community that past civil rights legislation has overlooked.

 “Thoughtcrime, they called it. Thought was not a thing that could be concealed forever… sooner or later they were bound to get you.” George Orwell, 1984.

Today’s  children are being groomed for the future with stricter regulations on school hours, curriculum, behavior, and even nutrition. Slap the label of “Tomorrow’s leaders” on these kids and its all fair game to have such demands, right? But how much of this comes at the cost of the children’s freedoms? And how will this affect their thoughts as adults?

Freedom of speech in public schools has been an ongoing issue for decades. Recently, Morse v. Frederick, a 2007 Supreme Court ruling, addressed a student’s “Bong Hits for Jesus” banner. The student, Joseph Frederick, held the banner at an after-school event. The banner was confiscated and the student suspended as a result. The court denied Frederick’s claim.  While “Bong Hits for Jesus” may not be the most progressive message on the record, the question remains as to whether the expression was protected under the First Amendment.    

The concern becomes even hazier from there.  For example, The Supreme Court ruled in favor of a Poway, California school in a case involving the school’s dress code. The student wore a shirt with the words “I will not accept what God Has Condemned. Homosexuality is Shameful, Romans 1:27” on the school’s homosexuality tolerance day. He was forced to wear masking tape to block the message, and the Courts ruled this was acceptable.

The messages may seem trivial, but the implications are big. What are we teaching kids about our country and our laws? We are sending the message to students that freedom of speech is conditional. Whether or not one agrees with a given expression, disagrees with it, or regards it as nothing more than juvenility, these cases are forms of protest. By restricting the student’s freedom of speech, we restrict the future of the very values our country stood upon; the ability to speak out, stand up, and preserve rights.

It’s a topic that can easily snowball. Stricter regulations build upon each other, and eventually we create a future in which the adults become silent drones, whose freedom of thought issued by our First Amendment Rights becomes restricted through regulation. George Orwell’s 1984 depiction, undoubtedly, is quite an extreme reference, but nonetheless, it forms the vision of a dangerous path that Federal and State government alike need to consider when handling our “Leaders of tomorrow.”

Some Real World Tips for Supervising Document Review
Federal Rule of Civil Procedure 26(g) states that, “Every disclosure . . . and every discovery request, response, or objection must be signed by at least one attorney of record in the attorney's own name . . . By signing, an attorney or party certifies that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry. . . it is complete and correct as of the time it is made . . .”

In the last few years, the legal community has been bombarded with an explosion of discovery vendors who are rapidly expanding the scope of their services.  Many of these staffing agencies and consulting firms now offer “end-to-end” discovery services that go way beyond the mere furnishing of contract attorneys or document review software—they now including non-discreet services such as the “management” of the entire discovery process. 

What does this mean for the attorneys and clients who purchase these all-inclusive services with respect to the federal and state discovery rules?  Can the attorneys just sit back and wait for the production discs to be delivered to their desks?  The answer is a definitive “no.” 

The American Bar Association and all of the state and local bar associations who have examined the outsourcing issue all arrive at the same conclusion: outsourcing is permissible as long as the attorney of record remains responsible for the work performed and rigorously supervises those performing the work.  Unfortunately for the practitioner, none of these bar opinions attempt to tackle the crux of the issue by articulating a clear definition of what constitutes adequate “supervision.”   

Stepping in where the bar associations have fallen short, we have developed a list of rules to follow for attorneys who wish to outsource part of the discovery process while still meeting the high level of professional responsibility imposed by the ethics rules.  We hope that this information provides some concrete guidance to practitioners on the specific topics in which the bar association decisions have remained vague.   

1.    Do Not Hire A Substitute Supervisor – All of these newly emerging document review vendors offer “project managers” or “team leaders.”  But hiring non-attorneys to oversee the daily operations of a legal document review is highly suspect. If you hire someone to supervise or manage your project, you are either not taking full responsibility yourself, or the client is paying twice for the same services. 

2.    Know Your Case and Know the Law – It may seem obvious, but if a document review team is relying on you to teach them about the case, you have to know the facts and the applicable case law well enough to accurately convey it to your team.  In addition, you must know the ethical rules and regulations regarding outsourcing in your jurisdiction.  The oft-cited ABA Formal Opinion 08-451 regarding outsourcing is a useful guide, but may not be controlling in your jurisdiction.

3.    Know the Technology – As attorneys, this step can be one of the most daunting.  The simple truth is that the technology used by our clients, courts and opposing counsel in the discovery process is an inescapable aspect of practicing law today.  Any experienced discovery attorney can tell you that minor technological gaffs can dramatically impact the substance and quality of your document production. 

4.    Personally Select Your Team – Staffing agencies do an excellent job of providing a convenient pool of potential contract attorney and paralegal candidates.  However, as the person ultimately responsible for the work completed by the team, you should review the resumes, interview and select the team personally. 

5.    Personally Train Your Team - You should take responsibility for training the team in person, even if the review team is located across town or across the globe. Resist the urge to do a “quick start” training with a slim list of bullet points, key words or ideas.

6.    Give the First Assignment to Yourself – Someone who has never played a musical instrument would not make a good conductor.  Similarly, in order to be a credibly supervisor on a document review, you have to get some hands-on experience.  Depending on the size and scope of the review, sit down and code documents yourself for an hour, a day, a week or even a month.

7.    Design Tracking and Status Metrics

Using your experience in reviewing and coding documents, what are the expectations that you have for your review team?  What is the slowest acceptable rate of review?  Is there a pace that would be too fast?  How will you calculate accuracy?  Almost all review software will automatically generate reports regarding number of documents coded in any given time period and allow for a comparison among team members, but the important part is how those reports are interpreted. 

8.    Maintain Constant Contact with Your Team

There are many good excuses that attorneys give for not working directly with their review team: too busy with other responsibilities, not enough physical space close to the office, or fear of leaving their office for an extended period of time.  However, there is absolutely no way to credibly and effectively supervise a document review team (especially a large team of anywhere from 10-100 attorneys) without physically seeing them every day.

9.    Conduct Extensive Quality Checks and Make Adjustments Accordingly

On one hand, the quality checking phase is incredibly simple, right?  If you’ve selected a top-notch team and trained them well, they will not make many mistakes and the supervisor can review a handful of random documents and pat himself on the back for training the team so well.  Unfortunately, that is not how document reviews work.  No document review has ever been accurate and consistent from the get-go.  As the case develops, issues and strategies change, priorities are revisited, new players emerge, etc.  Readjusting is inevitable. 

The hard part is not just checking to see if there is a problem, but getting that problem fixed and making the necessary adjustments to steer the team in the right direction. This critical step absolutely cannot be outsourced.   

10.    Personally Review and Approve all Discovery Related Invoices – You may have multiple vendors assisting with discovery tasks such as document collection, processing, hosting, software, staffing agencies, etc. The supervisor should not blindly approve bills and pass them through to the client.  Rather, the supervisor should have personal knowledge of the charges.


In summary, as the attorney of record, you have been retained to certify that you personally have performed a reasonable inquiry and, to the best of your knowledge, are making complete and correct discovery disclosures.  The vendor assisting you will never be willing nor able to sign their name to anything.  Therefore, the supervision of a discovery project can not be ignored or outsourced to non-attorneys.  The attorney who neglects her job as a discovery supervisor is not only shirking her ethical duties, but is exposing herself and her clients to enormous risk.  In today’s world, conducting discovery may include taking advantage of a wealth of resources offered by staffing and technology vendors.  But, the attorney of record is always ultimately accountable. 

To read full unedited version please click here.

This blog was written by Julia Hardinger, co-founder of Hardinger & Tanenholz LLP, a unique Discovery Counsel law firm that specializes in all aspects of discovery, including the end-to-end management of large-scale document reviews. This blog is the personal opinion of the author and not intended as legal advice.

The on-going negotiation between the NBA and their locked-out referees provides a very useful negotiation lesson to anyone who has a boss, board or a constituency.

First, to summarize the negotiation’s current status, a deal had been tentatively struck last month between the parties but was then rejected by the refs’ executive board at the last minute. It was then subject to a vote by the referees, who voted it down. 

This two-step approval requirement on the side of the referees illustrates an important negotiation tactic – and one that gave them a structural advantage in the negotiations.

What is it? The Higher or Limited Authority move.

It occurs when one side constantly defers to a “higher authority” to make any substantive move and says they just “don’t have the authority.”  How should you respond?  Explore the extent of your counterpart’s authority early in