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.