Two big cases are set to shake up the college admission process.  The first involves the so-called “clout list” at the University of Illinois, which gave hundreds of well-connected students an edge in the admissions process. The story of the “clout list” broke 2 years ago and was a huge scandal, but the Unviersity is still dealing with litigation stemming from the case.  The Chicago Tribune is requesting further data under the Freedom of Information Act (such as the admitted students’ GPAs and ACT scores) but the school is arguing they cannot release these records because the Federal Privacy Laws prohibit it from releasing personal information about students. Media Groups are arguing that the university is abusing FERPA (Family Educational Rights and Privacy Act) because it is not trying to protect admissions records, but trying to prevent investigation into its own wrongdoing. Basically the case comes down to privacy laws versus freedom of information laws, and according to the media advocates, the right of the public to know about this type of corruption far outweighs any privacy rights that might be invoked by persons on the “clout list” who side stepped the merit-based application process. As the case moves through the court system, judges have been ruling against the University and finding that details of the “clout list” should be divulged, putting the University in danger of losing federal financing for violating FERPA.

In addition, The Supreme Court is expected to take on the case of Abigail Fisher, a white student who claims she was denied admission to the University of Texas because of her race. Should the justices hear the case, it could mean a new ruling on the “meaning of diversity”, an overruling of the Grutter v. Bollinger decision, and the end of affirmative action at public schools. In the 2003 Grutter v. Bollinger case the court ruled that public universities are allowed to consider race in admissions decisions if their reason for considering race is the “pursuit of diversity”. However, the makeup of the court has changed since 2003, and it is possible that the case will now be overturned. Should this happen, the case will have repercussions beyond its impact on college admissions (where the proportion of minority students at public institutions would be expected to drop), it might also begin to unravel societal commitment to diversity in private hiring.

Testimony by Steve Anderson, a former undercover officer, revealed the extent of corruption in the New York City Narcotics units.  About 3 years ago, a scandal erupted when it was discovered that officers in Brooklyn were not vouchering (creating an official invoice and properly tracking) all the drugs they seized as evidence. At the time, the officers claimed that the officers were using the “off the book” drugs as rewards for those who provided information, a kind of “noble corruption”, which helped them do their jobs. However, after Anderson’s testimony, it appears that what these untracked drugs were actually used for was nothing that could, in any way, be termed “noble”: they were planted on people when narcotics officers needed to meet their arrest quotas.

As an example, Mr. Anderson cites a time when he bought cocaine from a DJ at a club as part of a buy-and-bust operation, but then gave some of the drugs to a fellow officer who had not met his quotas. The second officer then planted the drugs on two people at the club that had nothing to with the sale; a practice of “attaching bodies” to drugs.

As a result of the scandals, prosecutors in Brooklyn and Queens had to dismiss about 400 criminal cases that were tainted by the involvement of officers named in the scandal. In many of the cases people were able to walk away despite damning evidence, because evidence could no longer be trusted. Lawyers have filed claims for wrongful incarceration on the behalf of those arrested by these officers, and the city is settling the cases for about $1,000 an hour of imprisonment.

Prosecutors who are working on the trials of corrupt officers say that there is a conspiracy in the Police Department to cover up procedural and ethical violations by routinely falsifying records and keeping stashes of narcotics. And if Anderson’s testimony is to be believed, the corruption was indeed wide spread and pervasive, involving everyone from “ supervisors or undercovers [to] investigators”.

An article in the New York Times raises the question of how organized a group has to be before its members can be tried on conspiracy charges.  The article focuses on the case of Jaquan Layne, who is being tried on second-degree conspiracy charges, along with 4 others who are being tried on first-degree conspiracy charges (for which they could potentially receive life in prison). The question that makes this case complicated, is not whether the defendants were selling drugs or being violent (because recordings of their phone conversations show that they certainly were), but whether their organization was structured enough to be considered a “gang”.

Mr. Rothman, the defense lawyer, argues that the group was not a structured drug trafficking operation, but was rather just a few friends” from the block”, and their phone conversations were not conspiracies, but were rather just boastful hot air. On the other hand, prosecutors argue that the a gang is any structured criminal organization, and the group that was led by Layne fits that description as it was a violent, drug-trafficking enterprise that defended what it defined as its “turf”.

The district attorney’s office is interested on prosecuting the men on conspiracy charges rather than just drug dealing or gun possession charges because, although conspiracy charges are difficult to prove, they allow prosecutors to bring down multiple defendants at once and wipe out entire pockets of crime.  To prove the conspiracy charges, the DA’s office must prove that the defendants agreed to commit a crime and took steps to do so. Prosecutors are planning to use recorded conversations between the defendants to show the extent to which their operation was premeditated and structured.

The Supreme Court is struggling to reach a decision in the case of Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which centers on a teacher at a church-run school who claims she was fired because she pursued an employment discrimination claim against the school based on her disability.

The issue here is whether the laws forbidding employment discrimination fully apply to religious groups, and to what extent the government can interfere with religious groups to redress discrimination. For example, women are not allowed to serve as priests in the Roman Catholic Church, can the government declare this illegal and force a change? The Justices were having a difficult time coming up with a solution that would both limit government interference in the operations of religious organizations and protect employees from discrimination. The justices rejected the claim that there was no difference between an employment discrimination case that involves a church and one that involves a labor union, implying the free exercise clause and establishment clauses of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) did not apply.

The lawyer representing the church that runs the school argued that the Supreme Court ought to recognize the “ministerial exception” which forbids the government from interfering in the relationship between religious groups and employees who preform religious duties. However, the Justices were uncomfortable with this approach as well, deeming it too broad in its scope (so that it would affect sexual abuse reporting at religious organizations etc), and problematic in its definition of which employees would be considered “ministers”.

Another option for the Court, suggested by Justice Breyer, was to ignore the First Ammendment issues altogether and limiting the defense to a line from the Americans with Disabilities Act, which allows religious organizations to require that “all employees conform to the religious tenets” of the organization. However the plaintiff’s lawyers contend that this defense does not apply in this case

Lately, the headlines have been filled with stories about capital punishment in America, putting the death sentence on trial by public opinion.

Troy Davis was put to death in Georgia on Wednesday, after the Supreme Court refused to grant him a stay of execution. The case has stirred up a lot of controversy and accusations of injustice. In 1991 Davis was sentenced to death for the murder of a policeman, but doubts about his guilt surfaced after many of the witnesses who testified against Davis retracted their statements (claiming they were coerced by the police to implicate Davis) and doubts were raised about the way his case was handled by prosecutors. Despite the fact that Davis always maintained that another man at the scene was responsible for the shooting and no physical evidence was ever recovered linking Davis to the shooting, his attempts to get a retrial had been persistently rejected by state and federal courts. Finally, after the Supreme Court intervened, he was granted a hearing in front of a federal judge, but that judge ruled that in order to overturn his conviction Davis had not only to show that the evidence proving his guilt was questionable, but provide positive proof of his innocence. Many legal experts took issue with this ruling, claiming it set the bar for a retrial too high.

While the case has provoked a lot of criticism in the US, it is interesting to note the extent of the outrage in drew from Western Europe, which has long denounced the death penalty in the US. The case got continuous coverage in the French and British media, where it was framed as a racial issue: a black man unjustly convicted of killing a white man in a southern state. Hundreds of people gathered outside of US embassies in London and Paris to protest the execution. Many European statesmen called the execution “inhumane” and “barbaric”. According to a French Historian from the Institute of Political Studies in Paris, the French consider the abolition of the death penalty to be “an established norm of modern society”. However it is interesting to note that while France has been critical of what it sees as human rights abuses in the American justice system, a new law passed by France banning the full body veil worn by some Muslim women, has also been drawing heat.

In other capital punishment news, the Supreme Court recently halted the execution of a man in Texas, after his lawyer claimed that race played an improper role in his sentencing. During the man’s trial, a psychologist testified to the effect that black people were more likely to commit violence. While the man’s guilt is not being contested, his lawyers say that the psychologist’s testimony unfairly influenced the jury.

Texas has recently made a change to the way it handles executions, but only in as much as itsprisons will no longer serve a “last meal” to those about to be executed. The decision to do away with the last meal practice came after a lawmaker expressed outrage over the extravagant, 9-course “last meal” ordered by Lawrence Russell Brewer, saying that death row inmates should not be  “treated like celebrities” before they are executed.

New York’s Chief Judge, Jonathan Lippman, has proposed an overhaul in the way New York State deals with 16 and 17-year-old defendants.  Judge Lippman suggested continuing trying 16 and 17-year-olds who have committed serious crimes in criminal courts, but giving family courts jurisdiction over 16 and 17-year-olds who are charged with less serious crimes. Currently, New York State tries all 16 and 17 year-olds as adults in criminal courts, but critics of New York’s severe policy have said that this punitive approach does an injustice to these minors, who are in need of the social services offered in family courts. The juvenile system is more focused on treatment and rehabilitation, and since juvenile court records are sealed, it is easier for youths to acquire jobs after they serve their sentence, which is expected to reduce recidivism rates.

While attempting this change is progressive, it is also complicated. If New York adopts the plan, it would have to funnel even more money into the court system and into social services, at a time when states are facing massive budget deficits. Furthermore, the change would require a complete reorganization of agencies in the criminal justice system, changing the roles of judges, prosecutors, correction officers and others.  Not only would this plan be difficult to implement, but it may prove difficult to pass through the Republican held State Senate.

To drum up support for his proposal, Judge Lippman is speaking to advocacy groups and is planning to establish a pilot program where adolescent defendants are tried within the adult court system, but judges handle their cases as if they are in Family Court, to show that his proposal will work on a larger scale.

Supporters of the measure point to the Supreme Court’s 2005 decision in Roper v. Simmonswhich banned the death penalty for those under 18 years of age, citing differences such as immaturity and susceptibility to peer pressure, as the reasons defendants under 18 years of age should be judged differently  from adults.

What do are you views on the proposal? Should New York change its system? Should 16 and 17-year olds be held responsible for their actions the same way adults are? Should even bigger changes be made to the criminal court system in New York?

A class-action lawsuit was just filed against the Kennedy Krierger Institute,  a prominent medical institute affiliated with Johns Hopkins University, for allegedly exposing black children to lead paint as part of a research project on lead poisoning. According to the lawyers filing the lawsuit, more than 100 children were endangered by lead dust after the Institute assured their families that their homes were “lead safe”.  The institute then periodically measured the lead levels in the children’s blood, but provided them with no medical treatment. According to the lawsuit, this lead exposure caused significant, permanent neurological injuries in some of the children.

The institute defended its actions, saying the lead pain study was done in the “best interests of all the children enrolled”, and that for the most part, the children’s blood lead levels remained constant or went down. The study was meant to determine how well various levels of lead reduction decreased blood lead levels in young children, so that “a practical way to clean up lead” in homes could be found in the absence of regulation. Litigation around this research project has gone on for more than a decade, and has been compared to the Tuskegee Syphilis experiment.

While the parents of the enrolled children signed consent forms, lawyers for the plaintiffs argue that the forms did not provide a complete or clear explanation of what the research entailed. Allegedly, the Kennedy Krieger institute helped some of the families in the project acquire apartments in state-subsidized buildings where lead abatement was only partial (assuring them that the buildings were “lead safe”), and then did not inform parents when their children’s blood levels were elevated, nor did they provide treatment to children whose condition was deteriorating.

On the other hand, the hospital claims that the study was the basis for a 1996 state law that led to a 93 percent drop in lead-paint poisoning in Baltimore. Still, as good as their intentions might have been, investigations must adhere to ethical standards, and if the allegations of the lawsuit are true, the institute failed to follow the guidelines for the right way to conduct research involving human subjects.

Today’s post is on the growing concern with the government’s surveillance transgressions. First, the CIA has opened up an internal inquiry as to whether its cooperation with the NYPD since 9/11 violated the laws prohibiting the agency from gathering intelligence in the US. Critics have labeled the CIA’s counterterrorism projects with law enforcement services as “domestic spying”.  Muslim advocacy groups have decried some of the more controversial counterterrorism projects undertaken by the police department in cooperation with the CIA, such as monitoring mosques and ethnic groups, but a spokeswoman for the Agency maintains that the CIA’s operational focus is still overseas and that the work the CIA has been doing with the NYPD is necessary in the post-9/11 world.

Meanwhile, judges all over the country have been filing rulings against the use of cellphones and satellites to pursue suspects, on the grounds that such practices are endangering the Fourth Amendment’s guarantee to the protection from government invasion of privacy.  Now, the Supreme Court is set to hear an important Fourth Ammendment case and decide whether “changes in technology require changes to existing fourth amendment doctrine”. The issue at the center of the case is whether the police need a warrant to track a suspect’s car for weeks at a time using a GPS. The Supreme Court will have to interpret the application of the ban against “unreasonable searches” in a world where people are continuously being monitored. The Supreme Court will not just address whether GPS tracking requires a warrant, but whether the police are generally allowed to monitor a person’s every move outside their home through technology, or whether this goes “unreasonably” beyond conventional surveillance.

An appeals court in DC, found that the government and police are using surveillance equipment to obtain too much information, and that by tracking a person over a period of time, they are gaining too much information about his life. A court in San Fransisco, however, decided that the police use of GPS is the same at an officer’s tailing of a car, but more efficient.

Another question the Supreme Court will have to decide on is whether surveillance violates the Fourth Amendment only in cases of general public surveillance where there is no individual suspicion, or whether tracking a suspect over a period of time was also “unreasonable” in terms of the Fourth Amendment rights.

Here in New York City, the evidence that the 10^thanniversary of 9/11 is approaching is subtle but undeniable: the increased police presence in major subway stations and the full page spreads on the front pages of free newspapers handed out on the street give it away. But how have things changed in the last 10 years? Some things, like air travel and the Ney York Skyline, will never be the same, but interestingly,according to Adam  Liptak of the New York Times, Civil Rights have remained largely intact; despite what might be expected in response to such a crisis, this area of law has  remained largely unchanged.

Liptak argues that the legal response to 9/11 did not dramatically curtail civil rights in the name of security; in fact, the law itself changed little, the only thing that really changed was the enforcement of the law. According to law professor Kent Roach, even the Patriot Act, which has become a sort of shorthand in some circles for the abuse of government power under the cover of 9/11, was  pretty “mundane and mild”, and did not make preventive detention or limitations on speech commonplace. All in all, even though the new law enforcement paradigm focused on preventing terrorist attacks (which meant arresting people considered dangerous before they committed a crime by increased surveillance of religious and dissident groups and inserting informants into Muslim communities which might have impinged on First Amendment rights in some cases), the contraction of domestic liberties since 9/11 has been minor.

The major difference, according to law professor Robert M. Chesney, is that laws that already existed are being used in these preventive strategies. For example, when persons of interest are arrested before they have committed any serious crime, they are charged with something broad that requires little substantiation (like “conspiracy” or “material support” of terrorist groups).  Another tactic often used involved detaining those suspected of having ties to terrorist organizations for immigration offenses.

One area of the law where big changes have occurred is in the legality of surveillance, the Justice Department was granted the broad ability to use wiretapping, which unleashed a large amount of surveillance with little judicial review.

While there have definitely been instances where civil rights have been curtailed in the name of fighting terrorism, the fact that these instances are known to the public is itself evidence that 1^stAmendment rights, like free speech and free press, are still very much in tact in America; much more so than they have been during any other war or crisis in our nation’s history.

New Jersey’s anti-bullying law, inspired by Tyler Clementi’s suicide last year, went into effect last week. As the nation’s toughest anti-bullying measure, it is already drawing fire from critics who say the law’s provisions are too burdensome for teachers and will lead to too many lawsuits. In a recent New York Times article, many school administrators complained that they are being expected to comply with the extensive demands of the law without being given any additional resources. There was also concern that making schools legally responsible for bullying would lead to lawsuits from students and parents who are dissatisfied with the results of school investigations. Another concern that has been expressed about the new law is that it contains ambiguous language that will need to be interpreted in court. For example, the way the law defines “bullying” as anything that creates a hostile educational environment, but does not clarify what behaviors “cross the line” into bullying, and which are simply mean, but insignificant.  The other legal issue at stake here has to do with students’ free speech rights; federal court rulings have upheld the rights of students to self-expression, while New Jersey’s anti-bullying law requires schools to monitor certain kinds of speech made by students.

Adam Cohen of Time magazine, however, believes that New Jersey’s Anti-Bullying Bill of Rights is a good idea, and wants to see other states adopt similar measures that send an equally strong message to bullies that the law is firmly on the side of the victim. Under the new law, New Jersey schools are required to provide staff and students with antibullying training, appoint “safety teams” and investigate every allegation of bullying within one day. According to Adam Cohen, the important aspects of New Jersey’s new law, and those which set it apart from the statutes that are in place in the 47 other states that have anti-bullying laws, are the rigorous oversight and quick response mechanisms that are being set up in New Jersey. According to Cohen, as imperfect as the law may be, it is an important step in the right direction: bullying is a big problem that often has devastating consequences and must be addressed.

The New York Times’ Economix blog cast light on an interesting piece of legislation that is in the works, and which apparently has Obama’s approval. The bill that Obama said he was “supportive of” while giving an interview on the Tom Joyner Morning Show, seems to be the “Fair Employment Opportunity Act of 2011”,which makes it illegal for employers and recruiters to discriminate against the unemployed in making hiring decisions. It has been well documented that recently a trend has cropped up where job ads and hiring practices exclude the unemployed from applying (for example, the many listings on popular sites such as CareerBuilder and Monster.com, which say that employers “strongly prefer” people that are currently employed or only very recently laid-off). This is creating a Catch-22, where the only people who can get jobs are the ones who don’t really need them. Right now, the practice is not illegal because unemployment is not a protected status like race or religion, however, the Fair Employment Opportunity Act seeks to explicitly bar these types of practices, and allow the unemployed who have been discriminated against to sue for uncapped actual damages of any wages, salary, other compensation or benefits denied or lost, in addition to liquidated damages, compensatory and punitive damages, and other equitable relief. An Op-Ed in the National Law Journal argues in favor of the bill, saying that discrimination against the unemployed has huge social costs and is bad for the economy, public safety and has the potential of creating a permanently unemployable class. Critics of the bill, however, say such legislation is unworkablebecause it would simply make employers get rid of the discriminatory language in their ads, but it would not force them to hire people who are unemployed, and if the discrimination is not overt, it would be nearly impossible to prove because there are many legitimate reasons an unemployed candidate may be unattractive to an employer.

Tobacco companies are crying victim in a new lawsuit they’ve launched against the Federal government. 4 of the 5 largest tobacco companies are suing over the new graphic warning labels they are being asked to carry on their products, saying the warning labels are restricting their free speech rights. The companies point out that no other maker of legal substances is required by the government to carry, on its own packaging and advertising, messages to discourage the prospective customer from purchasing the product. The warning labels have become too big, the companies argue, they no longer just convey facts to help people decide whether to smoke, but actually take up more space on the package than the cigarette’s brand name. Furthermore, the tobacco company’s lawsuit alleges that the stark images on the new labels that were approved by the FDA to appear on cigarette packs were manipulated to make them scarier.

With a pile of new evidence to consider, the Supreme Court is set to revisit the issue of eyewitness identification after its 1977 decision on the matter. The scientific understanding of memory has been revolutionized in the last 30 years and studies now suggest that about a third of eyewitness identifications are incorrect and these mistaken identifications lead to wrongful convictions (many convictions that were later overturned with DNA evidence involved eyewitnesses who were wrong). The problem with eyewitness identification is not only that it is unreliable at best, but also that it is usually enough to base a case on, with juries “over-believing” the testimony of an eyewitness. With the result that many cases hang on this powerful but unreliable evidence.

Many legal experts are glad the Supreme Court is taking another look at the issue, unfortunately the case that the Supreme Court is reviewing, Perry v. New Hampshire, is unlikely to lead to a definitive ruling on the whole issue, leaving the state of the law unclear (the justices will likely only decide on the use of eyewitness identifications in certain situations). Furthermore, the justices are not deciding whether limiting eyewitness testimony is a good idea, but whether the Constitution allows it, so they may be reluctant to make constitutionally-based regulations for using eyewitness evidence.

What many experts want is for eyewitness testimony to be treated more like “trace evidence”, a fragment of proof collected at a crime scene, whose integrity and reliability is assessed from investigation to trial. Experts have suggested several ways to make the evidence collected from eyewitness accounts more reliable and temper the impact of that evidence in a case. First, investigators could administer line-ups double-blind (so that neither the witness nor the person supervising knows the “right” answer), and even telling the witness that the suspect may not be present in the line-up or photo array. Then, at trial, judges would need to instruct juries about the limitations of eyewitness testimonies and the nature of memory.

NBA Commissioner Daniel Stern, discussing the on-going negotiation between the NBA owners and players’ association, recently pointed out that, “The NFL, which is usually profitable as opposed to the NBA, which isn’t, got [a] double-digit [revenue] reduction from their players.”

Stern is using the recently concluded NFL labor negotiation as a precedent to support the NBA owners’ position. Precedent – what has happened in the past in similar negotiations – is a powerful independent standard for determining what is “fair and reasonable.”

The players can – and I expect will – challenge the validity of this precedent by suggesting the NBA circumstances are sufficiently different from the NFL to warrant a valid comparison.

How can you put precedent power to work? Research all applicable precedents and evaluate whether and how to use each in your negotiation.

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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       orLatz@ExpertNegotiator.com.

The big story out of New York today is the district attorney’s office formally filing a motion to dismiss the sexual assault case against Dominique Strauss-Kahn. The motion stated that the district attorney’s office no longer wanted to go forward with the case because Strauss-Kahn’s accuser had demonstrated a “pattern of untruthfulness” which damaged her credibility in the eyes of the district attorneys, and, the filing continues, it is the policy of the DA’s office not to ask a jury to believe without a shadow of a doubt that which the DA’s office itself is not sure of. What seems to have damaged the case the most for the prosecution was the lack of DNA evidence confirming force and the fact that the accuser had admitted to previously inventing a plausible story of sexual assault in order to gain asylum in the US. Despite these weaknesses in the case, many people, including women’s groups and black leaders, have been pressuring the DA’s office to take the case to trial. It is important to note that the DA’s decision to drop the case does not mean that they believe Strauss-Kahn innocent, but that they do not have enough evidence to prove him guilty. And New York Times blogger, Clyde Haberman, points out that although the DA’s office and the whole justice system has been criticized in this case, the fact that prosecutors initially had full faith in the word of a low-status woman against that of a powerful man shows that the justice system is working the way we hope it would.

When the district attorney’s office informed the accuser of their decision to drop the case, her lawyer, Mr. Thomson, accused the District Attorney of denying his client the right to get justice. He has also filed a lawsuit against Strauss-Kahn seeking unspecified damages, so this case is not yet over.

What is your opinion on the way the DSK trial ended? Do you think justice was served in this case? Did prosecutors drop the case for legitimate reasons or should they have perused the case further?

Congratulations to Benjamin Brafman, one of our faculty members, on his success in this case, which seemed so daunting in the beginning but was skillfully handled by the defense.

Really interesting story out of Suffolk County, NY, has County Officials seeking a “gang injunction” that would bar gang members from a 2 mile “safety zone”.  This model has been used in California to protect public areas from gang violence, but a similar effort in Queens in 2000 was struck down by the State Supreme Court. The Justice in that case said the gang members and prostitutes whom the police were trying to bar from congregating in Queens Plaza were not dangerous enough to warrant having their civil liberties restricted. The Suffolk County chapter of the New York Civil Liberties Union is confident that the effort in Wyandanch will also be denied by the court. However, when a similar effort was struck down in California it was because the gang members that were named in the injunction were not given the opportunity to deny that they were dangerous gang members, thereby violating their due-process rights. In Wyandanch, however, authorities would notify the 37 men on the registry and if those men wanted to be removed from the list they would have to contact the court and prove they were no longer affiliated with the gang. Suffolk County executive, Steve Levy, hopes that the injunction will be granted as the injunction targets men who are self-confessed members of the gangs and have been previously convicted of serious crimes. While drugs and gang violence is a growing problem in the area, some residents are still concerned that civil rights will be violated by this injunction and that the effort is really just another form of profiling.

What are your thoughts on “gang injunctions”? Are they a violation of civil rights? Are they alright as long as they only bang specific, dangerous criminals who are known gang members? How dangerous do gang members have to be before being put on the registry? Comment below!

According to a report in the N Y Times, the strike by Verizon workers is turning ugly, with management accusing the strikers of sabotage, and the unions alleging that several strikers had been hit by the managers’ cars. With negotiations stalling, both sides are attacking each other and accusing the other of failing to bargain in good faith

Verizon officials contend that there was a noticeable uptick in the number of “incidents” at Verizon since its workers went on strike last week. The officials estimated there were about 143 acts of sabotage committed, and that phone lines were cut in Washington DC, Maryland, New York and New Jersey and affected 2 police departments and a nursing home. The spokeswoman for the Communication Workers of America, the union to which the strikers belong, denied the allegations of sabotage and suggested that this was just an attempt by Verizon management to turn public opinion against the strikers and avoid negotiating with the union over cutting benefits.

Meanwhile, Verizon has obtained court injunctions that make it easier for workers to enter and leave Verizon facilities safely. However, the strikers insist that they are the ones who are in danger after several strikers were allegedly hit by cars approaching Verizon facilities.

There are a lot of accusations flying back and forth, but the sides are still no closer to reaching a deal on the concessions Verizon is asking of the 45,000 striking workers. 

This week, a New York Judge ruled against high-end shoe maker Christian Louboutin in the company’s efforts to stop competitor Yves Saint Laurent, from selling shoes with red soles. Although Louboutin was granted a trademark for the red soles in 2008, the judge said Louboutin would have trouble defending the “overly broad” trademark in court. The judge ruled that granting the injunction Louboutin was seeking would be tantamount to giving them a monopoly over the color red and would “impermissibly hinder competition”, unfairly restricting options available to other designers. Harley Irwin Lewin, the lawyer representing Louboutin, believes he could win at the appeals level if the company decides to take the case further, since the lacquered red sole has achieved trademark status with the public and because Louboutin only plans to defend certain hues of red on certain types of shoes. A lawyer for Yves Saint Laurent, however, countered by saying that if Louboutin won this case, it would invite endless lawsuits and force judges to become arbiters of fashion design.

Was Louboutin’s trademark “overly broad”? How do you expect the shoemaker to do in appeals court?

For more on Intellectual Property Issues in the fashion industry, check out Representing the Fashion Client on Lawline.com

An article published in the New York Times yesterday gives an interesting analysis of how the differing legal histories of the US and EU countries effects their reaction to online privacy protection. Spain has recently ordered Google to stop indexing information on 90 of its citizens who have filed formal complaints with the country’s Data Protection Agency.  The Spanish case is being watched closely in Europe, but regardless of the verdict in that case, the EU’s Justice Commissioner is expected to introduce new “right to be forgotten” regulations, which would give individuals more control over the data that’s posted about them online.  No such regulations are being put forward in the US and the Spanish citizens who filed a complaint would not have received a hearing in a United States court, since the US has a completely different view of privacy rights. The concept of privacy and dignity are enshrined in European law, whereas in the United States, the courts have repeatedly found that the right to publish a truth about someone supersedes that individual’s privacy rights. German privacy law even allows the suppression of someone’s criminal background after they have paid their debt to society, allowing even criminals their right to privacy. In the United States, however, once something is made public online, the individual can do nothing to get rid of it if it’s true.

Another big privacy issue that shows the difference between the US and Europe has to do with Google’s “Street View” feature. Google had to face down several lawsuits in different European countries over taking street-by-street pictures, and in Germany had to allow individuals and businesses to opt out. In the US however, anyone has the right to take pictures of anything that’s in a public space. Europeans are generally uncomfortable with breaches of privacy on the net, including the way their personal information is used by search engines for commercial purposes; ¾ of Europeans wanted the ability to delete personal data from the internet at any time.

For more on defamation and privacy rights on the internet, check out this highly-rated course from Lawline faculty member, Herald Price Fahringer : “The First Amendment: Defamation on the Internet“

Interesting “church and state” issues are cropping up in the news this week. Atheists are up-in-arms over a prayer rally in Texas, and a “cross shaped beam” that’s going to be displayed at the 9/11 museum.

First, the Freedom From Religion Foundation asked a judge to stop governor Rick Perry from being involved in, or promoting, a Christian-centric prayer rally, arguing that these actions violate the separation of church and state as outlined in the First Amendment. Their suit was dismissed by a Federal Judge in Texas who said the plaintiffs had suffered no concrete injuries as a result of the governor’s actions, and since the governor was simply “inviting” people to participate in the rally, rather than forcing or “commanding” them to do so, he was not doing anything wrong. Although the governor won the legal battle, he still faces a lot criticism from fellow politicians, civil rights groups and other religious groups for organizing a “Christian prayer meeting”. Beyond the Church & State issue, these groups are worried about whether taxpayer money and government resources are being used for the event, and are unsettled by the fact that Mr. Perry seems to be pandering to the Christian Right in advance of his possible presidential bid. Perry’s aids have denied any taxpayer dollars are being used for this, and argued that the event is similar to other events with religious overtones that have been held or attended by other politicians (like Obama’s National Day of Prayer or the National Prayer Breakfast in Washington). When similar events have been taken to court by atheists groups, they have also usually been dismissed on the same grounds: that no one is being hurt by them and that no one is forcing anyone to pray.

The issue with the “cross-shaped beam” in New York has yet to see its day in court, but if the above standards are applied, it is unlikely that the atheist group bringing that lawsuit (American Atheists), will succeed either. The controversy here centers on a Cross-Shaped Steel Beam recovered from the rubble of the World Trade Center site, which was going to be displayed at the National September 11 Memorial and Museum. The lawsuit seeking to stop the beam’s inclusion in the museum’s permanent collection, argues that because the cross is a symbol of a particular religion, and the museum is on government property, displaying a cross there is unconstitutional. Ira C. Lupu, a professor at the George Washington University Law School, stated that the Atheist group has a plausible case, but that it depends on how the cross is displayed in the museum: whether as an historic artifact or a symbol calling for religious reverence.

The atheists are calling for either the removal of the cross or “equal representation” (meaning all religions would be given the opportunity to put up an equally large symbol of their religion in the museum), their opponents say that not including the cross would be ignoring an important part of the 9/11 story, and that those who are not religious can just ignore the cross.

What do you think about these issues? Are the objections of Atheists to either of these issues valid? Although they might claim that they have suffered “mental pain and anguish” from feeling that they are being excluded, are they really being harmed by the prayer of others? Should politicians be able to promote and attend religious events if they aren’t spending tax money on it?

A woman sat in jail for seven months, after her ex-boyfriend framed her in one of the most elaborate set-ups prosecutors said they have ever seen. When Seemona Sumasar, an ex-analyst for Morgan Stanley, refused to drop rape charges against her boyfriend, Jerry Ramrattan, he vowed to have her put away. Being very knowledgeable of police procedure, Mr. Ramrattan was able to build a convincing case against Seemona. By coaching false witnesses he was able to have Ms. Sumasar arrested for carrying out a series of armed robberies. Although Ms. Sumasar claimed from the beginning that she was being set up by Mr. Ramrattan, prosecutors dismissed her claims due to the wealth of evidence that had been stacked against her. Mr. Ramrattan coached the alleged “victims” of Ms. Sumasar’s robberies to identify her and her vehicle, giving prosecutors little reason to doubt that she was behind the crimes (furthermore, prosecutors claim that the fact that the restaurant Ms. Sumasar ran was failing gave her a motive for committing the robberies). So, Ms. Sumasar was arrested and her bail set at $1 million; she sat in jail until late 2010 when the police were told by an informer that Mr. Ramrattan staged everything, and his cellphone records revealed that he had spoken to the all the false witnesses. Mr. Ramrattan was sent to Riker’s Island to await his trial for rape and conspiracy, while the false witnesses have been charged with perjury (and it is interesting to note that at least one of the false witnesses was an illegal immigrant convinced by Mr.Ramrattan to go along with the scheme with the promise of a visa, further showcasing the effects of the broken immigration system we have previously covered in this blog). Meanwhile, Ms. Sumasar’s life has already been damaged: while in jail her restaurant closed and her home went into foreclosure.

Ms. Sumasar’s lawyer claims that prosecutors were negligent in her case, ignoring her convincing alibis and dismissing the possibility that she was framed, prosecutors defend their conduct in the case, claiming that heap of false evidence presented to them was so detailed that they had no reason to be suspicious. Many legal experts point to this case as an example of the ease with which the justice system can be manipulated, but on the other hand, prosecutors had good evidence, and while prosecutors must treat everyone as innocent until proven guilty (which they might not have done in this case), it seems strange to expect that they treat all evidence as being false until proven true. Tell us whether you think prosecutors were negligent in this case or whether they were simply doing the logical thing based on the evidence they had?

In response to David Segal's article in the New York Times, attacking Law Schools (especially New York Law School) for charging high tuition, Daniel Gershburg writes about his experience at New York Law School, and why it was worth the high cost. His repsonse to Segal's article was quoted in the New York Times blog: http://bucks.blogs.nytimes.com/2011/07/18/online-reaction-law-school-economics/

Here is Daniel's blog entry:

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Caveat Emptor: In Defense of Richard Matasar and New York Law School

The Dodd-Frank financial regulatory overhaul includes a measure that aims to tie executive pay more closely to actual company performance and reduce excessive risk-taking by requiring that public companies hold “say on pay” votes. These votes are nonbinding, but they allow shareholders to express an opinion on compensation policies and have more input. This measure is in addition to the SEC’s 2006 regulation mandating full disclosure of executive compensation (including perks). Unfortunately, the government’s efforts are failing. In fact, the median compensation for CEOs in 2010 ($10.8 million) was significantly higher than the median compensation in 2009. The “say on pay” votes turn out to be little more than very expensive processes that validate the compensation packages of almost every company that holds one (for shareholders who invest in the company through pensions and other proxy advisory services don’t spend much time investigating executive pay).

All the disclosure and transparency the SEC mandated actually had the perverse effect of helping CEOs demand higher pay from the boards of their company by allowing them to cite what CEOs at other companies are making. It’s possible that the new regulations have tied pay more tightly to performance, but they have also helped drive up the amount CEOs are paid, instead of reining in exorbitant executive pay.

Are CEOs over compensated? If transparency alone doesn’t solve the issue with executive pay, are more regulations necessary? Should the “say on pay” votes be binding? Comment below!

The Legal PR Network, formerly known as SCG Legal PR Network, is heading in a new direction and the service is now completely free. Now lawyers and legal experts can join the Legal PR Network at zero cost to get ink and get noticed.

So how does this work? Lawyer members will receive media requests from reporters seeking legal sources. Legal PR Network will send the requests to all of its members and they, in turn, may contact the reporters when appropriate. Simple, right? All you need to do is register for more information at the Legal PR Network Web site here.

When done well, public relations achieves several objectives, including becoming an effective tool to support sales and marketing goals as well as positioning legal practice groups as thought leaders and experts. Law firm marketing/office managers or attorneys handling public relations can save time, money and resources with this free service. 

About Legal PR Network

Legal PR Network is a global network that connects lawyers as expert sources with reporters. Its team is comprised of former award-winning journalists whose experience spans over three continents and 30-plus years of experience in the field of journalism and public relations. 

For more information about Legal PR Network, please call 646-763-1407, visit http://profitingwithpublicrelations.com/scg-legal-pr-network, or sign up for information about free memberships here.

One of the interesting things about the Strauss-Kahn case is that it is casting a light on other issues. For example, after the allegations of sexual assault came out against the man who was widely believed to be the next president of France, many people started to reflect on the prevailing social mores in France, where womanizing is more acceptable and allows French men to get away with [unwelcome] sexual advances more easily. Now that the case against Strauss-Kahn is folding due to evidence that his accuser, a West African immigrant, was not truthful with authorities. It has been revealed that she lied on her asylum application, inventing a story of gang rape in her home country that never occurred. This is bringing attention to a rather common, but seldom-discussed, issue in immigration law, which is the frequency with which asylum fraud occurs.

The New York Times reports on the “shadowy industry dedicated to asylum fraud” in New York where con artists prey on new immigrants and non-lawyers offer misguided advice and sell stories ripped from the headlines for the immigrants to tell. While many of the applications for asylum are legitimate and asylum provides refuge for people fleeing violence, political or social oppression, many times tragedies abroad are used by people as covers for people trying to move to the US for other reasons.

In many immigrant communities there are businesses, referred to as “chop shops”, that cater to new immigrants and help them with their immigration process, many times they encourage their clients to exaggerate their claims. Because many refugees come from poor, war-torn countries, evidence is hard to collect and judges have to make decisions based on intuition. Because it is much better to grant a few fraudulent asylum cases than to deny a real one, judges tend to err on the side of caution.

The New York Times ran a follow-up article, with suggestion on how to fix the asylum system, including having an independent court, going after the “lawyers” who help the immigrants commit fraud, and providing the immigrants with legitimate lawyers who would give them options other than lying.

Do you have any ideas about how the system can be changed in order to reduce fraud? Leave a comment below!

A law in Alabama, which allows a judge to overrule the sentencing decision of a jury , was initially envisioned as a way to allow a judge, an impartial, justice-minded individual with a lot more experience with the legal system than jurors to have the final say in a trial. Many expected that the law would be used by dispassionate judges to prevent defendants from being sentenced to death by juries who decide to execute in a fit of passion. As it turns out however, the way the judicial system works in Alabama makes it far more likely that judges will overturn jury decisions in ORDER to administer the death penalty, not to show mercy. It all comes down to politics. Alabama judges, who are elected, not appointed like judges in other states, have to appear “tough on crime” in order to get reelected. In fact, the frequency with which judges override jury decisions in order to mete out the death penalty rises in election years.  Justice John Paul Stevens, arguing against Alabama’s capital sentencing system, wrote that given the “political pressures [judges] face” they are “far more likely than juries to impose the death penalty”.  And that’s saying something since juries in Alabama are more than willing to give the death penalties in cases where they think it’s called for (in fact, individuals who are opposed to the death penalty aren’t even allowed to serve on juries in Alabama). Judges have justified their decisions to put people on death row after juries recommended life sentences in several ways, which may or may not be legitimate. But even if a Judge is more familiar with law or crime than a jury, it raises the question of why even bother with a jury if, even after a jury has “responsibly” carried out its tasks, the judge ignores their recommendation? Should Alabama’s capital sentencing system be overhauled? Is there something fundamentally wrong with a judge’s ability to override a jury’s decision or is it just the fact that judges face elections that leads to an abuse of this power ? Are there legitimate circumstances under which a judge should be allowed to have the power to overrule a jury? Comment below!

The New York Times investigates the issues that have arisen in New York’s federal immigration courts after a priest who had represented thousands of immigrants was barred from handling any more cases. This is an interesting, and somewhat polarizing issue, since on the one hand the priest was helping many people who otherwise probably wouldn’t have any help with their cases, but on the other hand, Robert Vitaglione had no legal training and was possibly jeopardizing the cases of the people he was trying to help.

Immigrants who are challenging administrative actions are not entitled to free legal representation like defendants in criminal courts, so it’s long been allowed for non-attorneys (“accredited representatives”) to represent clients if they have some familiarity with the law. And having representation is usually the key factor that determined whether an immigrant will win their case, since many immigrants don’t even speak English, much less have any knowledge of the law or the courts. However, while immigrants without lawyers are more than five times as likely to lose their cases as those with lawyers, how helpful having non-attorney representation is debatable. While Father Vitaglione was very helpful to many immigrants, as his workload got bigger than even highly trained lawyers say they would be able to handle, the quality of his efforts began to slip, to a point that the Legal Aid Society filed complaints against him for mishandling cases.

Immigration lawyers say that this situation is a good opportunity to address the crisis in immigration courts where so many people go without the legal representation they need and where the courts are backlogged by the fact that often clueless defendants are left trying to navigate the system by themselves.

What do you think about this case? Do you think that having “disorganized” representation by a volunteer like father Vitaglione is better than having no representation at all? Or is having someone who is not held accountable for his work counter-productive and even dangerous? Is there a way to fix this “crisis in representation” in the immigration courts or reduce the courts’ reliance on volunteers? Share your thoughts below!

Another article on the legal profession in the New York Times, this one about the growing demand at big lawfirms for high-profile lawyers. Big firms are recruiting top producers more aggressively than ever before and luring them away from their current firms with huge, multi-million-dollar pay packages. The result of this competitive bidding for top legal talent, according to the article, is that it is causing the gap between the salary of the highest-paid “rainmakers” and other partners at the law firms to widen, with top-producers sometimes making 10 times the salary of an average partner.

The recession is a major driving force behind the increased intensity with which “rainmakers” are being recruited: firms are desperate for the big business and big fees that these lawyers will bring with them. For example, Irving H. Picard, the court-appointed trustee entrusted with  recovering money for the victims of Madoff’s Ponzi scheme, who was aggressively recruited by a New Jersey Law Firm, has brought in about $180 million in legal fees so far and is expected to bring in an additional $603 million in the next few years.

Another interesting point the article mentions is that the partners dealing with less profitable cases are resentful of all the resources and attention being given to the high-profile cases and high-profile partners at the firm, sometimes even sabotaging the firm’s work in other areas.

Do you think that the increasing pay gap between the “rainmakers” and other legal professionals is of concern? Do you think, given the recession, law firms have any choice other than trying to “poach” lawyers who have already landed big clients? Are the “rainmakers” worth the multi-million dollar deals they are getting? Comment below!

An interesting article in the NY Times points to a new trend in the legal profession: Judges are leaving the bench and going back to practicing law. Largely this is because of a long judicial pay freeze which created a pay gap between Judge’s salaries and the salaries being pulled in by partners at top law firms. However, there is little support for increasing Judge’s pay, since there has been a “devaluing of judge’s work”, and since in hard economic times, making a case for increasing a comparatively high salary would be a tough sell. However, there is concern that the pay gap that is leading to such high attrition rates could undermine the strength of the courts. In fact, Law Professor Roy Schotland of Georgetown University claimed that stagnant pay was “the single most important problem for our courts.”

Do you think that the judicial pay freeze is undermining the justice system? Does the salary gap make a judgeship less attractive? Comment below!

The case against Dominique Strauss-Kahn, the former head of the IMF, is reported to be on the verge of collapse, as evidence uncovered by investigators creates major holes in the credibility of Strauss-Kahn’s accuser. While evidence confirms a sexual encounter between Strauss-Kahn and the hotel maid who is accusing him of rape, prosecutors in the case are questioning the legitimacy of the information provided by the maid in regards to the circumstances of the encounter and even her own identity.

Among the new evidence discovered is a phone conversation the accuser appears to have had with a man in jail with whom she discussed whether she should pursue the case against Strauss-Kahn.

While the maid still maintains that she was violently assaulted, this new evidence may lead to the more serious charges against Strauss-Kahn (such as felony) being dropped, and the bail conditions imposed on Mr. Strauss-Kahn being eased, freeing him from house arrest.

This new evidence, unearthed by the prosecution, no doubt plays into the defense strategy of Strauss-Kahn’s lawyers, Benjamin Brafman and William W. Taylor III, whose defense strategy largely involved trying to undermine the credibility of the accuser.

The new evidence gives some credence to Strauss-Kahn’s supporters, who complained that the American authorities had rushed to judgment in the case, imposing very harsh bail restrictions on him and making him a social pariah.

How badly does this new evidence damage the case against Strauss-Kahn? And did American authorities, and society in general, pass their judgment too quickly? Weigh in below!

Strauss-Kahn’s defense attorney, Ben Brafman, is one of Lawline.com’s most highly-rated faculty members, for an insider’s view on how he approaches criminal defense, check out a course he recently taught for Lawline.com along with Marc Agnifilo: Prosecution and Defense Strategies from Arrest to the Ultimate Acquittal

And for more on the importance of witness credibility to a case, check out Witness Credibility: The Jury Perspective

Some people hate their job, but here at Lawline we are lucky to have people who are intensely passionate about building a strong cohesive culture and making this a great place to work. A great company culture is not something that just "happens," it is designed. And Lawline CEO David Schnurman has put a lot of thought into designing a strong company culture based on a collaborative fun environment full of people who like to be challenged, and has been recognized for his ideas most recently by the Fox Small Business Center.

In his recent article on the Fox Small Business Center, David writes about the difficult process of creating a collaborative and challenging environment. He gives examples of things he has done to create this kind of environment that we see on a daily basis here at Lawline.

The result? David said and I think we would all echo that "We are fortunate to now have successfully achieved a fun atmosphere where our employees come early, act professional, exude positive energy, and feel committed to the success of the company, while always pushing each other to find a better way to accomplish our goals."

Read the full article "How to Build a Successful Company Culture" on Fox Small Business Center Here

High-profile hackings have been making the headlines lately, prompting questions about data safety on the internet.  Last month, 200,000 Citigroup credit card accounts were hacked, prompting the FDIC to push banks to take steps to secure their customer’s financial information. The Citibank infiltration was only one in a series of other serious hacks which included PBS, Sony, and Epsilon.  Today, the New York Times reported that Ryan Cleary, a 19 year-old hacker from England, was arrested for his connection to hacking group, LulzSec, which had been attacking web sites and computer networks including those of the US Senate and CIA. Furthermore, Google recently claimed that hackers operating out of China targeted U.S. government officials, military personnel and political activists. While no official e-mail accounts were hacked, the situation raised concerns about computer-network vulnerabilities in the government. The government’s response to these breaches included proposing to make hacking government websites a felony, punishable by up to 20 years in prison.

While new technology makes our lives better in a lot of ways, it is also making us vulnerable and allowing for new crimes to be perpetrated. Laws have to be able to keep up with these new developments and individuals and businesses have to be more vigilant about keeping their information secure.

To learn how to keep your data secure, check out Best Practices for Data Security and Sensitive Client Data & Viruses, Spyware, and Scripts, Oh My: The Importance of Protecting Your Computer

I am sure everyone's been losing a lot of sleep over this, but now we can all rest easy: Warner Bros. has settled the lawsuit brought by tattoo artist, S. Victor Whitmill, over the mark seen on actor Ed Helms' face in The Hangover II, which Whitmill claimed infringed on his copyright for the tattoo. While no details about the settlement were released, the deal means WB doesn't have to digitally alter the tattoo in the home video version of the film. While the judge reviewing the case originally refused to grant Whitmill an injunction against the film, she did suggest that his case had merit. If the parties hadn't reached a settlement, who do you think would've had a stronger case in court? Comment below!

For more on copyright law, check out An Introduction to U.S. Copyright Law by Tracey Batt

Although the National Labor Relations Board has just proposed new rules that would sreamline and speed-up procedures for unionizing elections, a move that supports unions, many other stories from today show that labor is taking a hit. First, the Supreme Court threw out a class-action suit brought against Wal-Mart by female workers claiming employment discrimination at the major retailer. The court's decision was strongly critizized by labor and consumer groups for strictly limiting the ability of plaintiffs, whether workers or consumers, from banding together to bring large class action suits against businesses. Also, in NJ, a bill that would limit the bargaining rights of government workers, as well as forcing them to pay much more for their benefits passed the State Senate. The bill would shift $3 billion in costs from the government to the workers, and according to the NYTimes, the bill's success is evidence of how much power public employee unions have lost. Aside from forcing union members to pay more for their pensions and benefits, the bill also stripped the unions of their rights to collectively bargain for healthcare. Supporters of the bill claim that with budget deficits and rising costs, they have no choice; Mr. Sweeney, the senate president, went further, blaming Union Leaders for the current labor situation. 

Feel free to comment: What do you think of the current state of unions? Do you agree with the Supreme Court Decision in the Wal-Mart Case? Is making public workers pay more for their benefits the best way for NJ to cut costs? 

For more on labor law and the NLRB, check out this course by Paul Galligan: Defending Your Case at the National Labor Relations Board. 

2 articles have been published in the New York Times in the past month, which point to the possibility that the legal profession is undergoing a change.  In one, titled “At Well-Paying Law Firms, a Low-Paid Corner”, journalist Catherine Rampell reports on what is seen by many to be a fundamental shift in the 50-year-old business model for big firms. Under pressure to reduce their rates, firms have created a new “tier of workers” who do the same work traditional legal associates do, but they earn less than half the pay of their counterparts on the “partner track”. The new system is similar to outsourcing, except that instead of sending the work to another country, the work is being done by cheaper labor in less glamorous locations within the United States. 

The second article, “Delivering a Lawyer Within 15 Minutes (Soda Extra)”, discusses a new business started by Chris Miles called “LawyerUp”, which aims to make it easier for people to access a lawyer as soon as they get into trouble. Essentially arguing that there is no reason pizzas should be delivered in less time than legal services. The service provides a subscription plan, aimed at young people, which costs $4.95 a month, but those who do not have a subscription have the option of a “pay-in-a-pinch plan”, where they pay a flat fee of $100 for the first call. LawyerUp even has it’s own app for smart phones, which is essentially a panic button which speed-dials the service. New business models for delivering legal services and new technologies are affecting the established practices in the legal profession. For example, some people have expressed concerns that the way LawyerUp conducts business rubs up against the rules regarding using “runners” (people that are paid by lawyers to round up clients for them). And even if the business is not technically breaking any ethics rules, some, including the president of the Connecticut Bar Association president, think using the company is “tasteless”. 

These articles point to the fact that changes in technology and the economy are forcing changes in the legal profession. What do you think about the innovations mentioned above and about how the legal business is changing? 

For information of running a law firm based on the more traditional model, check out this course by faculty member Richard Roth: The Business of Law

The New York Court of Appeals adopted a broad reading of the federal Communications Decency Act in a 4-3 ruling protecting the anonymous and defamatory comments from a February 2008 blog post. The comments were accused New York City apartment rental agent and seller Christakis Shiamili of being a racist, anti-Semite, wife-beater, an adulterer and a bad boss.

State defamation law is preempted by the federal act, claimed Judge Carmen Beauchamp Ciparick in her majority decision today. The majority upheld dismissal of the case on the grounds against Daniel Baum and Ryan McCann of the Real Estate Group of New York because they were found to not have authored the "obviously offensive" comments. The comments were originally made by a blogger named "Ardor Realty Sucks". Mr. Baum and Mr. McCann merely passed on the material to internet users, the court said.

Many find that this case sets pretty tough obstacles for plaintiffs to show enough information to overcome the defenses in the Communications Decency Act. Judge Ciparick cited the federal intention of the act to foster a free exchange of ideas and opinions on the Internet.

Read the Full Article on the New York Law Journal Here

Watch Herald Price Fahringer and Erica Dubno's top-rated course "The First Amendment: Defamation on the Internet"

Have you ever been in a negotiation where your counterpart manipulated the time, location or setting of the negotiation to attempt to make you feel less powerful?

What should you do, for example, if your counterpart makes you wait for an hour after the scheduled negotiation start time, asks you to sit in a chair lower than his or sets up the conference room so the sun is shining in your eyes?

Negotiate the context!  If he keeps you waiting, leave and schedule a new meeting at your office.  If your chair is lower or uncomfortable, switch to a different chair.  If the sun is in your eyes, move or lower the shade.  And let your counterpart know his strategy isn’t working.

Do you have a context manipulation story to share?  If so, we’d love to hear it.

__________________________________________________________________________________________

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.

NBC Universal, the owner of the television show, House, recently reached a deal with the show’s broadcaster, Fox, for an eighth season.

At first glance, NBC Universal would appear to have strong leverage in this type of deal because it can always choose to broadcast the shows it produces on its own network (a good Plan B).  However, because NBC Universal makes a significant amount of money selling some its shows to other networks, it must balance that leverage with its desire to maintain good business relationships with the purchasers of its shows.

When the deal on the table can affect future deals, smart negotiators should identify and prioritize both the short- and long-term interests at stake.  Here, NBC Universal weighed the competing interests of maximizing its short-term return on House (which probably won’t be extended past next year) with its long-term interest of selling current and future shows to other networks and decided to keep the show at Fox for its likely final 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.

Recently, the head of the International Monetary Fund, Dominique Strauss-Kahn has been charged with Sexual Assault, Forcible Confinement and Attempted Rape. We won’t opine whether he is guilty or not but will make note that the lawyer he chose to lead his legal defense was none other than our very own Benjamin Brafman. CNN recently did a profile on Mr. Brafman which can be read here. CNN’s legal analyst, Jeffrey Toobin, is quoted saying of Brafman that he is “the single best courtroom attorney I’ve ever seen”. While the article gives a great rundown of Benjamin Brafman’s expertise you can see for yourself right here on Lawline.com. We have four courses taught by Mr. Brafman and each one is extremely highly rated. His most popular course with Lawline is “The Strategic Defense of High Profile Clients”, which after representing the likes of Jay-Z and Michael Jackson he is more than an expert on.

We here at Lawline, wanting to share his expertise with the world are actually giving away the course for free! We hope you enjoy the course.

Check out a great new course that's getting RAVE reviews on lawline! 

Denise Hasbrook (who happens to be the mother of a former lawline.com intern), tells you everything you need to know about the Americans with Disabilities Act and its 2009 Ammendments. This is a must-watch program for Employment Law Attorneys and In House Counsel. 

check out a clip here to find out if a popcorn allergy is covered by the ADA, and then click over to lawline.com for the full course. 

New York Law School and Lawline.com will join forces to bring online legal learning resources to law students and others who want to learn about law.

New York Law School (NYLS) and Lawline.com today announced an alliance to bring online legal learning resources to law students and others who want to learn about law.

Lawline.com, a major provider of online continuing legal education (CLE) materials, has recently launched a new service, called learn.lawline.com, offering access to hundreds of

hours of educational videos, for free. These materials are packaged in short, targeted segments so that those seeking to learn about specific legal topics can quickly find information that speaks directly to their interests.

Lawline.com will work with NYLS to develop and repurpose additional video materials, some of which will be created regularly for classes and conferences held at the Law School, and some of which will be developed especially for this new, broader audience.

“We are excited to bring our CLE materials to law students, many of whom will learn more about the real challenges of law practice, and take advantage of the convenience of video materials to study on their mobile devices,” said David Schnurman, CEO of Lawline.com, who is a 2006 alumnus of NYLS.

NYLS and Lawline.com will also collaborate to explore developments in online education, generally, including the potential for new kinds of legal learning objects, such as online games and law practice simulations. NYLS has been delivering novel software-based games and simulations to its students for some time. “We believe it is time to invite a wider array of teachers and learners into a shared online legal learning space,” said Professor Dan Hunter, Director of the Institute for Information Law & Policy at New York Law School.

“We want to address a global audience of people who want to learn about law for all kinds of reasons. We will offer degrees and certificates, of course. But we also hope to create models that incentivize practitioners, recent grads, and students to develop new types of materials that help others to learn about law,” said NYLS Dean Richard A. Matasar.

The NYLS-Lawline.com alliance is among several new initiatives that will be announced by Dean Matasar at the Future Ed: New Business Models for U.S. and Global Legal Education conference on April 15–16, 20011. The conference, co-hosted by Harvard Law School and New York Law School, brings together educators, lawyers, clients, regulators, and legal entrepreneurs to design and test potential innovations in the law school curriculum, teaching methods, and the use of technology. See http://www.nyls.edu/futureed for more information.

In this law practice management course, Faculty member Richard Roth, shares really helpful tips on how attorneys can make money from their law practices. The course has been recieving great ratings, so check it out!

Watch a clip here: The Business of Law, and then click over to Lawline.com for the full course: http://www.lawline.com/cle/course-details.php?i=1463 

Recently, our own CEO David Schnurman was featured in a number of articles where he is asked to share a little of his business wisdom. He gives advice on creating a successful direct mail campaign, being careful not to be prideful in your business, and using Google to your advantage. These points are all well taken, and Lawline does this extremely well.

Links to the full articles are available below:

31 Ways to Update Your Small Business Online Marketing

Knowing When to Throw in the Towel

8 Ways to Increase Your Direct Mail Marketing ROI

Hiring a Chief Tech Officer can be a daunting process. They must be technically savvy, socially competent and comfortable managing others on a daily basis. In this article featured on Mashable.com, Lawline.com CEO David Schnurman puts in his 2 cents on what it takes to find a killer CTO.

Dave looks for drive in a CTO, that will to succeed that pushes one on through adversity. The idea of finding a way through a problem without giving in.

For the full story, click here

Congratulations to Nance Schick for winning our Negotiation Story Contest!  Here is her winning entry which wonderfully illustrates the importance of taking the time to ask about and identify your counterpart’s interests:

One of my favorite resolution stories occurred in the Bronx.  My client had been sued for allegedly hitting a parked car when pulling from a curbside parking space.  We were in nighttime Small Claims Court, which has a mediation program that parties can try while they wait for an opportunity to be heard before the Judge.  After much discussion, it was clear that the plaintiff was not as concerned with winning when he wasn't sure my client was the party who hit his car.  He just wanted to be heard.  His car was one of the few nice things he had been able to buy, and he felt emotional dings to match those on his car.  We settled the case for $1 in exchange for the following apology: "I'm sorry that this happened to you." 

If we had been limited to a Judge's determination, there probably would have been injustice to at least one of them.  My client might have paid a settlement for an incident I still believe she was not involved in.  Also, the plaintiff's statements beyond the facts would probably have been stifled.  This was a true win-win.  They shook hands, both feeling heard and respected.  I wish more of my cases could resolve this way.

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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.

Know an Outstanding In-house Counsel? Nominate them for a First Chair Award!

First Chair is now accepting nominations for the 2011 First Chair Awards at www.firstchairawards.com/nominate. 

Here are the nomination rules:

1. Any attorney may submit a First Chair Award nomination. 

2. In-house counsel may nominate themselves. 

3. Nominees must, at the time of the nomination, be serving in the capacity of in-house counsel. 

An interesting negotiation is taking place regarding the City of Glendale’s attempt to keep the Phoenix Coyotes hockey team in Arizona.  The City had been negotiating a deal to help potential owner Matthew Hulsizer purchase the team from the National Hockey League (which acquired the team last year in a bankruptcy proceeding).  The City offered to sell $100 million worth of bonds and give Hulsizer the proceeds to help him purchase the team.  In return, the City would receive rent from the Coyotes for their use of the City-owned hockey arena and other fees.

The deal appeared done until the local non-profit Goldwater Institute threatened to sue, arguing it would cost the city more than the benefits received in violation of the Arizona Constitution.  This completely changed the negotiation dynamic by shifting the parties’ leverage.

Because the deal could be tied up for years in litigation if Hulsizer doesn’t agree to the Institute’s demands, his leverage weakened.  The NHL’s leverage also weakened because it is losing money as the current owner and would like to sell the team as soon as possible and avoid litigation.  While the City also would prefer to avoid litigation, it could attempt to use the Institute’s intervention to negotiate a more favorable deal, possibly using a good-cop/bad-cop approach.  As a result, its leverage has likely strengthened.

The Institute’s leverage also appears strong because in response to its demands, Hulsizer said he would pay the City $25 million to reimburse it for losses it already incurred and to guarantee $75 million of the bonds.  The Goldwater Institute rejected his offer and asked him to either drop his request for $100 million from the city or guarantee full repayment of the bonds.  We await the next move.

__________________________________________________________________________________________ 

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.

On Thursday, March 10th, New York State Senator Carl Kruger was accused, in connection with others, of being involved in a wide-ranging bribery scheme. Senator Kruger, a democrat from Brooklyn, is represented by Lawline.com’s highly decorated faculty member Benjamin Brafman. Mr. Brafman is a frequent speaker and his programs top all Lawline.com rating lists for being in depth in his analysis of high level defense.

With a wealth of experience representing high profile clients, from Michael Jackson to Plaxico Burress, Mr. Brafman has plenty of knowhow in the area of criminal defense. In his programs it is easy to see this experience as he provides dynamic lectures on preparation and techniques for a successful criminal defense. Lecture topics include defending the high profile client, defense strategies, and tips for creating a summation. 

Read the Wall Street Journal’s article on Carl Kruger’s case here.

Watch Benjamin Brafman and Marc Agnifilo in “Prosecution and Defense Strategies from Arrest to the Ultimate Acquittal”

The final entry of the series on the LegalTech Show at New York's Hilton Hotel is on a company steeped in more than 20 years providing legal technology; founded in 1987 Levit & James’ Best Authority is used by 65 of the 100 largest firms in the U.S. At LegalTech, Levit & James took the opportunity to announce its small firm edition of Best Authorities, Best Authority Light.

Best Authority Light offers comprehensive Table of Authorities (TOA) creation and is now available for the small firm practitioner. Best Authority minimizes the time it takes to create a TOA from hours to minutes. The software as a service also maximizes the professional look and accuracy of a legal brief. As a time management tool the Best Authority Light is a no-brainer for small firms who are looking for something to decrease the amount of time spent on creating a Table of Authorities. Instead of spending hours searching a document and detailing every key word, the software compiles citations for the brief in a matter of minutes. 

If you are a small firm attorney still completing TOA by hand, the release of Levit & James' Best Authority Light for small firms provides a fantastic opportunity to let technology take charge and reduce the stress and document overload faced by many small firms. To find out more you can visit levitjames.com.

NEW YORK, Feb. 10, 2011 /PRNewswire/ -- Lawline.com, the leading provider in online continuing legal education (CLE), has launched a first of its kind mobile CLE website. The company's 300+ on-demand video CLE programs are now fully compatible with all major mobile and smartphone devices. With the launch of the mobile website, Lawline.com aims to set a new industry standard for technology and convenience by allowing CLE credit to be more suitable to today's active and time-strapped lawyers.

One of the most exciting products from a technology standpoint at the LegalTech Show was the unveiling of Business Intelligence Associates' TotalDiscovery.com. This software as a service provides a multistep process to register custodians, collect data, and process a review set of documents. Their technology uses a state of the art "DiscoveryBOT™" that is capable of searching and completing discovery tasks completely on its own. IT and legal departments can prescribe different areas of collection, but DiscoveryBOT™ is capable of completing investigations totally on its own. 

While this sounds like science fiction, DiscoveryBOT™ is actually a tool that has been around for some time now. It is used in 40 countries and has thousands of custodians. The real launch announced at the LegalTech Show was their mobile app TotalDiscovery.com. Once downloaded, this app allows remote access and control of DiscoveryBOT™. After being downloaded and directed by the custodian, DiscoveryBOT™ goes to work compiling the requested data. Forensically sound copies of the identified data are then stored in a personalized collection cloud and, once complete, DiscoveryBOT™ disappears from your device. This app provides, in addition to a very neat technical framework, a ton of freedom for those who need quick and thorough e-discovery solutions. Be a part of the technical preview at TotalDiscovery.com.

At the LegalTech Show at New York's Hilton, some companies were announcing a new product, such as an iPad or iPhone app. Others used the platform to come out on their own as a legal technology company with something unique to offer attorneys. Trial Solutions is of the latter kind of company, one that has been around for years but has been mostly available to customers through indirect sales. However, at the LegalTech Show Trial Solutions took the opportunity to show off their new SelfLoader product and announce that they would be available directly to consumers. 

Trial Solutions' SelfLoader technology provides a full service document management and e-discovery solution. Attorneys are able to upload documents at their own convenience at no charge. This eliminates some of the long waiting times and charges associated with other e-discovery companies. For a small firm dealing with a lot of e-discovery documents, the Trial Solutions SelfLoader is a great product to take a look at. Find out more at trialsolutions.net.

At the LegalTech Show at New York's Hilton Hotel the theme was tools to cut through the chaos in attorneys' lives. There are so many tasks to manage, especially for small law firms, that it is necessary to streamline and simplify any process possible for an attorney to ensure a smooth working firm. Most large firms use some sort of full service practice and financial management tool to aid them in this monstrous task. Smaller firms, on the other hand, see this as too expensive or too difficult to use these large firm management tools. This is where Orion focused its problem-solving energy.

Orion is widely used by large firms, and is a full service system offering comprehensive practice and financial management. However, many small firms do not need some of the extras that come in the large firm package. Thus, Orion introduced a new small firm package of its management tool.

The system interface and installation process are geared towards the needs of small firm attorneys. The practice management tool focuses on integrating clients, cases, email and documents into a single easy to use system. Its financial management system offers a full-featured time and billing system. Plus, the real appeal of Orion's system is the price. Orion is offering a targeted approach to practice management that allows small firms to afford the tools they really need and eliminate tools that are not necessary. If you are an attorney at a small firm looking to expand, it is a great tool that is flexible and useful to streamline and eliminate many of the chaotic tasks of running a small firm. You can find out more at www.orionlaw.com.

The NY Times featured an interesting Op-ed piece by Harvard Law School Professor, Laurence H. Tribe, which argued that contrary to the expectations of many, the Supreme Court would not split along political lines to judge the constitutionality of the new Healthcare law.  Tribe argues that there is no gray area in regards to weather the insurance industry falls under Congress’s power to regulate interstate commerce.  Furthermore, Tribe doubts that the Supreme Court Justices will make a distinction between the ability of Congress to regulate “activity” but not “inactivity” as the federal courts that struck down the Healthcare law have done.  Tribe believes that the Healthcare law is constitutionally sound and that the Supreme Court Justices will uphold the law on constitutional grounds, and allow political motivations lead their decision.  

For the full article, click here

Last week's LegalTech Show was a great success. Many thanks to Christy Burke for setting up interviews with reps from top companies to discuss groundbreaking legal technology innovations for 2011. As a result of these great interviews each day this week I will profile a new product of great use for attorneys. 

The LegalTech Show in New York's Hilton Hotel was an expo where developers came from around the country to show off new gadgets and technology made expecially for lawyers. This year's attendants introduced a wealth of useful new technology focusing on taking the chaos out of an attorney's life. 

Worldox follows this idea with a sleek new iPad app that allows attorneys to manage documents on the go. The app is available free of charge for current Worldox customers and it offers extensive features for attorneys who are frequently on the move, including being able to search, dowlnoad, and change documents and document types on your local server before reloading them back in Worldox. 

As a document management tool, the app works seamlessly and allows user-friendly management of over 300 document types. If you're often in court and have lots of documents to manage, I strongly suggest you take a look at Worldox to help you manage your ever-expanding document database. To find out more go to www.worldox.com.

I’m a naturally curious person. When I meet new people I like to find out what they do, where they’re from, what they like and what makes them tick. This trait helps in my negotiations. Honest rapport building is important because it helps build trust and facilitates collaborative information sharing. Studies show we are more likely to say “yes” to someone we know and like.

Recently, an Arizona-based colleague attended a college football game in Texas where he ran into a high school classmate from Delaware who turned out to be the brother of one of his important customers. “Small world” encounters like this can help us identify common personal elements that can strengthen our professional relationships. Of course, this was very fortuitous.

So what can you do, practically speaking? Take your negotiation counterpart, customer or client to lunch or dinner and build rapport by exploring your possible common interests, both personally and professionally.

How have you successfully built rapport with your negotiation counterparts, customers or clients?

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.

A Previous Appeal, A Retaining Lien and Dismissal in Legal Malpractice
Here is a short, pungent and dispositive decision by the Appellate Division, Second Department in Zito v Fischbein Badillo Wagner Harding ; 2011 NY Slip Op 00285 ; Decided on January 20, 2011 Appellate Division, First Department.
We've seen a "charging lien" utilized as res judicata against a subsequent legal malpractice case, but the use of a "retaining lien" is much more rare. Presumably, there was litigation in which the Court also determined that fees were actually due to the law firm, and not simply that the law firm had the right to retain files pending a later determination.

What is the Statute of Limitiations in Legal Malpractice?
The question of whether there is a different statute of limitations for fraud or breach of contact when dealing with attorneys often arises. After all, it is a 6 year statute everywhere, is it not? The short answer is "no" and the longer answer is that the legislature gave attorneys special protection. After the Court of Appeals permitted a 6 year statute for breach of contract against attorneys, the legislature closed the "loophole". Now the rule is bright-line: 3 years.
In Tsafatinos v Lee David Auerbach, P.C. ; 2011 NY Slip Op 00503 ; Decided on January 25, 2011Appellate Division, Second Department we see the outcome.

How Much Can You Get Away With in Legal Malpractice
This disciplinary proceedings makes for a shocking read. This attorney went from a successful practice, to a legal malpractice claim, to a huge judgment against him in Federal Court, to the twists and turns which led to incarceration. Why? Because of a lie in a resume. in Matter of Dorfman ;2011 NY Slip Op 00440 ;Decided on January 27, 2011 ;Appellate Division, First Department ;Per Curiam we see what happens when an attorney doesn't want to pay a judgment. Eventually he reduces the payment to $50,000 but look what he ended up doing.

Twice Reversed and Continuing in Legal Malpractice
Cruciata v Mainiero ;2011 NY Slip Op 50066(U) ;Decided on January 14, 2011 ;Supreme Court, New York County ;James, J. is a very interesting example of the premise that if you keep showing up and keep at it, a better result may very well follow. In this case, a matrimonial action, plaintiff was awarded a divorce and some equitable distribution after a settlement. She perservered and won reversal of the stipulation in the AD. She went back and basically doubled her equitable distribution.

In the meanwhile, her legal malpractice case was dismissed, and again, she went to the AD, who, again, reversed Supreme Court. Now, she perserveres through a motion for summary judgment.

The Blustone Law Firm is a legal malpractice firm in New York City. Andrew Lavoott Blustone, principal of The Bluestone Law FIrm is a frequent blogger and contributor to the Lawline.com blog in the areas of legal malpractice and attorney misonduct.  Mr. Bluestone is also lecturer in one of Lawline.com's top-rated courses "Legal Malpractice Litigation."

According to a report in the New York Times, artist Jeff Koons, who himself has been sued 4 times for copyright violations, is going after two businesses that he claims are exploiting his art. Imm-Living produces, and Park Life (a gallery) sells, bookends that look like Koon's famous "Baloon Dog" sculpture which was installed on the roof of the Met. Koons' lawyers sent a cease and desist letter to the companies, but the gallery beleives Koons' case is baseless and is continuing to sell the bookends while  planning to defend its case in court. Intellectual property experts believe Koons will have a difficult time proving his property rights were violated as his sculpture was based on an object in the public domain (balloon dogs are staple of children's birthday parties) and the bookends in questions aren't exact replicas of his sculpture. Although Koons doesn't have a very strong case, a professor from the University of Chicago Law school points out that this suit is just part of the trend in art litigation where artists (and their estates) are becoming much more reactionary about copyright violations when it comes to comemrcial merchandise.

For the full article, click here
for more on intellectual property and art, watch Contemporary Art, Copyright and Moral Rights.

According to the New York Times, tax payers have been picking up the tab for the legal defense of former Freddie Mac/Fannie Mae executives against government investigations and civil lawsuits. So far, the cost for defending the finance companies from charges of fraud and accounting irregularities has added up to $160 million, and the suits are still continuing. The government can try to recoup these costs if the executives are found guilty, but that could prove challenging. The executives are protected by employment contracts and company by-laws that protect them from liabilities, including legal fees associated with defending against lawsuits. However, if the executives are found to be liable, the indemnification will not apply (it does not cover people that breach their duty of loyalty or act in bad faith), and the executives would be obligated to repay the government for the legal fees. It is unlikely, however, that the individual executives would actually be forced to pay such large sums.

for the full story, click here

for more on this topic, check out Transparency at the SEC: A Response to the Current Financial Crisis

NBA player Jared Dudley recently tweeted, “I need all NBA players to save there (sic) money.  Be prepared to live without a check for at least a year.  This is serious.”  Jared is referring to the possibility that the players may be locked out by the owners next season if the two sides are unable to agree to a new collective bargaining agreement.

Jared’s colleagues would be well served to heed his advice.  By planning ahead and financially preparing themselves to weather a lockout, the players will strengthen their leverage and power at the bargaining table.  Ideally, an agreement will be reached and the players won’t need the extra money saved.  But if it turns out they do, they’ll be very happy they took steps to prepare.  As renowned UCLA basketball coach John Wooden said:  “Failure to prepare is preparing to fail.”  And he’s absolutely right.

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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.
 

According to the Washington Times, The Supreme Court revisited the Anna Nicole Smith case yesterday. Although Anna Nicole Smith's life was popular tabloid fodder, the court case involved little drama, but lots of money. The Supreme Court  is being asked to rule on a disputed area of bankrupcy law: the estate of J. Howard Marshall's son, Pierce Marshall,  is contending that the bankrupcy court that awarded Anna Nicole Smith a part of Marshall's fortune overstepped its constitutional powers. The suit between Anna Nicole Smith and Pierce Marshall has gone on for 15 years, and is unlikely to conclude soon, despite the fact that both Smith and Marshall are now deceased.

For the full article, click here

For more on bankrupcy law, watch Basic Bankrupcy Law

So now that you’ve got the speech lined up, how are you going to make it: interesting, informative, and, of course, educational? Before diving into the nuts and bolts of putting the presentation together, assess what your long- and short-term objectives are. Is it to build your database? Increase prospects? Network with attendees? Grow your profile with that target group? In all honesty, you probably won’t achieve all your objectives, but it’s a good idea to know them for evaluating purposes.
Consider the following when putting your presentation together:

• Use words that paint pictures. Engage the audience with descriptive words that will help them understand ideas and concepts quickly and easily.
• Be a storyteller. Illustrate ideas with examples and stories to reach the audience on a personal level and make the presentation more interesting and meaningful.
• If you’ve got an interest in literature, philosophy and history, use quotes. Using quotes helps set up the scene when you’re explaining something to an audience, and it can add a deeper level of understanding for the audience.
• Be inclusive. Include the audience by talking about “us” rather than “you people.” Many times, audiences prefer and appreciate speakers who talk with them, not at them.
• Use everyday colloquialisms. Speeches are worthless unless crafted to reach the specific audience, so make sure to use familiar expressions that the audience identifies with easily. This helps break down some of the legal jargon and allows you to further connect with the audience.
• A little slang goes a long way. Don’t feel pressured to deliver a “formal” speech. Throw in some of your own slang to humanize yourself, but do be mindful that it’s appropriate for the group and it doesn’t offend anyone.
   

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 of experience 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, please call 212-661-9137 or visit SCG Legal PR Network’s Web site at http://www.scglegalprnetwork.com.
 

According to a report on Bloomberg, Comcast and NBC are facing the FCC today to see whether the two companies can go ahead with their proposed merger. It is possible that the FCC will approve the merger as long as Comcast meets certain conditions, such as sharing NBC programming with its online competitors. The merger is also being reviewed by the Justice Department in case their are antitrust issues to be taken into account. The merger would see Comcast acquire 51% of NBC Universal by paying $6.5 billion in cash and contributing cable channels valued at $7.25 billion to a joint venture that will own the entertainment company.

for the full article, click here

for more on the legal aspects of mergers & Acquisitions, watch  Legal Due Diligence in Mergers & Acquisitions

The Wall Street Journal reports that Google is being taken to court over Spanish privacy laws. Under Spanish law, search engines must delete links to any websites containing information that could compromise an individual's right to privacy. Google counters that this law is unfair because Spain's Agency of Data Protection doesn't force news providers to remove similar content on freedom of speech ground, but does not allow Google the same rights. If Google loses the legal case, it may be forced to act on all future requests from private citizens to remove links to websites that contain information about their past activities. This case is only one of many suits faced by the search engine all over the world. Other countries are investigating Google not only for privacy law violations but also for anticompetitive practices.

for the full story, click here

For more on Google and the law, watch A Lawyer's Duty to Google

Press releases serve several functions, including but not limited to, helping with search engine optimization (SEO) for your law firm’s Web site, providing newsworthy information to reporters and keeping client prospects updated.

When you are writing a press release for your law firm, consider the following:
·    Be clear on who you are writing the release for and why. Write for the reporter audience you are targeting and use the pyramid style of writing, which leads with the most important information and leaves the less-vital information for the end.
·    Make sure you answer the 5 W questions (who, what, where, when, why and how) in the first paragraph. Reporters can sift through as many as 100 press releases every day, so you must get to the point quickly in the release. Reporters won’t dig for this key information so make sure it’s front and center in your news release.
·    Make sure the content is newsworthy, especially if the release is part of your media relations campaign. Editors usually seek certain types of news when they review press releases, and they are:
o    Current and timely  – News that’s in context with other current news and trends
o    Localized – News that’s relevant to the locale of the audience that reads that publication
o    Impactful – News that has an impact on a majority of readers
o    Human Interest-related – News that affects readers on a personal level
o    Conflict-related – News that deals with current strikes, wars, etc.
o    Prominent People-related – News that ties in celebrities, politicians and other prominent names
If your news doesn’t easily fit it in with any of these types, try to find an angle for the story that does. If you do enough research on your news item’s topic, you can find some tie into a larger interest.
·    Only deal with the facts. Anything you write in a press release is free reign for the media to publish, so it must be factual. Since reporters use press releases to help them fill out stories, they do not appreciate space-filling “fluff.” Save “fluff” statements—otherwise known as opinions, not facts—for quotes within the release, and keep them to a minimum. Press releases need not be long; it is more a case of quality over quantity. Good releases may be as short as one page or 300 to 450 words.
·    Finally, provide as much contact information as possible. This should include contact name, telephone and mobile numbers, email address and Web site address. Have this information on the top and bottom of the release.
Following these guidelines will make reporters’ lives easier, and to get regular coverage and to build strong relationships with the press, this should be your key objective.

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 of experience 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, please call 212-661-9137 or visit SCG Legal PR Network’s Web site at http://www.scglegalprnetwork.com.

The credibility associated with being cited in the press or being seen as an expert is very hard to buy in advertising dollars. This article shows you how to avoid some common public relations traps and get the most out of your PR efforts.
 
The old adage that the more things change, the more they remain the same still holds some truth. Public perceptions continue to have a strong hold in society. Visibility and credibility still go a long way in cementing business relationships and deals. Yet many law firms still don’t quite embrace public relations initiatives. The mystery about what public relations is remains. Far too many attorneys fail to understand how public relations works. Wrong assumptions are made such as thinking that an advertisement promoting the firm counts as PR or that only lawyers who do high-profile litigation cases receive media attention. Nothing could be further from the truth. Every day hundreds of small- and medium-sized law firms are quoted in widely read publications, raising awareness of their firms and gaining credibility as experts in the marketplace. Firms that don’t realize this suffer from missed opportunities to attract new clients.

The truth of the matter is that public relations is at the heart of every good marketing plan for ALL law firms. The credibility associated with getting cited in the press or being seen as an expert is very hard to buy in advertising dollars.
 
Why is PR so powerful? It's "earned media" in the form of being quoted in a news story, rather than "paid media" in the form of an advertisement or advertorial. An old friend with a senior position in sales who worked in the advertising department of the Journal of Commerce explained it to me simply: If a half-page ad in the business section is worth $15,000; a story of the same size on the front page is worth roughly five times that much. Advertising professionals will disagree with me on this and it's their job, but here’s a better benchmark: ask yourself: Do you buy The Economist/Wall Street/CFO Journal for the punch and perspective of the articles, or for the wide variety of advertisements in the publication?
 
Bottom line, advertising is publicity that is paid for. The lawyer or law firm controls the final product—the exact words and when and where the advertisement or advertorial appears.
 
According to the incoming president of the Council of Public Relations, the U.S. public relations business will be a $4.4 billion industry by 2014, up from $3.4 billion this year.
 
Showcasing legal expertise through consistent public relations is a powerful business development tool that brings visibility and, more importantly, credibility, which ultimately leads to more business. Public relations initiatives can help a law firm maintain/improve its image, increase brand recognition, bring in new clients and position it or its practice groups as thought leaders and experts in key target markets.
 
The most common reasons cited by attorneys for not incorporating public relations into their marketing include not understanding the media, not having the skill set, the cost and time. The irony, of course, is that both groups need each other for their work. Reporters are continually seeking sources for their stories, and attorneys need to get more than their qualifications out in the market place. In other words, they need to get known, liked and trusted in their target market.
 
Here are a couple of things to bear in mind when considering public relations:
 
Who should handle PR?
That really depends where the firm is starting from and what the firm’s long-range strategic objectives are. Public relations can be handled in-house by one or more lawyers, externally by a consultant or agency, or by the two working in tandem. Typically, responsibility for media relations often falls to a marketing department or administrator. Most large firms with very public profiles have staff devoted exclusively to media relations, but they also work with public relations agencies. Like most disciplines, public relations is not rocket science but requires both practical and people skills. Having a background in journalism equips one to have a proactive approach to public relations rather than waiting for the press to call you.
 
So how do you look for external help to either supplement in-house initiatives or outsource them? First, let’s be clear: legal marketing is an exploding area. There are loads of subpar PR firms. The trick is to find a gem among the crowd. Remember, the goal is to land positive and meaningful mentions of partners/lawyers in targeted publications that clients and prospects read or watch. If your new PR partner spends three months getting to know you, dissecting your "value proposition" or learning how the legal industry works without sending out a single pitch or press release, money has been wasted. Typically, within the first month, a good PR firm should prove its grasp of your business and formulate a strategy in writing that details explicitly whom it will target and what message it will communicate.

The services should include rooting out the most scintillating story angles (this requires some elbow grease and full participation of law firms) and matching those up with the most receptive media organizations. The hows of this will vary depending on the experience of the PR agency or consultant. For example, given the Obama administration’s current efforts to extend the Bush tax cuts, tax lawyers should be working at a feverish pace with a public relations agency to pitch stories to dailies and industry publications.

Public relations retainers vary depending on experience, size and location of the agency. For large law firms, retainers will range from $30,000 to $5,000-plus a month. This is where the consultant or agency is taking a very proactive approach with the media, looking for opportunities for their clients to be quoted, coming up with story ideas and building a solid track record with reporters who cover the particular area. Then there are other services geared specifically for firms who not ready to commit to retainer public relations but want to get their feet wet at a fraction of the cost.
 
Having clear expectations
Whether you do your own public relations or you work with an agency, having clear expectations from the outset will prevent misunderstandings. But just as important is the firm’s commitment from the top down to make the public relations efforts work.

The worst offenses of law firms when it comes to public relations include:
 
·    Expecting to be quoted in top-tier media outlets such as the Financial Times, Wall Street Journal, CNBC and CFO magazine within a month of working with the agency or consultant.
·    Taking the backseat, the assumption being that the PR firm must do all the work. Untimely input or no input from attorneys on story ideas and/or the latest legislative developments will impede rather than help public relations professionals pitch stories to reporters.
·    Not valuing the work of the PR professionals (Failure to do so, or to understand some of the components of the PR work will make it more difficult to work cohesively as a team.)
·    Lack of understanding about the basics of media relations. (The traditional relationship attorneys have with the media contains elements of animosity, most of which is due to a lack of understanding of each other’s role.)
·    Attorneys not improving their skills, such as honing the delivery of presentations to target groups and practicing interview techniques for speaking with reporters.

You can’t buy good PR
Remember, good publicity is literally something you can’t buy. Law firms of all sizes realize this and have become increasingly eager to incorporate public relations into their business development and marketing objectives. However, these efforts often fall short. For example, many smaller law firms have office managers handling public relations. Larger firms of 10 or more often assign this task to their marketing managers. A half-baked approach to any form of business development will yield half-baked results. Nowhere can such an approach hurt a firm more than when one of its lawyers talks to reporters without the proper training.

Post Courtesty of Paramjit Mahli of SCG PR Network, a network connecting attorneys as legal experts accross the globe.

Come see January 25th! The legal battle of the century with hard-hitting defense attorney Benjamin Brafman and former prosecuting attorney Marc Agnifilo! Find out skills used on both sides of the bench to win the case! Benjamin Brafman, defender of high profile clients such as Plaxico Burress and Michael Jackson, and Marc Agnifilo, former New York prosecuting attorney, go head to head to discuss their winning strategies. Learn from the best!

In the first half of the evening , Brafman will detail the process of defending a client in a criminal case, and strategies you can use to beat the prosecution. Then, Agnifilo will discuss tips to convict, providing personal strategies of poking holes in the defense's case.

The second part of the evening starts the heavyweight match between attorneys in a real simulated criminal trial. At the end of the night, only one attorney will be victorious, and you will decide! 

Want to learn more?

While the guiding principals are clear and unambiguous, the facts and calculations underlying this matrimonial legal malpractice case are daunting.  Holding companies, general partners, intra-company transfers, straw-men and the like make the financial analysis difficult.

Justice Ramos, in TPR Inv. Assoc., Inc. v Fischer;  2010 NY Slip Op 33370(U);  December 9, 2010;  Supreme Court, New York County;  Docket Number: 603509/07 teases out whether the wife may sue the attorneys over their handling of a international net of financial transactions, including the "missing million."  Rather than re-cap the financial shenanigans, we look at the guiding principals:
 

Post courtesy of the Blustone Law Firm

Derek Jeter recently signed a three-year contract worth up to $65 million to continue playing baseball for the New York Yankees.  At the official announcement, Jeter expressed anger that the Yankees had asked him to “go shop” himself to other teams even though Jeter told them he only wanted to play for them. He was also angry this became public knowledge.

Why would the Yankees do this?  Given Jeter’s age and known preference to stay in New York, the Yankees expected other teams wouldn’t aggressively pursue him.  The Yankees could then use this outcome (an “objective” reflection of Jeter’s market value) to justify their position.  Of course, they risked another team shooting for the moon in an attempt to lure Jeter away and also angering Jeter to the point where it could harm their long-term relationship.

Since the deal was successfully concluded, it appears the Yankees’ gambit may have paid off. Of course, we won’t really be sure until we see how Jeter produces over the course of the contract.

__________________________________________________________________________________________ 

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 Daily News reported yesterday about an effort by model Sara Ziff to improve working conditions in the modeling Indusrty. According to Ziff, who is also one of the creators of the contraversial documentary "Picture Me", the modeling industry is completely unregulated and at times exploitative of talent. Models don't have health insurance or workman's comp; there aren't even meal breaks during work hours. Efforts to formally organize models into a union have previously failed, but Ziff hopes that she will be able to create legal protections for models in the fashion industry.

for the full story, click here

for more on labor law, watch Critical Issues in Contemporary Employment Law

A report in the Boston Globe details the implications of a verdict in the wrongful death suit brought against tobacco com pany Lorillard Inc., by the estate of Marie Evans who died of lung cancer in 2002. Evans' estate was awarded $152 million by the jury, signaling that "tobacco litigation is still alive and well" according to Michael Siegel of the BU School of Public Health. Despite the Tobacco Master Settlement Agreement that settled lawsuits filed against tobacco companies by states, individuals can still take legal action agaisnt tobacco companies and thousands of these lawsuits are pending. The huge award in the Evans case could have a ripple effect on court decisions and public policy decisions across the country, as smokers weigh whether to file their own lawsuits and federal officials consider a ban on menthol cigarettes.

for the full story, click here
for more on personal injury litigation, watch Fundamentals of Personal Injury Practice

December's end is fast approaching and with the end of the month 21 states are reaching the end of their CLE compliance period. Many attorneys have been panicking, not sure about their state's law or not sure how many credits they are required to take. See below for a list of states that have a compliance deadline of December 31st.

If you are an attorney in one of these states and have not finished your CLE have no fear, the link at the bottom of the page will allow you to purchase unlimited CLE for 1 year with a fantastic discount, allowing you to take care of your online CLE hassle-free! Click on your state to see compliance and credit requirements:

1. AL

2. AK

3. CO

4. DE

5. GA

6. HI

7. ID

8. IN

9. IA

10. LA

11. NV

12. NJ

13. NM

14. NC

15. OH

16. OR

17. PA

18. TN

19. WA

20. WI

21. WY

Click here to get 1 Year Unlimited CLE for 40% off, only $299!

The BBC reports that shares of BP stock fell after the US government announced that it would be suing the company under the Clean Water Act and the Oil Pollution Act. The government is seeking to hold BP (and 8 other firms) liable for the total cost of the clean-up efforts. If the courts find that the company had been "grossly negligent", it could potentially cost BP an additional $16 billion in penalties. The US Attorney General's suit alleges that the explosion of the Deepwater Horizon rig was caused by "violations of safety and operational regulations". However, as of now, it seems that investors do not think the Department of Justice's case against BP has increased potential liabilities for the company in a fundamental way and that BP will be able to recover the money it incurred in clean up efforts despite the almost $40 billion the company has set aside to cover the costs of the disaster.

for the full story, click here

For more information on other environmental law issues, watch Sustainability is Smart Business: A Legal Perspective

Although a federal Judge in Virginia ruled on Monday that part of the health care reform law (the section requiring Americans to buy health Insurance) was unconstitutional, most supporters of the law, including President Obama, seemed unfazed by the decision. The Justice department said it planned to appeal the decion to an appelate court, and it is likely that the battle over the healthcare law will continue in the federal courts until it finally reaches the Supreme Court. The judge sruck down the insurance-requirement mandate (because it oversteps Congress's powers under the commerce clause), but did not grant an injunction against the law and did not find any other part fo the law unconstiutional.

for the full article, click here
 

According to  a report in the Wall Street Journal, FedEX won a class action case against drivers who claimed they were improperly classified by the corporation as "independent contractors" and were therefore divested of benefits they should have gotten as company employees. The suit was brought in Indiana, and the federal judge ruled against the drivers in most of the cases. However, in previous lawsuits FedEx was found to be improperly using the independent contractor model, which the company an advantage over rival UPS, whose drivers are unionized.

for the full article, click here

for more on employment classification issues watch our top-rated course "How to Handle an Employment Law Case" by Murray Schwartz, Brian Heller, and Matthew Schatz

It has been 2 years since the Madoff Ponzi scheme, possibly the biggest investment fraud in history, came to light, and the deadline for legal efforts to recoup investors' losses came up last week. Madoff's large, global scheme ensnared hundreds of people who are now either pursuing litigation or defending themselves from litigation in connection with the case. most of the other legal cases that the ponzi scheme generated are civil suits filed by Irving Picard, the court appointed trustee who is overseeing attempts to recoup losses. Among the suits filed are a $6 billion suit against JPMorgan Chase, and suits against well known investment advisors. Many of those being accused, however, point to their losses and say that they were also victims of the ponzi scheme, and not complicit in it.
So far, only 8 people have been criminally charged (including Madoff and 7 of his closest business associates) , but as the statute of limitations on the Madoff case doesn't run out for another 3 years, more criminal charges might be made now that recovering money is no logner the focus.

For the full story, click here

For more on the Madoff Case and other financial crimes, watch White Collar Crimes: The Notable Cases of 2009

The US Senate unanimously agreed in early December that lawyers should not be covered by the FTC's new Red Flags Rule. The rule, originally passed by congress in 2003, broadly used the term "creditors" to include anyone who sells a product or service for which the consumer can defer payment, writes co-chair of Moses & Singer's Legal Ethics & Law Firm Practice division Devika Kewalramani.

The ABA took up a suit, along with several state and local bar associations, against the FTC for attempting to unlawfully regulate their profession. The suit argued that the FTC's position too broadly applied the "creditor" status by stating that professionals were creditors when they allow customers to pay for services after they were performed. The rule then required any business or individual that was a creditor to implement programs to prevent identity theft.

The ABA is still awaiting a ruling from the D.C. Circuit to affirm the district court's ruling. 

Devika Kewalramani is a partner at Moses & Singer and is also a Lawline.com faculty member who specializes in lectures on ethics and professional conduct for law firms. To learn more about recent ethics changes in New York you can watch Kewalramani's top-rated course "New York Ethics- The Amendments of 2009."  To read Devika Kewalramani's full article on the current status on the FTC Red Flags Rule, click here. 

A Reuters report raises the interesting issue of the effect technology- especially Twitter- is having on trials. in the past 2 years, improper use of the internet by jurors during trials has resulted in dozens of mistrials, appeals and overturned verdicts. Although jurors are warned not to research a case and only consider the evidence they are presented with, they have been looking up legal terms on wikipedia and viewing crime scenes on Google Earth.  And despite being told they are not allowed to discuss the trial before a verdict is reached, jurors  post about the cases they are sitting on in their blogs and facebook pages, in real time, for the world to see.

Because internet-related juror misconduct is a growing problem, some courts have started confiscating jurors' phones and computers, and California's civil jury instructions now bar jurors from "all forms of electronic communication." However, some suggest that it may be preferable to actually allow jurors to use the internet, if they are directed to use it in a responsible way, because it will allow them to be better informed.

for the full article, click here.

For more on social media practices that fall on the wrong side of the law, watch Social Media and the Law: What Attorneys Should Know

With healthcare being such a hot topic, it is important to understand that the largest uninsured group by percentage is those between the ages of 19 and 29. This is the case largely because the group has historically been too old for insurance under parental plans and too young to afford or be eligible for plans of their own. While the Obama healthcare plan does offer extensions for this population, the group will still have millions left uninsured.

Family law attorney Marguerite Royer says in a recent article that because of this consideration, express agreements should be made between parents during divorce to ensure young adults maintain their insurance coverage. It cannot be left to the dictate of the courts because courts can only direct a parent to maintain care until the age of 21. After the age of 21 it generally falls on the custodial parent or the young adult to pay for care, unless otherwise agreed upon by the parents. 

Marguerite Royer is a family law attorney at Moses & Singer and she discusses more about the new healthcare law and its connection to parental agreements and divorce cases in her article “Healthy New York: Extending Health insurance Coverage to Young Adults in Divorce Settlement Agreements.” Ms. Royer is also a Lawline.com faculty member, and her newest course “Why Would an Attorney Want to Practice Collaborative Law” focuses on the benefits of innovative dispute resolution techniques. 

Read Marguerite Royer's article

Watch Marguerite Royer's course

According to an article in the Times, an immgiration issue that has gotten little attention deals with minors who come into the country illegally and suffer abuse. According to the Times, dealing with and talking about being abused is difficult enough ordinarily, but becomes even more complicated when these children fear that going to the authorities  will lead to detention or deportation, particularly if they see returning to their home countries as a worse option than remaining in an abusive situation.

However, in these cases it is possible to apply for Special Immigrant Juvenile Status, a 20 year old federal statute, which is not widely-known. To qualify for SIJS, applicants have to be under 21 and unmarried,  prove that it is not in their best interest to return to their country of origin and that reunification with one or both parents is not possible due to abuse, abandonment or neglect. They also have to have been in foster care or declared dependent on the juvenile court.

A lawyer initiates the SIJS application process by drafting an affidavit charting their client's abuse. the child then testifies in juvenile court and if a judge decides they qualify for SIJS they apply for SIJS and permanent residence with Immgiration Services.

The US Chamber of Commerce has joined civil rights groups to challenge the constitutionality of the Legal Arizona Worker’s Act, which severely punishes employers for knowingly hiring illegal immigrants.  The suit argues that the laws are conflicting with existing federal laws; and, according to a brief filed by the US Justice Department, the state laws are generating confusion among employers and employees because they are at odds with federal guidelines.  For example, checking the immigration status of employees through the E-verify database is mandatory under the new Arizona law, but is strictly voluntary under federal law.  

The Supreme Court is set to hear this case on Wednesday, and the ruling on this case is being watched carefully by those who are interested in challenging Arizona’s other controversial immigration law: the one requiring police to ask for papers from anyone they think might be in the country illegally. The legal challange  in this case is whether states and cities can enforce their own laws against illegal immigrants, or whether they must they have to leave immigration legislation up to the federal government.

For the full story, click here

For more on what employers should know about Federal Immigration laws, watch Immigration Compliance in the Age of Enforcement

Lawline.com is proud to announce its listing in Crain's New York Business as the No. 21 Best Place to Work in New York City. Crain's officially released the rankings publicly  earlier today.

Lawline's focus has always been on its customers. The company-wide goal is to go above and beyond in every customer interaction, providing a "Wow" experience and genuinely attempting to make the customer's day. Lawline also believes that employees treat customers the same way they are treated at the workplace. This promotes a virtuous cycle of efficiency, thoroughness, and kindness. 

We're of the belief that it all starts with the hiring process, where attitude stands alone as the most significant trait a candidate can possess. Although, skill, education, and experience are all pillars that make up the ideal employee, contributing to the positive team environment is first and foremost, as this is what perpetuates our continued growth. 

We also believe that self-improvement is an every day process.  One of Lawline.com's recognized programs is the "1% Challenge", which is a program intended to create incentive for self-education through reading and subsequently presenting the material to the department. The concept is akin to the Japanese kaizen, where the belief is that continual self-improvement compounds over time and creates drastic increases in productivity and efficiency.  Once an employee does three reports, he or she is given a $25 gift certificate to any redeemable store.

In the end, what matters is the fulfillment each individual employee receives from his or her days. At Lawline, we are proud to offer the opportunity and the platform to continuously learn, excel, and achieve.

Click here to read more from the Crain's Best Companies feature story

In 1938, psychologist Gregory Razran found that his subjects developed a more favorable view of the people and things they experienced while they were eating – a result Razran coined as the “luncheon technique.”

So the next time you have an important negotiation, consider having lunch or dinner with your counterpart first. And consider picking up the tab to engage the reciprocity rule, which psychology professor Robert Cialdini describes as the human tendency to want “to repay, in kind, what another person has provided to us.” In other words, to return the favor – perhaps as soon as in the subsequent negotiation.

Most of us have a strong desire to appear consistent. Consistency is valued in our society and is associated with other positive traits like honesty, stability and intelligence. Similarly, most of us will go to great lengths to fulfill our commitments. Psychologist Robert Cialdini calls these tendencies the Commitment and Consistency Principles.

Why do most of us share these tendencies? Consider the unattractiveness of the contrary – few would want to deal with a counterpart with a reputation for acting inconsistently and leaving commitments unfulfilled.

In the negotiation context, these principles can be a powerful behavioral motivator. Good sales professionals know if they can get a small commitment from a potential customer, a foot in the door so to speak, that customer’s natural tendency will be to act in a manner consistent with their original commitment.

Also, if you discover your counterpart previously acted in a way consistent with the outcome you desire, point it out to them to take advantage of the power of these principles.

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.

In a recent post on The Bright Spark, a blog authored by UK barrister James Abrahams, the question of whether a single tweet is copyright protected was discussed. There is no doubt that Twitter is a growing medium for spreading news in a global community and with this growth comes a variety of important legal questions, including the one raised by Abrahams. 

Although there has been a global explosion in Twitter use, the copyright question regarding tweets is hotly debated. On one side of the argument is that the content posted on twitter, being limited to a meager 140 characters, is too small to be protected. On the other side, the side endorsed by Abrahams, is to say that even short works should and would be protected under copyright (a haiku for example.) 

To learn more about the special circumstances that a growing social media world creates in the legal community, you can watch our top-rated course on social media by Ronald Coleman. Ronald Coleman is an expert copyright attorney and avid Twitter user who frequently lectures on Lawline.com in this area. His course "Social Media and the Law: What Attorneys Should Know" examines the ever-expanding world of social media as it relates to attorneys. 

Watch Ronald Coleman's course here

Read the full article from The Bright Spark

Read Why Twitter Matters by Guardian editor Alan Rusbridger

Legal issues resulting from cloud computing are becoming more common as organizations increasingly use these services. Most recently, Wikileaks has turned to cloud computing in an attempt to navigate a distributed denial of service attack meant to prevent the organization from uploading thousands of sensitive US diplomatic communications. 

A cornucopia of legal questions arise from the expanding use of cloud computing, including who is responsible for the content. In the case of Wikileaks, Amazon owns the service, but because it is hosted by a French company Amazon has stayed clear of US government criticism. 

Technology guru Joseph Bambara, who has filmed several Lawline.com courses on a variety of tech issues, has a brand new course addressing the legal questions surrounding the growing technological atmosphere. He discusses how privacy rights, liability, and current legislation all relate to cloud computing. With Bambara’s expertise and presentation skills his course is a must see for any attorney interested or practicing in this area. 

CBS news reports that attorney general Eric Holder is considering taking legal action against Wikileaks, the website that published sensitive classified information from the US State Department on Sunday.

Holder said that the US government believes that crimes have been committed by the website and they are investigating these crimes.  The administration has ordered a government-wide crackdown on how classified information is handled to try to make sure these leaks don’t happen again.

However Wikileaks is already in possession of thousands of documents that they plan to release over the coming months. Press Secretary Gibbs stated that the leak "is a serious violation of the law”, however which laws apply to this case will be difficult to determine, since many laws against espionage date back to WWI, and don’t cover internet leaks, and because the site's founder is an Australian Citizen living abroad. 

For the full story, click here

To learn more about the process of discovery watch our top-rated course "E-Discovery: Law, Practice, and Strategy"

Today only Lawline.com is celebrating Cyber Monday with an offer of Unlimited CLE for 2 years for only $299! This is more than a 50% discount, but we're hoping that anyone who wants or needs to take care of their CLE for the next several years will love this one-time only deal! 

Lawline.com is accredited in 40 states and is continually adding new fresh courses in areas that interest attorneys across the country. With over 400 courses and growing, our course catalog offers a great reference guide for attorneys with clients in a variety of industries. All courses are available at your fingertips the instant you purchase online.  

It's never too early to take care of your CLE credits, and with this great deal for Cyber Monday you can get CLE taken care of for years to come! Sign up today!

Click to sign up for 2 Years Unlimited Access

A Bloomberg report out today describes the coming showdown between Apple Inc and Nokia Oyj over intellectual property violations in mobile phone technology. Apple is going up against Nokia (and also Motorola Inc and HTC corp in separate law suits) in hopes of cornering the US smart phone market. Apple is trying to shut out its rivals (especially those that run on Google’s Android operating System), while maintaining its ability to import the iPhone. A lawyer who handles cases that come up before the International Trade Commission, mentioned that the case is unusual because usually lawsuits are brought by established industry giants against start-ups, but in the present situations its two well-known, deep pocketed companies going against each other.

Initially Apple (the most sued company in the world) was sued by Finland-based Nokia for patent infringement, however, Apple counter-sued and made claims that Nokia phones infringed on Apple’s patents and is seeking to get them blocked from the US market.

For the full article, click here

For more on patents in an international context, watch : International Copyright: What the U.S. Practitioner Needs to Know

SCG Legal PR Network was named a finalist in the Best New Service of The Year category in the 7th annual Stevie Awards for Women in Business. The Stevie Awards for Women in Business honors women executives, entrepreneurs, and the companies they run worldwide. 

This is a great honor, as the competitor pool was bigger than ever, over 1,200 companies were competing in 54 categories, including Best Executive, Best Entrepreneur, and Best Community Involvement Program. Nominated women executives and entrepreneurs from the US and other countries attended the ceremony, where winners were crowned. 

SCG Legal PR Network is a global network focused on connecting lawyers as expert sources with reporters. Among their team are award winning journalists whose experience spans 3 continents and over 30 years of experience in journalism and public relations. The founder and CEO of SCG is Paramjit Mahli, who worked for years in journalism including with the Financial Post, CNN, CNNfn and the Journal of Commerce. 

As a frequent contributor to Lawline.com’s blog, Ms. Mahli’s skills are no secret. Her contributions have focused on the important skills and techniques for attorneys who have global clients. Mahli shows that not only large firms should have global clients; small firms also need to be prepared for the circumstances of global work.

Click to read Paramjit Mahli's last post

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 of experience 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, please call 212-661-9137 or visit SCG Legal PR Network’s Web site at http://www.scglegalprnetwork.com.

The WallStreet Journal gives an update of the ongoing insider-trading investigation that the US government has undertaken in the past 3 years, and which culminated in a raid of several prominent hedge funds this Monday. FBI agents seized documents at the offices of Level Global Investors LP, Diamondback Capital Management LLC and Loch Capital Management LLC. According to the paper, SAC Capital Advisors, Janus Capital Group Inc. and Wellington Management Co. have now received inquiries in the ongoing insider-trading investigation, asking them to provide “general information” to Federal investigators. Janus released a statement, saying that they are intending to cooperate fully.

For the full article click here

To learn more about recent financial scandals, watch White Collar Crimes: The Notable Cases of 2009

With the passage of the New York no-fault divorce law, signed by Governor Paterson in August, the state becomes the last of all 50 to allow no-fault divorce. Prior to the enactment of this law on October 14th, New York was the only state that required fault before allowing dissolution of marriage. 

Because the past law required fault, many married New Yorkers were in essence required to perjure themselves in order to get divorced. The old law also increased the amount of time spent litigating these cases, increasing court costs and making the proceedings very difficult. 

However, the new law reduces the amount of time required of divorce lawyers and makes the process much simpler. In a new course from lecturer Arlene Dubin, a family law attorney at Moses & Singer with more than 25 years experience, discusses the implications of this new law for attorneys in her new course "An Overview of No-Fault Divorce Law in New York."  

Watch Arlene Dubin's New Course "An Overview of No-Fault Divorce Law in New York"

USA Today reports that the Supreme Court will vote on Tuesday whether they will hear Wal-Mart's appeal in a huge civil rights class-action lawsuit brought against it by thousands of its female workers. If the Court judges this case, it could affect the legal balance between corporate interests and workers' rights; the fact that business groups and big corporations, including the U.S. Chamber of Commerce, have filed briefs on behalf of Wal-Mart urging the justices to step in, indicates how important this case is for the business  community.

The discrimination case was actually originally filed in 2001, by 6 women who accused the corporate giant of sex discrimination in pay and promotions and general gender stereotyping and discrimination. They were told by a trial judge and by the U.S. Court of Appeals that their case would be better litigated as a class-action suit, than an individual bias lawsuit. Due to the change in the nature of the lawsuit, the legal issue is now not whether Wal-Mart discriminates against women, but whether the class-action claim is legitimate. Wal-Mart is arguing that the lower courts violated federal rules for class actions.

If the class-action lawsuit is allowed to proceed, this could be one of the biggest class-action suits on the books, covering anywhere from 500,000 to 1.5 million of Wal-Mart’s employees.

For the full article, click here

For more on litigating an employment discrimination claim, listen to Key Considerations in Selecting an Employment Discrimination Case

A very Interesting article in the New York Times this week raises an interesting ethical issue currently developing in the legal profession. It seems that banks and hedgefunds have moved on from investing in real estate and are now seeking to turn a profit by investing in other people’s lawsuits. Investors are funding malpractice suits and class action battles in the hope of sharing the potential awards. Industry experts have estimated that investment in lawsuits now exceed $1 billion. The practice of borrowing by plaintiffs and their lawyers is the result of the high cost of litigation: some people can’t afford to pursue their case at all and others are shut down by their deep pocketed opponents.

On one hand, borrowing money from lenders allows people to at least have the opportunity to fight their case and gives them access to well-paid experts and elaborate evidence, helping to ensure that cases are decided by merit rather than by resources. However, this practice also has the potential for abuse, including instances where investors initiate and control the lawsuit. And of course, these loans also have high interest rates which might end up hurting plaintiffs in the long run (if, for example, they end up owing the lenders more money than they receive from their case).

For the rest of the article, click here

For a discussion of other ethics issues to consider when runnign a law firm, take a look at How to Ethically Manage a Law Practice

The Florida Supreme Court issued a memorandum on Wednesday, November 17, to ensure that all foreclosure proceedings are open to the public. The response from the Supreme Court came after the ACLU and various media outlets raised concerns about the transparency of these proceedings. Florida law states that these proceedings are open to the public, but the ACLU and others were concerned by reports across the state that proceedings have been taking place behind closed doors. 

In reaffirming the law, Chief Justice Charles Canady stated “the courts of Florida belong to the people of Florida. The people of Florida are entitled to know what takes place in the courts of this state. No crisis justifies the administrative suspension of the strong legal presumption that state court proceedings are open to the public.”

To learn more about bankruptcy proceedings watch our top-rated course by Daniel Gershburg "Chapter 7 Bankruptcy: The Initial Consultation"

For the full story, click here

Lawline.com’s second annual faculty event kicked off with great success last night, November 17, at the Hudson Terrace. The night was dedicated to Lawline.com faculty who do so much to bring the highest level programs to attorneys all over the country. Lawline.com employees and faculty alike showed their elation at the success of the company, happy to bring important material to such a wide audience. 

With the support of great programs and presenters in 2010, Lawline.com has pushed to new heights with over 250 new courses and 140 faculty members. These programs are watched in 40 states by thousands of attorneys. The phenomenal growth of Lawline.com has only been possible with the excellent content provided by faculty members, who have gone above and beyond to bring programs that are timely and relevant to practicing attorneys nationwide.     

Awards were given to the six faculty with the most popular or unique programs on Lawline.com. Ben Brafman, who has defended such high profile clients as Michael Jackson and Plaxico Burress, was given a lifetime achievement award, as he was one of the first presenters at Lawline.com in the late 1990s. Ardra O’Neal, a highly skilled and experienced attorney in the area of labor and employment law, accepted an award for Best Lawline.com Customer-Turned-Presenter. Also accepting awards were Rocco Cipparone, for Most Popular New Presenter, Melissa Gomez, for Best Non-Attorney Presenter, and Andrew Smiley, for Most Creative Presenter.

Lawline.com President David Schnurman was clearly touched by the turnout. He thanked the faculty for helping him develop and expand the company, bringing more attorneys’ knowledge and experience together. Schnurman also took a minute to mention new Lawline.com products, like the mobile app that is set to be released at the end of the week for iPhone, iPad and other smart phones. Looking forward Schnurman expects to continue growing Lawline.com in 2011, always looking for a better way to bring attorneys the highest quality programs and information that affects them. 

According to the Guardian, Arianna Huffington and Ken Lerer, co-founders of the Huffington Post, are being sued by their former partners, Peter Daou and James Boyce, who claim they own part of the company. According to the lawsuit, Huffington and Lerer presented the ideas of Daou and Boyce as their own in order to raise money for the website, and later breached their promise to work with Daou and Boyce in order to develop and work on the site together.

Huffington and Lerer have dismissed the case as an extortion attempt, saying Lerer and Daou have been trying to get money out of them for months and have never had anything to do with running or creating the company: the pair had proposed to work with Lerer and Huffington when the site was getting started but were rejected.

To read the full story, click here.

For more on legal issues that can affect websites, watch  How To Protect Websites From Legal Liabilities

Frisbee producer Wham-O is bringing a case to the US Court of Appeals for the Federal Circuit challenging a statute that allows whistleblowers to sue companies for falsely labeling their products as covered by patents. 

The plaintiff of the suit, FLFMC, originally brought the case against Wham-O and it was dismissed in early August by Pennsylvania District judge Arthur Schwab. Schwab based his dismissal on FLFMC's inability to show that Wham-O’s false patent marking caused any “actual or imminent injury.”

But, confidence that the argument made by Wham-O attorneys will hold up in the Federal Circuit Court is low because of the precedent set on August 31 by the Court in Stauffer v. Brooks Brothers Inc. The Stauffer court held that whistleblowers can have standing even without identifying any specific injury.

The new argument being brought by Wham-O is a constitutional challenge that the false marking statute fails to provide the necessary supervision required for a litigant who purports to enforce criminal law on behalf of the US government. During false-marking cases there is no way on the forms to notify the government that the case involves false markings, Wham-O argues that this “deprives the executive branch of any practical means to take care that the nation’s sovereign interests are represented in court.”

The founder and principal of Periconi LLC, famed New York environmental attorney and Lawline.com faculty member James Periconi was recently named Superlawyer of environmental law in the fall 2010 issue of Superlawyers. The publication selects featured attorneys based on the review of their peers and independent research in a variety of categories. 

James Periconi has tremendous experience in the areas of environmental law and environmental litigation. His practice is small but he has shown that a small firm can have large corporate clients. Periconi is a former Chair (2003-2004) of the Environmental Law Section of the New York State Bar and was the first Chief of Hazardous Waste Enforcement in the New York State Department of Environmental Conservation.

The courses Periconi has taught at Lawline.com provide attorneys with a wide variety of important information about recent developments and changes in environmental law (New York Update: The Indoor Air Landlord-Tenant Notification Law) as well as providing advice about the importance of environmental concerns in a real estate transaction (Environmental Due Dilligence in Real Estate Transactions: Part 1 and Part 2). 

Periconi’s insights into recent developments of environmental law and practical advice on complying and using these laws make any of his top-rated courses perfect for attorneys interested or concerned about environmental issues. 

Watch "New York Update: The Indoor Air Landlord-Tenant Notification Law"

Watch "Environmental Due Dilligence in Real Estate Transactions: Part 1"

Watch "Environmental Due Dilligence in Real Estate Transactions: Part 2"

An article in the Wall Street Journal today describes how the recession is leading law firms to offer a new pricing structure for their services. Many law firms are now charging small businesses flat fees , rather than charging them buy the hour. Some law firms are charging by the month, others are charging a set amount for certain services. Changing the payment method is helping some firms drum up more business from businesses who can no longer afford an hourly fee schedule.  Not only are these new payment plans more affordable, but they are also more predictable which is a great help to small businesses on a tight budget. Firms that have started offering this new pricing system, say that it has improved business because the flat fees raise the comfort level of potential clients and foster continuing relationships with them (previously, many of the small business owners who would come in for a consultation would be scared off by the hourly fees).  However, there are drawbacks to this system- lawyers set limits to the amount of work and the type of work that is covered by these flat fees, usually excluding the more time consuming legal work that may be required (such as litigation and tax advice). Some lawyers also insist that for discount-rate clients, most of the work is done over the phone or over email.

For the full article, click here

For more advice on increasing business for your law firm, check out: How to Run a Small Office Ethically and Profitably

The internet may seem lawless and anonymous, a free forum where people can share ideas and comments without fear of retribution. But, according to Julian Glover, who commented in his article in the Guardian “The Web May be Lawless, But it Won’t Stay That Way,” it will not be lawless for long. We are already seeing the beginning of law and how it will shape the landscape of the internet as the veil of anonymity pulls back. Glover argues that today’s internet activity is akin to the first motorways before speed limits. People could drive as fast as they wanted without thinking about being caught or paying a hefty fine.

But the days of anonymity on the internet are screeching to a halt. Especially after the advent of new social media sites like Twitter, people are learning they cannot use the internet to live parallel but separate lives; these cyber-identities are not free from legal consequences. Several recent cases have illustrated the growing liabilities of forgetting this important distinction. 

Last week, a Tory councillor was arrested for stating on his Twitter page that he wanted columnist Yasmin Alibhai-Brown stoned to death. Another man was convicted and lost appeal after declaring on Twitter to 600 followers that he wanted to blow up his local airport. What may seem like empty absurdities or harmless venting has become of very serious concern to law enforcement and sends a strong message that even without rigid statutes or strong legal precedent the law does cover online mischief. 

Unfortunately many people, attorneys alike, do not have the important knowledge and experience necessary to manage a successful retirement plan. Whether it’s a 401(k), 403(b), or 457(b) the rules are quite complex and anyone looking for financial security after retirement must carefully choose who will manage their plan. 

That is why experienced ERISA attorney Ary Rosenbaum has spent the past 12 years perfecting his craft. He says that too often people use their payroll provider to run their 401(k) plans, which is a mistake. He strongly advises against putting your retirement plan in the hands of your payroll provider, and he gives several poignant reasons in his popular article featured on JDSupra entitled “Why you Shouldn’t Hire Your Payroll Provider to Run Your 401(k) Plan.” 

Rosenbaum follows an important rule in business, “I stick to what I know.” And his expertise is in retirement plan and ERISA issues, which he discusses in his new course on Lawline.com entitled “How to Help Your Clients Avoid the Pitfalls of 401(k) Plans.” One of the many pieces of advice he gives is to avoid allowing third party administrators to run your plan. He says that because they are not trained to be experts in the complex issues related to retirement plans, they should not be given the responsibility of dealing with them.

To learn more about the successful 401(k)s watch Lawline.com’s exclusive new episode by Ary Rosenbaum,“How to Help Your Clients Avoid the Pitfalls of 401(k) Plans”

Read Ary Rosenabum's article on JD Supra "The Myth of Free 401(k) Administration"

Read Ary Rosenbaum's article on JD Supra "The Top Ten Major Misconceptions Plan Sponsors Have About Retirement Plans"

The 9th Circuit US Court of Appeals on Tuesday set a precedent requiring the government to provide important files to those facing deportation proceedings. In this case, Salazar Dent was not given his A-File, a file that maintains important official records such as naturalization certificates and petitions for benefits. 

Sazar Dent, who claims he was adopted by a Kansas woman who rescued him from the extreme poverty of his native country, was not given his A-File by the government during deportation proceedings. Routinely, the A-File is not given because often aliens don’t know the process of requesting files. The court held that the A-File must be given because in many instances it is integral for proving immigration status. 

The opinion of the court, written by Judge Andrew Kleinfeld, interprets the statute in a manner that requires the government to turn over files even when they have not been requested. The government argued that Dent could receive the information by filing a Freedom of Information Act request. However, the court ruled that filing a request takes too long; it would be unconstitutional to entitle an alien to his A-File, but deny access until the file is no longer useful.    

Facebook is suing yet another website that uses the word “book” in its name, in order to protect it’s brand, reports the LA Times. This time Facebook wanted to go after “Lamebook”, a spoof site which makes fun of status updates, comments and other things found on Facebook. Facebook didn’t seem to find the site funny and threatened to take its creators to court.  Lamebook beat them to the punch however, and filed a lawsuit against Facebook, seeking protection under the 1^st amendment. Their rationale is that because the site is a parody, it does not infringe on Facebook’s trademark.  Facebook countersued Lamebook, saying Lamebook is not a legally protected parody.

For the story click here

for more on copyright law on-line, take a look at : Trademark Protection on the Internet

The LA Times reported yesterday that the US Justice Department will not be charging the CIA officers who destroyed videotapes of suspects being waterboarded, but a special prosecutor will continue to investigate whether treatment of Al Qaeda detainees was within legal bounds. No charges were filed in connection with the destruction of the tapes, but Atty. Gen. Eric H. Holder Jr., who investigated whether CIA officers violated the law in the course of the interrogations found that interrogators sometimes exceeded the legal guidance for how often certain techniques could be used. Jay S. Bybee, the former head of the Justice Department's Office of Legal Counsel, had outlined the circumstances under which waterboarding would be allowed in a legal memorandum.

Robert S. Bennett, the attorney for the CIA agent who ordered the tapes destroyed, described his client as an "American hero… a true patriot who only wanted to protect his people and his country." But Anthony Romero, the executive director of the American Civil Liberties Union, called the failure to file charges "stunning."

The Justice Department announcement did not rule out the possibility that officers could be charged with lying to investigators in the matter. That investigation has angered many current and former CIA officers, who say it sends a message that conduct sanctioned by one political administration can be criminalized by another.

For the full article, click here

At least 10 lawsuits have already been filed as a response to a salmonella outbreak. The outbreak has been traced to two large egg farms in Iowa but attorneys say they know of hundreds of potential cases. However, attorneys say it would be difficult for most to win a lawsuit even if they got sick. 

Seattle attorney Bill Marler is experienced filing lawsuits related to diseased food and has already filed 6 lawsuits in Iowa against large egg farms. However, he says the road is difficult because it is hard to prove the connection between a particular eggs and sickness. 

There are hundreds of cases being filed in response to last summer’s salmonella outbreak, but many of them will not get filed because of the difficult legal work they require. The Centers for Disease Control and Prevention has linked 1, 600 illnesses to the eggs. 

To learn more about product liability cases watch our popular new course by Bruce Manos "Successful Defense of the Product Liability Case"

For the full story, click here

On Friday November 5th, the Nebraska Supreme Court declined to rule on a local ordinance banning the hiring, harboring or renting of property to illegal immigrants. The dispute grew around whether Fremont Ordinance 5156 violates state law by mandating that those seeking to rent or lease a house acquire a permit from the city first. The ordinance is meant to prohibit those who are in the US illegally from obtaining the permit, thus preventing them from renting or leasing property. 

The US District Court for the District of Nebraska asked the Nebraska Supreme Court to review the legitimacy of the law, but the Supreme Court declined to answer the question. Instead, the Court held that there is no reason to answer the question for the District Court, as the question is not one of interpreting any state law but is of the constitutionality of the law. As a result, the city of Fremont has suspended the enactment of the ordinance until the district rules on the matter. The city has raised property taxes to fund the legal battle. 

Immigration issues have come to the forefront of US politics recently, with the controversial Arizona law SB 1070 sparking a nation-wide debate. Last week, the Ninth Circuit heard its first oral arguments on the Arizona law’s constitutionality. The controversy stems from many in the public who have growing concerns that federal officials are not taking immigration issues seriously enough. However, the US has deported a record number of illegal immigrants in 2010, according to an announcement from the Department of Homeland Security. 

To learn more on immigration law today watch our top-rated course by Gilbert Ferrer, Eugene Glicksman, Jeffrey Heller, and Linda Kenepaske "What You Need to Know to Practice Immigration Law Successfully- Family-Based Immigration, Immigration Defense of Removal Proceedings, Asylum and Practical Tips"

To read the full story, click here

Walgreens filed a trademark infringement lawsuit against Wegman’s supermarket on Oct. 27 at a federal court in Virginia. Walgreen’s is claiming the “W” in the logo Wegman’s started using a few years ago is too similar to the “Walgreen’s” logo and could lead customers to assume the 2 stores are connected. Walgreens argues that the “flying W” it uses in its logo should be protected because it has been in use since 1951. Wegman’s counters with the fact that their logo redesign is really based on an older Wegman’s logo from 1931 and wasn’t taken from Walgreen’s.

From the whole story, click here

For more on trademark legal issues, watch Corporations and Trademarks by : Amy Goldsmith and George Gottlieb

In a press conference held yesterday Alan Schnurman, creator of the public access television program Lawline and experienced personal injury attorney, announced a suit against the Waldorf Astoria resulting from a bed-bug infestation. The case arose after David and Christine Drabicki won the getaway of a lifetime from Allstate Insurance to celebrate their successful year. After waking up covered with more than 100 bites, the dream weekend quickly turned into a nightmare. 

David and Christine Drabicki had a miserable weekend; their sheets were bloody from being bit constantly during the night. They could not believe such a renowned establishment would be so unwilling to remedy the situation. After finally escaping back to their home the Drabicki’s were horrified to find that the nasty little bugs traveled with them and quickly infested their home, finding bites covering their 12 year old daughter. All of their belongings had to be taken from the house and cleaned, and the house was frozen to exterminate the bugs. 

The press has been all over the case against the Waldorf, with articles by Thompson Reuters, MSNBC, The Daily News, CBS, and MyFoxNY.com. The press coverage has been astounding for a type of case that was non-existent just a few years ago. Alan Schnurman and his firm, Zalman & Schnurman, were one of the first to take bed-bug cases four years ago. Now bed-bug cases have captured the public’s attention. Bed-bugs are difficult to get rid of and the bites are painful and can leave you covered in bloody bites. And they infest even the most famous upscale places, it feels as if no one is safe.

Alan Schnurman picked up the case and has filed a suit to collect damages from the Waldorf Astoria. Mr. Schnurman has 40 years of experience in the area of personal injury, and is confident that the Waldorf was negligent in its treatment of the Drabickis. When checking into a hotel room we all expect it to be clean and safe, that’s what you pay for. However, Mr. Schnurman says the hotel did not attend to the situation with the gravity it required, and allowed the bugs to infest the room and travel to Michigan and infest the home of the Drabikis.  

To watch the story on CBS, click here

Read the story on My Fox New York, 

Read the story on Reuters

Watch Marc Miner's top-rated course "Bed Bugs & Premises Liability"

A report by the Los Angeles Times discusses the ramifications of the case, AT&T Mobility vs. Concepcion, which is set to go before the Supreme Court next week. The crux of the case is whether companies can bar class action suits in the fine print of their take-it-or-leave-it contracts with customers and employees.  If the court sides with AT&T, this will have sweeping consequences for businesses and consumers, since it would mean that any business that issues a contract to customers would be able to prevent them from joining class-action lawsuits, thus taking away one of the most effective legal tools available to plaintiffs (especially in cases where the compensation is relatively small). Should this happen, many argue that it would make it easier for businesses to engage in deceptive practices, since they would be much less afraid that consumers would actually pursue legal action if class-action is not an option. Furthermore, the ability to ban class actions would potentially also apply to employment agreements such as union contracts.

The U.S. District Court for the Southern District of California and the U.S. 9th Circuit Court of Appeals ruled that the class-action ban that AT&T had in its wireless service contracts violates state law and is not preempted by the federal law. AT&T subsequently petitioned the Supreme Court to hear the case, where the results could potentially be different.  William B. Gould IV, a professor at Stanford Law School pointed out that this Supreme Court, which has a generally pro-business outlook, has already “indicated a measure of hostility toward class actions."

For the full article, click here

 to learn more about contract law, watch Anatomy of a Contract by  Jeffrey Helewitz and Hon. Eileen Nadelson

Lawline.com hosted a  live event Wednesday November 3rd with great success. It was a packed house, mostly filled with attorneys just out of law school eager to hear words of wisdom from the lecturers about how to start their own practice. Each of the three lecturers are successful practitioners who realized early on that they did not want to work for someone else, so they took a chance and risked it all with great success. 

Marc Garfinkle, Alan Schnurman and Daniel Gershburg have a wealth of experience on starting a personal practice, and they brought tons of tips for young attorneys on how to turn the idea into a reality. From something as minor as Marc Garfinkle’s tip on stapling, to tips on cutting edge internet advertising from Daniel Gershburg, to advice on staying positive and putting yourself out there by Alan Schnurman, every lecturer had unique and important advice for any attorney tired of taking orders.

Although Lawline.com has never hosted its own live event, the stunning success so far of this 4 part Bridge the Gap series is a good indication that live event series will be a great addition to Lawline.com services. The next topic in this 4 part series is entitled “Now that You Have a Job, How to Excel at It,” and the featured lecturers are Justin Blitz and Olivera Medenica. This event will focus on legal writing and prepping a trial, and it is sure to sell out again. 

With such a successful first event, these lecturers have a tough act to follow. But, Blitz and Medenica have both filmed courses with Lawline.com that were wildly popular, and there is no doubt that the series will continue with enormous success. 

To sign up for the next event, go to lawline.com/gap

Watch Marc Garfinkle’s top-rated course “Going Solo: How to Practice Law Without Getting a Job”

Watch Alan Schnurman's top-rated course "Negotiation: a Tool to Achieving a Successful Outcome in Personal Injury"

Watch Daniel Gershburg's top-rated course "Chapter 7 Bankruptcy: The Initial Consultation"

As national borders disappear, the ability for global exchange of goods, services and information is creating boundless opportunities and challenges for the legal industry in the U.S. Law firms, regardless of size continue to expand across borders, collaborate with foreign counsel and form global mergers. New technologies such as websites, blogs, social networking sites, listservs and email have made it easier to develop a global client base.

While the opportunities to do business abroad may be increasing the traditional view held by many law firms is that only large law firms have foreign clients. An online survey conducted by Walker Clark, LLC, demonstrated otherwise. The results from the survey indicated that firms with less than 20 attorneys have foreign clients.

At a two-day conference on International Corporate Social Responsibility, held in New York City, Elizabeth Wall, an attorney and GC who has worked on both sides of the Atlantic stated that in today's  24/7 fast-paced global community, all attorneys need to develop global characteristics.

Here is a condensed version of those characteristics:

1. Take charge in a crisis.
2. Have another language in your marketing arsenal, or at a very basic learn a few practical expressions in the client's mother tongue.
3. Show an interest in current affairs domestic and international.
4. Network consistently, not just online networking, but breaking bread with important alliances of clients.
5. Political adroitness and diplomacy.
6. Cultural awareness. Take a course in foreign customs and behavior.
7. Communication, communication, communication at all levels.
8. Be knowledgeable of issues that may impact the client, for example corporate social responsibility.
9. Know the client's strategic vision.
10. Be unfailingly polite to everyone when in your client's office.

On review, many of these traits apply equally to attorneys who conduct business domestically. What really stuck out in Elizabeth's presentation was her point that a combination of soft and hard skill set was no longer a luxury but a necessity to survive in a global marketplace.

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 of experience 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, please call 212-661-9137 or visit SCG Legal PR Network’s Web site at http://www.scglegalprnetwork.com.

The Washington Independent posted an interesting article yesterday about the activities of the Republican National Lawyers Association, an independent body of republican lawyers who were monitoring elections in swing states and preparing to help candidates mount legal challenges to election results, if necessary. Caleb Burns, an election-law practitioner, points out that the preemptive preparation for legal challenge is a product of the 2000 election and Bush v. Gore. Although both Democrats and Republicans have their teams of lawyers on call in order to spot voter fraud, the RNLA has been extremely active during this election (training over 1,000 lawyers in election law practices and issuing “Voter Fraud Alerts”) after receiving a large grant from 2 GOP Donors.

The RNLA’s activities have been criticized, however, by people who think that they are designed to stir up fear, discourage voting and set the table for legal challenges in heavily Democratic districts and cities in states with close contests.  But they say that voter fraud is happening, and that republican candidates need to be prepared to fight election results in court, citing Al Franken of Minnesota, who won his election not at the polls but in the courthouse in the weeks after the election.

For the full article, click here

The Supreme Court agreed on Monday to hear a high-stakes patent dispute over university ownership of inventions. This case, Stanford University v. Roche Molecular Systems, may give justices another chance to reign in the US Court of Appeals for the Federal Circuit. 

Top research universities have are joined by the Obama Justice Department in urging the Supreme Court to review this case, citing billions of dollars and thousands of jobs generated by invention licenses with universities stemming from federally funded research. 

In September of 2009, the federal circuit court ruled against Stanford’s claim of rights over an invention that measures the effectiveness of HIV treatments. Though the inventor did research under a grant by the National Institutes of Health, he was also working for a company later acquired by Roche, and he signed his rights to that company. Stanford claimed title to the invention under the Bayh-Dole Act of 1980, filing suit under the assertion that the company was infringing its patent in its marketing of HIV detection kits. The circuit sided with Roche, holding that Roche “possesses an ownership interest” and rejected Stanford’s claim. 

The decision by the Federal Circuit casts doubt on the rights of universities and the federal government to inventions arising from the hundreds of billions of dollars in research spending. More than 40 universities have joined filing briefs. 

The Supreme Court, which is known for being critical of Federal Circuit rulings recently, will hear arguments in the case early next year. 

To learn more about patents watch our top-rated course by Amy Goldsmith, "Overview of Patent and Trade Secrets"

For the full article, click here

On Wednesday, the New York Times reported that the US Government took a new position in the hotly debated issue of gene patenting, reversing their long-standing policy. The new position was declared in a brief filed by the Department of Justice in a case involving two human genes linked to breast and ovarian cancer. The US Government now holds that human genes cannot be patented because they are a product of nature, not of mankind. 

This new position could have enormous impact on the biotechnology industry because it effectively overturns decades of policy. The government acknowledged the long standing practice of the Patent and Trademark Office and the National Institutes of Health to seek patents for genetic DNA. 

If the position were to go into effect at the Patent Office, which is still unclear, it would likely draw protests from biotechnology companies who say that such patents are critical in developing cutting edge diagnostic tests and drugs. It is also crucial in the emerging field of personalized medicine, where drugs are tailored to individuals based on their genes. 

The debate over patenting genetic material has been controversial and emotional for decades. Proponents say that genes are isolated from the body and are chemicals different from those found in the body. Because these chemicals are developed through research and innovation, they are subject to patent. Opponents say that genes are products of nature and are not invented by mankind. Patenting them would be akin to patenting an apple, or a flower. 

To learn more about genetic patents, watch our top-rated course by Amy Goldsmith, "Yours, Mine, and Ours: Genetic Patents"

To read the full article, click here

Universal and its affiliates are being sued by the Sheldon Abend Revocable Trust for allegedly breaching a settlement agreement by distributing and advertising its movie “Disturbia” (2007).

Sheldon Abend was the literary agent who represented Corneil Woolrich, the author of the short story upon which Hitchcock’s classic “Rear Window” (1954) was based. This is not the first time that Abend sued over rights to the story: in the 1980s, when "Rear Window" was shown on TV, Abend took Hitchcock and the film’s star, Jimmy Stewart, to court, claiming that the defendants needed to secure the rights to the story that was the basis of the movie before they could show it on TV. That case went all the way to the Supreme Court, whose ruling on the matter established the “Abend rule” which deals with the continued distribution of a derivative work during the copyright renewal period of the underlying work.

The case also ended with a settlement between MCA (Universal’s predecessor) and Abend, which gave the MCA the right to distribute and advertise "Rear Window", in return for a percentage of the film’s gross revenue. The Abend Trust is claiming that the terms of this settlement are being breached by Universal, because Disturbia is based on Rear Window. A Federal judge in New York dismissed the case, saying the works were not substantially similar within definitions provided by copyright law, but the Abend Trust is appealing that decision, saying that the creative team behind Distrubia used many plot elements from Rear Window and also marketed the film as a modern version of the classic. An LA Superior court is set to hear the preach of contract case.

For the full story, click here

For more on copyright infringement, take a look at An Introduction to U.S. Copyright Law byTracey Batt

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The New York Times Just reported that a judge has ruled that a 4 year old girl who crashed her bicycle into an elderly woman on a Manhattan sidewalk two years ago can be sued for negligence. Justice Paul Wooten’s ruling doesn’t mean that the girl is liable, but that the lawsuit brought against her can move forward. Courts have held that an infant under the age of 4 is conclusively presumed to be incapable of negligence, but as the girl in question was over the age of 4, the judge refused to extend that rule to apply to her, adding that a child her age should have “reasonably appreciated the danger of riding a bicycle into an elderly woman.”

For the full story, click here

Next Tuesday, the Supreme Court is set to review California’s 2005 law banning the sale of violent video games to minors. The law never went into effect in California because the video game industry immediately sued, claiming the law violated the First Amendment (their claim was upheld by the Ninth Circuit Court). However, California officials behind the law are arguing that the rationale expressed in Ginsburg v. New York, which made it illegal to sell risqué magazines to minors because content that is not obscene may still be harmful to children and therefore may be regulated, can be extended to include violent content not just content that contains nudity. Publishers and filmmakers are backing the video game industry on this one, fearing that California lawmakers’ efforts to “protect children” will lead to a creative freeze across different media and to new regulations.

For the full article, click here

For more on how the courts usually respond to First Ammendment Cases, check out this course by George Freeman : Prior Restraints: Why Courts Disfavor Limitations on Speech

Cablevision subscribers can’t watch their sports, and they’re not happy about it.

A group of New Yorkers have filed a class-action lawsuit against Cablevision for its failure to provide Fox content for the past two weeks- a time period they consider “important” for the sports, politics and entertainment they are being deprived of.  The suit claims that the plaintiffs deserve compensation (to the tune of $450 million or more) for Cablevisions’ inability to reach an agreement with News Corp, despite receiving proposals to carry Fox programming “on the same terms and conditions of other cable providers in the New York metropolitan market."

The suit accuses cablevision of breach of contract, unjust enrichment and consumer fraud, because customers’ service agreements included a promise that they would receive "a credit for each 'known program or service interruption in excess of 24 consecutive hours.'" The suit also seeks a permanent injunction that forces Cablevision to enter into dispute resolution procedures with its content providers to that customers will not be deprived of programing in the future.

For the full article click here

For more on Contract law, take a look at Anatomy of a Contract by Jeffrey Helewitz and Hon. Eileen Nadelson

Justice Don Willett, of the Texas Supreme Court, cited an unusual legal authority in his Ruling in Robinson vs. Crown Cork Seal Company… Star Trek. The case deals with the limits of police power and Justice Willett's ruling relied on the idea that police power is based on the idea that "the needs of the many outweigh the needs of the few,". The ruling cited this as a “Vulcan” concept, and then went on to quote from Star Trek II: The Wrath of Khan.

For the full story, click here

For legal reasoning on civil rights, NOT based on Star Trek, check out this course by Scott Michelman : The Basics of Civil Rights Litigation

On Tuesday, the US Department of Justice announced that GlaxoSmithKline, the British pharmaceutical giant, as well as its subsidiary SB Pharmco Puerto Rico Inc., have agreed to plead guilty to civil and criminal fraud charges. These charges, relating to the manufacture and distribution of adulterated drugs, stem from a false-claims lawsuit originally filed in 2004. The pharmaceutical company has agreed to pay $600 million in a civil fine and a $150 million criminal fine for pleading guilty. 

The amount of the settlement is the fourth largest health care fraud settlement in US history, the record setting settlement being Pfizers $2.3 billion payout. In Pfizer’s record setting settlement, $1 billion was a civil penalty to resolve alleged violations of the Federal False Claims Act that they illegally promoted their drugs Bextra, Geodon, Zyvox and Lyrica, and paid kickbacks to healthcare providers. 

The charges were initially filed by Cheryl Eckard, the company’s former quality assurance manager, after her visit to the now-closed manufacturing facility in Cidra, Puerto Rico.  According to the complaint filed there was “chronic, serious deficiencies in the quality assurance function at the Cidra plant and the defendant’s ongoing serious violations of the laws and regulations designed to ensure the fitness of drug products for use.”

 A study conducted by the Taxpayers Against Fraud Education Fund showed that healthcare cases accounted for 80% of the $3.1 billion recovered last year by the Department of Justice under the Federal False Claims Act. 

Hell’s Angels are having legal problems, the Financial TImes reports, but not the kind you might expect for a notorious motorcycle gang. They are actually suing a high-end fashion line, Alexander McQueen, for using their “winged death’s head” symbol in various jewelry and clothing items.  Hell’s Angels claim to have been using the symbol since 1948 and to have a patent on it that protects it from use by other groups.  This is not the first time the motorcycle club has taken legal action over the use of its name and symbol: in 2006 they filed a lawsuit against the Disney film Wild Hogs, over concerns that that Disney was planning to use the trademark protected images in the film.

For the full article, click here

For more on the legal background of this case, watch An Introduction to U.S. Copyright Law by Tracey Batt

In light of Bill O’ Reilly’ s contentious appearance on ABC’ s "The View," which culminated with Whoopi Goldberg and Joy Behar walking off the set, here are three negotiating tips to consider when strong emotions erupt in the negotiation context.

1. Don’ t immediately react – Responding in kind to an emotional outburst can quickly cause things to spiral out of control. So remain silent and let your counterpart vent. Thomas Jefferson wisely said, “ When angry, count 10 before you speak; if very angry, a hundred.”

2. Don’ t argue – Listen respectfully and acknowledge the legitimacy of your counterpart’s points and feelings, even when you don’ t agree with them. And ask open-ended questions like “ why,” “ how,” “ what,” and “ tell me about” to help them open up.

3. Depersonalize the situation – Rely on independent standards or procedures that both sides will accept as leading to a fair result. An expert’s opinion, similar to market value and precedent, will focus the attention away from you and instead on objective criteria.

While implementing these tips won’ t make for compelling television, they will help you close the 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.

The use of social media as a communication tool has become essential in helping solo practitioners expand and manage their law practices. No longer is it merely a toy for kids, these days social media is a powerful tool that when used correctly will drive client business and increase legitimacy as a practitioner.

In this timely and exciting course "Social Media for Solo Practitioners," Nicole Black and Carolyn Elefant, attorneys and co-authors of the new book, Social Media for Lawyers: The Next Frontier, discuss how solo attorneys can use social media to grow their practices. They are interviewed by David Schnurman, Lawline.com’s CEO, and their considerable expertise in social media translates to practical tips any solo-practitioner use to increase online presence.  

Both Ms. Black and Ms. Elefant are distinguished attorneys who have used social media to expand their practices to new heights. In this course, they review a number of popular social networking sites and provide tips on how attorneys can use these sites to increase their online presence, network with colleagues, interact with potential clients, and convert online relationships into offline ones. In addition, Ms. Black and Ms. Elefant dispel some myths about social media, and share ideas about how to use specific sites such as LinkedIn, Facebook, and Twitter to gain competitive intelligence, showcase expertise, and increase search engine optimization.

The popularity of social media continues to grow with no sign of slowing, making this a must-watch program for all attorneys seeking guidance on how to improve their reputation, maximize their exposure, and establish new working relationships for their solo practice.

To learn more watch the New Course "Social Media for the Solo Practitioner" by Nicole Black and Carolyn Elefant 

As internet users increase by the day and more people become connected through new media, difficult legal considerations arise requiring extensive examination to determine how this developing medium should be regulated. The current issue being widely debated is that of Net Neutrality; whether or not Internet Service Providers can charge premium prices for those using apps that take up large amounts of bandwidth. New Lawline.com faculty member Owen Kurtin examines Net Neutrality and other important issues surrounding what he calls "the hottest topic of 2010" in his course "Net Neutrality and the FCC's Third Way Proposal."  

In this course Kurtin, an attorney and expert in telecommunications law, illuminates many of the complex legal arguments and issues involved in this debate. Beginning with an overview of the background of US telecommunications law, Mr. Kurtin identifies the proponents and opponents of net neutrality and examines the FCC’s recently proposed National Broadband Plan to make broadband access virtually universal. 

In addition, Mr. Kurtin dissects pivotal Supreme Court decisions, Brand X and Comcast Corp. v. FCC, and elucidates the FCC’s “third way” approach to reclassifying broadband services in light of the Comcast case. Mr. Kurtin concludes his review of this cutting-edge topic by highlighting the ways in which the Brand X decision and the Computer Inquiry proceedings present a barrier to the “third way” approach, equipping the viewers with all the information they need to become spirited participants in the net neutrality debate. 

To learn more watch Owen Kurtin's New Course "Net Neutrality and the FCC's Third Way Proposal" 

When executives at Office Depot realized they would fall short of their quarterly earnings estimate in 2007, they allegedly dropped hints to analysts and institutional investors in a series of phone calls. These calls were the subject of an SEC investigation that led to charges now being settled for $1 million. The SEC charged the company with violating fair disclosure regulations as well as accounting violations. CEO Stephen Odland and former CFO Patricia McKay will each individually pay $50,000 as part of the settlement.

The charges were not that Office Depot executives directly told analysts privileged information; rather, the charges were that the message was veiled but clearly hinted. The SEC charged Office Depot with violating Section 13(a) of the Exchange Act and Regulation FD, as well as allegedly prematurely inflating operating profit. These acts “gave an unfair advantage to favored investors at the expense of other investigators and, as today’s action shows, is illegal” said Robert Khuzami, Director of the SEC’s Division of Enforcement. 

Office Depot was represented by Daniel Shea of Hogan Lovells. John Sturc of Gibson, Dunn & Crutcher represented CEO Odland, and Charles Mills of K & L Gates represented McKay, the CFO. The SEC's case was handled by Steven Meiner, Kathleen Strandell, Chad Alan Earnst, Eric Busto, Amie Berlin, Bob Levenson, Teresa Verges, and Yolanda Gonzalez.

To learn more about SEC practices watch our top-rated course by Ernest Badway "Securities Enforcement; The Past, Present, and Future"

The New York Times Reported yesterday on a new law in New York which will allow homeowners who win in foreclosure proceedings to have the lenders pay their lawyers’ fees. In other types of cases, such as employment and civil rights cases, legal fees are usually awarded to the winning party, but foreclosure litigation has been an exception, until now.

This law comes at a good time for homeowners, because banks have recently come under scrutiny for the way they documented mortgages during the housing boom, giving homeowners a better chance to get banks’ foreclosure action thrown out, and have their legal fees covered. Although some don’t think the new law would substantially tip the scale in favor of the homeowner in terms of getting banks to settle with homeowners etc, an expected benefit of the law is that it will make it easier for homeowners to get representation, because it provides a “pretty reasonable incentive” for lawyers to take their case.

For the full article, click here

for more on ways to help your clients avoid foreclosure watch this course by bankruptcy and loan specialist Ducchi Quan : An Attorney's Guide to Loan Modifications under the Home Affordable Modification Program

A group of bondholders stuck with $47 billion in Countrywide-issued residential mortgage-backed securities have positioned themselves to sue Bank of America. The bondholders claim that BofA failed to perform its duties as the servicer of the bond deals and want BofA to buy back some of the bonds. Kathy Patrick, of Gibbs & Bruns, who is representing the group, says that if BofA does not agree to buy back some of these securities they plan to sue.

Last week the New York state supreme court dismissed a class action lawsuit that claimed Bank of America was obliged to buy back hundreds of thousands of the same kind of securities. The case was dismissed on the grounds that the plaintiff did not have the support of 25 percent of certificate holders as required to commence litigation. However, in this case Patrick represents a group that comprises more that 25 percent of the voting rights, so they have met the required conditions to commence litigation.

If the case leads to a lawsuit it could be one of the first cases where mortgage-bond investors are seeking to enforce their contract rights. Patrick says their key advantage is that it is not a securities case, it is just contract enforcement. Thus, Patrick must only show that BofA did not fulfill the terms of the contract, they do not need to show intent. 

To learn more about Wall Street reform and current laws, watch our top-rated course by Daniel Shlufman "Key Mortgage & Real Estate Related Provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act"

For the full article, click here

The Wall Street Journal reported today that the USDA agreed to settle a class action lawsuit brought against it by American Indian farmers over alleged discrimination for $680 million. Although eligible farmers and ranchers can receive up to $250,000 if they show how discrimination by the USDA caused them financial losses, most will probably accept the uniform $50,000 payment which requires less paperwork. At this point it is hard to say how much the government will actually have to pay because it depends on how many farmers will file claims. The settlement also includes provisions forgiving $80 million in American Indian farmers’ debts and enhancing USDA programs with American Indian producers.

The 11 year old suit claimed that the government denied American Indian Farmers the low-interest loans that were given to white farmers; this is similar to the claim made by black farmers against the USDA which was settled for $1.25 billion back in February.

For the full article, click here

To learn more about Federal employment discrimination statutes, view this course by  Stephen Bergstein : Employment Discrimination in the Second Circuit

The U.S. Supreme Court will decide whether an American Muslim has standing to sue Bush administration attorney general John Ashcroft. Abdullah al-Kidd alleges that Ashcroft is responsible for his improper arrest and detention after the September 11 terrorist attacks. Al-Kidd was one of dozens of Muslims and Arabs arrested during the period following the attacks.

Al-Kidd was arrested at Dulles International Airport in 2003, as he was preparing to board a flight to Saudi Arabia. TH FBI persuaded a judge to issue an arrest warrant by contending that al-Kidd had purchased a $5,000 one-way ticket. They neglected to mention, however, that al-Kidd is American born and has a wife and kids in America. Also, his lawyers say he had purchased a considerably less expensive round trip ticket.

The Supreme Court will not rule on the details of Abdullah al-Kidd’s case. Instead, they will focus on whether or not al-Kidd and his attorneys can show that specific actions of then attorney general Ashcroft cross the limits of the Constitution. Ashcroft, who is represented by the Obama administration, says he should be shielded from suits concerning official duties.

The attorney general has never been held personally liable for official actions, and Ashcroft has been victorious in other suits that have been levied against him. In a previous Supreme Court case, Ashcroft prevailed over a detainee, Javaid Iqbal, who sought to hold him liable for his confinement. The decision of the court, 5-4, held that the connection between Ashcroft’s actions as attorney general and the confinement of the detainee was too attenuated.

Supreme Court rulings do allow high ranking officials to be held liable, but they set a high bar. An official must be tied directly to a violation of constitutional rights. The federal appeals court in San Francisco held that al-Kidd’s case met this high standard and criticized the use of material witness warrants for national security.

To learn more watch our top-rated course "The Basics of Civil Rights Litigation" by Scott Michelman

For the full article, click here

A Wall Street Journal investigation found that many of the most popular “apps” on Facebook, a social networking site, have been transmitting user information to dozens of advertising and internet tracking companies. The information, when combined with internet user databases already held by several advertisers, provides identifying information about users as well as their friends.

The issue affects tens of millions of users who use these applications, including some of the most popular games like Farmville and Texas Hold’em Poker. Even information of users who have the highest privacy settings enabled were transmitted, violating Facebook’s rules. It is not clear, based on the Wall Street Journal’s investigation, how long this problem continued but a Facebook spokesman said that they are taking steps to “dramatically limit” the exposure of personal information.

Defenders of online tracking argue that information transmitted in this way is benign because it is conducted anonymously. In this case, however, the Wall Street Journal found that one data gathering firm, RapLeaf Inc., was able to connect the anonymous Facebook user ID that was transmitted by apps to their own database of users, which it sells to advertisers. RapLeaf said the transmission to other firms was unintentional and Facebook has said it is significantly limiting RapLeaf’s ability to use any Facebook-related data.

Facebook has been subject to several inquiries in the past months about their use of personal data. As recent as this month Facebook has made an effort to give its users more control over its apps, which privacy activists have cited as a potential hole in users’ ability to control what information is shared. It’s not clear if the developers of apps realized that data was being transmitted, and Facebook says it has disabled thousands of apps at times for violating rules its privacy rules.

To learn more watch our top-rated course by Tim Baran and Ronald Coleman "Social Media and the Law: What Attorneys Should Know"

For the full article, click here

This article from USA Today breaks down the situation as it currently stands in regards to foreclosures. Apparently, mortgage lenders have been filing faulty court papers to foreclose on homes. The lenders were using “robo signers” to prepare legal documents required to get court approval to foreclose, and they signed thousands of papers without reviewing supporting documentation in the case or signing the affidavit in front of a notary, making their paperwork invalid in states where judicial approval is required to move ahead on foreclosures. Furthermore, there have been some allegations that the supporting documentation in some of the cases was falsified and some signatures were fraudulent. As a result, many banks have either suspended foreclosures, or are continuing with the foreclosures while investigating their practices. 

There are a handful of investigations into the foreclosure mess being launched by various bodies including The Justice Department, The Office of the Comptroller of the Currency (which regulates the nation's largest banks), the Federal Housing Administration and The Senate Banking Committee. Those charged with fraudulent foreclosure practices face civil penalties and criminal prosecution.

Courts could now see a wave of challenges to both current and past foreclosures cases. And there could be legal battles between former owners who will claim they were foreclosed on illegally and those that currently own the foreclosed property. For this reason it is recommended that those looking to buy a foreclosed property, hire a lawyer to review the court case file to look for missing documents and incorrect dates.

For the full article click here

for more on current programs meant to help homeowners avoid foreclosures, watch this course by Ducchi Quan: An Attorney's Guide to Loan Modifications under the Home Affordable Modification Program

In State of Florida v. U.S. Department of Health and Human Services, District Judge Roger Vinson has rejected the Obama Administration’s motion to dismiss the challenge that has been raised by 20 state attorneys general and four governors.

In the case, Federal Judge Vinson says two key claims can go forward. Firstly, the states’ claim that the individual mandate to purchase coverage exceeds the power granted to Congress by the commerce clause and violates the 9th and 10th Amendments. Secondly, the claim that the medical program created under the act unconstitutionally commandeers the states with respect to the commerce clause.

Vinson wrote that he has not attempted whether the line between constitutional or not has been crossed but it is a question that will be decided based on the parties’ motions for summary judgment. Vinson is not the first judge to reject the government’s arguments in recent months.

In August, U.S. District Judge Henry Hudson in Virginia refused to dismiss a challenge brought by Virginia Attorney General Ken Cuccinelli in the case Commonwealth of Virginia v. Sebelius. This case will hold a summay judgment hearing in October 18.  But, last week, on October 7, U.S. District Judge George Steeh in Detroit upheld the law’s constitutionality in a challenge brought by Thomas More Law Center in Thomas More Law Center v. Obama.

To learn more about the importance of suppression motions watch our top-rated course by Randy A. Hertz, "Suppression Motion Practice, Fourth and Fifth Amendment Issues"

To read the full article, click here
 

The Wall Street Journal reported today, that Medtronic has agreed to pay $268 million to settle the thousands of personal-injury cases that have been brought against it on account of its fracture-prone “Sprint Fidelis” cables. The malfunctioning devices are used do connect patient’s hearts to implantable defibrillators. According to an independent monitoring board, the devices may have been linked to 13 deaths (4 of which were caused by attempts to remove the problem devices: a dangerous procedure).

There are still many details to work out in the settlement. Attorneys representing the clients in the 8,100 cases will have to decide how to divide the money Medtronic has made available. Plaintiffs can also choose not to participate in the settlement and proceed with their suit against the company, however it is unlikely that many will choose to do so,  since a Federal district judge in Minneapolis threw out a representative sample of cases last year, and his ruling seems to apply to all cases against Medtronic. Most attorneys will likely put their client’s cases before a committee that will decide their compensation value.

For the full article, click here

To find out more about Personal Injury law, take a look at this course by Edward Milstein : Medical Malpractice: Picking the Case that Pays

Lawline.com faculty member Steven Simpson was recently featured in several news articles regarding his lawsuit challenging Florida’s campaign finance laws in Andrew Nathan Worley, et al. v. Dawn K. Roberts, et al.  To read more about this case, see the article published by the West Palm Beach Examiner titled "Libertarian Law Firm Going After Florida's Campaign Finance Laws." In Worley, Simpson filed a lawsuit on behalf of a group of plaintiffs challenging the state’s restrictions on campaign funding as a violation of their First Amendment free speech rights.  In order to speak out about political issues, citizens of Florida and 23 other states must register as political committees and navigate complex regulations.  Simpson is quoted as saying “It turns out that in America, you need more than an opinion to speak out about politics.  Today, you also need a lawyer.”  Simpson and his organization, the Institute of Justice, were also featured in the news earlier this year regarding the high profile campaign finance law case, Citizens United v. FEC. For more information on this case, see the article from the NationalJournal.com titled "Citizens United Fallout Already Being Felt." 

In Citizens United, the Supreme Court held under the First Amendment, that corporate funding of independent political broadcasts in candidate elections could not be limited.  This close decision (5-4) resulted from the dispute over whether the nonprofit organization Citizens United could broadcast a film on cable television which argued that Hillary Clinton was unfit for high office.  Ultimately, the Court held that Citizens United should have been able to broadcast the program.  In his recent course with Lawline.com, The Impact of Citizens United v. FEC, Simpson reviews the case in great detail, and provides a comprehensive overview of the history of campaign finance laws and his predictions for the future. This hot button political issue was also featured today in the Huffington Post, in an article titled Citizens United-Game Changer in which the author argues that President Obama’s predictions that the Citizens United decision would unleash a torrent of corrupt corporate money into our political system has come true. Watch Simpson’s course to better understand this landmark decision, and make your own determination of whether or not states should be able to restrict a group of individuals’ campaign funding choices, or if such limitations violate their First Amendment rights.

To watch Steven Simpson's course on Citizens United v. the FEC, click here

A survey of law departments shows in-house counsel are bracing for a jump in litigation, according to a survey of law departments released Wednesday. The Fulbright Litigation Trends Survey showed that corporate counsel expects a continuation of the upward trend in litigation that began with the economic downturn. 93% of US respondents expect US legal disputes to increase or remain the same this coming year, a large increase from 42% who expected this in the survey conducted last year.

The reason cited for the upturn is that with an increasingly regulated and lagging economy, more litigation is a natural result. As the country begins coming out of the recession nearly a third of companies are seeing the strict regulation as a major concern. Regulators have been investigating companies in a variety of sectors, most prominently banking, health care and energy. The survey notes that even at small-cap companies, regulatory investigations have almost doubled.

Big companies draw a greater number of lawsuits, not surprisingly, but even small and medium sized are likely to deal with litigation in the near future. Some industries are seeing a much larger spike in litigation than others. The energy sector saw the biggest jump in litigation this past year, 57% encountered at least one arbitration. Insurance (45%), manufacturing (43%) and financial services (38%) also saw a lot of action from regulatory investigations.
The conclusion of the survey was that the climb in litigation is not projected to stop this year. And with nerves on edge, companies are spending more on litigation budgets to keep up with new regulations and tougher oversight. 
 

To learn about the SEC and it's regulation process watch our top-rated course by Ernest Badway "Transparency at the SEC, A Response to the Current Financial Crisis"

For the full article, click here

USA Today reports that although Brett Favre is in trouble with the NFL for sending lewd photos to Jets employee, Jenn Sterger, he will not be taken to court for it because his behavior does not qualify as sexual harassment according to the legal criteria established for such matters. The generally accepted legal standards for sexual harassment includes unwelcome advances; pervasive behavior constituting a hostile work environment; and whether any complaint was made with the company. There are also no laws against texting or e-mailing sexually explicit photos of adults, which is protected under first amendment rights. However, if the NFL’s probe into the issue reveals that Favre violated the league’s personal-conduct policy, it can decide to fine or suspend Favre even in the absence of legal charges.

For the full article, click here

For more on contemporary Sports Law, click here for a course by William Glover

A U.S. District Court for the District of Colorado sided with Nintendo and offered a summary judgment late last month for a suit filed by angry gamers. Gamers have taken issue with the Nintendo Wii remote controller, claiming that the strap attached does not sufficiently prevent damage caused from accidentally hurling the controller during gameplay. The plaintiff sued alleging that the defective strap is responsible for their broken televisions, and they wanted compensation for that damage. The court sided with Nintendo, agreeing that they had given sufficient warning, including repeated instructions to be careful while holding the controller and warnings that the strap is not meant to withstand the kind of excessive force brought on by a full swing.

The court’s decision stems from the implied purpose of the strap and the lack of evidence indicating one specific purpose over any other. One might assume that the purpose of the strap was to prevent a controller from inadvertently flying out of a gamers hand while playing, as the plaintiffs clearly did. However, one might equally assume that the strap is simply intended to keep an inadvertently released controller in the vicinity of the player so it can be more easily retrieved, and may never have been intended to withstand the high stress of being thrown full force out of a player’s hand. Without showing one clear purpose the court held that the strap was not shown to be faulty. Thus, summary judgment was granted for the defendant.

To learn more about personal injury litigation, watch our top-rated course by Alan Schnurman, "Negotiation: A Tool to Acheiving a Successful Outcome in Personal Injury "

For the full article, click here

The LA Times reported this morning that a federal judge in California issued a ruling on the military’s “don’t ask, don’t tell” policy, which effectively bans the practice. The judge ordered the Defense Department to halt all efforts to remove servicemen and women because of their sexual orientation. The judge ruled that the policy "infringes on the fundamental rights of United States service members” because it violates due process and freedom of speech, and infringes on the right of service members "to petition the government for redress of grievances,” because it does not allow them to fight for their jobs if they are revealed to be homosexuals and are removed because of it.  Although a federal judge can declare a law unconstitutional, there is debate in this case whether a district court judge can unilaterally invalidate a nationwide policy.

This ruling also has serious political ramifications. Usually, when an act of congress is challenged, the justice department is obliged to defend the federal law. However, appealing this ruling would be a risky move for the Obama administration since it would anger his base of democratic supporters, who have long called for the repeal of the act.  The Obama administration has 60 days to appeal the ruling, which means Obama could technically put off the decision until after the midterm elections, however if he does not appeal right away he faces the ire of conservatives and even less support from republicans in congress, and if he does appeal right away he risks losing support of his democratic base.

For the full article click here

To Learn more about Federal laws regarding employment discrimination, look at this course by Stephen Bergstein : Employment Discrimination in the Second Circuit

The Huffington Post reports on the escalating contention over the  "Stolen Valor Act", which makes it illegal to lie about being a war hero. The Justice Department is attempting to preserve the law after 2 courts ruled that the law is unconstitutional on 1st ammendment grounds. It is now possible that the case will go all the way to the Supreme Court. Many suspect that even if the case ends up in the Supreme Court, the law will likely be struck down because this particular court is skeptical about restrictions on free speech rights, and because the government would need to show that it has a compelling interest to restrict free speech, which, according to UCLA law professor Eugene Volokh, would be difficult to prove in this case.
for the full story click here
To learn more on this topic, take a look at this course taught by  George Freeman:  Prior Restraints: Why Courts Disfavor Limitations on Speech

A new law that passed through the House of Representatives last month and is waiting for President Obama’s signature will increase protections offered to soldiers oversees. Soldiers already receive some protections from the Servicemembers Civil Relief Act, which include being able to terminate a lease and puts a cap on the interest rate creditors can charge.

However, to exercise these protections many servicemembers need find an attorney, which can be a difficult task for soldiers serving overseas. This is the issue targeted by the new package of bills, which aims to simplify the process by which soldiers utilize protections offered to them under SCRA. The motivation behind the bill is that the last thing a soldier should be worrying about is home foreclosure or car repossession.

The ABA has been active in their efforts to increase assistance to servicemembers in need of legal service. The ABA Military Pro Bono Project connects soldiers with local attorneys willing to work pro-bono to assert servicemembers’ rights. The goal of the project is to streamline the sometimes chaotic process of linking a soldier to a local attorney through Jag Corps. Many local attorneys have taken it as a point of pride to represent a soldier fighting oversees.  

To learn about the rules that govern charitable organizations, watch our top-rated course by David G. Samuels "A Primer on the Rules Governing Charitable Non-Profit Organizations"

For the full article, click here

An article in USA Today describes the “culture of fear” that is spreading among illegal immigrants, causing them to seek the help of lawyers in drawing up legal documents that, like a will, spell out what the individual wishes to happen to his or her family and belongings in the event he or she gets deported. The increase in requests for this kind of service in the past year has been fueled by Congress’ failure to act on legislation that would legalize the 11 million illegal immigrants already in the country, by the Obama administration’s record number of deportations, and by the passage of Arizona’s controversial immigration law (which may be copied by other states).
For the full article, click here
 

and check out this course taught by Rahul Manchanda: Federal Immigration Deportation and Removal Defense

In the past several weeks most of the big lenders have halted foreclosures to reexamine mortgage documents to ensure they are in line with the 23 states that require court approval before a foreclosure can commence. There has been controversy in recent cases where small firms are acting as “foreclosure mills,” signing thousands of documents to issue foreclosures each month. This has pushed lenders away from small firms seen in this light toward large firms when homeowners fight foreclosure and challenge document legitimacy.

This kind of move is exemplified in a case currently underway. Parnell Peace has brought a case against a Bank of America subsidiary that has commenced foreclose procceedings on his house in Florida. But, Parnell and his attorneys at Ice Legal challenge the supporting documents provided by the mortgage company. The documents have inconsistent dates and timeline for mortgage transfers between various lenders. The Bank of America subsidiary has since hired a team from Gray Robinson to work on the case. The team has moved quickly to suppress documents and a key affidavit.

Several other banks have also made the move towards large firms and legal teams as challenges are on the rise. In Texas, JPMorgan and its local counsel, Quilling, Selander, Cumminskey & Lawnds, have moved in several current cases for them to be tried in federal court.  It remains to be seen how these tactics will play out, but as homeowners increasingly challenge the legitimacy of foreclosure and mortgage documents, banks are clearly favoring large legal teams.
 

For more on foreclosures watch our top-rated course by William J. Horan and Peter J. Wagner, "Saving the Distressed Homeowner"

For the full article, click here

I recently appeared on Fox Business with Neil Cavuto to discuss the souring relationship between the White House and the Republican congressional leadership and its potential impact on their future negotiations. Since this raises critical negotiation issues, I thought you might be interested in my thoughts on it.

Overall, the crux of the interview revolved around the extent that your negotiation strategy should change based on whether and to what extent you want or expect to have a future relationship with your counterpart.  Cavuto’s point was that the White House should stop bashing the Republican leaders if it wants to get a tax cut deal from them in the future – especially if the Republicans take over the House and/or Senate.

In traditional business negotiations, Cavuto is right. The more your potential interests and long-term goals will be maximized with a future relationship, the more likely you should employ problem-solving strategies in your negotiation.  This would include taking steps like openly sharing information, de-emphasizing leverage, focusing on fair objective criteria and mutually considering the offer-concession process and agenda. 

This also involves - as Cavuto emphasized – not publicly criticizing your counterparts. Doing so will not only harm the relationship but it will also lower the likelihood you’ll get a deal done.

In political negotiations, however, the dynamic is different because politicians, especially in an election year, focus much of their energies on their relationship with their various constituencies and voters.  Here, both the President and Republican leadership have different constituencies.  As a result, they often engage in a lot of public give and take as they vie to motivate their political bases to re-elect them and their colleagues.

They do this to create public support for their positions which, if successful, strengthens their leverage in their negotiations with each other and helps them control the negotiation agenda. Since this is a fairly common political tactic, they also expect their counterparts will engage in similar public posturing.

Traditionally, however, once the rubber hits the road and they face a deal or no deal, they typically go behind closed doors, negotiate the details, and largely discount the campaign season’s political rhetoric as simply that – political rhetoric.  This is often necessary to get a deal done which is in their self-interest regardless of what they say about each other in public.

Of course, if a real personality conflict does arise and the parties go over the line in their personal attacks, it could prevent them from focusing on their and the country’s self-interest when and if they get behind closed doors. While I don’t think that is the case here (at least not yet), I could be wrong. If so, we might be headed for serious deadlocked negotiations in the future.

For more about negotiation watch our top-rated course by Jay Sullivan,"Negotiation Skills for Attorneys"
 

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.

A ruling came down yesterday about a case that was brought against Obama’s Health reforms by a Christian public-interest law firm representing 4 uninsured people in Michigan, who claim that they don’t want to pay the tax penalties for being uninsured that they would need to pay under the new law because those funds can be used to fund abortions. The Christian law firm is challenging “Obamacare” on the basis that the healthcare law is exceeding the powers Congress has to control commerce, is infringing on people’s 1st amendment rights to practice their religion and is in violation of the due process and equal protection clauses of the 5^th amendment.  The biggest issue at stake is the concern that upholding Congress’ right to force people to buy insurance will now give the federal government the ability to regulate citizen’s inactivity (their choice to refrain from acting).

The Michigan federal judge hearing the case upheld the healthcare law as constitutional. He said that although the Supreme Court hasn’t addressed whether congress can regulate inactivity, people’s opting out of insurance programs “substantially affect[s] interstate commerce” because it drives up insurance premiums and healthcare costs covered by taxpayers. Although the healthcare bill was upheld in this case, the ruling doesn't bind the courts in other districts so this is not the final word on the constitutionality of the law, which is still being challenged.

For the full article from the LA Times, click here

For more on Constitutional Law, take a look at The Basics of Civil Rights Litigation by Scott Michelman

Fee Disputes in the Big Arena and Legal Malpractice
Today's New York Law Journal reports on a fee dispute.in an article by Susan Beck of The American Lawyer.  This, however is not a fee dispute one might see on a typical day in the fee dispute world.  Typically, those fee disputes are for sums less than $ 50,000.  Here, the client paid $ 5 million to Boies Schiller and the dispute is over an additional $ 5 million.  Besides those sums, the client paid Davis Polk an additional $ 7 million in fees before it ran out of money.
"In a lawsuit filed Oct. 1 in Manhattan Supreme Court, G.K. Las Vegas Limited Partnership is seeking to force Mr. Boies's firm, Boies Schiller & Flexner, to arbitrate a fee dispute before the American Arbitration Association and to place more than $5.04 million in disputed fees in escrow.
G.K. claims that it has already paid the firm $5 million and disputes its obligation to pay another $5.04 million. It alleges that Boies Schiller breached its agreement that Mr. Boies would serve as lead counsel and "shirked its professional responsibilities" to the client.
Justice Bernard J. Fried (See Profile) has ordered Boies Schiller to respond to G.K.'s petition to compel arbitration by Oct. 15. A hearing in G.K. Las Vegas Limited Partnership v. Boies Schiller & Flexner, 651632/2010, is scheduled for Oct. 19.

Attorney Client Privilege in Legal Malpractice Litigation
 Carl v. Cohen, Supreme Court, New York County, Justice Edmead 2009 NY Slip OP 30806(U), April 15, 2009 illustrates two distinct principals in the area of attorney-client privilege. The first is privilege and at issue communications.  The second principal, to be discussed on Friday, is relation-back and the statute of limitations.
Plaintiff in this case was an employee at a mutual fund operation, and was embroiled in a market timing case in which it was alleged that someone was utilizing the time-zone differences between the east coast and California to make money in the mutual funds market.  He hired law firm 1, then fired it, and went on to law firm 2 and 3.  This case discusses the question of whether target attorney in the legal malpractice case may obtain otherwise privileged materials from the successor attorneys.
"The issue at bar in this case is whether Cohen may depose plaintiff's successor attorneys about the contents of and subject matter of these documents, as well as other communications "A waiver may also be found where the client places the subject matter of the privileged communication at issue, or where invasion of the privilege is required to determine the validity of the client's claim or defense and application of the privilege would deprive the adversary of vital information [internal citations omitted] (Jakobleff v. Cerrato, Sweeney & Cohn, 97 AD2d 834, 835 [2d Dept 1983] [plaintiff did not place her privileged communications with her present attorney at issue, nor was discovery of such communications required to enable defendants to assert a defense merely by bringing an action against her former attorney for legal malpractice]; Credit Suisse First Boston v. Ultrecht-American Fin. Co., 27 AD3d 253, 254 [1st Dept 2007]; Raphael v. Clune White & Nelson, 146 AD2d 762, 763 [2d Dept 1989] [attorney-client privilege between client and attorneys who had taken over case from law firm was not waived by client's initiating lawsuit. In addition, appellants failed to establish why the disclosure of privileged correspondence was vital to their defense in light of the broad range of materials already supplied by plaintiff]).


Non-Economic Damages in Legal Malpractice Litigation
Plaintiff sues defendant attorneys for legal malpractice.  Among the claims of damages are financial losses in the underlying case, as well as emotional -pain and suffering-damages based upon outrageous conduct by the attorneys.  Are these non-economic damage claims permissible?
In New York, there may not be claims for non-economic damages arising from legal malpractice.  When one says A"arising" from legal malpractice, it is correct to say that the behavior of the attorneys cannot give rise to emotional damages.  Of course, if the legal malpractice took place in , say, a personal injury action, then the emotional damages which might have been collectable there are part of the overall legal malpractice damages, as they are now economic, and must be calculated as if in a hypothetical judgment that was never obtained.
In Taylor v Paskoff & Tamber, LLP ;2010 NY Slip Op 20405 ;Decided on October 4, 2010 ;Supreme Court, New York County ;Stallman, J.  we see his decision on an offshoot of this issue.  ""Emotional damages are not recoverable in a legal malpractice action." Kaiser v Van Houten, 12 AD3d 1012, 1014 (3rdDept 2004); Risman v Leader, 256 AD2d 1245, 1245 (4th Dept 1998); Dirito v Stanley, 203 AD2d 903 (4th Dept 1994). " A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury." Wolkstein v Morgenstern, 275 AD2d 635, 637 (1st Dept 2000).

One Good and One Bad Affidavit in Legal Malpractice Case
The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert's affidavit.  In Giardina v Lippes, 2010 NY Slip Op 06834; Decided on October 1, 2010;  Appellate Division, Fourth Department we see two things.  The first is that the two summary judgment motion rule is not really a rule at all; it is really just guidance to the Court.  Two motions for summary judgment might be entertained after all.
 
The second issue we see is that of the quality of expert opinions in summary judgment.  Once, the rule was that courts scrutinize whether movant demonstrates prima facie entitlement to summary judgment, and if so, whether opponent demonstrates material questions of fact that continue to require resolution by the trier of fact.
The quality of an expert's opinion was sacrosanct, since facts may not be debated in a motion for summary judgment.  Here, and in many other cases the kicker is when a court feels permitted to rule out the expert's opinion as "conclusory."  In this case, as in many other appellate decisions, no time is taken to explain why the particular affidavit was "conclusory" rather than permissible.  What makes the difference?
Here, defendant's expert presented a "good" affidavit, and plaintiff's expert presented a "conclusory" affidavit in a lawn care products liability case.  How does one tell the difference?

To learn more about legal malpractice, watch Andrew Lavoott Bluestone's course "Legal Malpractice Litigation"

In these trying economic times, the last thing struggling couples need to worry about is the high cost of divorce. Fortunately, the emerging field of collaborative law enables couples to settle without engaging in costly litigation and also provides for additional legal counseling and other financial and mental health services for families of divorce. To learn more about the professional and personal benefits of practicing collaborative law, watch Lawline.com’s recent program “Why Would an Attorney Want to Practice Collaborative Law,” in which members of the New York Association of Collaborative Professionals provide answers to frequently asked questions about this growing field. After viewing this course and learning about the high level of job satisfaction of collaborative law practitioners, many will be interested in receiving training in this emerging area of law and adding it to their law firms’ practice areas. Also,
to learn more about specific families who have participated in the collaborative divorce process, read the following recent articles from DemocratandChronicle.com and WSJ.com, respectively: Collaborative divorce can help ease  transition and Breaking Up Without Breaking The Bank.

A short clip from the program can be viewed below:

Big pharmaceutical gets a big win as federal judge Lawrence Stengel refuses to certify a class action lawsuit against GlaxoSmithKline. Stengel threw out the case on the ground that the plaintiff did not sufficiently prove that each class member was affected by GSK’s actions. Plaintiffs brought suit alleging that GSK set out to delay the arrival date of a generic version of Wellbutrin SR by bringing baseless patent litigation. Stengel, however, did not see that all of those involved in the class action were actually harmed by the actions of GSK. Instead, Stengel chose to side with GSK’s expert witness, John Bigelow of the Princeton Economics Group, and held that there was no clear evidence that indirect purchasers had sustained substantial injury or out-of-pocket losses. The decision handed down will likely be used by other big pharmaceutical firms because the details Stengel highlights point to general problems resulting from consumer class actions like these.  The theory behind this kind of case is that consumers are hurt when generic drugs are not available, but Stengel challenges that this suffering may be more attenuated, and more research must be conducted to show specific harm.

For more on patent law watch our top rated course by Amy Goldsmith, "Overview on Patent and Trade Secrets"

For the full article, click here

Lawline has been a public access television show spreading legal knowledge to the community of New York for 27 years. Recently Alan Schnurman, host and creator of Lawline, sat down with his son David Schnurman, President of Lawline.com, to discuss his passion for spreading information.
Alan Schnurman started Lawline 27 years ago as a means of spreading legal information to the community. He wanted to include the public in a community of education that once included only an elite group of attorneys. By bringing to the show prominent and experienced attorneys Alan hoped that he could provide valuable legal information to those who might not be able to afford premium legal advice. "It was a labor of love," Alan says. He gets a tremendous amount of satisfaction from helping people and wakes up happy every day because he has found what he loves to do, and he's doing it.
But what makes Alan so optimistic and happy when so many see these bleak times as a doomsday scenario come to life? It seems to be the pessimist's heyday, but Alan remains unflinching in his optimism. Every cycle comes back around, Alan says, and this recession may be longer than we've seen in a generation or two but this is the time where people position themselves for great success later on.
Alan sees attitude as the foundation of success in investment. He believes that when you have a good attitude you guarantee success. Alan has always invested in real estate because he has never been interested in a quick dollar. If you want quick money, look to the stock market, he says. But, if you have patience and want steady growth and security later on, invest in real estate. The three golden rules of real estate investing are location, not over leveraging yourself, and being patient. By adhering to these rules you guarantee success in any market, Alan says. Those who are buying now and staying in line with these rules set themselves up for success later on when the market starts to grow again.
In advertising and marketing, Alan again comes back to attitude. He says that too many attorneys don’t stick with advertising in one way for long enough to see benefits. All too often frustration sets in because of meager immediate returns. But if you keep switching to different media, from newspaper to internet, to television, back to newspaper, you will not have success. Instead, focus on one avenue and be patient, Alan says, your customers need to be educated and the returns may not be instant. Alan mentions that he once had thousands of refrigerator magnets made. He was discouraged because the immediate return wasn’t what he was hoping for. But, the return has been steady and now, 15 years later, he still gets calls from people who got his number from the magnet.
Thus, success in all things comes from having the right attitude, being patient and not getting discouraged. If you want to be successful be patient and stay optimistic. If you’re down on your luck, someone always has it worse so push through with enthusiasm and a problem solving mindset and you will succeed.

See the full interview, click here

Watch Alan Schnurman's top rated courses,

- "Secrets to Selecting a Personal Injury Case"

- "Negotiation: A Tool to Acheiving a Successful Outcome in Personal Injury"

This interesting article from CNN explains the legal implications of the Tyler Clementi tragedy. Because the internet is such a new and quickly evolving phenomenon, laws have not had time to keep up with its developments. In a former case that also ended with a suicide, the perpetrator was not charged because there were no existing laws against cyber incivility.  The two students who transmitted Clementi’s sexual encounter on the internet are being charged with invasion of privacy (and might possibly be charged with bias as well). However, invasion of privacy crimes do not usually carry significant penalties (5 years in jail at most), and some say that this needs to change.

State laws against invasion of privacy treat it like a “nuisance”, similar to graffiti, but as the Clementi case shows, the consequences of cyber bullying can be severe, and so should the penalties.  Legislation has been proposed in congress that would strengthen stalking laws, including via technologies like webcams. Washington privacy lawyer Christopher Wolf, however, says that the revisions in the law will not come easy.

for the full article, click here

to learn how to use social networking sites responsibly, watch this course by Stuart I. Teicher called Ethical Pitfalls in Social Networking

How Private is Facebook?

October 5th

Facebook and privacy issues go hand in hand these days, and the issues have been left largely unaddressed so far under the law. Although Facebook has only been around for a few years its impact has been undeniable. And yet there have been few moves to address how Facebook and other social media sites should be treated under the law. The Stored Communications Act, just about the only law that has been created to determine the legal status of sites like Facebook, was passed in 1986. Needless to say, technology has changed a good deal in the past quarter of a century. Without strict legal guidelines laid down by congress, judges have relied on interpretations of this 1986 law to determine what to do about issues arising from the legal status of information originating from social media sites. In recent cases judges have had trouble applying the spirit of what the law says with regards to such complicated and multi-functional sites as Facebook and Media Temple. Therefore, the question still looking for an answer is, what is privacy in the era of social media and information liberation?

For more on the social media and its legal status, watch our course by Tim Baran and Ronald Coleman "Social Media and the Law: What Attorneys Should Know"

For the full article, click here
 

Last Thursday, Gov. Arnold Schwarzenegger signed a bill to decriminalize marijuana in the state of California. The law reduces the possession of pot from a “misdemeanor” to an “infraction”. The offense is now punishable by no more than a $100 fine. Gov. Schwarzenegger claimed that his support for the bill is motivated by fiscal concerns: now, the state will expend need to expend fewer resources in prosecuting offenders because they would not need to be arrested or appear in court.
The various groups involved with the Marijuana issue are divided about this new law. Some groups praise it as a step in the right direction; others say that it is still enough and they won’t “rest” until marijuana is completely legalized. Other groups still, like most of California's major police associations, oppose the measure, claiming that less severe consequences for possession will discourage people from giving up the habit.
 

For more on the story click here

For more on substance abuse and legal ethics, click here

With experts recently citing the official conclusion of the Great Recession as June 2009, companies are slowly beginning to stabilize after an 18-month downturn that left 55 percent of Americans recovering from a mix of hardships.

Even after the gloom and doom has officially ended, law firms are still recovering from that difficult period. Now the question is how should companies spend their resources as they get back on their feet?  Should they invest in advertising, blogging, attending trade shows etc.? Or should they review current marketing plans and update them as necessary?

To be candid, all of these lead-generation methods have their advantages, but, there are other actions attorneys can take, in their legal practices, that are more likely to produce more bang for your buck when things are slow.
Here are some areas to review in your legal practice:

1. How frequently do you reach out to your professional networks? How well do you maintain your extended networks?
2. Harvard Business School research found that a 5-percent increase in customer loyalty can lead to 40 percent to 90 percent increases in the lifetime value of that customer relationship. You need to earn your customers’ loyalty. What are you doing to improve your client systems?
3. Are you perceived as the expert in your niche? If not, what concrete actions steps are you taking? Do you know where to begin to start building your expert status?
4. Review your strategic plans. Slow times are a great time to review your plans and see if you are still on track.
5. Are you taking opportunities of collaborating with strategic partners and authoring articles for local papers and trade journals. If so, how are you leveraging them?
6. Are the systems in your legal practice operating efficiently like a well-oiled machine? If not, what area needs improvement? Your marketing? Public relations? Managing clients? Are you still searching for a system that works for you?
7. Is the press calling to quote you? When was the last time a reporter called you?
8. Do prospects get to see and hear you up close and personal? How often and where are you speaking?
9. Reviewing all these different areas of your law practice and discovering where weaknesses lie are far more likely to be  productive and dollar cost effective instead of trying new marketing strategies and hoping they will work.

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 of experience 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, please call 212-661-9137 or visit SCG Legal PR Network’s Web site at http://www.scglegalprnetwork.com.
 

Lawline.com is hosting a Bridge the Gap series for newly admitted attorneys. The program will feature a highly interactive learning environment and feature some of Lawline.com's top faculty members.

The 4-part series, held Nov. 3, Nov. 9, Nov. 30, and Dec. 7 features all 16 credits to complete the full Bridge-the-Gap requirements, including 3 hours of ethics, 6 hours of skills, and 7 hours of law practice management.

The days are broken into four separate but connected topics, including Getting a job and Starting Your Own Firm (day 1), Now that You Have a Job, How to Excel at it (day 2), A Day in the Life (day 3), and Ethics: We've all got to do it (day 4).

To learn more and to see a full listing of the event and faculty members, go to www.lawline.com/bridge-the-gap