There are a couple of conversations taking place on different listservs that are all discussing the same issue: common marketing mistakes in the legal industry. Of course, there is nothing new here, but it is surprising the disconnect that exists between knowing what one should be doing in one's legal practice and actually doing it.
Here are a few of the most common marketing mistakes I've come across when talking to attorneys: 

• Failing to plan. You don’t have to draw out a huge, elaborate plan, but outlining what you need to accomplish and the steps to getting there are basic elements of good legal marketing.
• Failure to execute the plan. Even when attorneys prepare marketing plans, they sometimes fall off the map when trying to execute the objectives. Who is responsible for implementing? What sort of benchmarks are in place to monitor progress? Who’s in charge of measuring progress?
• Failure to get professional help for the firm. Whether it be in a consultant for marketing, public relations or sales training, or an organizer to get those files and systems in order.
• Not enough face time with clients. Client testimonials are your most effective form of marketing, so the more positive face time you have with clients, the better reputation you will build.
• Focusing in the business rather than on the business. It’s easy to get caught up in the day-to-day business, but stay invested in the grand scheme of the business and if it’s progressing.
• Failing to understand that lawyers are in the business of people, NOT law. The legal industry is a business that survives on quality customer service, so do not forget the importance of client relationships and satisfaction.

Action Item: Do any of these mistakes sound familiar? If so, what action steps will you take? What is your deadline for taking the step? What will you do after taking that step?

Finally, remember that Rome was not created in a day, but after a culmination of lots of planning, organizing and implementation. So don't get overwhelmed. Start with something small and build on that gradually.

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.

On March 29, 2010, in Association for Molecular Pathology, et al v. United States Patent and Trademark Office, et al,  the Southern District Court of New York held that isolated human gene sequences and the comparison of their sequences were not patentable subject matter under Section 101 of the United States Patent Act.  In granting the plaintiffs’ motion for summary judgment, the court ruled that the patents for BRCA1 and BRCA2 breast cancer genes were invalid because the genes were “products of nature.” The court further explained that isolating a naturally occurring DNA sequence does not transform the DNA into patentable subject matter because the isolated DNA is not “markedly different” from the native DNA.  In issuing this significant decision, Judge Sweet ignored the rationale that has allowed the U.S. Patent and Trademark Office to issue hundreds of commercially significant patents claiming genes.  If this decision is upheld, a large number of commercial patents would be at risk of being held invalid.  Moreover, it would be challenging for biotechnology companies to secure future patents for gene sequences for diagnostic or treatment purposes as the companies would have to be able to show that the isolated gene sequences were markedly different from the native forms.  

For an in depth examination of this important case, watch Lawline.com’s newest course, "Yours, Mine and Ours: An Update on Genetic Patents."  In this program, patent law expert Amy Goldsmith reviews the most important aspects of Association for Molecular Pathology, from the plaintiffs’ and defendants’ arguments to the reasoning behind the district court's decision. Ms. Goldsmith surmises on how the federal appeals court will rule, particularly in light of the Supreme Court’s recent patent decision, In Re Bilski.  Until the Second Circuit and eventually the Supreme Court rule on this matter, the fate of the BRCA breast cancer genes and many other like patents is uncertain.  The Legal Beat will follow the progress of this case, and provide any developments as they become available.

Two days ago, Amnesty International requested that the online website WikiLeaks censor secret files on the Afghanistan war to protect civilians who have worked alongside the U.S. and foreign forces from reprisals. Recently, WikiLeaks published more than 80,000 classified diplomatic documents pertaining to the Afghan war, many of which included names of Afghan informants.  Similar to Amnesty’s request, the United States Government has publicly demanded that WikiLeaks refrain from publishing any more classified military documents, and that they remove the secret files that have already been posted.  While the requests may be morally valid, there may not be any legal grounds for removing and/or censoring the materials, as forcing WikiLeaks to refrain from publishing and/or censoring the documents may constitute a prior restraint of its First Amendment right to free speech. 

For a comprehensive overview of prior restraints on freedom of speech, watch Lawline.com’s new course, “Prior Restraints: Why Courts Disfavor Limitations on Free Speech.” In this program, George Freeman, Vice President and Assistant General Counsel of the New York Times Company, discusses the courts’ aversion to censorship in the name of national security and reveals how such censorship of the media is only legal if it passes the “immediate and irreparable harm to the nation” test.  As part of his discussion, Freeman provides behind the scenes information on the New York Times employees and attorneys who were involved in publishing the Pentagon Papers, a series of documents which contained classified information about the Vietnam War.  Freeman explains how that case, the New York Times v. U.S.,  represents the last time the media was enjoined from publishing a story on the grounds that doing so would jeopardize national security.  Does the human rights group's request for censorship of the Afghan documents satisfy the “immediate and irreparable harm to the nation” test, or is it a prior restraint on WikiLeaks’ First Amendment free speech rights?  Please share your comments on this matter with us.

Lawline.com has launched a new introduction for all courses and video clips! The featured course below is George Freeman's new CLE Prior Restraints: Why Courts Disfavor Limitations on Speech.

Take a look!

In this clip, experienced mediator Simeon Baum discusses the role of the mediator as a facilitator. A mediator is not simply a rented judge, but rather a part of the dispute resolution process. An open and engaging mediator will help identify each party's interests, solve problems, and enhance communication. Attorneys can take advantage of the mediation process to achieve a successful outcome for their clients.

To learn more about becoming an effective mediator and representing clients in mediation, watch Simeon Baum's new course, Effective Representation in Mediation.

Duckenfield provides us with insights about the SBA 8(a) Business Development program, a program which aids small businesses to get their feet through the door into the Federal Contract space.  Duckenfield explains that the program's purpose is to promote development of small businesses that are owned and controlled by socially and disadvantaged individuals.  He goes on to provide us with the criteria that is necessary for a business to qualify to participate in this program.

Fahringer sheds on light on the issues that arise from trials dealing with multiple defendants. He points out that these situations could be dangerous because of the temptation to "lump" all the defendants together as a guilty party. So how can we avoid falling into this trap? Fahringer explains that by assigning each defendant a cardboard box and filing each box with evidence that is only relevant to that defendant will provide us with a true sense of who the evidence really stacks up against.

We've all experienced it at one time or another; particularly when you are debating whether to incorporate public relations into your firm's business-development efforts.

How many times have you read an article about a topic that fits in with your area of interest and legal expertise and felt disheartened and disappointed that you were not the person who was quoted in the piece?

Does this sound familiar?

But how could you be quoted if the reporter doesn't know who you are and what you do?

Well, the good news is that even though your firm may not incorporate a public relations plan, there is still a way to get your message and your name published in that publication. Follow the below steps to get your side of the story featured in the Op Ed section of publications.

Write a letter to the editor of the publication referencing the article and the date it was published. In the body of the letter, you have several options to choose from:

A. Present a different viewpoint from the original writer’s stance.

B. Agree with the original writer's viewpoint and expand on the issue. Just remember to keep this at a maximum of a few paragraphs.

C. Showcase your expertise by introducing a little-known fact or issue related to the subject of interest to the public. Bring something fresh to the conversation.

It is important to note that letters to the editor are published in the editorial section – a respected section of the newspaper. Simply put, by being included in the Op Ed pages, your letter will be accorded a great measure of credibility.

Finally, don't forget it is critical to write these letters concisely and succinctly. You have only a couple of short paragraphs to convey your opinions and thoughts.
 

In a recent LeClairRyan webinar about successful mediating, attorney Robyn Gnudi Kalocsay pointed out that failing to get the agreed-upon terms in writing can be a critical mistake at the end of the negotiation process.  She said, “You can leave the mediation thinking that you have an agreement, and spend the next three months trying to get the agreement re-agreed to by both sides.”

Here are three suggestions for avoiding this problem.

1.  Confirm all oral commitments in writing as soon as they have been made, perhaps by email or fax.

2.  Get a ready-to-be-signed written agreement over to your counterpart ASAP and include a reasonable deadline for his or her signature and some incentive for them to sign it by the deadline.

3.  Don’t adversely affect your leverage, such as setting aside a trial or arbitration date, until you have a signed, sealed and delivered deal.

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

Lawline.com congratulates Elena Kagan who was just confirmed by the Senate in a 63-37 vote as the 112th justice to the United States Supreme Court.  Ms. Kagan will be the fourth woman ever to sit on the United States Supreme Court, and joins Justices Sonia Sotomayer and Ruth Bader Ginsburg to form the first ever bloc of three women to serve on the Court at the same time.  Though Kagan, who is currently the U.S. Solicitor General, has never served as a judge, her diverse professional background includes clerking for a Supreme Court justice, being the Dean of Harvard Law School, and working for the Clinton administration.

Once on the Supreme Court, Kagan will likely have the opportunity to weigh in on the current prominent cases in California where a judge recently struck down the state’s ban on same sex marriage and in Arizona where a judge blocked several main components of the strict immigration law.

To learn more about Supreme Court justices, watch Lawline.com faculty member Herald Price Fahringer’s popular course, Arguing in Front of the United States Supreme Court.  Fahringer, who has argued in front of the Supreme Court 14 times, shares his insights into the inner workings of the Court and also gives helpful tips on how to adequately prepare your Supreme Court arguments.

On Wednesday, U.S. District Judge Susan Bolton blocked several main components of Arizona’s strict immigration law bill only hours before it was set to takeoff.   This obstruction was viewed as a victory to the Obama administration as it attempts to maintain jurisdiction on this matter.

Arizona state officials are prepared to fight and while recognizing that this will be a long legal battle, they are not showing any signs of slowing down.   Governor Jan Brewer has already stated that an appeal will be filed to have the provisions reinstated.

The law was passed by the state-legislature three months ago and created tougher immigration regulations that were expected to drive out nearly half a million illegal immigrants from Arizona.  Some of the provisions that were blocked include: the requirement for immigrants to carry their papers on them at all times and the requirement of police officers to determine the status of immigrants if they had justified reasoning to believe they are illegal.

The rulings by Judge Bolton have been considered a great triumph for Obama and his goals towards creating a comprehensive policy that compromises with the Republicans’ contrasting agenda.   The administration is aiming to not condone illegal immigration, but to provide a way for the illegal immigrants to attain legal status and contribute positively towards society.

However, Arizona’s plans to move forward with an expedite appeal are keeping Obama’s golden goal still out of reach.  It would not be unexpected for the case to reach the U.S. Supreme Court, but in that case this battle will not just be a very long one, but a very costly one at that.

So, what is your take on the matter?  Is Arizona's tenacity going to result in tougher Immigration laws? Or is this White House victory just the first of many, providing hope that someday illegals will be accepted and legal members of society?

Check out Lawline's newest Immigration Law courses to keep informed on the latest in Immigration Law.

Financial Downturn and Fraud Coupled with Legal Malpractice

The question of whether legal malpractice litigation is tied to [and affected by] downturns in the financial and economic worlds is often asked.  Our answer is that legal malpractice litigation is apt to come up in every situation where attorneys are present.

The Drier episode, punctuated by fraud, crimes and large money numbers is a prime example.  In this NYLJ article by Nate Raymond we see that opinion letters assuring some aspect of a transaction, issued by attorneys, are now the subject of a legal malpractice case.  From the article:

"Fortress Investment Group LLC filed suit against Ruskin Moscou Faltischek on Tuesday for allegedly issuing "utterly false" legal opinion letters used by ex-lawyer Marc S. Dreier, who is now in prison for his role in a massive Ponzi scheme.

In a complaint filed in Manhattan Supreme Court, Fortress claims the Uniondale-based law firm issued three letters that Mr. Dreier used to defraud the investment firm out of $50 million. The suit against Ruskin Moscou follows one filed by Fortress in December against Dechert that made similar allegations.

Legal Malpractice Claims Reinstated Against Boies Schiller

Yesterday, the Appellate Division, First Department, reversed Supreme Court and reinstated the negligence causes of action on behalf of Mary Anne Fletcher against Boies Schiller in Fletcher v Boies, Schiller & Flexner, LLP; 2010 NY Slip Op 06140 ;Decided on July 20, 2010 .

From the Decision:  "Plaintiff, a fashion model, pleaded that a prominent agency mismanaged her and lost or withheld her crucial portfolio; that she had evidence of a scheme involving bogus expenses charged by that agency against other models; that images of her were profitably used by a large retail chain, wrongfully and without her authorization, via a subsidiary; and that a second agency had interfered with bookings that would have earned her $275,000, and instead booked another model for those jobs.

Plaintiff further pleaded that, when she consulted the Boies Schiller law firm and met with defendant Hayes, she was persuaded to turn over a large body of self-gathered evidence and told that her claims were worth large, specified amounts, and that the firm, and defendant Hayes concealed a conflict of interest between her and existing classes in state and federal actions; excluded her from the federal class action; subordinated her interests to those of other class members; participated lackadaisically in settlement discussions; and failed to timely file a claim in a crucial bankruptcy proceeding while successfully prosecuting the claim of the federal class.

Sometimes It Just Wasn't the Attorney in Legal Malpractice

One theme that we have considered over the years is whether attorneys get preferential treatment in legal malpractice litigation.  Are motions to dismiss granted on too little evidence?  Do the attorneys get the benefit of the doubt?  Is the fact that legal malpractice law is written mostly by attorneys, is decided upon by attorneys and affects attorneys sometimes dispositive of the outcome?

Well, all that aside, sometimes the client just can't help themselves.  Here is an example from today's NYLJ:  Uzamere v. Uzamere;  KINGS COUNTY;  Justice Schack;

"Pro se plaintiff CHERYL D. UZAMERE (UZAMERE) moves by order to show cause for: summary judgment, pursuant to CPLR Rule 3212; and, upon the failure of all defendants to answer, pursuant to CPLR §3215, for a default judgment of $100,000,000.00 plus interest against defendants SENATOR EHIGIE EDOBOR UZAMERE a/k/a "GODWIN E. UZAMERE" (SENATOR UZAMERE), ALLEN E. KAYE, P.C., ALLEN E. KAYE, ESQ., HARVEY SHAPIRO, ESQ. (SHAPIRO), BERNARD J. ROSTANSKI (ROSTANSKI), and JACK GLADSTEIN, ESQ. (GLADSTEIN), in an action arising from defendants' alleged misdeeds and misconduct related to plaintiff UZAMERE's 1979 marriage and subsequent abandonment by SENATOR UZAMERE. Defendants ALLEN E. KAYE, P.C. and ALLEN E. KAYE, ESQ. will be collectively referred to as "KAYE."

9/11 and Judicary Law 487 in Legal Malpractice

9/11 is almost 10 years behind us.  Its direct effects may have passed, but the indirect effects still resonate.  Here is a fraud, foreclosure scam and legal malpractice case which arises out of the post 9/11 world.

Cullen v. Steinberg, 2010 U.S. Dist. LEXIS 62138 is a case in which plaintiff was the surviving widow of a murdered victim of 9/11.  She invested her compensation in real estate, and then fell prey to a variant of a scheme.  "In 2004, plaintiff received $ 1.9 million in compensation for her husband's murder in the 9/11 attacks on the World Trade Center. She invested some of the money in [*4] real estate, buying residential property at 653 Jacey Drive in Fort Lee, New Jersey in 2004, and at 1400 Outlook Avenue in the Bronx in 2006."
 
"At a party in December 2006, plaintiff met Maximo (Max) Almonte, who had gone to grammar school with her. Almonte initially told plaintiff he was a stock broker; plaintiff learned in May 2007 that he was actually a felon who had been convicted of real estate fraud. Almonte moved in with plaintiff at 653 Jacey Drive two days after meeting her at the party.

 

In sophisticated negotiations, the parties will typically find the standards that favor their side and use their most favorable standards to independently justify the “fairness” of their positions.  The parties will then negotiate over which standard represents the most fair and applicable justification.

Such is the case in the current NBA collective bargaining negotiation.  Billy Hunter, the NBA players’ union director, commenting on the owners' claim to have lost $370 million last year said, "There might not be any losses at all. It depends on what accounting procedure is used."  He then said, "If you decide you don't count interest and depreciation, you already lop off 250 of the 370 million dollars." The union’s preferred standard here is “real losses,” which don’t include interest and depreciation.

In response, NBA deputy commissioner Adam Silver said, "Part of the problem with the existing system is it's based largely on revenue, not net revenue.  Although our actual revenue numbers were better than what we projected, it came at a large cost." The NBA’s preferred standard here is net revenue.

Hunter further stated the players have little confidence in the owners’ projections and will offer their own interpretations of the league's finances at the next bargaining meeting.

What lesson can we learn from this? Research the applicable standards before your negotiation.  Then come prepared to use the most favorable ones and discredit the most unfavorable ones.  Finally, negotiate over the most appropriate objective criteria.

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.
 

Joe Ahmad discusses several contract/common law theories that employers typically face.  He provides us with insight from the employers' perspectives by probing questions such as, "What are their interests?" and "Why are they bringing a claim?”.   Furthermore, he explains several of the issues concerning competition contracts and concludes by referencing certain struggles of selective enforcement.

This excerpt is from "What the Texas Attorney Needs to Know About Unfair Competition and Non-Compete Claims".   To preview this course, follow this link.

Ken Hagreen describes that although stress can be beneficial for many lawyers, in some cases it can become a gateway to other illnesses.  He provides us with several daunting statistics about potential impairments that can affect lawyers.  He wraps up by stressing that understanding these illnesses and reaching out to lawyers in distress is imperative.

The Federal Trade Commission filed a 75 page brief this past Wednesday in an appeal from the United States District Court for the District of Columbia, arguing that lawyers should be held to the "red flag" standards that have pushed creditors to increase their role in the prevention of identity theft.

The appeal stems from the American Bar Association's suit against the FTC for its regulations of the legal profession and loose interpretation of the term "creditor" In August 2009.  U.S. District Judge Reggie Walton of the District of Columbia ruled in favor of the American Bar Association.

The FTC states in the brief that the definition of "Creditor" in the Fair and Accurate Credit Transactions (FACT) Act of 2003 and the Equal Credit Opportunity Act indeed encompasses lawyers. The brief states, "The entities to be covered under the identity theft provisions are to be covered based either on their status as a “financial institution” or on activities that make them a “creditor.”

Since lawyers often take cases without being paid in advance, the FTC, in this definition, argues that they should be considered to be creditors.

Recently, Lawline.com's Yan Ross produced two CLE programs on this issue. The identity theft expert examines the newly implemented anti-identity theft legislation and the ethical implications of complying with the FTC’s Red Flags Rules.

In his first program, FTC's Red Flags Rules Series: Ethical Implications for Attorneys and Their Clients, Mr. Ross engages the viewer in a discussion of the tangible and intangible costs and benefits of observing the new regulations and the reasons why attorneys have been exempted from compliance in his program .

Ross also examines the FTC’s role in policing identity theft and discusses the principal provisions of the Red Flags Rules in a second program entitled, FTC's Red Flags Rules Series: Are You Ready for Enforcement? Talking points include the history and development of the new legislation and the practical implications of compliance with the rules, and penalties for non-compliance.

Kimberly Russel discusses the basics of the Permanent Parenting Plan and the importance of each component. She then goes on to inform parents about the Shared Income Approach and highlights four things that parents should understand in order to reach a mutual agreement.

Stacy Lynch discusses the underlying rights of authors for their bodies of work, specifically citing the rights retained when their writing is being projected on the big screen or the big stage. In addition, she notes key facts an attorney must know when ownership is being transferred.

This clip is from, "An Introduction to Contractual Issues in the Film and Television Industries".  To preview this upcoming Lawline.com course, follow this link.

In today’s 24/7 news environment, coupled with the increasing influence of blogs on media, attorneys are expected to provide counsel to clients when facing or anticipating a media firestorm. Though attorneys and journalists have often been at loggerheads, attorneys must have a basic skill set to work effectively with the media and be cognizant of their role in crisis communication plans. At their very basic form, these plans show the flow of information to constituents both internally and externally: media, clients, staff and other key groups involved.

Large-scale crises from recent years, such as the shootings at Virginia Tech, Katrina, and the fires in Southern California, demonstrate how well-prepared the organizations involved were. No organization, business, government or high-profile individual is exempt from a crisis played out in the public arena. The Institute for Crisis Management’s 2009 annual report lists the industries that are most prone to crisis, with banking, security brokers, and the aircraft industry topping the list.


A crisis is essentially any situation that threatens the integrity or reputation of an organization. Crisis can range from a class action lawsuit, a high-profile client involved in some criminal activity or a product recall to a manmade disaster.

They can be short or long-term. This could be an issue that internal staff are aware of but have not yet broken out in the public arena. What is certain, though, is that the lines of communication must be open during a crisis. Keeping the lines of communication open involve several strategies including legal and media strategies.

Having a one-sided strategy, such as winning in a court of law, will be minimized if the firm or the client’s reputation has been destroyed in the public opinion court.

To put it another way, if marketing and public relations builds brands and reputations, then crisis communication is all about prevention and/or minimizing the loss of reputation in the court of public opinion.

In the final outcome, an ounce of prevention is far better than reaction devaluing credibility, so therefore being prepared is critical. With that in mind, you need to have a couple of things in place: a crisis communication plan and crisis communication team. Crisis communication plans are templates; they provide an organization with the framework of who will be responsible for what when and if a crisis should occur. Without crisis communication plans—whether you are a solo attorney, a law firm representing a high-profile client, or a law firm representing a large corporation—you will be viewed as inept.

It’s also important to note that these templates must be fluid, because each crisis will be different. Adjustments to the crisis communication plans will be necessary, as these are living organisms.

Paramjit L. Mahli is with award winning SCG Legal PR Network. She is a former journalist who has worked with CNN Business News, Canadian Broadcast Corporation and Journal of Commerce. Comprised of small and large firms, SCG Legal PR Network connects legal experts with reporters nationally and internationally. Ms. Mahli is a contributor to Legal Broadcast Network and writes frequently for Technolawyer. She also trains and gives CLEs  regularly on media relations.

Alan Schnurman discusses the vital role the attorney plays in the area of land development. In many situations, it is the attorney that takes on the managerial role. Schnurman goes on to explain that in order to make the best deal for your client, you must identify what your client is really asking you to accomplish and determine whether or not it is feasible.

This is an exerpt from an upcoming Lawline.com course: An Attorney's Role in a Land Development Deal. For a free preview, follow this link.

As detailed in The New York Times, Honest Tea is a specialty juice and tea company with 2009 revenues of $47 million. Coca-Cola owns 40% of the company with an option to buy the remainder next year. One of Honest Tea’s products marketed for consumption by children features “no high-fructose corn syrup” on its label.  Coca-Cola asked Honest Tea to change or remove the label. Coke doesn’t want the ingredient disparaged because it uses it in other products.

Who has the leverage advantage? You might assume Coca-Cola because it is much larger and may soon own Honest Tea outright. However, size alone does not guarantee a leverage advantage. In fact, size is much less important than a) both sides’ need levels and b) both sides’ best alternatives (or Plan Bs to doing the deal with each other).

Here, Honest Tea’s need level is low because they legally retained control over its products’ contents in its agreement with Coke and could harm its customers’ trust if it removed or watered-down the label. At the same time, Honest Tea wants to protect its relationship with Coke which provides much wider distribution and may soon become its sole owner.  Maintaining the status quo (no agreement) is a much better alternative for Honest Tea than losing Coca-Cola’s distribution.   

From Coke’s perspective, despite its size advantage, its need level is higher because its products containing high-fructose corn syrup are much more important to the company’s bottom-line.  At the same time, it is facing decreasing demand for soft drinks and is seeking ways to increase its presence in the growing natural and health drink markets.  If a resolution can’t be reached, Coca-Cola could maintain the status quo or look for alternative health drink companies to invest in but neither may be as desirable to Coke as reaching an acceptable compromise with Honest Tea.

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

Ken Hagreen sheds light on the topic of gambling and how it can progress from a simple game of chance to a serious addiction for some lawyers.  Gambling is a means of dealing with stress, and is not particularly a bad means, just as long as you maintain control.  Hagreen explains the science behind losing that control and the necessary steps a lawyer should take to get back on track.

This clip is from "Lawyers at Risk: Gambling".  To view the course in its entirety, follow this link.

Truth Be Veiled, written by Joel Cohen and Carla T. Main is Coffeetown’s newest release.  This murder mystery tells the story of a high profile executive standing trial for the murder of his wife and his reliance on criminal lawyer, Justin Steele, a man battling with his conscience about how far he’s willing dig to uncover the truth.  The plot is centered on the characters and how each of them confronts and copes with the law. 

While this piece will keep any person on the edge of one’s seat, a person with a legally trained mind will find extra value in the story.  Truth Be Veiled goes beyond the thrilling nature of murder mystery to truly navigate the inner workings of the justice system and its ethical impact on all parties involved.

A woman falling to her death from a fifteenth-story window is what draws you in, however, the characters’ struggles to unveil or conceal the truth while remaining true to themselves is what keeps you turning the page.

To learn more about Truth Be Veiled: A Justin Steele Murder Case, follow this link.

Herald Price Fahringer explains how incorporating metaphors into closing statements can make your claims more persuasive and powerful. Citing some of the most influential figures in history, he goes on to give us a taste of how utilizing metaphors can make for one compelling argument.

This clip is from, "Sentencing: Making the Best of a Bad Situation".  To view this course in its entirety, follow this link.

As we pass the midpoint of 2010, do you feel that your practice is forging ahead or is in a state of regression? If you think that your practice needs a reboot it may behoove you to sign up for a FREE tele-seminar that will help you regenerate your productivity and your profits.  On July 27, 2010 at 5 pm EST, Paramjit L. Mahli and Allison C. Shields will be presenting “Lawyers: Is Analysis Paralysis Costing You Time and Money?”, a seminar dedicating to putting you back on the right track.

For information follow this link.

Public relations is the art of changing perceptions. One is managing, building and/or changing perception with groups or stakeholders whom the success of a business is highly dependent on. Stake holders or interest groups may include:

•    The press
•    Current clients
•    Prospects
•    Trade and industry groups—essentially anyone who can assist in the growth of business

All these relationships are managed, guided and steered effectively by good public relations practitioners. How many times have you heard the expression: “It’s all about perception.” Look what happened to New York City Mayor Rudy Giuliani after September 11. His reputation literally skyrocketed into the stratosphere.
Well, good public relations is all about perceptions. A note of caution: public relations is not only about putting seminars together, getting published, speaking or sending out an odd news release to the media. What good public relations does is change behavior. This, in turn, facilitates business growth. For example, your firm may want to:

•    Be seen in a more favorable light to an important target group. (This could be the firm’s ideal client target market)
•    Demonstrate how the firm’s services are different from its competition’s
•    Communicate effectively the firm’s participation in a particular community that is critical to the growth of the firm
•    Showcase attorneys in the firm who are experts—those at the top of their game in a specific area of law

If you’re still not clear, ask yourself when was the last time you or another attorney in your firm received a call from the press regarding input on a story they were working on? When were you last invited to speak by a trade or industry group? When was the last time your work was published? Remember the old axiom of “publish or perish.” It’s a critical component in building your firm’s reputation.
Finally, something that I come across all the time, particularly in the legal field, is don’t confuse public relations with advertising. One is based on building credibility, visibility and reputation through third-party endorsements. The other is essentially paying to be seen and heard.
Each tactic has its merits. One thing is for certain, regardless of whether these strategies are implemented by in-house staff and or external agencies; success is dependent on the right hand knowing what the left hand is doing. Otherwise, it will be yet another case of throwing things at the wall and hoping that one of them sticks!

Paramjit L. Mahli is with award winning SCG Legal PR Network. She is a former journalist who has worked with CNN Business News, Canadian Broadcast Corporation and Journal of Commerce. Comprised of small and large firms, SCG Legal PR Network connects legal experts with reporters nationally and internationally. Ms. Mahli is a contributor to Legal Broadcast Network and writes frequently for Technolawyer. She also trains and gives CLEs  regularly on media relations.
 

You arrive at your desk and the day starts like any other - dialing your voicemail while simultaneously typing an email.  But today, you notice that a new file has been added to your mountain of work.  “New Jersey?!?” you shout.  “We do business in New Jersey?”  You collect yourself and acknowledge that yes, of course your company does business in New Jersey; but it has never been sued there.  Thoughts of New Jersey stereotypes run through your mind: runaway jury verdicts, traffic jams, the Sopranos, and Joisey accents.  You think to yourself, “we’ve got a Situation.”

Stereotypes aside, you realize that you’re no longer on your home turf and need to get acquainted quickly with New Jersey’s “local customs” in order to get your arms around this complex matter.  Here are ten little known facts about New Jersey’s state and federal court systems.

A.    New Jersey State Courts

New Jersey's state court system consists of municipal courts, tax courts, the Superior Court (the trial court), the Appellate Division, and the Supreme Court of New Jersey.  There is a superior court in each of New Jersey’s twenty-one counties, which are grouped into fifteen vicinages for administrative purposes.  There are approximately 360 superior court trial judges, and each year parties file about seven million new cases in New Jersey's courts. 

1.    Trial Court Split:  The nature of your case and the type of relief sought will determine where your case will be heard.  New Jersey is one of only four states to retain a separate chancery court.  The vast majority of civil cases are heard in the Superior Court, Law Division.  However, actions in which the plaintiff’s primary right or the principal relief sought is equitable in nature (and not monetary) shall be brought in the Chancery Division.  Such equitable matters include receivership actions, foreclosures, and the immediate enforcement of restrictive covenants. Generally, equity actions are not triable by jury.  Both the Law and Chancery divisions have the power to afford full legal and equitable relief, but a blatant misfiling of a truly legal issue in the Chancery Division is strongly disfavored. 

2.    eDiscovery: Make Meet & Confer a Priority:  New Jersey became one of the first jurisdictions to adopt eDiscovery court rule amendments that address specifically the proliferation of electronic documents and their impact on lawsuits and the discovery process.  In complex cases with e-document-heavy discovery, a mandatory meeting among counsel and technical experts is critical to setting the tone for an orderly and manageable exchange of electronic information.  Although modeled after the federal rules, New Jersey’s court rules do not have an equivalent to the federal rules’ mandatory meet and confer rule, which requires all parties to promptly meet and confer regarding discovery needs.  New Jersey’s court rules do, however, allow for parties to apply to the court to schedule a case management conference to address eDiscovery and related complexities.  Specifically, the rules provide that counsel may ask the court to schedule a conference if it appears that such a conference will assist discovery or otherwise promote the orderly and expeditious progress of the case.  In complex cases with e-document-heavy discovery, a meeting among counsel is critical to setting the tone for a manageable exchange of eDiscovery; so make an early application to the court for such a conference.

3.    Daubert Standard: Not Quite (Yet):  New Jersey has not codified or expressly adopted the Daubert standard for the admissibility of expert testimony.  In New Jersey, parties must satisfy three basic requirements for the admission of expert testimony: the testimony is beyond the ken of the average juror, the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable, and the witness has sufficient expertise to offer the intended testimony.  In cases involving injuries caused by drugs or toxic substances, however, New Jersey courts have used a Daubert-like test, stating that expert testimony is admissible if it is based on sound, adequately-founded scientific method involving data and information reasonably relied on by experts in the field.  Be certain that your expert’s reasoning satisfies the applicable standard in order to avoid wasting money and effort compiling inadmissible evidence.

4.    Deposition Testimony Will Be Part of the Trial?  The court rules provide that a deposition of a witness may be used by any party for any purpose against any other party who was present at the deposition, if the court finds that the appearance of the witness cannot be obtained for reasons such as death, illness, imprisonment, or the witness is out of state.  In some cases it will be necessary to depose a non-party witness who does not reside in New Jersey and will be unavailable for trial.  Because that witness’ deposition testimony may be admissible at trial, that deposition should not be handled lightly.  In one case, the court admitted the telephone deposition of a non-party witness who lived in Hawaii where opposing counsel participated in the deposition and had an opportunity to cross-examine the witness.  Thus, be prepared to cross-examine and make proper objections during the deposition of a witness who later may be deemed “unavailable.”

5.    “Bending” the Rules:  The often forgotten court rule 1:1-2 lingers and could spell disaster to the unsuspecting lawyer.  Rule 1:1-2 provides that the court rules shall be construed to secure a just determination, simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay. Unless otherwise stated, “any rule may be relaxed or dispensed with by the court” in which the action is pending if adherence to it would result in an injustice.  Although used sparingly, this rule allows judges to dispense with the rules if the circumstances call for it.  There are numerous reported decisions where the court invoked the rule.  Just when your client thinks it obtained a favorable result, this rule could change the outcome.
  
B.    United States District Court for the District of New Jersey

New Jersey’s federal court system is comprised of a single judicial district with three divisions located in Newark, Camden, and Trenton.  The Clerk of the District Court will consider the defendant’s residence, the convenience of the parties, counsel and witnesses, and the origin of the cause of action when allocating cases amongst the court’s three divisions.  There are twenty-four district court judges and ten magistrate judges.  Last year, parties commenced nearly 6,700 actions in the District Court of New Jersey.

1.    Strict Adherence to Proper Form:  The local civil rules provide that the first paragraph of every initial pleading, motion, or other form must recite the address for every party named in the case, and that the first page of each filed paper bear counsel’s address.  This rule is designed to assist the Clerk when determining which division will hear the case.  In addition, litigants, as well as attorneys, must advise the court of any change in address within seven days.  These requirements may sound rudimentary, but a failure to adhere to these rules may result in sanctions.  Case law supports the court’s imposition of harsh penalties, including dismissal of a complaint, for violations of the local rules.  Do not let a simple technicality end your case before it even starts. 

2.    Need a Little More Time?  Pursuant to the local “breathing room” rule, a party, without notice to an adversary, may obtain an initial fourteen-day extension from the Clerk to answer a complaint.  If the application is made in writing, prior to the expiration of the time to answer, the Clerk will grant the extension.  The extra fourteen days can be used to formulate case strategy, prepare preliminary motions, or negotiate an early settlement.  Be sure your application for an extension is timely, and use the extra days to your advantage. 

3.    Magistrate Judges’ Importance:  Magistrate judges play a critical role in the district.  Magistrates are the case management “gatekeepers” responsible for adjudicating case management motions, determining non-dispositive pretrial motions, conducting hearings, making recommendations to the district judge on dispositive motions, and, in some cases, presiding over trials.  In the Newark vicinage, magistrates are assigned to particular district court judges.  In Trenton and Camden, magistrates assist district court judges on a rotating basis.  Due to the court’s high volume of complex litigation, the district recently increased its number of magistrates.  Knowing the customs and expectations of both district and magistrate judges (most of whom have their own personal practices) will enhance your chances of success during and prior to trial.    

4.    eDiscovery Gets Hyper-local:  New Jersey’s federal courts have been in the forefront of eDiscovery issues.  The local rules provide detailed instructions on how to address eDiscovery.  For example, local rule 26.1 imposes an obligation upon counsel prior to the initial conference to thoroughly understand a client’s information management system, how information is stored, and how it can be retrieved.  These local rules get ever more hyper-local with some judges asking parties to identity IT representatives and produce them for depositions before discovery commences.  This local rule and each individual judge’s practices should be considered for proper compliance. 

5.    Don’t Fall for the Calculatedly Evasive Verification:  All too often, parties hedge their responses to interrogatories by submitting a verification that qualifies the responses as being made “upon information and belief.”  Local rule 33.1 provides that if the person verifying the answers does not have personal knowledge of the information set forth in the answers, the witness must articulate which answers fall into that category and identify persons with personal knowledge from whom the information was obtained.  Don’t let a deficient verification slide without an objection.

New Jersey’s state and federal judiciary is among one of the most respected in the country, and with a strong familiarity of New Jersey’s legal terrain you can vastly improve your likelihood of success in litigation. 

Fernando M. Pinguelo, a trial lawyer, Member of Norris McLaughlin & Marcus, and Co-chair of its eDiscovery Group, founded the ABA Journal award-winning eDiscovery blog, e-Lessons Learned, where law, technology, and human error collide.  Andrew D. Linden, an associate of the firm, practices in its Litigation and Appellate Practice groups.  To learn more about New Jersey’s unique legal landscape, email info@NJLocalLaw.com or visit www.NJLocalLaw.com.     
 

This past Tuesday, The New York Enterprise Report proudly presented The Best Accountants and Attorneys for Growing Businesses.  This awards event celebrated the top business advisors in New York. 

Joel Greenwald and Joe Bambara, two featured Lawline.com faculty members, were recognized as outstanding attorneys in their respective fields. 

Greenwald was awarded Attorney of the Year (a tie with Charles Torres of Reitler Kailas & Rosenblatt) and best attorney in the area of Employment Law.  Currently, he is the managing partner at Greenwald Doherty LLP, a law firm dedicated to representing management in the many legal issues that arise from the employee/employer relationship.  As a jack of all trades, Greenwald has extensive experience not only as a trial lawyer, but as a counselor, a trainer, and a keynote speaker.  He is a highly-valued advisor and is delivering guidance to many management teams in a vast range of industries.

Greenwald recently filmed the CLE course “Top Ten Things Every Employer Should Know Before Firing an Employee” with Lawline.com. 

Click here to preview this course and to learn more about Joel Greenwald and his accomplishments.

Bambara was awarded top attorney in the area of Technology.  He is currently the VP of technology architecture at UCNY, Inc.  In addition, he has been counseling small to mid-size technology firms, has participated in many outsourcing contracts, taught computer courses for CCNY’s School of engineering and has authored several books pertaining to technological applications.  He has given many presentations on all aspect of law and mobile development, and has also presented several CLE courses for Lawline.com. His most recently filmed course is “Possible Thunderstorm: The Legal Ramification of Cloud Computing”. 

Click here to obtain an in-depth look into cloud computing and to learn more about Joe Bambara.
 

Lawline.com and Solo Practice University have established a partnership rooted in the belief that learning is a never-ending process.  Solo Practice is an online destination that provides students and attorneys with the resources they need to enhance their practice. And through this new partnership, they can also fulfill their CLE requirements by accessing hundreds of Lawline.com’s continuing legal education courses.  The overall aim of the collaboration is to create an online community where small firms and solo practitioners can interact and enhance their educational and professional experiences.  

Recently, Solo Practice University was featured in The Rinn Law Library Blog of DePaul University College of Law, and sharing the spotlight was its new partner, Lawline.com.

Follow this link to read the article

Marketing Lessons Learned continued...

3. Owning a law firm is really having three businesses: finding, minding and grinding the business. Where in your experience have you seen significant strides made?

TD: Our focus at Small Firm Business was really on the finding and minding stages. Finding relates to all of the points mentioned above. Regarding minding, I think the key issue there is the application of technology. Lawyers have to determine which applications might actually benefit their practices and improve client service. There are a tremendous number of tech “bells and whistles” being sold, but not all of them are of universal appeal. Also weighing on a firm’s tech decisions are pressures from both the clients and peer firms.

Clients will expect firms to have certain tech capabilities, particularly corporate clients. Firms also need to be mindful of what competing firms are doing on the tech front, lest they appear to be outmoded and somehow unable to serve clients as effectively.

4. Do you see any generational differences towards marketing? (For
example, younger crowds are a lot more open to marketing than those who are 60-plus and set in their ways.)

TD: There may be some older attorneys who still object to marketing as somehow being inappropriate for a lawyer, but I think most have come around and at the very least understand that things have changed. Though this doesn’t mean that they’re becoming bloggers, instead they’re pursuing more traditional marketing. I tend to see marketing as more of a personality issue rather than a generational one. We all know some people who appear to be “born marketers.” And that’s in no way pejorative. What I think it means is that there’s a certain comfort level and confidence that comes across when speaking to these people.

At the same time, some people are uncomfortable talking about themselves if it seems like it could be self-interested. So I think lawyers have to assess what their strengths are and what their comfort zones are. Partners in a small firm could play off of one another’s strengths to see that their firm gets the most exposure in a way that everyone supports and no one dreads.

A heartfelt thank you to Trevor Delaney for doing this interview. Currently he is the Personal Finance Editor at Black Enterprise.

Paramjit L. Mahli is with award winning SCG Legal PR Network. She is a former journalist who has worked with CNN Business News, Canadian Broadcast Corporation and Journal of Commerce. Comprised of small and large firms, SCG Legal PR Network connects legal experts with reporters nationally and internationally. Ms. Mahli is a contributor to Legal Broadcast Network and writes frequently for Technolawyer. She also trains and gives CLEs  regularly on media relations.

Recently, I had the opportunity to talk to Trevor Delaney, former editor of Small Firm, Inc., an ALM publication about law firm marketing, specifically what problems and issues firms have concerning marketing. Here is an excerpt from that Q&A:

1. What are some of the biggest issues facing small law firms?

TD: A key issue for many small firm lawyers is — and I imagine always will be — how they can most effectively market their firms. Not surprisingly, the struggle largely stems from time-management issues. Attorneys want to know how they can most effectively utilize their marketing time and dollars, because there is no magic formula whereby attorneys would be guaranteed results; it just makes the decision making that much harder.

Add to the mix, blogging, podcasting and other ways that the Internet can be used to develop new business, and it becomes abundantly clear that marketing can be a complex decision. Ultimately, it’s a matter of weighing the nature of the practice, the expense, and what marketing efforts the attorney can be enthusiastic about, e.g., sending out a firm newsletter is only effective if there’s someone committed to making it work, each and every time.

2. As far as resistance towards marketing and business development, what changes have you seen during the life of Small Firm Inc.?

TD: While working on Small Firm Business, my sense was the more lawyers were trying to figure out ways to make marketing a more planned aspect of their business plans. Initially as I began to talk with lawyers, many seemed to take an ad hoc approach to marketing, e.g., an attorney might give a speech or make a presentation if the opportunity crossed her desk.

Increasingly I’m hearing about lawyers taking a more proactive approach, and taking the time to fill in some of the obvious gaps in their approaches to marketing. For instance, I think over time you’ll see more small firms setting up Web pages. I’m still surprised by the number of firms that don’t, because the Net has become the starting point for so many of us in any kind of purchase we might consider making.

Check back tomorrow for more marketing tips from Trevor Delaney.

If you were to type “Google WiFi Snooping” into Google’s search bar, in 0.16 seconds you would receive 1,630,000 results regarding the investigation of Google and its questionable violation of privacy law.

So how did Google, a search engine so popular that its name has become a common verb, fall under such scrutiny?

In May, Google admitted that it had unintentionally recorded and saved Web traffic data from unsecured wireless hotspots.  The data was obtained through its street cars, used to take pictures for services like Google Maps.  This “accidentally” retrieved data likely includes fragments of browsers’ e-mail, web surfing, documents, and other private data.
All of the internet surfers’ data has been locked up on a hard drive in a Portland, Oregon federal courthouse.

Google has requested that all of the cases regarding these incidents be consolidated into one, and then having that single case heard by a court near its headquarters.  It is thought that the grant of this request would favor Google because the Judges of Northern California are “comfortable with technology matters and familiar with the company and the importance of its services,” states Eric Goldman, a professor of law at Santa Clara University’s School of Law.

So what’s your take on the matter? Did Google breach our civil liberties or is this just a small price we must pay to reap the benefits of its services?

Knewton is an online LSAT prep course provider that is anything but traditional.  Its test experts have developed the industry’s first adaptive learning engine, allowing students to receive customized prep courses that meet their every need. 

How do they do it?  Knewton has assigned tags to each piece of content learned in its courses.  These tags categorize every concept to an atomic level.  By doing this, Knewton can track a student’s interaction with each concept and assess which videos, lessons, and practice problems are most effective.

For example, if Knewton detects that a student learns certain concepts better by watching videos, then related concepts will also be taught through videos.

Knewton’s unique and innovative services have enticed the brightest, most experienced LSAT teachers to join its team.  And through live and on-demand video classrooms, their guidance can be provided to students, wherever and whenever they wish to seek it.

Former CEO of Kaplan, Greg Rorke commented that “Knewton has rendered every other test prep company totally obsolete.”  This comment, along with admiring testimonials are proving Knewton’s bold statement, “learning will never be the same” to be spot-on.

For more information on Knewton, visit www.knewton.com/lsat
 

Federally-mandated negotiations began recently to resolve an on-going labor dispute between Boeing and striking aircraft workers in Long Beach, California.  Federal mediators from the Federal Mediation and Conciliation Service convened the negotiations and previously provided negotiation training to both sides.

Why consider a mediator?  It is often beneficial, when an impasse has been reached, for the parties to first agree on a process they believe will lead to a better result.  Both lawyers and business people often resolve lawsuits and other disputes by bringing in an independent third party to either decide the issue (arbitration) or help them negotiate with each other in a more effective way (mediation).

Mediation is particularly effective in disputes involving high emotions and potential future relationships between the parties, both of which are present in the Boeing labor dispute.  Skilled mediators can help parties successfully engage in almost all aspects of the negotiation process.  Two factors should be evaluated before agreeing to use a mediator.  Do both parties agree using a mediator will:

1. Increase the likelihood of achieving a “fair and reasonable” result and
2. Ensure a better result than their respective best alternatives? 

If affirmative, mediation should be considered.

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 iPad's early success indicates that it is the next revolutionary step in both personal and business life. As a result, forward looking business are initiating compatible applications to meet the predicted demands of consumers. The following is a recent press release regarding title insurance agency Titlevest's new iPad technology in which attorneys can review documents electronically in their iPad in a near identical manner as a printed document. 

Titlevest's New Interactive Online Report™, in Tandem with Apple's IPAD, is a Watershed for the Legal Industry

New York, NY – June 2, 2010 – TitleVest’s newly-launched Interactive Online Report™, a web-based application which streamlines the title insurance review and closing process making it swifter, more comprehensive and thorough than the traditional method of reviewing reams of printed documents, is revolutionary in its own right.

But when TitleVest President and CEO Bill Baron had a hunch that the Online Interactive Report’s™ functionality might be enhanced by running it on the iPad introduced in early April, Baron’s concept instantly became a watershed for the legal industry.  Initially intended for use on a desktop or laptop prior to the introduction of the iPad, it turns out that the application is a perfect match for the size and scope of Apple’s hot new product.

“It’s as if they were made for each other,” said Mr. Baron.  “What makes the Interactive Online Report™ so ideal for the iPad is that it enables attorneys to review reports electronically in virtually the same manner as if they were working with a printed document—by holding it wirelessly and almost weightlessly in their hands, being able to share it as a ‘living’ tablet with colleagues, being able to slip it into a briefcase, and being able to magnify small print as well as to view documents from both a vertical and horizontal perspective.  Virtually every one of our attorney clients who has experienced our Interactive Online Report™ on an iPad has totally embraced the paired technologies.”

Interactive Online Report™ enables all parties involved in a real estate conveyance to view documentation 24/7.  If any party updates the information, changes are updated online and an email notification is sent so that everyone may view the revised report.   The portal offers users the ability to schedule closings and order transfer tax forms and/or IRS Form 1099, complimentary to all parties involved on the transaction.  And post closing, the site provides recording confirmation of all closing documents and archival copies of all title insurance policies.

The Interactive Online Report™ is particularly user friendly and intuitive and it’s Web-based, so it can run on any computer. TitleVest clients were just beginning to use the program prior to Apple’s release of the iPad.  It is equally powerful whether viewed on the iPad or on a computer, but the iPad offers a very distinct ‘comfort’ advantage.

“The product is hot off the press, we are just now encouraging our clients to use it,’ said Mr. Baron, “and based on the feedback, it’s evident that users will be hard-pressed to go back to the traditional method of reviewing paper reports once they’ve experienced the virtues of our interactive version.”

About TitleVest

Founded in 2000, TitleVest (www.titlevest.com) is a leading privately held New York City-based title insurance agency offering a full range of title insurance and related services throughout the United States, from large complex commercial transactions to residential purchase and mortgage refinances. TitleVest is a policy issuing agent for six of the nation’s largest and highest rated title insurance underwriters, namely First American Title Insurance Company of New York and Chicago Title Insurance Company, Fidelity National Title Insurance Company, Stewart Title Insurance Company, Old Republic National Title Insurance Company and Commonwealth Land Title Insurance Company.  TitleVest is also an industry leader in developing proprietary web-based solutions for its real estate professional.  Two of its most popular offerings are ACRISasap™, which streamlines the creation of  NYC/NYS transfer tax documents, (for which TitleVest has been issued a U.S. Patent and has another Patent Pending).

Solo Practice University (™), has been making many headlines the past few weeks. The online university is the leading web-based educational and professional networking community for solo lawyers and law students. Yesterday, the company and Lawline.com announced their new partnerships in which newly enrolled students can gain access to one-year of unlimited CLE with Lawline.com

The buzz continues to grow regarding Solo Practice University's(™) stand-out program. The following is an article published today from Law.com entitled "Spinning Solo":

"If there is anything on which lawyers agree, it is that law schools fall short in one critical regard. They teach the  process  of law, but not the  practice  of law. This is a particular handicap for the solo lawyer, who has to be not only lawyer, but also chief cook and bottle washer, all without a colleague or mentor to turn to for advice.

Enter Solo Practice University"... click here continue reading.

For more information regarding Solo Practice University (™), please visit www.solopracticeuniversity.com

Lawline.com and Solo Practice University(™) have launched a partnership to create a one-stop online educational and professional networking community for small firms and solo practitioners. Through the partnership, attorneys and students enrolled in Solo Practice University will be able to access hundreds of Lawline.com’s exclusive continuing legal education courses to further enhance their practice while fulfilling their state bar CLE requirements.

Solo Practice University(™)  was formed with the vision of supporting attorneys with the dream of opening a solo practice by replacing the apprentice experience. Susan Cartier Liebel, founder of Solo Practice University, says the company accomplishes this through a single online destination where lawyers and law students learn the basics of running a solo practice, take classes, and get expert feedback from professionals in specialized fields while networking with like-minded entrepreneurs. Lawline.com is the leading provider of online continuing legal education (CLE). The company’s core value is based on the notion that learning is a life-long journey. Through its online learning center attorneys can complete their CLE credits and simultaneously enhance their practice through a variety of video and audio based courses from experts across the profession.

“There is a common preconception that when law school is over, so is learning,” says Lawline.com president David Schnurman. “However, what makes this partnership so engaging is that Lawline.com and Solo Practice University are both founded upon the ideal that learning is a never-ending process."

Both companies are thrilled that the merger of Lawline.com and Solo Practice University's technological and educational resources will make the process of becoming a solo practitioner much more accessible to all attorneys who want to do it.

For additional information on this opportunity, contact Jeff Reekers at jeff@lawline.com or Susan Cartier Liebel at susan@solopracticeuniversity.com.

About Lawline.com

Founded in 1999, Lawline.com is the leading provider of Online Continuing Legal Education, currently offering hundreds of Online CLE Courses in 40 states. The company has also been recognized as one of the “40 Best Companies to Work for in New York State” by the New York State Society for Human Resource Management and as a “Best Customer Service” finalist by the New York Enterprise Report.  In addition to producing its own high quality programming, Lawline.com has partnered with bar associations, law schools, and CLE providers across the country to bring the best possible course catalog to its diverse customer base of attorneys. To learn more about Lawline.com’s goals and philosophy please visit www.lawline.com/information/about.html. 

About Solo Practice University 

Solo Practice University(™) was founded in March 2009 and currently boasts over 40 faculty mentors and 400 individual lessons. Through its focus on availability, breadth of knowledge, affordability, and convenience, Solo Practice University has become the leading educational and professional networking community for lawyers and law students, designed by lawyers for lawyers, and dedicated to helping professionals in the field build their own solo practice. To learn more about Solo Practice University, please visit www.solopracticeuniversity.com/about.

 

As summertime is nearing and the weather is warming, many of us want to maximize our time outside under the sun. There’s good news for those who share this thinking in Texas.

New Texas State Bar MCLE regulations are broadening the definition of participatory credits. This change will allow for downloaded MP3 audio courses to serve as participatory credits, meaning attorneys can meet all 15 CLE hours in this manner. The regulation will take effect June 1.

The following is the text from the Texas State Bar’s webpage:

Beginning June 1, 2010, the definition of “participatory” will no longer be the focus of, or a requirement for Accreditation of CLE activities. Instead the focus of “Accredited CLE” will be on content of a CLE activity, and not on delivery method. CLE sponsors will be able to receive accreditation for downloadable CLE activities, such as podcasts and other non-interactive audio/video programs and members of the State Bar will have a variety of new options for compliance with MCLE requirements.

So go for a run, attend your child’s soccer game, and enjoy the sun. Remember, you can now bring your CLE with you.

To learn more, visit www.texasbar.com

The New York Times recently reported that the headquarters for the airline resulting from the proposed merger of United and Continental will be in Chicago.  This decision comes close on the heals of Chicago’s successful wooing away of  both United’s corporate offices and operations center from a suburb near O’Hare Airport with the promise of over $40 million in incentives.

Chicago beat out Houston, long-time home to Continental.  While Houston’s mayor told reporters, “(t)he competition’s now just started,” it’s clear Houston arrived late to the table.

What negotiation lesson can we learn?  Get your deal done when your leverage is strong.  Here, Chicago appeared to close the deal before Houston had even entered the game.  Chicago’s successful negotiations to attract United’s corporate offices and operations center gave it the momentum and access it needed to move very quickly here.  While disappointed, Houston residents can take solace in the fact Houston will be the merged airline’s biggest hub.

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.
 

Major League Baseball commissioner Bud Selig recently threatened to invoke his “best interests” power to compel creditors of the Texas Rangers to accept an estimated $575 million bid for the team by a group which includes Hall of Fame pitcher Nolan Ryan.  Some creditors oppose the bid, claiming it is below fair market value.

A threat is simply a very aggressive way of telling the other side you can make its Plan B very bad.

Here, Selig’s threat to take over the team and potentially invalidate the creditors’ liens on the team is a very bad Plan B for the creditors (and presumably worse for them than accepting the $575 million bid).

Of course, the creditors can counter Selig’s move by taking steps to undermine Selig’s leverage, thereby improving theirs. What can they do? Challenge in court Selig’s ability to invoke his “best interests” power and/or force the team into bankruptcy, which would delay any sale and most likely result in a judicial auction that may lead to a bid greater than $575 million.

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.

Experts, Summary Judgment and Legal Malpractice

It is an anachronism in New York practice that there is no specific time in which to name an expert.  While the 3d and 4th departments have rules that derive from case law [and not specifically, the CPLR], the 1st and 2d Departments are much looser.  In general, a "reasonable time" period obtains.  There are some courts which will require that the expert be named 30 days or 15 days prior to trial,  there is no unanimity of what day that might be.  Is it the first day of jury selection?  is it the first day of testimony?

On a finer level of analysis is the relationship of naming an expert pursuant to CPLR 3101 and motions for summary judgment.  In the 2d Department, especially Kings County, a body of law has arisen which holds that one must name an expert and serve a CPLR 3101 notice prior to the note of issue.  Here is an excerpt from Sierra v. D'Apuzzo, 6321/08;Decided: April 21, 2010;Judge Robert J. Miller;KINGS COUNTY;Supreme Court.

"Before the Court considers whether the landlord caused or created the condition or had actual or constructive notice of the condition, the Court must first address the threshold issue of whether the plaintiff's expert's affidavit should be considered in opposition to the defendant's motion. The defendant in reply to the plaintiff's opposition asserts that the Court should reject the plaintiff's expert's report pursuant to Construction by Singletree, Inc. v. Lowe, 55 AD3d 861 [2d Dept 2008]. The Appellate Division, in Singletree rejected a plaintiff's expert affidavit in opposition to the defendant's motion for summary judgement because the plaintiff's expert was not identified until after the note of issue and certificate of readiness were filed and the plaintiff offered no valid excuse for failure to give notice of the expert.

An Everyday Application of Fiduciary Breach and Deceit

Here is a short decision with deep reaching consequences.  In Kurman v Schnapp ;2010 NY Slip Op 03786 ;Decided on May 4, 2010 ;Appellate Division, First Department we see the deceitful act of an attorney, and the Appellate Division substituting its finding for that of Supreme Court.  We have commented on the natural inclination of attorneys, applying rules of attorney behavior to other attorneys, to minimize and overlook.  How, one asks, could Supreme Court have come to such a different conclusion from the Appellate Division?
 
"Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City's Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Plaintiff further sufficiently alleged specific damages that could not have occurred in the absence of defendant's conduct (see id. at 15). The 2008 affidavit by the TLC's former licensing director offered by defendant in support of his motion fails to demonstrate conclusively that plaintiff has no cause of action (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]).

Famous Songwriter, the Pullman Financing and Legal Malpractice

Lamont Dozier, author of "Baby I need your Loving" [the Four Tops], "Baby Love", "Back in my Arms Again", "Come See about Me" [The Supremes] and many many others, got snagged in the Pullman financing scheme. the Pullman Bonds.  Before him, David Bowie was the recipient of the financing arrangement.

In LAMONT DOZIER, Plaintiff, - against - WILLKIE FARR & GALLAGHER LLP, DEUTSCHE BANK TRUST COMPANY AMERICAS;  09 Civ. 9865 (LMM); UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2010 U.S. Dist. LEXIS 42321; April 26, 2010, Decided  we see a simple discussion of amendment of pleadings.

The motion for leave to amend is denied, first, because it contravenes the November 9, 2009 stipulation and, second, because amendment as to Willkie (against whom, alone, the new claim is asserted) would be futile as time-barred.
 

By controlling its own technology platform end-to-end, M5 has the advantage of being nimble.  Software implementations can be easily tailored to meet the specific needs of individual customers and vertical industries.  "It is a great feeling to be able to listen to client requests and then implement these real, business-impacting ideas into software," said Hoffman.

John Ziegler, CEO of Biscuits and Bath, comments, "We weren't getting any benefits out of our phone system. Within two months of deploying M5, we saw a 19% increase in sales. Staff work faster and deliver higher levels of service.  The real-time intelligence lets us see activity clearly, across five locations and in real-time.  We refined our processes quickly, and achieved a big boost."

David Schnurman, founder of Lawline, Inc. adds, "Features like click-to-dial made my team more productive, but more than that, I had visibility into sales activity that I never had before.  M5 enabled me to build a predictable sales machine that I could confidently scale up to almost ten times the size it was before M5."

Hoffman notes, "Our list of more than 1,100 satisfied customers includes some of the most discriminating and demanding organizations in the country, including a number of cutting-edge, hi-tech media companies.  Our clients include Amnesty International, West Point Military Academy, and Third Avenue Funds, to name just a few.   Our Smart Business Phone System allows us to affordably drive use of advanced voice applications that can give businesses a competitive edge."

For more information about M5 Networks' industry-leading VoIP phone systems for business, visit www.m5net.com.

DEADLINE EXTENDED TO WEDNESDAY, MAY 19, 2010

The Best Accountants and Attorneys for Growing Businesses is an awards program being presented by The New York Enterprise Report.  This special awards program will recognize the New York area's top business advisors.
 
This is the only program in the New York tri-state area that recognizes these advisors in front of their clients. 
 
The program will culminate in an event in June where these top accountants and attorneys will be revealed. The advisors will also be recognized in a special section within the August issue of The New York Enterprise Report as well as on the web at www.nyreport.com.

Attorney Categories Include:

• General Category: Attorney of the Year, Rising Star of the Year, Lifetime Achievement
• Practice Area: Bankruptcy & Reorganization, Commercial Litigation, Employment Law, General Corporate Law, Financing, Intellectual Property, Real Estate
• Industry Focus: Entertainment/Media, Environmental/Energy, Healthcare/Life Science, Professional Services, Technology

For more information on the awards program and to fill out your nomination please visit www.nyreport.com/bestadvisors or call 516-997-1950 for assistance with this awards program.

Land use and zoning attorney Stuart Beckerman recalls his path to finding his practice of law. He also describes a recent favorable decision that he obtained for his client and even the city of New York. Finally, Beckerman explains what keeps him passionate about his work and why he could not be happier professionally.

SELECT A MEDIATOR WISELY (if you have the chance to)

If you are sent to mediation by a court you may have no chance to select your mediator. (However, some courts, like New Jersey Superior Courts, randomly assign a mediator but allow the parties to choose someone else.) If you do have the opportunity to do so, talk with two or more mediators to get a sense of what they are like. Look for intelligence, experience and a style that you feel comfortable with. Of course your adversary has to agree. If a mediator has prior experience with your adversary do not assume that will work to your disadvantage—it may even help your case if your opponent feels comfortable with the mediator and able to maximize the process.

PREPARE THE CASE

You need to be on top of the facts and your client’s needs/demands and have some rough sense of the strength of your legal case. Sometimes counsel neglect this step, figuring that they will really learn the case before a deposition or a trial. If you come to the mediation poorly prepared, you may miss an opportunity to get a good resolution.

PREPARE YOUR CLIENT

A client who understands that s/he is entering into a negotiation process and that the mediator is a facilitator, not a fact-finder, will be better positioned to make the most of the process.

The client should also understand that you will not be making dramatic statements, taking the most extreme position possible or presenting a case as you would do at trial. The whole tone of the proceeding is different and the client should be prepared if s/he hasn’t participated in mediations before.

Encourage out-of-the-box thinking, even in pure money cases. There is generally something (even if only the pay-out schedule) at stake besides the bottom line. A goal of any mediator is to enlarge the pie or find more options to include in the settlement.

Some mediators like to hear from the parties as well as counsel—you can decide if that is wise in your case.

HOSTING THE MEDIATION

Some lawyers prefer to hold the mediation in their own offices, rather than their adversary’s or a neutral place. It saves travel time, lets you begin with a comfort level, etc. It probably has little effect on the outcome, but can make the experience more pleasant for you and your client. If you do this, be a good host— and don’t forget to order lunch (or dinner) if the session goes through the lunch hour. This can affect the outcome—hungry and cranky adversaries are less likely to stay with it to resolve the case.

DON’T POSTURE

LISTEN, REALLY LISTEN

Try to hear what opposing counsel or the principal is really saying and what underlies it. You don’t have to agree with anything but make a major effort to get it. In addition to making you seem polite and not irritating anyone, it could help you emerge with a better sense of where your adversary is coming from and what you will face at trial or in future settlement conversations if the mediation does not immediately resolve the issue.

DON’T INTERRUPT

Courtesy (more than just civility) counts for a lot to succeed at mediation, more than in the courtroom.

NO ATTACKS

You or your client may believe that your adversary has gone beyond self-serving statements and is lying. Resist the temptation to point that out. Also resist explaining to the mediator how past excellent offers to settle were dismissed by your adversary or how s/he has made the whole process more complicated than need be. And so on. Attacks can be truly counterproductive and cause your client to lose an opportunity for a satisfying settlement.

USE CAUCUSES WELL

In many mediations you will spend a substantial amount of time in private sessions with the mediator (how substantial depends on the mediator’s approach and the facts and relationships in the case). You can, of course, meet with your client without the mediator and this can give you the chance to coach the client on using the process well if s/he seems to have lost sight of your preparation on this score.

The mediator is bound to keep confidential what you talk about, with very narrow exceptions. This can be an excellent opportunity to tell the mediator anything that you do not want out in the open—any hidden or complicating facts; your assessment of the case; true bottom line—and to ask him or her for an objective assessment of the case or any aspect thereof.

You can also sometimes make use of the mediator to help your client hear something that s/he wouldn’t hear from you (i.e., that the case is not a slam-dunk one sure to turn out exactly as hoped for).

BE CANDID WITH THE MEDIATOR

There is nothing to be gained and much to be lost from misrepresenting facts or positions to the mediator. S/he is there to help you reach a settlement that you want.

BATNA (Best Alternative To A Negotiated Agreement)

This is the mediator’s mantra—where will you be, what will happen if you don’t resolve this matter in mediation. It’s very worth your thinking about: the unpredictability (depending on how you assess your case); delay and costs (financial and psychic for the client) of litigating. Be realistic and help the client do so as well.

PREPARE TO DRAFT A SETTLEMENT AGREEMENT AT THE MEDIATION

Sometimes when an agreement is reached, a memo embodying the key points is drafted by the parties or the mediator. In other cases counsel want to finalize the settlement agreement on the spot to make sure that the meeting of minds is exactly that. It is wise to bring a copy of your standard language.

Whether the settlement agreement is completed at the mediation or not, offer to do the first draft—it gives you more control.

Nancy Kramer is a mediator, attorney and arbitrator who mediates on a variety of matters including employment, commercial, family and co-op/condo. She serves on numerous mediation panels, including the American Arbitration Association (AAA), US Postal Service, US Federal Occupational Safety (FOH) and New Jersey Superior Court, as well as the New York Supreme Court, Appellate Division, First Department and Manhattan Supreme Court, Commercial Division.

Nancy regularly develops and presents mediation seminars, for the American Society For Trainers & Developers (NYC), New York City Bar Association; New York State Attorney General’s Office, New York City Corporation Counsel, Practicing Law Institute (PLI); Touro Law School, other bar associations and a number of psychoanalytic institutes. She is a frequent coach/facilitator at seminars for  law schools and others.

Nancy’s background includes over 30 years experience as a lawyer and more than 350 mediations. She is the principal of Nancy Kramer Mediation & Other Dispute Resolution Services, whose website is 
www.nancykramermediation.com.

Public relations is the art of changing perceptions. One is either managing, building and/or changing perception with groups or stakeholders whom the success of a business is highly dependent on. Stakeholders or interest groups may include:

1. The press

2. Current clients

3. Prospects

4. Trade and industry groups, essentially anyone who can assist in the growth of business.

All these relationships are managed, guided and steered effectively by good public relations practitioners. Yes, lawyers, it’s the relationships not the transaction. Rightly or wrongly how many times have you heard the expression: “it’s all about perception”. Look what happened to New York City Mayor Rudy Giuliani after September 11. His reputation literally skyrocketed into the stratosphere. Of course since his foray into national politics,  one could argue his reputation has changed somewhat.

Well, a good public relations IS all about perceptions. A note of caution: public relations is not only about putting seminars together, getting published, speaking, or sending out the odd news release to the media. What good public relations does is change behavior. This, in turn, facilitates business growth. For example, your firm may want to:

1. Be seen in a more favorable light in an important target group. (This could be the firm’s ideal client target market);

2. Demonstrate how the firm’s services are different from its competition;
Communicate effectively the firm’s participation in a particular community that is critical to the growth of the firm;

3. Showcase attorneys in the firm who are experts, those at the top of their game in a specific area of law.

If you’re still not clear ask yourself, when was the last time you or another attorney in your firm received a call from the press regarding input on a story they were working on? When were you last invited to speak by a trade or industry group? When was the last time your work was published? Remember the old axiom of “publish or perish.” Of course getting published is in today’s internet driven is quite easy. But, it still doesn’t match the value and prestige of getting ink in a well-respected publication. Unquestionably it is  a critical component in building your firm’s reputation.

A common question I am frequently asked while talking to law firms, particularly those who are considering public relations initiatives is the difference between advertising and public relations. One is based on building credibility, visibility and reputation through third party endorsements. The other is essentially paying to be seen and heard.  Typical questions range from: which is more effective?  Which tactic should we start with? What can we implement in-house? And of course the investment and when will the firm see return on investment.

For firms considering advertising experts such as Al Reis, author of marketing classic "Positioning: The Battle For Your Mind"   advises that its best to start with public relations initiatives and then build upon awareness and visibility with advertising.  

Each tactic including social media has its merits. One thing is for certain, regardless of whether these strategies are implemented by in-house staff and or external agencies; success is dependent on the right hand knowing what the left hand is doing. Otherwise, it will be yet another case of throwing things at the wall and hoping that one of them will stick!

Bottom-line perceptions matter more than facts. Can you afford to ignore public relations? Call us directly 646-763-1407 for a free no cost no obligation strategy session.

Paramjit L Mahli is with award winning SCG Legal PR Network. She is a former journalist who has worked with CNN Business News, Canadian Broadcast Corporation and Journal of Commerce. Comprised of small and large firms, SCG Legal PR Network connects legal experts with reporters nationally and internationally. Ms. Mahli is a contributor to Legal Broadcast Network and writes frequently for Technolawyer. She also trains and gives CLEs  regularly on media relations.

In honor of attorney Ronald Katter's return to Lawline.com, take a behind-the-course look at his latest program. Ronald reveals when and why he first knew he wanted to be an attorney, and discusses one of his early successful cases. He also discusses what keeps him passionate about his practice.

“NHL preps for renegotiation deals” reads The Hollywood Reporter headline, referring to the NHL’s upcoming negotiations with its advertisers.  The NHL “is expanding its digital media strategy and big event programming lineup to make pro hockey more appealing to advertisers.”  They are taking these steps to build on the momentum from “a modest rebound in U.S. TV ratings.”  And by doing so, they are also hoping to create “off-ice buzz from fans” that will help them when they begin TV contract talks with NBC and Versus in 2011.
 
What is the NHL doing strategically? Taking steps to make the NHL more appealing than their broadcasters’ Plan Bs, or alternatives to a deal with the NHL. All good negotiators understand that everyone has the ability to change their leverage.  Leverage is not static.  So when preparing to negotiate, figure out what concrete, practical steps you can take to improve your alternatives and limit the attractiveness of your counterpart’s alternatives.

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

Lawline.com is now an accredited provider of online continuing legal education in Nebraska, Rhode Island,  Iowa, and Hawaii putting its number of accredited jurisdictions at 40.

The following is a list of information regarding the new accreditation and online CLE allowances mandated by each juristiction.

• Rhode Island attorneys are required to take 10 credit hours per year and can earn up to three CLE credits online and with Lawline.com. Click here to see a listing of Rhode Island accredited courses.
• Nebraska attorneys are required to take 10 total credits annually and 2 ethics. They can complete 5 of these online and with Lawline.com
• Iowa attorneys are required to complete 15 credits per year and two ethics credits every two years. They can complete six of these online.
• Hawaii follows the same CLE requirements as Alaska, requiring 3 ethics CLE annually along with 9 voluntary general credits.

Lawline.com also recently receive accredited provider status in New Jersey; thus, attorneys taking our online courses will no longer need to rely on reciprocity rules to complete their online CLE.

Course applications are currently being processed and Iowa, Nebraska, and New Jersey specific courses will be active on our website before within weeks. Check back for a full listing of our courses or click here to view the status of our catalog.

At Lawline we are one big family- customers, faculty, company and all. Here is one new faculty member's recollection on why he first chose Lawline.com for his CLE and why he then chose to present CLE with Lawline.com as well.

Arbitration Clauses in Retainers and Legal Malpractice

A trend in legal malpractice retainer agreements, especially in the Intellectual Property field is the all encompassing Arbitration clause.  Beyond the statutory required arbitration in attorney fee disputes below a certain dollar figure, these arbitration clauses require arbitration of all disputes, whether in tort, contract or other claims.

Arbitration has long been said to be quick and economic, but recent experience has led to a different take.  In a $1 million dollar legal malpractice case, the fees to the arbitration company and to the arbitrator may approach $ 75-$100,000.  Of course to bring the same action in Supreme Court costs about $ 385.

Matter of Brady v Williams Capital Group, L.P. ;2010 NY Slip Op 02434 ;Decided on March 25, 2010 ;Court of Appeals ;Jones, J. investigates the situation in which a litigant can't afford arbitration, and the consequences.  Without deciding the case [it requires further fact finding in Supreme Court] the Court of Appeals reviewed Federal law in pursuit of an answer.

How Widespread is Legal Malpractice Litigation?

Legal malpractice sometimes seems to be the language franca in law news. It can show up in any setting. Here is a most unusual story from Law.com [link unavailable]:

"A legal malpractice lawsuit against Baker, Donelson, Bearman Caldwell & Berkowitz stemming from a case involving a 6-ton marble sculpture of Jesus Christ's face may proceed to trial.

The Court of Appeals of Tennessee ruled Aug. 15 that the lower court erred when it threw out two of the former client's theories for malpractice and granted a final judgment to the plaintiff on a third theory. The decision remanded the case back to the lower court for trial.

The former client is Christus Gardens, a tourist attraction and gift shop in Gatlinburg, Tenn. It sued Baker Donelson for its alleged failure to file an appeal on time in a copyright infringement lawsuit that Christus Gardens was defending.

Narrow Retainer Leads to Dismissal in Legal Malpractice

Sometimes its obvious what responsibilities the attorney will take on in a new representation.  If it's a motor vehicle accident, then the attorney is hired to prosecute the personal injury action, up to and including trial.  Here, in  Hallman v Kantor ;2010 NY Slip Op 03280 ;Decided on April 20, 2010 ;Appellate Division, Second Department  the attorneys took on a more limited role.
 
From the decision:  "The defendants submitted a retainer agreement reflecting that the plaintiff "understood, accepted and agreed" that the "scope of" their "engagement" was "to represent" her as a co-executor of her deceased father's estate. This documentary evidence conclusively established a defense to the plaintiff's claims of malpractice. The plaintiff alleged that she was the subject of a pending lawsuit, in effect, to recover sums of money due under certain notes she executed before her father died, and that the defendants committed legal malpractice by, inter alia, failing to speak with her "about the circumstances surrounding [her] signing of [those] notes," and failing to "question[ ]" their "validity." However, the documentary evidence demonstrated that the plaintiff's individual liability on the notes was a matter outside of the scope of the defendants' representation of the plaintiff in her capacity as co-executor of the estate (see CPLR 3211[a][1]; AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). [*2]" 

The Best Accountants and Attorneys for Growing Businesses is an awards program being presented by The New York Enterprise Report.  This special awards program will recognize the New York area's top business advisors.
 
Accountants and attorneys are consistently considered among the most impactful advisors for business owners. This unique multimedia program will recognize those accountants and attorneys that have gone "above and beyond" in helping their clients succeed. It's the only program in the New York tri-state area that recognizes these advisors in front of their clients. 
 
This one-of-a-kind multimedia program will culminate in an event in June where these top accountants and attorneys will be revealed. The advisors will also be recognized in a special section within the August issue of The New York Enterprise Report as well as on the web at www.nyreport.com.

Attorney Categories Include:

• General Category: Attorney of the Year, Rising Star of the Year, Lifetime Achievement
• Practice Area: Bankruptcy & Reorganization, Commercial Litigation, Employment Law, General Corporate Law, Financing, Intellectual Property, Real Estate
• Industry Focus: Entertainment/Media, Environmental/Energy, Healthcare/Life Science, Professional Services, Technology

Accountant Categories Include:

• General Category: Attorney of the Year, Rising Star of the Year, Lifetime Achievement. 
• Practice Area: Bankruptcy & Reorganization, Commercial Litigation, Employment Law, General Corporate Law, Financing, Intellectual Property, Real Estate. 
• Industry Focus: Entertainment/Media, Environmental/Energy, Healthcare/Life Science, Professional Services, Technology

For more information on the awards program and to fill out your nomination please visit www.nyreport.com/bestadvisors or call 516-997-1950 for assistance with this awards program. 

In this Lawline Exclusive CLE preview, attorney Patrick Oguinn and e-discovery consultants Keith Jones and Jason Briody discuss their work with e-discovery. They further reveal how their passion for technology influences the ever changing world of e-discovery. Finally, they disclose some of the mistakes that attorneys can make during e-discovery. 

Last year, Lawline.com was a finalist for the New York Enterprise Report's the Customer Service award for its reputation on treating customers with respect, dignity, and care. The company now has another achievement to showcase its philosophy on the practice of serving others: one of New York State's best companies to work for.

On Wednesday, April 21, the Best Companies to Work for in New York program ranked Lawline.com the eleventh top small/medium sized employer in the state. President David Schnurman, who created the online Continuing Legal Education company in 1999, accepted the award in Albany, New York, on behalf of his company.

“Our greatest assets are our employees," Mr. Schnurman states. "We strive to provide them with what they need to excel, and in return we believe that this maximizes their potential."

The award consisted of a two part assessment: an employer survey regarding benefits, policies, practices, and other general data (25 percent of the total assessment), and a confidential employee survey evaluating the employees' workplace experience (75 percent of the total assessment).

Mr. Schnurman and Lawline.com add this accomplishment to their growing list of recognitions, namely its recognition in customer services and features in such publications as Crain's, Entrepreneur, Forbes, Inc. and The Wall Street Journal.

Lawline.com is happy to announce that at each month we will award a Customers of the Month! The winner will be announced the first week of every month in our eNewsletter and receive a free one-year extension of Unlimited CLE. The winner will also be provided the opportunity to be interviewed and featured right here on The Legal Beat!

The competition is for Lawline.com Unlimited CLE subscribers only. Not an Unlimited CLE Subscriber? Click here...

With more and more law firms understanding the value of public relations and incorporating it to their business development arsenal, it is essential that paralegals, officer managers and attorneys doing their own media relations and wearing multiple hats be familiar with the very basic tools of communicating with the press.

There are a vast array of tools that law firms can use when communicating with the press. The story/pitch must be newsworthy for the reporter to write about it. Below are tools you can use to garner media interest:

1. Fact Sheets: these provide reporters with the data they need to support their story.
2. Press Release/News Release: these should announce something new, a piece of legislation, something that is going to have an impact on the community. Always ask yourself "tell me, something I don't know." Keep it short.
3. Media Advisories: Typically they can be used to alert reporters what legal experts are available to talk to the press on specific issues.
4. Letters to the Editor: Even though your firm may not incorporate a public relations plan, there is still a way to get your message and your name published in that newspaper. How many times have you read a newspaper article about a topic that is your area of interest and legal expertise —and felt disheartened and disappointed that you were not the person who was being quoted?

Paramjit L Mahli is with award winning SCG Legal PR Network. She is a former journalist who has worked with CNN Business News, Canadian Broadcast Corporation and Journal of Commerce. Comprised of small and large firms, SCG Legal PR Network connects legal experts with reporters nationally and internationally. Ms. Mahli is a contributor to Legal Broadcast Network and writes frequently for Technolawyer. She also trains and gives CLEs  regularly on media relations.
 

In this Exclusive Lawline CLE preview Entrepreneur, Sergio A. Fernández de Córdova, and attorney Joel Wagman, discuss the complex relationship between and entrepreneur and an attorney. When it comes to deal making what are the priorities and who is in charge of the risk at hand?

Tax season represents the busiest time of the year for many professionals. Needless to say, it is easy to become confused, lost, or overwhelmed by the amount of work and little room for error.

Lawline.com is here to help. Check out our full listing of tax related courses here.

Also, get advice from some of Lawline.com's top tax attorneys:

Dr. Bart A. Basi (featured in picture) is a specialist in the areas of business succession, business valuation, mergers and acquisitions, retirement and estate planning, strategic planning, and tax aspects of business decisions for closely held and family businesses.  He speaks nationwide, writes, and researches on all of these areas.   He has written five loose-leaf bound books, over 300 articles, and has worked with hundreds of businesses and associations. Learn more...

Sheila Gowan joined Diamond McCarthy as a partner in the New York Office in April 2008. She is a trial and appellate attorney specializing in complex litigation and internal investigations. She has tried a constitutional case, and employment, tort, tax and environmental cases. Learn more...

Susan Hayden received her Bachelor of Business Administration from the University of Wisconsin-Madison and her law degree from Hamline University School of Law in St. Paul, Minnesota. Since 1998, she has guided investors along with their legal and tax advisers through the exchange process. Learn More...

Jany Sabins is an attorney admitted to the New Jersey and New York State Bars. She completed degrees at The Ohio State University, Fordham University School of Law, and New York University School of Law, and has hands-on experience from her association with both New York and New Jersey law firms. Ms. Sabins specializes in tax, estate, and business planning and controversy for individuals and businesses, along with estate administration and litigation. Learn more...

Bruce Steiner has over 30 years of experience in the areas of taxation, estate planning, business succession planning and estate and trust administration. He is a frequent lecturer at continuing education programs for bar associations, CPAs and other professionals. Learn more...

The value of a dollar: when the economy is running high, its full worth may become overlooked. In times of scarcity, such as in our current economic climate, each expenditure and each penny becomes magnified, and individuals may begin to more heavily scrutinize investments.

In the case of law school, perhaps at one point it was a no-brainer investment for earning a positive return. This may not be the case today.

This past week, a group of lawyers and legal educators met in New York for a two-day conference entitled “Future Ed: New Business Models for U.S. and Global Legal Education” sponsored by New York Law School and Harvard Law School. The attendees expanded upon the findings of the Carnegie Foundation’s 2007 report on legal education, which detailed the lack of adequate preparation law schools in general provide for students.

Law is a constantly changing profession. Just as fast as the practice changes, so must the curriculum. The economic downturn, for example, has dramatically slowed the acceptance of on-the-job training, and thus, hiring in general. To be worthy of a firm’s expenditure and costs, a new hire has to be ready to contribute and provide opportunity to generate revenue for the firm. A two-year period of training is not profitable for any firm, and this is exactly the type of education law schools need to more thoroughly prepare students for.

The meeting was intended for more than diagnostics, however. New York Law School dean Richard Matasar believes the key to having a successful future for law school and having success from this conference is based upon producing concrete, implementable ideas, according to Law.com.

If the labors of this conference and forthcoming projects can produce legal associates who are ready to make an impact in a business setting, it will be easier for those with the means to invest in law school and rest assured their returns will outweigh the costs and sacrifices.

Andrew Bluestone discusses when he first knew that he wanted to be an attorney. He also reveals his surefire motto for success for attorneys. I'll give you a hint.... it involves some very early mornings. To see Andrew Bluestone's exclusive Lawline CLE course go to Lawline.com.

Client from outside New York is sued in Federal Court in New York.  Client hires a NY attorney, and then the case shifts focus to a London Arbitration.  When does the billing in NY end, when does the London case take over, and what happens when there is a billing dispute later?  Justice Edmead's decision in Eaton & Van Winkle LLP v. Midway Oil Holdings Ltd. sets forth a well written explanation of jurisdiction and account stated.

How much must take place in NY for the out of state defendant to be jurisdictionally available in NY?  The short answer is:  enough to satisfy due process.  The longer answer is:  The burden of proving jurisdiction is on the party asserting it.  Long arm jurisdiction is found at CPLR 302(a)(1), and allows for jurisdiction over any non-domiciliary who "transacts any business" within the State, provided that the cause of action arises out of that transaction of business.  A single act will suffice, so long as there is a substantial relationship between that transaction and the injury. The test is the totality of circumstances when determining the existence of purposeful activity. Such acts may include contract negotiations between the parties, meetings, letters or phone calls. 
 

CNNMoney.com recently reported that Jones Soda terminated an exclusivity agreement with potential purchaser, Reed’s, “to explore an unsolicited proposal sent by a second suitor.”  Jones Soda previously announced plans to be acquired by Reed’s for just under $10 million.  Jones Soda also agreed to reimburse Reed’s for $75,000 in expenses incurred due to its termination of the exclusivity agreement.

 Why would Jones Soda do this?  From a negotiation perspective, when a seller can find at least two bidders, the seller’s leverage is usually strengthened because now they have a good alternative (or Plan B) to each of the bidders.  Finding multiple potential buyers allows a seller to play each buyer against the others to obtain the best possible deal.

 Here, Jones Soda’s negotiators believed the value of terminating the exclusivity agreement exceeds its $75,000 cost.  While time will tell if this move pays off, it is almost always a good idea to take the time to find more than one potential buyer, or, as is the case here, to not look a gift horse in the mouth if a new suitor unexpectedly appears.
________________________________________________________________

 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 any internship, employment, or transaction in a capitalist economy, the ideal situation is one in which both parties are be mutually benefited.

However, the scarcity of employment brought upon by our current economy has caused a shift in leverage. Labor cuts and reduced employment opportunities have led to greater power for employers, and as a result many students and others seek any available opportunities in an increasing competitive environment. This has led to a situation in which employers have the upperhand to take advantage of students willing to provide free labor in hopes of greater returns in the future.

However, many of these businesses do not realize they are walking across a thin line with the law. The Labor Department, according to the New York Times, has begun initiatives to investigate firms failing to properly compensate interns and further educate firms on the laws regarding internships. The Department’s Labor Wage and Hour Division (WHD) developed six federal legal criteria that must be satisfied if an internship is unpaid:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees;

3. The trainees do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training. 

According to the Employment and Training Administration Advisory System of the U.S. Department of Labor: “If all of the factors listed above are met, then the worker is a “trainee”, an employment relationship does not exist under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply to the worker.”

Although there is no exact count of the number, there is little doubt among federal regulators that the number of unpaid and underpaid internships is on the rise. Times may be tight, and companies may have to reduce their labor forces within the company, but, unless in accordance with the six factors outlined, this cannot be accounted for through the use of free labor – internship or not.

40 years as a personal injury attorney, Robert Conason, what's your secret? What sustains his passion for his practice? Two words- responsibility and concern. Conason also puts a new positive twist on the phrases "sitting on your rear end" and "compulsive neurosis."

Contact: Christy Burke
Burke & Company LLC
Phone: (917) 623-5096
E-mail: cburke@burke-company.com

FOR IMMEDIATE RELEASE

CLIO CLOUD-BASED LAW PRACTICE MANAGEMENT INTRODUCES CLIOPAD

A magical and…well…not so revolutionary device is perfect companion to Clio!

Vancouver, BC – April 1, 2010 – Vancouver-based Themis Solutions Inc., provider of web-based legal practice management offering Clio (www.goclio.com), today announced the introduction of its newest product, the ClioPad (www.cliopad.com). 

ClioPad’s high-quality paper stock, made from 100% recycled and biodegradable paper, is college ruled and spiral bound. At a mere 3 ounces and a sleek 0.25 inches thin, the ClioPad is easy to carry and use anywhere.  Featuring an infinite battery life, you won’t be hunting around for an outlet to plug into anytime soon.  ClioPad gives you the ability to jot down ideas whenever and wherever they occur, whether there’s an internet connection or not!  It is the perfect offline companion to Clio, the best way to manage your law practice online.

Legal technology and eDiscovery expert Brett Burney of Burney Consultants was amazed at the innovativeness of the ClioPad.  He reveled, “The ClioPad helped me re-discover the pencil. Who knew you could create text without typing?  The ClioPad is so intuitive and user-friendly that even my 3-year old picked it right up ... although she preferred to use a crayon.  Surfing the Internet is still a little primitive - I tried visiting www.cliopad.com but I had to draw my own 404 error. Also, the ClioPad is so versatile when compared to other products - just try making a paper airplane out of your laptop!”

Clio President and Co-Founder Jack Newton said, “We think the ClioPad is the ultimate offline companion to Clio. It will work anywhere, with or without internet, with or without power. With its built-in handwriting compatibility, we think we’re really on to something.”

Features of ClioPad:

-          Offline functionality

-          Infinite battery life

-          Biodegradable, PVC-free

-          Handwriting-enabled

-          Copy notes from one ClioPad to another

For more information about ClioPad visit www.cliopad.com.  Happy April 1^st!

When a tort is committed outside of New York and a non-resident sues within the State of New York, courts apply the borrowing statute, especially with regard to the statute of limitations.  As an example, Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP ; 2010 NY Slip Op 02489 ; Decided on March 25, 2010 ; Appellate Division, First Department  reminds us that although the NY statute of limitations is 3 years, the California statute of limitations for legal malpractice is only 1 year.  In this case, the Court applied the California time limits.

"When a nonresident sues in New York's courts on a cause of action accruing outside the state, our "borrowing statute" (CPLR 202) requires that the cause of action be timely under the limitation periods of both New York and the jurisdiction where the claim arose (see Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 528 [1999]). Generally, a tort action accrues "at the time and in the place of the injury," and "[w]hen an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss" (id. at 529).

Applying these principles, it is clear that plaintiffs' legal malpractice claim accrued in California, where their residences and principal place of business were located and the alleged economic injury was sustained, at the latest, in March 2006. Under that state's applicable one-year statute of limitations (Cal Civ Proc Code § 340.6), this action, commenced in November 2007, was time-barred. "
 

Ever quickly peek at your web-based personal e-mail account while still at the office?  Yes, many of us do, too (and we’d be willing to bet that certain Justices on the New Jersey Supreme Court may, as well). 

On March 30, 2010, in Stengart v. Loving Care Agency, Inc., the New Jersey Supreme Court held that an employee could “reasonably expect that e-mail communications with her attorney through her personal account would remain private, and that sending and receiving them via a company laptop did not eliminate the attorney-client privilege that protected them.” 

The New Jersey Supreme Court has a long history of affording New Jersey citizens broader privacy protection rights than those offered by the federal government.  For example, the New Jersey Supreme Court has held that citizens have a reasonable expectation of privacy in their bank account records, in their garbage, and in the personal information linked to their IP addresses.

Thus, when the question of whether an employee who uses a company computer to access e-mail communications between her and her attorney maintains the confidentiality of those communications, it was no surprise that the Court held that the act of an employee who accesses her attorney-client communications via a company laptop does not destroy the privilege. 

But the Court did unleash at least one surprise by announcing that even a “bulletproof” company policy on workplace computer use that claims the employer could read an employee’s attorney-client communications would not be enforceable if the employee accessed the communication through a personal, password-protected e-mail account.

READ MORE:
http://ellblog.com/?p=2055
 

Paramjit Mahli, of the award winning SCG Legal PR Network, reports at The Legal Marketing Association Conference in Denver, CO.

The Legal Marketing Association is a non-profit organization that  supports legal professionals in marketing, communications, business development, and client services. Mahli, who also provides Marketing and Public Relation insights for lawyers here on The Legal Beat, produces an overview of the top issues and how communication technology is transforming the worldwide business platform into a global community.

Take a look...

In this episode of Behind The Course, Lawline CLE Faculty Members and partners in crime, Josh Silber and Richard Abend discuss their Personal Injury and Medical Malpractice practice. They also recall the first case that they each tried, and what's important to remember when entering the legal field.To see more courses from Richard Abend and Josh Silber go to Lawline.com.

Delaware: your CLE needs just got a whole lot easier! Lawline.com is now an accreditted online provider for Delaware CLE.

Delaware allows for up to 12 credits to be taken online. To celebrate, Lawline.com is offering specific Delaware Bundles at discounted prices to fultill maximum credits at a minimum cost, as well as individual CLE featuring top rated courses.

The CNN.com headline “Both sides claim victory in BA [British Airways] strike” caught my eye yesterday.  It illustrates the importance of both sides being able to “save face” in a negotiation.

One closing strategy I suggest to accomplish this is to avoid narrowing the negotiation down to a single remaining issue.  Instead, keep at least two issues alive so you can trade them off for each other in the end.  If you give in on one of the issues and your counterpart on the other, this will allow your counterpart, at the least, to save face and not walk away feeling like he lost on the final issue. This has an important psychological impact on your counterpart and this, in the end, will make the deal better for both parties.

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.
 

For many attorneys, the word “networking” conjures up trepidation and concern about their own inadequacies about not being able to “schmooze,” coupled with misconceptions ranging from not having enough time and not having “star” power, to networking being a waste of time that robs them of valuable billable hours. So it’s no surprise that networking often ranks on the lower rungs of business development activities.

By holding these misconceptions to be true, attorneys are really doing themselves a disservice. The truth is that informal networks are at the heart of our lives: it’s how we find jobs, find the right business coach, get our children into the right universities, and even find our spouses.

Similarly, business-related networks provide us with an array of benefits, often overlapping into our personal lives: they help us create strategic partnerships, foster professional development, and as an added benefit, many lifelong friendships are formed along the way. Networks increase our value, as we are more able to help others with their needs.

Many attorneys use the opportunistic or, as it is commonly referred to, the hit-and-miss approach to networking. Typically, attorneys attend an event, strike up a conversation, talk about themselves, and exchange business cards. They usually attend these events with the mind - set of collecting business cards, without really paying any attention to having two or three engaging conversations.

This type of random networking will produce clients every so often. However, it is based on the fact that the person you are speaking to requires legal services. Usually when opportunities do occur, their impact on your practice is marginal.

One of the other problems with this type of networking is that while business cards may have been exchanged, if services are not needed, the cards are discarded.

Networking gurus such as Keith Ferrazzi, the author of Never Eat Alone, will tell you that professional services marketing is about building relationships and, quite simply, that these relationships develop through contact. Mr. Ferrazzi also discusses “Leverage Networking” who are well connected individuals and whose job entail considerable contact with people, such as fund - raisers, journalists, public relations professionals, lobbyists, conference organizers, etc.

In leveraged networking, the attorney cultivates continuing relationships with people who are constantly in contact with large numbers of people in the attorney ’ s target group. The relationships are carefully chosen and continually maintained to assure that the contact will refer a client if the opportunity arises.

The problem lies in the fact that attorneys, by nature, are more attuned to viewing networking as a transactional relationship. Networking, though, is rarely transactional; 99 percent of the time networking is relational. Attorneys have to make that intellectual shift for their networking efforts to be successful. Fortunately, the same skill set required for being an attorney -- being organized, focused, and applying yourself -- is required for networking.

Rather than resist networking, attorneys need to take stock of the skill set they already have and apply it. Like most things there is no magic formula; the truth lies in discovering what that magical formula is for you.

We’re offering Lawline readers a complimentary report on “Why Law Firm PR Fails.” Call directly  646-763-1407. To receive your report and customized pr strategy session.

Paramjit Mahli represents SCG Legal PR Network. SCG Legal was created to bridge the gap between law firms of all sizes and the media. The company serves as a cost-effective way for law firms and solo practitioners to manage public relations. For more information, please visit www.scglegalprnetwork.com

POW! Superhero movies gross huge profits!

BOOM!  Disney takes over Marvel to fully capitalize on the profits to be had!

WHAM! Copyright issues slam down on the company!

This past Saturday, The New York Times published an article regarding the resentments the children of Marvel Comics artist Jack Kirby have had in regards to their share of the company’s profits. Now that Disney has acquired Marvel, Los Angeles copyright attorney Marc Toberoff has donned his cape and sprung into action for the family.

Mr. Kirby’s children have accused Disney and Marvel of depriving the family of a fair portion of credit and profits from the Blockbuster hits many of the Marvel superhero movies have made. 

The issue delves into copyright law and infringement upon intellectual property. It has huge implications for all companies that have created franchises based upon the intellectual design of prior creators.

Lawline.com faculty member Tracy Batt, know well the issues at hand and the likely direction the law points to in this case. Her most recent program, “An Introduction to US Copyright Law,” offers direct application to the questions and issues at stake in this case. 

Take a look here at to view Ms. Batt’s introduction on copyright law and obtain a holistic understanding of how the law applies to this case.

Like father like son, Andrew Smiley discusses how his father introduced him to the Legal World and how his "old school" teachings gave him an advantage over his "new school" contemporaries. He further relays his passion for teaching and Continuing Legal Education. Go to Lawline.com to see Andrew's full course, Practical Guidelines for Getting Items Into Evidence, with a special guest appearance by yours truly!

How does an altered power-of-attorney statute affect the daily practitioner? In this exclusive Lawline CLE preview, Attorney Joel D. Sharrow will focus on New York statutory major gifts rider, durable versus nondurable powers of attorney, and agents and the legal repercussions thereof.

Lawline.com is offering one year of free CLE in Solo University's Scholarship Contest.

One year ago, Solo Practice University first opened its doors to attorneys. In that year, the company has exceeded its goals and provided educational and networking opportunities for lawyers and law students across the country.

Founder Susan Cartier Liebel has a passion for helping those with the hopes of opening a solo law firm to fulfill their dreams. She created Solo Practice University to enact her vision and provide the availability, knowledge, affordability, and convenience an attorney needs to begin a solo firm. Her services include live online classes, on-demand courses, podcasts, and other available media.

Currently, the company is celebrating its one year anniverary by offering a scholarship contest, with the Grand Prize winner receiving a total cash value of $12,000 in prizes, including one-year of free CLE from Lawline.com.

To enter the scholarship contest, the attorney needs to fill out a form at Solo Practice University and submit a five minute video on the individual reason and passion for going into solo practice.

To view the contest rules, click here.

Tips for Using Independent Standards
In its Small Business Questions & Answers section, CNNMoney.com suggests one way to fairly set employee salaries is to rely on third-party salary surveys.

Why?  Because relying on independent standards, like a third-party salary survey, (1) gives you credibility, (2) minimizes emotional roadblocks by depersonalizing the issue and (3) provides a good-faith basis for your position.

As the article points out, you should evaluate the salary survey (or other market value determinant) to verify its relevance.  Consider whether it is a representative sample based on its numeric size, geographic area and/or time frame.

And be prepared to counter unfavorable criteria proffered by your counterpart.  In addition to those mentioned above, consider these tactics:  (1) distinguish your item from the market by focusing on its uniqueness; (2) highlight market changes that call into question the validity of your counterpart’s market analysis; and/or (3) focus on other favorable independent standards such as tradition and precedent.

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 post CLE interview, Ben Brafman and I sat down to discuss a side of criminal defense law that most attorneys may not know. Ben opened up about the addictive nature of the human drama in criminal defense. Although it's not always easy or fun to be Ben Brafman, he knows why he continues to practice, and believe me, he's not throwing in the towel any time soon.Go to lawline.com to view Ben Brafman's CLE courses.

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

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

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

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

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

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

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

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

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

Did you hear...

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

The ‘Pure Heart and Empty Head’ Syndrome

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

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

The Plaintiffs

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

Their Lawyers

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

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

Wheel of Sanctions

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

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

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

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

The Final Spin

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Look for Talent Everywhere and You Will Find It

A legal continuing education company puts brainstorming to good use.

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

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

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

‘Real world school’

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

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

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

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

Cast a wide net for ideas

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

The first is called Innovation Days, Bastone says.

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

Nor are there limits on who attends.

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

Exercise employees’ options

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

How about webcam surveillance?

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

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

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

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

 

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

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

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

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

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

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

Check out the full release.

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

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

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

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

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

About SCG Legal PR Network

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rather than explain, here is the decisional language:

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

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

Liability of Subsequent Attorneys in Legal Malpractice

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

Employment Discrimination and Legal Malpractice

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

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

No Right to Arbitrate Fee Dispute Despite Retainer Language

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

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

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

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

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

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

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

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

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

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

To finish reading this article, click here

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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