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.

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.

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.

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.

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

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.
 

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.

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. 

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."

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.

 

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.

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.
 

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

~ ~ ~

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

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

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

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

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

What negotiation approach should she take?

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

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

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

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

__________________________________________________________________________________________


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

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

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

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

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

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

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

About Lawline.com

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

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

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

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

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

Check out the clip for an introduction to the series.

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

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

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

How can you avoid being strategically outnumbered?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From Aha! Jokes

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

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

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

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

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

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

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

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

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

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

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

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

So what negotiation lessons come to mind? 

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

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

__________________________________________________________________________________________

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

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

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

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

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

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

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

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

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

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

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

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

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

“Its all about the money for them.” 

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

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

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

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

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

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

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

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

__________________________________________________________________________________________


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

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

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

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

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

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

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

4. Incentivize their changed behavior.

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

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

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

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

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

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

__________________________________________________________________________________________


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

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

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

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

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

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

Source: Associated Press

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

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

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

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

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

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

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

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

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


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

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

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

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

1)    Create an Positive Experience

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

2)    Listen

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

3)    Be There when the Customer Needs You

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

 4)    Follow-up

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

5)    Be Passionate

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

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

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

Upcoming Lawline CLE Prorgams

David Klein- Email Marketing

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

Lily Royer- International Custody Dispute

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

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

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

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

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

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

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

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

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

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

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

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

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


 

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

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

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

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

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

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

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

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