Government 2.0

By Jimmy Paulino, Esq., Goldberg Segalla LLP

This week’s Bar View guest author is Jimmy Paulino. The views expressed in this piece are those of the author and are not intended to represent those of the MCBA or its board of trustees.

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To paraphrase the Declaration of Independence: Don’t hate the players; change the rules of the game. Thankfully, under both the New York and United States Constitutions, there is a mechanism for us to do just that, by updating the basic structure of our governmental systems to include additional protections against abuses of power by our public servants.  In a world where “updates” are a part of our daily lives—from cars to phones to watches to thermostats—and after centuries of technological and social advances—from mass transportation to instant communication to 24-hour news—isn’t it about time we contemplated an American and New York State Government 2.0?

For as long as I can remember, people have complained about our government, both in Washington DC and Albany.  As Election Day approaches, those complaints have taken a second seat to the national debate (aka dispute) over which candidates can help fix the problems plaguing both our state and federal systems.  But…if history is any teacher…do we honestly think that a new (or recycled) politician can foster comprehensive and permanent changes?  Or, is it time We the People took matters into our own hands, and updated the basic rules of the game to account for the realities of the 21st Century, like runaway spending, constant lobbying, billion-dollar campaigns, and representatives who work half as much as regular citizens?

In 1776, the first Americans realized that the problems they faced did not stem from George III’s abuses of power, but with the basic structure or “form” of the existing system—one that placed all government power in the hands of a select few, creating infinite opportunities for abuses or, 18th Century parlance, tyranny.  The solution, masterfully explained by Jefferson, was a “political” exodus from the British “Form of Government,” and an institution of a “new Government…organizing its powers in such form as to them shall seem most likely to effect their Safety and Happiness.”  Under the organizing documents for this new system, the ability to alter the form on a regular and ongoing basis was institutionalized, but for some reason we have failed to take full advantage of these tools and opportunities to form a “More Perfect Union.”

On November 7, 2017, New Yorkers have the opportunity to call such a Convention by ballot referendum, as our Constitution requires the following initiative every 20 years: “Shall there be a convention to revise the constitution and amend the same?”  And, under Article V of the federal Constitution, the United States can call their own convention at any time, upon the request of 2/3 of the States (but it’s never been done before).  These tools provide a unique vehicle among modern democracies to improve the system, and solve some of the fundamental problems plaguing Albany and Washington DC.  In this author’s opinion, we must take full advantage of this process, if only to conduct a critical self-evaluation following centuries of social and technological change and confirm there is no room for improvement.

So…what might we change?  Term limits, spending limits, campaign finance limits, and streamlined judicial nominations are some standard proposals at both the state and federal level.  Our collective two centuries of experience can inform any proposed amendments, including the fact that politicians generally lack self-control when it comes to spending taxpayers’ dollars, and we can adopt penalties for failure to balance the budget such as ineligibility for re-election.  The sky is the limit, and we are constrained only by our imaginations…and a fundamental commitment to protecting inalienable rights.  But, until we seriously consider a convention, and spend time imagining a Government 2.0, there can be no change.

One proposal in New York is worth highlighting—an amendment to decentralize or regionalize State power, also known as a “home rule” amendment.  No one can deny that the divide between Upstate and New York City has expanded exponentially over the past two-hundred years, easily seen in bills from Albany applying only to cities with populations over one million.  More importantly, our experience has shown us that centralization of power breeds abuses, and that, in the modern “go local” movement, no two communities are the same, and laws and regulations are rarely one-size fits all.  Stated simply, the constitutional convention is the only way to consider this issue…and 2017 is the only opportunity to call a convention for another two decades.

Over the next year, we will hear more about the State Convention, which was derailed two decades ago by fears of eliminating guaranteed pensions.  As Jefferson commented, maintaining the status quo, even if riddled with abuses, is our default mentality—but, there comes a point in time where citizens must critically assess their situation, and take action in the name of justice.  November 7, 2017 is such an opportunity.

The American Revolution was not simply a war against the British Monarchy—it was an assault on any power structure not premised on the absolute and equal sovereignty of every citizen.  And, that assault was not intended to end with Independence Day, but to continue throughout the great American experiment in self-government.  That’s why Jefferson wrote of the right to “to alter or to abolish” forms of government, and why our Constitution, written by Gouverneur Morris (the most forgotten and brilliant Founding Father, and author of both the New York State and federal Constitutions) was adopted to form a “More Perfect Union.”  As Americans, and as people committed to liberty and justice for all, it is our duty to continue the work of our Founders in guarding against abuses of power in government, and to remain vigilant against tyranny in any form, whether from a royal or duly-elected representative.

As Election Day approaches, Americans must ask themselves whether the new crop of politicians really hold the keys to permanent improvements, or if we instead need an update to the basic blueprint for the entire system, and to formulate a streamlined and secure Government 2.0.

 

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“Shocked with Unexplainable Grief”

By Kevin Ryan, Esq.

I sometimes fear we have lost the “feel” for the rule of law in this country. Take, for instance, the dull reaction (not so much among lawyers, though it was muted enough there) to the recent mass killing of lawyers in Quetta, Pakistan. A couple of weeks ago, about sixty Pakistani lawyers were killed in a single attack. They were at a hospital emergency room, where they had gone to mourn the loss of a slain colleague (one of several individual incidents in the past few months). Then a suicide bomber blew himself up in the midst of the assembled mourners. In one afternoon, the city of Quetta lost what the Washington Post described as “an entire generation of lawyers.” That loss likely leaves Quetta, and the province of Baluchistan of which it is the capital (a province teetering on the brink of anarchy), literally lawless. The usual suspects claimed “credit” for the attack (a Taliban offshoot, the Islamic State) – these groups take great pride in asserting their responsibility for such inhumane actions, even when they had nothing to do with them. To the very limited extent to which the incident was covered by Western media, the storyline had to do with these groups (you know, “global terrorism”) not with the work being done by the dead and the consequences of their loss.

Karl Jaspers said, “Our usual condition is one of heartless unfeeling. The most frightful things can happen around us, the most hideous wrongs can be inflicted on men by men – we are seized with pity and no doubt with apprehension that such things may happen to us, but then we are caught up again in the business of existence, and in the main we forget and muffle our compassion. In regard to those who are anonymous and far away, we are not even touched by compassion.” In response to Quetta, though the State Department condemned the attack and the Clinton campaign released a brief statement, the U.S. media provided remarkably little coverage. No one (aside from a small handful of journalists) seemed to give the incident much thought, or expressed much concern over this direct attack on legal professionals – an indifference nearly as disturbing as the attack itself. It seems that American audiences are just not titillated by assaults on foreign lawyers on foreign soil. Could it be because they are Muslims? That would be appalling. Could it be because they were lawyers? Not much less appalling.

Tocqueville famously observed – in the 1830s – that the American judicial system and American lawyers served the important (indeed necessary) function of restraining the potential tyranny of the majority. Do we still live in that nation? Certainly, the public attitude toward lawyers, never particularly positive, has not improved over recent decades. And the silence that greeted the killing of the Pakistani lawyers may well reflect the general (however mistaken) view that the legal profession may be more parasite than protector. As American popular thought becomes pervaded by a kind of unrestricted populism, Dick the Butcher’s phrase (from Shakespeare’s Henry VI, Pt. II) “The first thing we do, let’s kill all the lawyers” seems more and more to reflect one portion of the public mind – when it happens, when someone somewhere kills all the lawyers, nearly no one bats an eye.

I know one person from Pakistan. His name isZafarull ah Khan and he is Executive Director of the Pakistan Institute for Parliamentary Services. I met Mr. Khan at an international civic education conference – the Asia Pacific Forum on Civic Education – held in Changwon, Korea in 2010. Mr. Khan’s outcry on Facebook immediately following the incident in Quetta spoke of being “shocked with unexplainable grief.”

I met many people like Mr. Khan at the Changwon conference, people concerned about the future of constitutional democracy in their countries, people deeply dedicated to the rule of law. It was inspiring to be among so many people who spent their lives fostering the kind of education necessary to make constitutional systems work. Many of the people I met in Changwon, like Mr. Khan, came from nations struggling with the forces of backwardness, tyranny, traditionalism, and authoritarianism, nations whose constitutional roots are not deep and whose commitment to the rule of law is tenuous. We come from a different place, an alien place. And so we can have no idea of the uneasiness, the despair, the utter horror and fear evoked by this incident in those who, like Mr. Khan, have devoted their lives to the nurture of what was exterminated in Quetta.

It is easy to praise the rule of law in the United States. It is easy because legality has deep roots in our history. It is easy because most of us don’t give it much thought, but do give it obeisance – and rattle off the words glibly. There is no one – well, nearly no one – in our society who would contend that the rule of law is not important. It is taken for granted here, much as democracy is taken for granted. These phrases slide easily off our tongues without taking up residence in our heads. But their very given-ness can be dangerous, for it means that the reality to which they (supposedly) refer can be lost while the words linger, hanging around much the way republican forms lingered on during the imperial period, when they no longer referred to anything in actual existence.

The general lack of thought about these matters is important, and perilous. As John Stuart Mill argued, people unused to having their ideas and beliefs regularly challenged and, therefore, unused to defending those ideas and beliefs with sound, rational arguments, may be ill-prepared to defend them when they are challenged. If we don’t know how to defend the rule of law, but only how to bow down before the phrase, it becomes a precarious possession. We cannot defend democracy (except in the most superficial, meaningless way) if we no longer know what democracy means, or can no longer defend the claim that it is good – let alone if we can’t make the case that we have one (it is not preposterous to claim that, if anything, we have rule in the name of the people rather than rule by the people).

Most people in the United States have heard about the rule of law, but how many have a deep understanding (or anything other than the most superficial understanding) of what it means? Probably most simply assume it must mean that we have a system of rules rather than arbitrary dictatorship – a condition better named “rule by law” rather than “rule of law,” a condition that does not distinguish us much from nations whose governmental systems we claim to dislike. We just take so much for granted. But because we never stop to think about what it is we say we believe in, what we say we proudly possess, our belief is superficial and our possession insecure.

In contrast, the people I met in Changwon must struggle every day to create a culture in which things like legality, impartial courts, and democratic structures can be attained and supported. My friend Zafarullah Khan hopes to strengthen constitutionalism, to foster the rule of law, to root democracy deep in the heart of a people. Events like those in Quetta make that task onerous indeed. And yet Mr. Khan struggles on, like his colleagues in other largely non-Western lands. He does so in the face of odds we cannot imagine, in circumstances with which we have no familiarity, within a cultural environment largely unsupportive of his efforts. If he is to achieve the rule of law (and not just rule by law), he must first begin the slow process of changing the circumstances in which he sows the idea. While we sit back and rest unthinkingly on our past achievements, he must struggle against drought and blight and pestilence. Sitting back is not an option.

There is a lesson to be learned here. Ideas can come into practice and go out of practice; they can give shape to deeds and, later, they can persist as empty forms unrelated to deeds. The ground may not yet be fertile, or it may no longer be fertile. When we turn a blind eye, when we forget and go more-or-less merrily on our way, we jeopardize our own heritage by taking it for granted. Instead of heartless indifference, we must call out that the rule of law is important, that lawyers are critical for its establishment and maintenance. And we must be able to explain why. It is a matter both of heart and mind. Can it remain in our heart if it is no longer in our mind?

How Did Led Zeppelin Win? Easily.

By Mary F. Ognibene, McConville, Considine, Cooman & Morin, P.C.
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Randy Wolfe of the band Spirit wrote the group’s song “Taurus,” which opens sounding a lot like Led Zeppelin’s “Stairway to Heaven,” and was released in 1968 – – the same year Zeppelin first crossed paths with Spirit and three years *before* “Stairway’s” 1971 release. Given the timeframe involved, the bands’ intersection on tour over the next two years, and what many hear as a striking similarity between the songs, Spirit’s copyright infringement case against Zeppelin might have seemed an easy win. So, how was it lost?

Francis Malofiy, famously colorful lead counsel for plaintiff Michael Skidmore, who came to control Wolfe’s trust after Wolfe’s mother left it to Skidmore, and the primary lawyer tasked with facing down Led Zeppelin and the potent legal fire power available (read: affordable) to defendants like Page, Robert Plant, and Warner Music Group Corp., had his work cut out for him.  The Copyright Act of 1909 prohibited playing Spirit’s recording of “Taurus” for the court. As the dispute centered on songwriting, rather than on the song’s recording, “Taurus” could only be played by music experts from the one-page hand-written sheet music version that was used to register its copyright. As a result, the jury heard the fully produced album recording of “Stairway” versus a flavorless rendition of “Taurus,” played from the 1968 sheet music by music academics in a court room. Many jury members could probably conjure “Stairway” without hearing any recording at all, while likely few had ever even heard of “Taurus,” let alone knew what the Spirit recording sounded like. Spirit’s “Taurus” was the song that needed to be played for proper comparison, and it’s the song that was barred.

Another blow to Malofiy’s case came when Zeppelin’s rather impressive history of paying settlements and changing writing credits in response to infringement claims on several other songs was deemed inadmissible. The jury never saw this:

Led Zeppelin song list

To determine infringement, courts look at copying and substantial similarity. Copying can be proven by direct evidence, such as an admission, or by showing access and similarity. Substantial similarity is determined by the trier of fact and must show similarity sufficient to constitute improper appropriation. Zeppelin’s lawyers argued that any similarity between the songs was down to a centuries-old “descending chromatic bass line” too ubiquitous to qualify for protection.

That the case went to trial at all was a fluke. Both songs were released over 40 years ago; the statute of limitations had long expired. Malofiy’s plan to sue came to light in May of 2014. The then-applicable three-year statute of limitations was an obvious – and major – hurdle. But days later, the U.S. Supreme Court handed down a decision on a case involving the film Raging Bull, holding that there is no expiration date for seeking damages on copyright claims, only that any back royalties determined to be due are limited to earnings from the previous three years. Two weeks later, Malofiy filed suit.

The Led Zeppelin case is one in a broader context of recent decisions that are raising new questions about songwriting and testing the limits of copyright.  Last year, a federal jury found that Robin Thicke and Pharrell Williams copied Marvin Gaye’s “Got To Give It Up” with their 2013 hit “Blurred Lines.”  Thicke and Williams brought a pre-emptive case in 2013, seeking declaratory relief that Blurred Lines did not infringe, but the bold move backfired when, after the Gaye family counterclaimed, summary judgment was denied and the case proceeded.  In an unprecedented verdict, the federal jury found that the plaintiffs had, in fact, infringed, ordering them to pay over $7 million in damages (later reduced to over $5 million).  The case opened new doors to sue not over a song as it was written but over the musical structure of its “feel” or “groove” – in other words, how the listener hears the music, claiming those elements as quantifiable and proprietary and making the ear the final judge of inspiration vs. exploitation.

The ongoing effect of these recent decisions continues to unfold.  While Zeppelin won the copyright case, earlier this month it lost its battle to recoup nearly $800,000 in legal fees based on the court’s determination that the original lawsuit was not frivolous.  The danger of a win for the plaintiff on this “non-frivolous” case could have been significant.  Published estimates put “Stairway’s” total earnings at $562 million. Averaged over 40+ years, just three years’ worth of the song’s approximate $12 million per year profits would have been a windfall, and future “Stairway” earnings would have been up for grabs.

The landscape seems to be pointing to expanded opportunities for artists to protect against unfair use of not only written but, as the Williams/Thicke case indicates, sonic intellectual property.   On the other hand, the increased scrutiny has raised concerns of a “chilling” effect on creativity, especially in the recent collaborative atmosphere of pop music writing.

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On the Edge

By Kevin Ryan, Esq.

I said last time that I would write a series of posts describing some of what I learned at the National Association of Bar Executives annual meeting in San Francisco last week. This was to fulfill a promise to the ever-vigilant Liz, who I think was concerned that, if I didn’t give some indication that I was actually awake in the substantive sessions, readers would think I was simply wandering the streets of San Francisco, reliving the Sixties (perhaps one toke over the line). I think she thought that I needed to prove that I picked up some useful stuff sitting in a chair, rather than by wearing out shoe leather, that I was not just a peripatetic in search of enlightenment outside the hotel conference rooms. OK, so here goes.

Conferences often feature big (or biggish) name plenary speakers with slick presentations designed to teach you something they have learned from whatever it is they do. You know the sort: people who have been successful in one kind of endeavor and are here to tell you that what they learned in, say, the tech industry or golf applies to whatever you do, no matter how dissimilar it may be. The so-called lessons tend to be simplistic and banal – on the order of “try hard,” or “keep a positive attitude.” Duh. And it is remarkable how alike the lessons taught by these speakers are – seldom, it seems, does anyone offer anything really original, though the colorful illustrative stories may differ. What the rest of us really learn, I suspect, is that one can make a ton of money saying things that have been said before (over and over).

Athletes are particularly common among such speakers – women and men who have done well at their sport, cashing in on fame after their playing career (or even during it) by telling us stuff we already know. Their hearers must get some thrill out of seeing and hearing a star, even if there’s nothing really new to learn from the star’s experience. I’ve been to coaches conventions where some unknown college coach says to take a deep breath before each pitch (a good practice, by the way) and the (sparse) audience merely nods. But when some major leaguer gets up and says exactly the same thing (usually not as well, and too often filtered through a war story or two), the (huge) audience sits up, takes note (and notes), and afterwards throngs the stage (stars are generally on stages, not just at the front of the room) for a brush with greatness. Star status forgives sins, especially the sin of having nothing new to say.

And so when I saw that the first plenary speaker at the NABE annual meeting in San Francisco was going to be a mountain climber, I thought, “Here we go again.” But I was wrong.

Alison Levine has climbed the tallest peaks on each of the seven continents – the so-called Seven Summits. She’s climbed Everest twice (long and touching story). She has skied to both the North and South poles, making her one of only thirty or so people to have completed the so-called Adventure Grand Slam (the seven peaks and the two poles). She speaks movingly about the lessons of mountain climbing, lessons that translate into life lessons, work lessons, organizational management lessons. (See her book, On the Edge.) Levine is a truly exceptional athlete, in some ways far more impressive than some dude who has simply learned to hit a curveball hard one out of every three times he’s thrown one. And I learned afterwards, when looking at her book, that she actually has considerable practical experience in the business world (Goldman Sachs), as well as graduate degrees and consulting experience, so she’s not just offering lessons for a world she doesn’t know, as so many of these athlete-orators do.

Alison Levine at the South Pole.

Alison Levine at the South Pole.

As could be expected, some of the principles Levine has gleaned from her experience on the mountain differ not a whit from the standard truisms that populate the leadership literature. Network – on Mt. Everest a good network of relationships can save your life, as she explains. Nobody gets to the top by themselves – we all depend for our success on other members of our team, on those not on our team but with whom we have developed positive relations, on those who are hired (like Sherpas) to carry our baggage and lay out our ladders. Be relentless in pursuit of your goals. We don’t need an extreme climber to tell us these things – we already know them; we hear them all the time; we say them to ourselves.

What struck me about Levine, however, was that some of her lessons were unorthodox, offbeat, edgy, counterintuitive. They were not – at least not all of them – the same lessons we could have heard from boxers, synchronized swimmers, or washed-up CEOs.

For instance . . . In a world in which organizations tend to be structured hierarchically, Levine contends that everyone on the team must be a leader. Success, she tells us, depends upon the ability and willingness of everyone to step up from time to time, to take charge when needed, to make the tough decisions. This is as important among citizens as it is among staff members, as crucial for lawyers as for mountain climbers. Sure, some people may have a title or a status, but when the chips are down, everybody on the team must be able to lead. The implications of this might be truly revolutionary, for if everyone is a leader, no one deserves to be treated as more special because of their title (as Levine puts it, “Your mother lied to you – you’re not special”). This is a call for true democracy. Following Levine’s idea, perhaps beyond where she would take it, one could end up with “holacracy,” the notion that structural hierarchy should be flattened to take advantage of the insights and leadership potential of everyone in an organization. Bye-bye CEO. Bye-bye executive director.

And what does it take to be a good leader? Levine points out that a real leader takes action based on the situation rather than based on some “plan” decided upon under different circumstances. This is important because, as she puts it, you have “zero control” over the circumstances. While you can’t control your environment, you can control how you react to the environment – a common theme among “mental game” coaches but one rarely heard outside the world of sports. It’s a theme that many business leaders and association executives fail to heed when they adhere rigorously to their “strategic plans” even in the face of significant changes in the circumstances. As association management expert Mary Byers puts it, we should think in terms of “strategic frameworks” that set guidelines for action, rather than strategic plans that specify what you will and won’t do under all circumstances.

But Levine pushes even closer to the edge on this point, for she doesn’t believe in rigorous adherence to the rules. There are always situations when you need to break the rules, Levine tells us. Of course, she doesn’t mean ethical rules, and she’s not counseling illegal activity. But she is calling into question our sheep-like tendency to follow the paths laid down. Rigidity, she argues, is dangerous. And leaders should not be the only ones permitted to break the rules to achieve better outcomes; that same freedom should be extended to the people on their teams, who must be given the power to be flexible when, in their judgment, it is for the good of the organization. Everyone on the team (remember, everyone is expected to be a leader) should use their judgment and do the right thing – no matter what the “rules” say. Rules, then, should be treated as guiding principles, as suggestions rather than absolutes. We are not robots (yet) and should not act like robots when the situation requires us to be nimble.

Mount everest

Of course, when team members have that kind of freedom, some mistakes will be made – one hopes not too many of them, especially at 28,000 feet. Mistakes, however, do not spell the end of the world; most are minor and, more importantly, they provide us with opportunities to learn. Great hitters might be fooled once or twice, might look like clowns at the plate sometimes, but they learn from their mistakes, adjust their approach, and hit the ball hard the next at-bat. The great performers in any context – mountain climbers, teachers, gymnasts, business leaders, administrative assistants, lawyers – are not people who don’t make mistakes; they make their fair share. Instead, they are people who “come back with a vengeance” from their mistakes. Leaders should give their team members the “freedom to fail” – a lesson Levine attributes to former Heisman Trophy winner, Rhodes scholar, combat leader, general, and CEO Pete Dawkins. People with perfect track records, she says, are people who haven’t pushed themselves. And don’t we prefer to work with people who regularly push themselves? If so, we need to accept their failures as well as their successes; we need to stop expecting perfection from others (and from ourselves).

Generally, we pursue progress, growth, development; we find them good. And Levine doesn’t disagree. But she points out that forward movement is often composed of many steps backward. She describes how, when scaling a mountain as imposing as Everest, the climbers slowly work their way up the mountain, returning to base camp after each increase in elevation, climbing back-and-forth as they acclimate themselves to the altitude. They go from base camp to camp 1 and back to base camp, then to camp 2 and back to base, then to camp 3 and back to base, and so on. So, climbing a mountain does not involve a steady progress upwards; at times it seems you spend more time climbing down than climbing up. Sometimes you need to back up to go further; sometimes you need to give up what you’ve accomplished so that you can go beyond it. And, contrary to most business and career advice, “backing up is not the same as backing down.”

Levine also makes the point that things may be riskiest when they seem to be going well. “Complacency,” she says, “will kill you.” In other words, when you think you’ve got it mastered, when you think you’ve got it under control, when things are calm and the sailing is smooth, that’s when you are most at risk. Partially, this stems from the ways complacency makes you lackadaisical and sloppy in your preparation. It makes you take your eye off the ball, like the shortstop who muffs an easy grounder or a wide receiver who drops a perfect pass in the open field. Partially, it stems from the ways complacency makes you mentally lazy and uncritical; it makes you “space out,” lose your focus, and lose your edge. It makes you switch into auto-pilot when attention to the controls is most needed.

As should be obvious, Levine offers principles for a nimble, agile, flexible organization capable of coping and thriving in an ever-changing environment – exactly the kind of organization most likely to succeed in the next decade. Her lessons apply to law firms and other businesses, to bar associations and sports teams. Unlike so many speakers I’ve heard, she really had something new to teach, something out of the ordinary, something that might sting you into rethinking your presuppositions about organizations, leadership, and the path to success. In short, this was not just another super-slick, star speaker. Alison Levine encourages us to live on the edge, just as she did on the way to the top of Everest.

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Flowers in My Hair

Flowers in My Hair
By Kevin Ryan, Esq.

Scott McKenzie once advised us (OMG, I’m dating myself now!): “If you go to San Francisco, be sure to wear flowers in your hair.” OK, so I ignored McKenzie’s sage advice this trip – it is not, after all, the summer of love. And besides, I wasn’t going to the City by the Bay in order to wander the streets of the Haight, smoke a little weed, and sit in Golden Gate Park (or Fillmore West) to listen to the Airplane, the Dead, and Quicksilver. I didn’t even plan to leave my heart there. Times have changed.

I went to San Francisco to attend the annual meeting of the National Association of Bar Executives. I find these conferences to be exceptionally valuable: they keep me fresh, they inspire me, and they provide me a chance to mingle and chat with hundreds of others who do the same kind of work I do. We all face similar challenges, and we find that pooling our knowledge, experience, and insights helps us cope with the rapidly changing bar scene (no, not that bar scene!). And this year’s conference did not disappoint. In a series of posts, I hope to share some of what I gained in San Francisco.

Good conferences stimulate insights not just during the formal sessions. Rather, insights emerge in the breaks at least as often as in the meetings, in the spaces between the text as much as in the text itself, in the interstices of the day. They happen in conversations with colleagues over drinks or dinner, in walks around a strange city, in the stimulation provided by new surroundings and fascinating people. They happen more frequently when you have many friends with whom to share the experience.

I used to tell my kids to “never go anywhere without a book.” After all, you could end up stuck in an airport, or caught in a snow storm, or whatever, and if you have a book, you’ll be able to pass the time enjoyably, thoughtfully, even beneficially. Usually I travel with a stack of books just in case — and, of course, I never get through all those books on the trip. This time, however, I decided to pack light and took only one book. Big mistake! I finished that lone book – Julian Barnes’s new novel, The Noise of Time – on the flight from ROC to SFO. Not having a book was not an option, so upon my arrival in San Francisco I headed over to City Lights Bookstore (you know, the bookstore started by Lawrence Ferlinghetti, the home of the literate members of the Beat Generation). City Lights has become a regular stop on my trips to the Bay Area: I admire their selection of books and love the vibe of the place, surely one of the best independent bookstores in the country. And where else can you stand and browse where once Ginsberg recited Howl and Jack Kerouac came to rest from his travels with Neal Cassady? And yes, I found a book to buy: Teju Cole’s Open City. (BTW, I recommend these novels, Barnes’s and Cole’s – Kerouac’s too.)

Open City was an appropriate choice. Cole’s city may be New York, but he provides startling insights into the nature of the modern urban space and the people who inhabit it. Take San Francisco, for instance. It is charming, crowded, bustling. Giant skyscrapers rise out of its hills, defying the earth to topple them in its next quake. Other Giants fill the hearts of San Franciscans with the hope of yet another World Series title. The city overflows with marvelous sights, especially for those of us of an age to remember the days of Kesey, Joplin, and Leary (if not the arrival of the Beats). In some ways a living landmark, San Francisco compels its residents to pay outrageous prices for lodging, and makes it nearly impossible to get from one point to another due to its success at attracting millions of tourists. One Uber driver told us (on a one-mile trip that took 25 minutes) that more than a million people pile into the city each day, and several local friends told us that no person with a normal job at a normal salary can afford to live in the city. Cable cars climb halfway to the stars, or at least up into the fog, which in August seeps into the corners of the city like a disease spreading through a body. The cable cars are not mass transportation; they are a reward for tourists willing to spend an hour in line. And August is not summer in San Francisco: it is cold, requiring the use of sweaters and jackets (a welcome relief from the eastern heat, of course, but always a surprise). It makes one wonder when exactly the “summer” of love occurred – certainly not in August.

But there is a dark side to today’s San Francisco. Sadly, a growing population of homeless Californians sprawl and wander amidst the high-end shops and fancy hotels, the banks, the landmarks, cable cars, and tourists. A brisk morning walk around the Union Square neighborhood brings one into contact with countless dispirited, tormented people who seem to have given up hope. These people need help but there seems to be none on offer: medical help, help gaining and keeping employment, psychiatric help, legal help, help making it to tomorrow.

On Friday morning I encountered a man with wild eyes foully cursing a van driver at full volume. The words spewed out, causing one family to hustle their children on in hopes they wouldn’t hear the vile language being chanted (as if the kids had never heard those words before). It became clear that the curses were directed at life in general, not at the abused van driver in particular. What had caused this man (who, in looks, reminded me of Arthur Brown: “I am the god of hellfire . . . “) to go over the edge, to lose his bearings and his control, to become the angry face of modern American life?

But this belligerent man did not resemble most of the street people I encountered. He was white, for one, and outspoken (to say the least) for another. Most of the people I walked past (I accuse myself here) sat sullenly, huddled in worn-out blankets, surrounded by detritus, never speaking. Most of them (though not all) were black. These people need someone to see them, to recognize their humanity, to care enough to help them through the maze of modernity so that they can recover their lives, their dignity, and their selves. Instead, they blend into the background, relegated to being a scar on the San Francisco of the travel brochures. Most people, just like me, quickly walked past them, head down, eyes straight ahead, as if they didn’t exist. The city of San Francisco, it seems, has concluded that it would not be in keeping with the spirit of the place to hustle these people off the streets (San Diego would do that, I suspect), but it has not found a way, the resources, perhaps even the will to help them. Instead, one gets the impression that many lives have been cast away, like so many Styrofoam containers and plastic wrappers, littering the street and blowing in the wind. They are locked in a cold, forbidding winter of discontent in August, and await the arrival of a new summer of love.

Neither the street people nor those who walk on by are the “gentle people” Scott McKenzie told us we’d meet in San Francisco. There is no “love-in there.”

Is this where we have come in America? Have we become a nation that ostracizes people, throws them out onto the street, and walks quickly by without a nod of recognition (let alone any real help)? And how do we feel about this? Do we pat ourselves on the back for our success and condemn those on the streets of our San Franciscos as failures, losers, pariahs? Is that who we are? Is this a new acid test, more serious this time and minus the Kool-Aid, striking more closely to the heart, a bad trip that now defines our national character? Has our summer turned into cold, drizzly winter?

 

 

 

 

 

5 Tips To Supercharge Microsoft Office

Here at the MCBA, we’re trying to mix it up with our Bar View blog by presenting different perspectives and guest writers. This week’s Bar View guest writer is Nicole Black.

5 Tips To Supercharge Microsoft Office
By Nicole Black, Esq.

Nicole black

Years ago, the legal world was evenly divided between fans of WordPerfect and Word. Eventually, Microsoft Word won out, although there are still a few diehard lawyers who still use WordPerfect. Even so, most lawyers have switched to Microsoft Office, for better or for worse. If you’re one of those lawyers, you’re no doubt always on the lookout for ways to make the most of Office. If so, you’re in luck. Here are a few useful tips and tricks that will help you tailor Office to your firm’s unique needs.

  1. Create forms with TheFormTool

Because lawyers work with forms so often, any tool that streamlines that process is worth looking into. That’s where TheFormTool comes in. It’s a free add-on for Word that simplifies the process of creating and working on forms. You can download it here.

  1. Use Office Mix for more engaging presentations

Communicating effectively is a valuable skill for all lawyers to have. One way to do this is to create an unforgettable presentation using PowerPoint. A good rule of thumb with any presentation is that the more interactive your message, the better it will be received. Office Mix, a free add-on for Powerpoint that is designed to enhance PowerPoint presentations and create an even more interactive experience for your audience, helps you build interactivity into your presentations. Because Office Mix helps to make presentations so interesting, it’s popular with teachers who often use it in their classrooms. For tips from a teacher on using Office Mix to its fullest, check out this post. I have no doubt you’ll find that some of the ideas translate well from classroom to courtroom!

  1. Easily create Tables of Authorities with Best Authority

Another useful tool is Best Authority, which is software designed for lawyers that works with Word, making it a simple task to quickly create Tables of Authorities from a legal memorandum or brief. Using this software you’re able to avoid the time-consuming task pulling all of the citations out of the document manually. It’s not free, but if you’re a litigator with a document intensive practice, it’s definitely worth looking into.

  1. Manage Outlook attachments with EZDetach

For lawyers, email is often the bane of their existence. Managing incoming emails and their attachments can be a task in and of itself. In many cases, the attachments are the most important part of emails, but staying on top of and tracking attachments can be challenging. Enter EZDetach. It’s a reasonably priced add-on designed to work with Outlook and makes it easy for you to quickly and easily remove and file email attachments. So if managing your email inbox is a much-reviled daily chore, you definitely need to check out this tool.

  1. Control your email with SimplyFile

Last but not least, there’s SimplyFile, a tool that allows you to file emails in the correct folder with one click. There’s no need to drag and drop—it’s a one-stop shop for the tedious task of email filing. Another benefit is that it helps to increase your efficiency by allowing you to turn emails into tasks and appointments. Interested in saving even more time? You can find additional useful Outlook add-ins here.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, a law practice management software company. She is the nationally-recognized author of “Cloud Computing for Lawyers” (2012) and co-authors “Social Media For Lawyers: The Next Frontier” (2010), both published by the American Bar Association. She also co-authors “Criminal Law in New York,” a Thomson West treatise. She writes a weekly column for The Daily Record, has authored hundreds of articles for other publications, and regularly speaks at conferences regarding the intersection of law, mobile computing and Internet-based technology.

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Brave New World

By Kevin Ryan, Esq., Executive Director, MCBA

I could, of course, write a whole series of posts like my last one with the title “This Is Not About ____.” These posts would ostensibly not be about things like gin, Roman history, The Kinks, early 20th century German literature, neorealism in international relations, ethnomethodology, Mill’s “On Liberty,” Gadamer’s hermeneutics, and so on, but all would find ways to tie some heady message into the topic about which they are not. But wouldn’t that get old after a while? Wouldn’t it get old after the second installment? Sure it would be cute, but like many other cute things (kitten videos come to mind), it would quickly lose its ability to attract the thoughtful (that’s you, my reader).

So this post is not going to be about something about which it is not. And if you followed that, you might be ready for what it really is about.

A common theme (perhaps meme) of contemporary thought is the importance of flexibility and agility. How else explain the enormous growth in the popularity of yoga, a discipline rooted in the cultivation of flexibility and agility?

yoga

Yoga, a common practice in Asian cultures, is no longer the avocation of a handful of people in the West. It has become a core practice in the lives of millions of American urbanites and suburbanites; it has entered the lives of professionals in the form of “mindfulness” meditation and other relaxation techniques. And as many coaches and “mental game” experts attest, yoga benefits athletes in all sports by helping them remain calm and in control when facing largely uncontrollable circumstances – you can’t control the umpires or the bad hops or the results, but you can control yourself, and doing so puts you in a position to benefit from the lousy officiating, the wretched field conditions, the skills of the opponents.

And isn’t that the world we live in today – an increasingly chaotic world over which we can exert relatively little control? In Antifragile: Things That Gain from Disorder (2012), Nassim Nicholas Taleb (a former commodities trader who now fancies himself a flâneur) contends that “some things benefit from shocks; they thrive and grow when exposed to volatility, randomness, disorder, and stressors.” These things “love adventure, risk, and uncertainty.” He calls them “antifragile,” the quality of getting better when shocked, disrupted, scrambled. It is the opposite of fragile, and different from (he says “beyond”) resilience and robustness.

I think that the postmodern organization – company, firm, association, team, what have you – must be flexible and agile in the face of ever-changing circumstances. It must be “antifragile” in Taleb’s sense, able to grow when confronted with chaos – because that is exactly what we face in the wildly spinning postmodern world.

At least some of the blame for the chaos of modern life can be placed on the internet. As Jared Cohen and Eric Schmidt of Google tell us, “The internet is among the few things human have built that they don’t truly understand … [It] is the largest experiment involving anarchy in history. Hundreds of millions of people are, each minute, creating and consuming an untold amount of digital content in an online world that is not truly bound by terrestrial laws.” The internet, they tell us, is “the world’s largest ungoverned space.”

Think of the implications of that for the practice of law. An ever-growing chunk of the population does not need a lawyer to tell it what the law is or how to get things done in the legal system – it’s all online in easily accessible places, often translated into real English. And if they do need legal help, they can find it online at minimal cost. And rather than going to the traditional legal system to solve their problems – because that system reminds them of the dark, dusty, dank, mystifying world of Bleak House (even if they haven’t read Dickens’ masterful depiction of the Victorian legal world) – they find other ways to resolve disputes, other ways to work out agreements, other more efficient ways to get things done. Yes, lawyers might be involved in the process somewhere – but it’s not traditional legal work, isn’t being done by a law firm, and isn’t costing what traditional legal services cost. (Don’t believe me? Compare the price of a simple incorporation through LegalZoom with what a corporate lawyer charges for the same solution). Lawyers need to be antifragile to survive in this brave new world; doing it “the way we’ve always done it” isn’t going to fly. And don’t imagine that all you need to do to “modernize” legal practice is to somehow “stick that paper form into the computer.” No, we’re looking at a major transformation – a transmogrification – of legal practice. It will be a different beast entirely, except in the handful of traditional firms still able to make a business out of what Richard Susskind describes as “bespoke” legal services. The rest of us will need to be agile, nimble, and wildly flexible, ready to respond to changes as (even before) they occur.

Think of the implications for the operation of a bar association. Ten years from now (when I still hope to be playing on the MCBA team), the bar association may be unrecognizable. Yes, there will probably still be CLE programs offered, but they will be vastly different from what we offer today, not just in terms of content but in terms of delivery, in terms of shape, in terms of effect on the lives of the attendees. (Actually, I think many bar associations are ready to go there now, but I’m not so sure about MCLE boards, traditional, conservative bodies professionally skeptical of anything new.) Bar associations will need to be online in a fuller, more robust way than they are today – and I don’t mean that they will simply take what they currently do and “online” it (just as modernizing legal practice and court process cannot be merely a matter of “sticking that form into the computer”). No, they will be in the cloud and might be virtual. They will interact with people doing legal work (not just traditional lawyers in traditional law firms) in many different arenas, arenas we can only barely imagine today (just as we can only barely imagine a court system that does not require bricks-and-mortar courthouses to conduct business). Where today bar associations are suppliers of stuff for traditional lawyers lodged in traditional practices, future bar associations (if we play our cards right – if, that is, we are antifragile) will be at the center of things for the new practices of law. Or, perhaps, the language here is wrong. There may not be a center of things; there may only be a decentered disarray in which we must insert ourselves at random but congenial and strategic spots.

Not clear about what this will really look like? Neither am I, but I’m pretty certain that’s where we’re headed. And since we don’t know exactly what it will be, we have to be able to grow and thrive in the face of shock, disruption, and disorder, flexible enough to try new things and blossom in failure, agile enough to keep moving with the fast-flowing current of postmodern life. We must embrace adventure, risk, and uncertainty, and greet the new day in the words of Shakespeare’s Miranda:

O, wonder!
How many goodly creatures are there here!
How beauteous mankind is! O brave new world,
That has such people in’t!

 

 

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This Is Not About Baseball

By Kevin Ryan, Esq., Executive Director

I told Liz I’d write about baseball for the blog. Actually, I’ve told her and Ben for several weeks now that I’d write about baseball. Why baseball? Well, baseball has been a major part of my life and (I can see you rolling your eyes) it actually does teach us something about life. (Sure it does, Kev.) But as much as I wanted to write about baseball, as important as the game has been to me (hell, it paid for college!), I just couldn’t find the right angle.

So this is not about baseball.

It’s about the future. Do you know where you and your practice will be in five years? Are you just assuming that you and it will be more advanced versions of where you are today? Do you think all those changes you’ve heard about are not going to affect you, or will only affect you tangentially? Do you imagine that law practice will be pretty much the same in five years as it is today, as it was when you first started, as it was when your grandfather practiced?

I believe the changes affecting the practice of law are not just the latest fads. They are fundamental; they go to the root of the practice of law. And it’s not just about technology, though modern technological developments have had (and will continue to have) enormous implications for what we do as lawyers. Technology, no matter how powerful or earthshattering it may be, is still just a bunch of tools. No, the changes lie deeper; they go to the heart of things. And those changes mean that it is very likely that your practice in five years will either be different or floundering.

Why? For starters, we are going to be experiencing a major generational shift. My generation (my g-g-g-g-generation, baby) has dominated the landscape for decades now. But we’re getting older, and no matter how healthy we’ve become with our various all-natural, vitamin-laden diets and our addiction to exercise (it really can be an addiction – those endorphins lock into the same receptors as many of the substances we tried out in our late teens and early twenties), we aren’t going to be here on the professional scene forever and we’re already starting to wander (or jog or bike) off into the sunset of retirement. The next generation – Generation X, as it’s called – is considerably smaller, but the orientations of its members are by and large much the same as ours. It’s Generation Y – the “Millenials” – that will really replace us. And they bring a boatload of different attitudes, desires, concerns and expectations with them.

Just think about this: The next generation of your clients – they’re in their twenties and thirties now – live a life that is alien to the life we lived at their age. My daughter and my two sons (baseball players, by the way) live on their cellphones. Land line? What’s that? Mail? What’s that? They text constantly. They check their Facebook page and Twitter feed often (very often). When they want to buy something, they look for it online, compare options online, and buy online. (They send me links to products as suggestions for their birthday presents, expecting Debbie and I to buy online, too – and we do.) When they have a problem, they look it up online. When they want to learn about something – from the mundane to the philosophical or scientific – they do their “research” online. They opt for free options whenever possible – that’s why Wikipedia is such a big hit (and always asking for donations to stay in business), and it’s why newspapers are struggling. They often are burdened by enormous loan debts. They don’t intend to stay in the same job for more than five years (frequently much less) and they don’t expect to have to “wait their turn” when it comes to being treated like adults in their field. They believe strongly in equality and in their own ability to learn what they need to know to get what they want. They are committed to causes and disgusted with government and politics as it has been practiced by my g-g-g-generation (“meet the new boss, same as the old boss”). And when they want to listen to The Who (or whomever), they don’t head down to the record store (those places are mostly gone); they go to Spotify and play a song, more or less without paying for it.

We fool ourselves if we think they are going to change, to come around to our ways of doing things, to settle into what we see as responsible adulthood once they get a job and have a family. They might (and some surely will), but can we take that risk?

Are you ready for this next generation of clients (the next generation of lawyers, too)? Is your practice tuned to their wavelength, or are you imagining that they will be just like the last generation of clients (and lawyers)? Don’t bet on that. Are you where they are – online, in social media? Do you work in ways consistent with their expectations – easily available information, online interaction, 24/7 access, being treated as equals? Practicing like that will require some significant changes. Are you ready for that? Or are you resistant?

For years I coached with a guy – let’s call him Guido (everyone else did) – who used to tell the players that the definition of insanity is doing the same thing over and over again and expecting different results. We could expand that: for it is also insane to do the same things that worked ten, fifteen, twenty years ago over and over again in hopes that it will continue to work, even when the new pitcher has a different assortment of pitches. The next generation of clients and lawyers are throwing different pitches, and they aren’t going to switch back to older pitches just because that’s what we can hit. Will you strike out? Or will you compete? You can’t control the results (as guys who teach the mental game of baseball tell us), but you can control your attitude and your effort; you can prepare for what’s coming. Doing so will give you a better chance of success. Not doing so will . . . well, just think of the struggles of the one-time superstar at the end of his career, whiffing at pitches he once would have crushed. Or think of me in my glory days: pounded the fastball but just couldn’t hit the curveball.

So maybe this was about baseball after all.

— Kevin

Is Justice Ginsburg Out of Line?

By Kevin Ryan, Esq.

Three times in the past week Justice Ruth Bader Ginsburg has offered strong opinions on the presidential race and her views of Donald Trump as a presidential hopeful. “I can’t imagine what the country would be with Donald Trump as our president,” she told an interviewer from The New York Times. Previously, in an interview with The Associated Press, she said she didn’t “want to think about the possibility [of a Trump victory],” because then “everything would be up for grabs.” She has labeled Mr. Trump as an inconsistent “faker” who “says whatever comes into his head,” noting “he really has an ego.”

Now, no matter what one thinks about Mr. Trump or his candidacy, such comments from a sitting Supreme Court justice seem to cross the line. Historically, justices on the Court have shied away from making political statements – and they certainly have refused to take a public position on candidates for national election. That does not mean, of course, that they did not have such positions – only that they didn’t state them bluntly in public as Justice Ginsburg has done. Many (including the Times editorial page) see Ginsburg’s remarks as unwise, unethical, damaging to the prestige of the Court, and (in Trump’s own words) “highly inappropriate.” An article in Slate talks of Ginsburg risking her legacy. More conservative news and opinion sources have heaped abuse on her.

And there’s something to all that criticism. Her entry into the political mudslinging festival may well damage her reputation and it may backfire, aiding rather than impeding Trump’s candidacy. Should the litigious Mr. Trump ever bring a case to the Court, her comments provide strong reasons for recusal – what are the chances that she can be impartial in such a case, given the vehemence of her comments? The possibility of a Trump victory in November only makes this problem worse, for then there will undoubtedly be a host of cases before the Court involving his administration. Many have hinted that Ginsburg’s forays into political commentary are unethical, though I have yet to see a clear case presented for exactly why this rises to the level of a violation of judicial ethics. (The ABA Journal contains a decent discussion of the arguments each way.) And her comments will surely accelerate the increasing tendency for the public to see the Court as a political body that decides matters not on the basis of law as such, but on the basis of firmly held political views loosely papered-over with legal argument. Highly inappropriate? At least strikingly out of the ordinary and contrary to the ways the game has previously been played.

The controversy raises important questions (in addition to the questions about the merits or demerits of a particular candidate). What is meant by “the rule of law”? What is the proper relation between the political branches and the (supposedly non-political) judiciary? What kinds of behavior do we (should we) expect from our judges? Does a citizen check her freedom of speech at the courthouse door when she assumes a seat on the bench? Is the Supreme Court a body of wise women and men, a kind of Platonic guardian class conducting a philosophy seminar, in which Truth and Justice emerge from objective discussion and mundane politics are set aside? And what if someone (a judge or any other public servant) truly and deeply believes that a particular candidate or political position constitutes a threat to the nation or the principles upon which the nation is founded? Should they simply shut up because speaking would undermine the dignity of their institution? (Ginsburg supporters, and perhaps Ginsburg herself, will point to the caving in – the refusal to stop, think, speak, and act – of German and Soviet judges not all that long ago.)

These questions are fundamental. They should be asked, thought about, debated. Justice Ginsburg’s actions may initiate a healthy public conversation about the answers – if only we can get past our penchant for wild assertions and over-the-top claims, a penchant that seems to be growing worse. No, I don’t know the answers. (My students always hated that about me: they wanted answers and I had only questions.) Socrates said that the unexamined life is not worth living, and that means we need to grapple with the tough questions about how we live, personally and as a people. In that regard perhaps Justice Ginsburg has been the gadfly we need at a critical moment in our history.

What do you think?

Thanks for checking in,

Kevin

Off to Greener Pastures By Liz Novak Henderson

 

Last week I was able to take some much needed time away from the office. I did pretty well on not checking my emails – I only checked a few times while I was away. During one of those times, I opened an email from Ben Freeland, our enthusiastic communications coordinator. Now, I’m not sure if it is better or not to receive bad news after a day of relaxing at the beach, but that is when the following news arrived in my inbox: Ben is leaving the MCBA for “greener pastures,” with his last day being July 12

I returned to work on Tuesday, knowing our management team would be discussing next steps on how to handle the open position and Ben’s specific job duties. At one point during the day on my way back from our workroom, I saw Robin head into Kevin’s office and close the door. Alas, this week Robin DePoint, our diligent registrar, also gave her notice, with her last day being July 18.

While we are happy for their new opportunities in their careers, we are sad for us. After all, it is all about us!

Here just a little over a year, Ben has been an energetic, creative contributor on the communications team, handling social media, eblasts, event materials and so much more! He has accepted a position doing public relations work at Trillium Health.

During her time here, Robin has been a diligent and dedicated member of our team, handling dues processing, event registrations, and pitching in when needed! She has accepted a full-time position as a Patent Prosecution Assistant at LeClairRyan. Patent work is Robin’s real love and the area in which she has the most experience.

Both Ben and Robin are “moving up,” taking a step forward in their careers. We will miss both of them and feel fortunate to have worked with them. I hope you will all extend your own congratulations to them

At least for now, we will not be replacing either Ben or Robin. Our management team is taking a close, hard look at our staffing, at what we are doing and how we might do it more efficiently and effectively, and at our needs going forward in the changing legal and association market. Stay tuned for more details.

I look forward to seeing you all soon, and hope you have a wonderful summer

Liz

P.S. And because I can’t help myself – if you haven’t renewed your dues, please do so today!