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

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

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

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

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

To learn more, visit www.texasbar.com

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

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

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

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

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

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

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

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

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

Experts, Summary Judgment and Legal Malpractice

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

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

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

An Everyday Application of Fiduciary Breach and Deceit

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

Famous Songwriter, the Pullman Financing and Legal Malpractice

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

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

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

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

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

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

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

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

DEADLINE EXTENDED TO WEDNESDAY, MAY 19, 2010

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

Attorney Categories Include:

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

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

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

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

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

PREPARE THE CASE

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

PREPARE YOUR CLIENT

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

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

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

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

HOSTING THE MEDIATION

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

DON’T POSTURE

LISTEN, REALLY LISTEN

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

DON’T INTERRUPT

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

NO ATTACKS

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

USE CAUCUSES WELL

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

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

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

BE CANDID WITH THE MEDIATOR

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

BATNA (Best Alternative To A Negotiated Agreement)

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

PREPARE TO DRAFT A SETTLEMENT AGREEMENT AT THE MEDIATION

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

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

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

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

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

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

1. The press

2. Current clients

3. Prospects

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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