Book Review on Haig’s Business and Commercial Litigation in Federal Courts

Reviewed by Mark J. Moretti, Esq. and Alissa M. Fortuna-Valentine, Esq.

              

After the Third Edition of Robert L. Haig’s Business and Commercial Litigation in Federal Courts treatise added thirty-four new chapters on topics like internal investigations, consumer protection and money laundering to the series, it seemed there was not much subject matter left to cover in future editions.  But Haig has outdone himself again – adding twenty-five new chapters to the Fourth Edition of Business and Commercial Litigation in Federal Courts.  Now spanning fourteen volumes, the Fourth Edition, published in 2016, covers a wide range of new topics, from civil justice reform to declaratory judgments, regulatory litigation to fashion and retail.

The Fourth Edition is truly timely, addressing the needs of a commercial litigator in an ever-changing, modern world.  Reflecting the rapid shift toward a global economy, the Fourth Edition includes more coverage on international topics – international trade and cross-border litigation.  For example, Chapter 22 on cross-border litigation discusses forum selection considerations, including the various advantages and disadvantages of litigating in venues like London, Paris, Hong King, Singapore and Switzerland, and provides guidance on managing discovery before foreign courts and collecting foreign evidence.  Chapter 136 on international trade examines the intricate nature of practice before the U.S. Department of Commerce, the International Trade Commission, and the U.S. Court of International Trade, in addition to covering potential state and federal law claims that may be asserted for international trade violations.  Both Chapter 22 on cross-border litigation and Chapter 136 on international trade perfectly supplement related topics from the Third Edition, such as international arbitration, and topics such as immigration, from previous editions.

Reflecting the growing importance and prevalence of social media in the commercial litigator’s practice, the Fourth Edition adds a chapter on social media, complementing its established chapters on document discovery, discovery strategy and privileges, evidence and jury selection.

In addition to its coverage of new and relevant topics facing the modern commercial litigator, the Fourth Edition also adds foundational topics relevant to young and well-seasoned commercial litigators alike, such as marketing to potential business clients and teaching litigation skills.  Chapter 70, “Marketing to Potential Business Clients,” contains critical insights for young commercial litigators, as it provides practical guidance on visibility strategies and methods of communication in marketing – subjects that are not covered by most law schools.  On the other hand, Chapter 71, “Teaching Litigation Skills,” discusses how seasoned commercial litigators can better coach, influence and mold young litigators in areas like oral and written advocacy, fact gathering and factual mastery, emotional intelligence, and credibility.

Importantly, what has not changed through the various editions of Business and Commercial Litigation in Federal Courts is Haig’s ample, yet streamlined coverage of both essential and weighty topics, and provision of practice aids, practical advice and strategic considerations on each topic.  For example, volumes four and five of the treatise, which cover trial practice, can still be used as a refresher on discrete topics for an experienced litigator’s upcoming trial, or as a trial guide for a new litigator’s first trial.

Ultimately, with the Fourth Edition of Business and Commercial Litigation in Federal Courts, commercial litigators have a truly comprehensive guide to practice in Federal Court, and an indispensable tool for winning cases – making it the perfect addition to any library.

Mark J. Moretti is a partner at Phillips Lytle LLP, the current President of the Monroe County Bar Association, and a former Chairman of the Trial Lawyers Section of the NYSBA.  Alissa M. Fortuna-Valentine is an associate at Phillips Lytle LLP.

 

Save

Save

Save

Save

How the Internet Privacy Repeal Affects Secure Client Communication

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

By Nicole Black, Esq.
Nicole black

You’re probably already aware that Internet privacy took a huge hit earlier this month when Congress passed, and the President signed into law, a bill that that repeals the Federal Communications Commission (FCC) rules. These rules were designed to protect consumers from privacy invasions by their Internet service providers (ISP).

What this means is that your ISP can now legally track all of your unprotected web browsing history (including every page within a domain that you visit), app usage, location history — and sell it to the highest bidder. That’s a lot of data, and much can be gleaned from it, including information about who you’re communicating with, how often you’re doing so, and for how long. For lawyers who communicate with clients using unsecure methods such as email, this new tracking capability granted to ISPs is troubling.

We discussed this very topic at the most recent monthly solo and small firm meeting at the MCBA. An IP lawyer raised the issue and explained why he found the repeal to be so disquieting. He also shared that since the passage of this legislation, he’d had a change of heart since our last meeting regarding client portals for client communication and collaboration.

By way of background, at the prior month’s meeting, I’d presented on cybersecurity for lawyers. When I reached the part of my talk where I recommended that lawyers ditch email and use client portals, this IP lawyer, who happens to be well-versed in technology, took issue with my position.

He explained that he preferred to have control over his data and was reluctant to share it with third parties. So he typically communicated with clients via email, but ensured that they understood the risks and that the sharing of particularly sensitive information was reserved for in-person meetings. And for collaboration purposes, he temporarily used online storage tools that allowed him to retain the encryption key and after the documents were shared, he would delete them.

After some back and forth on the topic of client portals, we agreed to disagree. I acknowledged the reasons for his methodology and understood why he might prefer it. But I nevertheless remained steadfast in my long held belief that as long as lawyers carefully chose their software providers, client portals are the best tool for secure client communication due to changing times and the fast pace of technological advancement.

Fast forward to the meeting earlier this month, and this same lawyer advised that he was unsatisfied by the security options being suggested to protect Internet users’ privacy in light of the repeal (more on those in a moment) and was increasingly convinced that client portals were the most secure option for client communication. His rationale was that with client portals, ISPs would only know that users logged into their secure, encrypted practice management platform but would have no knowledge of the actions taken while logged in. In other words, because of the repeal, he believed that prevailing security concerns outweighed his reluctance to outsource data to third parties.

Of course, as Internet users who happen to be lawyers, you undoubtedly have concerns about your personal privacy even if you use a cloud-based law practice management platform to communicate with clients. So what can you do to protect yourself from invasive ISPs?

The Electronic Frontier Foundation recently published a great blog post that outlines many things you can do to reduce the amount of information that your ISP can collect about your usage. Here are the key steps that are recommended (refer to the post for more detail on each one):

  • Pick an ISP that respects your privacy (the post includes a link to a list of recommended ISPs);
  • Opt-out of supercookies and other ISP tracking;
  • Install EFF’s browser extension to automatically enable HTTPs;
  • Consider using a VPN; and
  • Consider using the TOR browser.

So those are some steps you can take preliminarily to protect yourself. The solutions are not perfect and some may disrupt your online workflow. Over time, your options will likely increase as developers come up with new solutions to address this new need. But ISPs will no doubt attempt to combat your attempts to protect your privacy, so expect to be in for a bumpy ride for the next few years.

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.

Save

Save

Friends and Festivity: A Time to Celebrate Together

By Kevin Ryan, Esq., Executive Director

This Thursday, members of the bench and of the bar come together for the MCBA’s annual holiday party. Festivities start at 5:30 p.m. at the Wintergarden in Legacy Tower (you know, the old Bausch & Lomb building). We’re expecting a big crowd and hope to see you there.

bb-050

This year’s event has a special importance, and not just because it’s my first time. Many of you know that MCBA President Mark Moretti has worked hard to improve the relationship between the local bench and the bar association. Both judges and lawyers are in the business of providing justice for the citizens of the area. Both have a stake in making the courts run smoothly and efficiently. Both have a stake in fostering a productive courtroom environment. Both have to work together daily and surely would prefer amicable rather than tense relations. In short, both judges and lawyers inhabit the same legal community, work in the same space, and depend upon each other in many ways. The holiday party gives us a chance to toast our close professional friendship, our fellowship, our appreciation for the work we do together.

It’s not just litigators who have a stake in bench-bar relations. Every member of the bar benefits from a sound, effective, and professional court system, whether you practice in the Hall of Justice or in your office. The courts provide the framework within which all legal work gets done – just think what would happen to your sales contract, your lease, your corporate documents if the court system collapsed or was roundly rejected by the public. The bar association as a whole also has a significant interest in the judiciary: judges are lawyers, potential members, fellow travelers in the halls (and Hall) of justice. Judges are experts and leaders with much to share. We need judges to sit on our CLE panels, to participate in our events (bringing their staff with them), to sit on committees, boards, and councils, to assist us in improving the law for all. A close, friendly relationship between the bench and bar serves everyone’s interest. We are all, in fact, members of the same legal family.

All family relationships have their moments, of course. Occasionally tensions emerge. When I arrived, we were in one of those “moments.” Fewer judges were joining the bar association, and fewer were encouraging their staff members to join. Fewer judges attended MCBA events, and fewer sat on CLE panels or joined us in board and committee meetings. But this situation, while unfortunate, must be seen as temporary. Close-knit families, like the bench-bar family we inhabit, grow beyond such moments because they recognize the long-term importance of the relationship. And, thanks to Mark’s work and the very positive response from our sisters and brothers in bar and bench, today we look forward to a sounder, more supportive, more collaborative family relationship.

You may know that the MCBA Board approved a moratorium on evaluations of judges running for office while a specially selected task force – headed by past president Steve Modica and filled with representatives from the judiciary, the bar, and, most importantly, the three major political parties – reviews the process and makes recommendations to the MCBA Board. Mark has breathed new life into the Bench-Bar Committee, which sponsored a well-attended “meet and greet” event with me as guest of honor in the Hall of Justice. Today, more judges are participating in bar affairs – sitting on panels and participating in sections and committees – and, while membership numbers have yet to increase, there is reason to think they will, slowly but steadily, over the coming years. The courts have invited the bar to be an early and active participant in discussions about the Excellence Initiative and the rollout of e-filing in Monroe County courts. The judiciary – from Judges Doran and Rosenbaum to the many other judges I have had the pleasure to meet and speak with since my arrival – has welcomed me warmly with a friendliness that speaks to the health of our familial relationship.

The annual Bench-Bar Holiday Party is a great opportunity for judges and lawyers to get together to recognize our mutual commitment to justice, to greet old friends and renew acquaintances, to demonstrate and celebrate our connections with one another. We hope to see you there, whether you wear a robe or not, whether you sit in front of the bench or behind it, no matter what political party you’re in, no matter what you’ve thought about what’s gone on before. Today we are walking together into a more productive and collaborative future. Come help us celebrate!

See you there.

Save

Save

Save

Save

Save

Save

The Imp of the Perverse

By Kevin F. Ryan, Esq.

Every fall, especially around Halloween, I get the impulse to read some classic, seasonal story. You know the sort: James’s “The Turn of the Screw,” or Irving’s “The Legend of Sleepy Hollow,” or something from Edgar Allen Poe. This strand of my reading sometimes extends into the dark, short days after Halloween. There’s something appropriate about reading such stories when the wind is blowing, the temperatures are falling, and daylight ends before I get out of the office. So this year found me reading some of Poe’s stories as November bled into December, impotent to resist the horrors on which his tales turn: “the beating of that hideous heart” buried beneath the floor, the screeching of the black cat plastered inside the wall along with the body of the murdered wife, the nobleman imprisoned forever in the catacombs to work off a grudge.

black-cat

I suspect that, were we to meet Poe today, we would consider him, at the very least, odd – he doesn’t fit, his mind works in bizarre ways, his imagination is gruesome, unsavory, antisocial. But there’s something about that lack of fit that speaks to us: by showing us the odd, by confronting us with the impure, it opens a window into our souls. Reading Poe we gain some remarkable, indeed philosophical, insights into who we are and how we behave. He haunts us.

Take for instance what he calls, in the short story of that name, “The Imp of the Perverse.” This is the “radical, primitive, irreducible sentiment” or spirit that tempts us to do things merely because we should not – or not do things just because we should. Poe describes this psychological characteristic, this imp, this way:

We stand upon the brink of a precipice. We peer into the abyss – we grow sick and dizzy. Our first impulse is to shrink away from the danger. Unaccountably we remain … it is but a thought, although a fearful one, and one which chills the very marrow of our bones with the fierceness of the delight of its horror. It is merely the idea of what would be our sensations during the sweeping precipitancy of a fall from such a height … for this very cause do we now the most vividly desire it.

09_rackham_poe_impoftheperverse

This impulse, lurking at our back, whispering in our ear, overwhelming our reason, carries us away, leading us to thoughts and actions contrary to what we know we should think and do.

We have a task before us which must be speedily performed. We know that it will be ruinous to make delay. The most important crisis of our life calls, trumpet-tongued, for immediate energy and action. We glow, we are consumed with eagerness to commence the work, with the anticipation of whose glorious result our whole souls are on fire. It must, it shall be undertaken to-day, and yet we put it off until to-morrow, and why? There is no answer, except that we feel perverse, using the word with no comprehension of the principle. To-morrow arrives, and with it a more impatient anxiety to do our duty, but with this very increase of anxiety arrives, also, a nameless, a positively fearful, because unfathomable, craving for delay. This craving gathers strength as the moments fly. The last hour for action is at hand. We tremble with the violence of the conflict within us – of the definite with the indefinite – of the substance with the shadow. But, if the contest have proceeded thus far, it is the shadow which prevails, — we struggle in vain.

Yes, he’s talking about you and me. Take procrastination. You need to make that phone call, have that serious conversation, or read that long, boring document, but you postpone it, pushing it aside minute by minute, hour by hour, day by day. Each time you push it off, the burden of it grows, until it becomes a weighty albatross around your neck. Did you ever find yourself, uncontrollably, saying or doing things, willy-nilly, precisely because you know you shouldn’t? In conversation, you catch (but can’t stop) yourself from embellishing, or making up out of whole cloth, a tale of excuse or heroism. You blurt out just the wrong thing to your spouse, boss, or judge. You reveal confidences because you can’t stop yourself. You find yourself impetuously doing the very things you have promised yourself (and others) that you would no longer do. Arguments and fights are like this: we are dragged along by the imp of the perverse, exaggerating injuries, escalating beyond reason, ending in shouts, blows, and tears. Later, we are embarrassed by what we said and did, saddened that we lost control. But we’ll do it again. The imp will make sure of that.

We’d like to think that we can govern our conduct by our reason or our finer feelings, that we are not controlled by evil demons – and indeed, we make fun of those who attribute their actions to such demons (“The devil made me do it”). But Poe rejects this wish as “the pure arrogance of the reason.” (Heeding the urging of my own imp, let me point out that there’s a nice contrast here – perhaps intentional – with the title of a work by the ultra-rationalist Immanuel Kant.) We aren’t always rational, we often shirk the touch of the better angels of our nature, impervious to their call – not by choice, but by necessity. It’s who we are.

As lawyers, we know the imp in our clients. We see it in our colleagues. We know that many ethical lapses spring from just this sort of perversity – they are not intentional, but impulsive and (virtually?) uncontrollable. We see it in our children, in our co-workers, in each other. We see it business, in politics, in religion – in all realms of our life together. And, all too often, we find it in ourselves. Perhaps Poe would tell us not to wall up the imp like the heart, the cat, and the nobleman – which were, or so the protagonists hoped, out of sight, out of mind. But, you see (Poe makes you see), they were not – they lived on, haunting those who had sought to banish them. Let us instead awaken to the imp within us and the world around us, acknowledge it, see it is within us, not only in them, and then engage with it. But now I’m waxing abstract . . . my own imp at work.

Save

Save

Save

Thanks

By Kevin Ryan, Esq., Executive Director

T.S. Eliot thought April is the cruelest month, but I think it’s November, when everything is dead or dying, the days grow shorter and darker, and the temperatures dip below freezing while flurries dance in the air. Maybe that’s why Thanksgiving has long been my favorite holiday.

Thanksgiving Day gravitates around cooking, sharing food with family and friends, and relaxing (read: falling asleep after eating too much). When you get right down to it, there’s not much more than that happening on Thanksgiving. There’s the Macy’s Thanksgiving Day Parade while you’re getting the turkey in the oven. Later, there’s a string of football games in the background. But the parade can be tedious if you’re not seeing it live (then, it’s fun even when it’s cold) and the games rarely mean much and generally involve teams we neither love nor hate (though I admit to always rooting against the Dallas Cowboys). There might be a drink or two – New York Gewürztraminer is especially good with turkey – or, for teetotalers, some special non-alcoholic concoction. And oh so much food! Hors d’oeuvres, side dishes, things you don’t eat the rest of the year. The smell of turkey roasting away in the oven pervades the house.

turkey

Later, after way too much turkey and stuffing and potatoes, desserts abound. We end up stuffed, rotund, and deeply gratified. Best of all, there’s not really anything else you have to do: no piles of gifts to unwrap, no particular reason to get all dressed up (‘cuz there’s no place to go), no religious services demanding attendance, no requirements to do much more than praise the cook(s) and eat (more than we should) of their offerings. Just put your feet up and nod off, defying the effects of the caffeine and sugar you dumped into your system just moments before. Altogether a happy, relaxing sort of day, just the thing for the cruel hours of November.

Yes, of course, we are supposed to be “thankful” on this day – for the love and food we share with others, for the other joys in our lives, for the fact that we do not live in want. We do not agree about the recipient of our thanks, but the feeling (and isn’t thankfulness a feeling more than anything else?) is much the same, I suspect, whether we thank a divinity, a nation, our parents, families, and friends, or children and grandchildren, or all those around us who contribute to making our lives what they are. We feel that for nearly all of what makes life worth living, we are beholden to others. And we are. We should never, ever, forget that.

Thank you. For everything.

thanksgiving

Happy Thanksgiving!

Save

Save

Short and Sweet

By Kevin Ryan, Esq., Executive Director, MCBA

So Liz, I learn, thinks that my blog posts are too long, too wordy, too scholarly, too filled with big words – in a word, “too.” (OK, that’s not a word, at least not used that way – but it should be.) She may have a point: after all, this is supposed to be a blog, not a treatise or one of those law review articles with more footnotes than text. Yes, it’s true, I tend to wax philosophical, to go scholarly on you. I tend to develop my ideas in my writing, not toss something out there that is, in the words of the Dean of Bar PR, “short and sweet.” And I like to think deep thoughts. Sure enough, that’s probably not the best approach to blog writing, no matter how much it displays who I am. It’s just “too.”

Then I imagine the following conversation.

Ms. Short says: “Hey Kev, it’s not just your blogs that go on and on until all focus and consciousness is lost. Want to know something else that is ‘too’? Those long, long events filled with talking heads, awards, and not enough wine to ease the pain. Bar associations – or at least a certain generation of bar leaders – like such things, perhaps because they fit the image of professional events embraced by the Boomers and their parents. Follow a reception with a dinner and ruin (er, accompany) dessert with a program. The program features a passel of notable bar leaders (presidents, famous folk, partner types) all talking (too long) about each other, patting each other on the back, giving each other awards (and throwing in a stray young lawyer or poverty lawyer for good measure and good PR), and sucking the air out of the room as they drone on and on.”

Ms. Short goes on: “What if we decided to explode this old, tired concept of a bar event? What if we decided to liven things up, to cut the speeches (which nobody pays much attention to anyway), hand out awards without expecting (permitting) lengthy accolade-laden speeches from the presenters or ‘I want to thank everybody I’ve ever met’ speeches filled with plenty of mock humility from the recipients?”

Before she can go on, Mr. Sweet, clearly loving this exercise, jumps in: “What if we got people up and moving and away from their plates of banquet chicken? What if we made the events really fun and not just ‘that was a nice event’ (kind-speak for ‘that was as dull as ever’)? Imagine the possibilities! Mingling and hanging out. Some fun video clips and catchy music. Dance. An award or two, given without all the pomp and circumstance of the usual awards ceremony (no Elgar, no traipsing up the steps to the stage, no tedious speeches). Opportunities right there to do something for the community – things that bring the profession into the limelight in a positive way rather than all that self-congratulation, things like a clinic for the elderly or veterans or teachers. Tweeting!! [Now I have Liz’s attention.] Snapchatting!!! Live links to others who aren’t there through Periscope or Facebook Live, turning it into a true legal community event. Too cool!!!!”

Inspired, Ms. Short interrupts: “You could even throw in some ‘outside the box’ CLE programs before or after. Or do some cool tech demos. Or some TED talk presentations. But the key is, ‘short.’”

Mr. Sweet, not to be outdone, simply says: “Sweet!”

Is it time to be short and sweet?

Doing the COMBA

By Kevin Ryan, Esq.

Naples, Florida, is hot in mid-September, in case you were wondering. Daytime temperatures climb into the 90s, and the humidity creates a wall of dampness into which you crash each time you leave air-conditioned interiors (and has the incidental effect of making you a damp mess at the same time). At night it cools all the way down to the low 80s, permitting wonderful walks along the beach but making outside dining (something we northerners will do any chance we get) a steamy affair relieved only slightly by multiple orders from the bar. (I know what you’re thinking.) One can imagine oneself as a character in a Hemingway tale set in South Florida or the Keys (though would any of us really want to be one of those unsavory characters?) – or, for modern readers of lighter fiction, someone wandering through the pages of a Carl Hiaasen novel. The heat, the fans, the beach and the waves, all contribute to that daydream. Given the heat, daydreaming is a strenuous activity.

beach-blog

MCBA President Mark Moretti and I spent several days in Naples recently, attending the Conference of Metropolitan Bar Associations (COMBA) and hobnobbing with other bar association leaders. It was the first time doing the COMBA for both of us. I had heard from others that this was a tremendous conference – and they were right. Mark and I came back inspired with new ideas, bursting with new enthusiasms, excited about new approaches to perennial bar association issues. (Mark has actually composed a lengthy list of things he’d like to try here in Rochester.)

It’s amazing what you can learn from conversations with others who do what you do. For one, you learn that they face many of the problems and issues you face. For another, you learn that many of the ideas you have for facing them have been tried by others, sometimes successfully, sometimes not. For yet another, you sometimes get a glimpse of the future when you learn that others have confronted something that has yet to appear on your radar – but as you listen to them you find that some of the advance warning signals they received are beginning to be faintly heard back home as well. Those have long been the benefits of professional development conferences. That’s why I am a big supporter of professional development: one comes back excited and filled with new ideas; one comes back having tapped the collective mind of the profession and taken away the best it has to offer (see Mark’s list).

There is no normal time for bar associations, and metropolitan bars nationwide are starting to take notice. Business as usual can no longer be permitted; it’s “business as unusual” that the times require. Things are going to change – indeed, things are changing – and bar associations must either get on board or get left behind. Much has been written about this – some of it by me. And this theme lay at the heart of COMBA this year: bar associations face a drastically changed environment and we need to figure out how to thrive in it – or face disaster (not too strong a word).

The eye of this particular hurricane is a change in the nature of membership. Lawyers no longer join their local bar association because “it’s what you do.” No, they pick and choose their commitments and must be shown why bar membership is valuable to their lives and careers. (I’ve had managing partners ask for my help in getting their younger attorneys more involved in the bar association.) What is the key benefit bar associations offer their members? I’ve had this conversation many times with bar leaders at the local, state, and national levels – and the most common answer is CLE, though sometimes the answer involves some variation on the word “networking.” But in a market featuring more and more suppliers of “free” CLE, a member’s discount on programs is no longer a draw – just as it has never been a draw for government attorneys. Discounts on things (especially things tangentially related to the life of a legal professional like rental cars and life insurance) may be nice, as add-ons to something more substantial, but they are not enough in themselves. And some of the things we have sold to members – for instance, printed things such as directories, magazines, or materials – resemble DVDs where they don’t resemble eight-track tapes: the need for them, their place in the life of a twenty-first century professional, is diminishing rapidly where it has not disappeared altogether. It won’t be long before our members don’t want or need these things at all.

In addition, in a world in which networking happens in dozens of newfangled ways, a world filled with people who have grown up (or grown accustomed to) connecting with others online or through apps of various sorts, the opportunity to enter a room with hundreds of other lawyers and be talked at by some series of speakers or set of panelists just doesn’t have the same cachet or seductiveness it once had. Don’t believe me? Check out the attendees at your next big “event.” My bet is that most of them will be people over fifty (maybe over sixty), people who have grown up in receptions and dinners and who have the money to pay the (usually sizable) entry fee. A world with Tinder and Uber and Yelp is fundamentally different from the world of annual dinners, and unless our big events give off the same vibe as Tinder and Uber and Yelp, we will find attendance and revenues dwindling – and members going elsewhere.

Newer generations expect their association to mimic the engagement experience they get in nearly all other aspects of their lives – the experience one gets from Google, Amazon, Netflix, Spotify, Airbnb, Lyft, and a host of others in the new economy. They expect us to make the “membership experience” exceptional; they expect us to make it smooth and easy; they expect us to offer interesting ways in which they can connect with each other, offer opinions on products and services, and get tips from each other. They expect it to come at little or no cost, perhaps in a subscription format, and to come “just in time,” when they need it rather than when they don’t. They expect things to happen quickly, almost instantaneously. Spend hundreds on bar association dues and get . . . what? CLE programs where you go somewhere, sit in a chair, and listen to a panel of talking heads? Discounts on hotel rooms less than what you can get on Hotels.com? A “member’s price” on over-priced and under-flavored “banquet chicken” dinners at convention centers? A totally static print magazine or book of phone numbers and email addresses? A website designed years ago, cluttered with text and photos of the (gray-haired) attendees at that over-priced dinner, and requiring a series of clicks to get where you want to go (assuming you can figure that out)?

There are generations of people coming up who don’t want these things, at least not bad enough to shell out a big chunk of change each year without more. What they want has more to do with a sense of belonging to something they believe in, and with a need to further their careers and their lives. Indeed, they often see career and life as tightly integrated: my generation started thinking about work-life balance; this generation thinks about life as composed of closely connected experiences involving profession, family, and commitments – holistic rather than linear. And their views are influencing older generations as well. Simon Sinek, whose TED talk “Start with Why” (based on his bestselling book of the same title) has been seen by more than two million viewers (the third most-viewed video on the TED site, according to Wikipedia), insists that “People don’t buy what you do. They buy why you do it” (emphasis added). That means, he argues, that “The goal is not to do business with people who desire what you have . . . [but] to do business with people who believe what you believe.” So just doing stuff, just providing stuff, no longer meets the needs of today’s members and won’t keep them tied to you. Rather, businesses and associations need to offer potential members a picture of why they do what they do – a vision that strikes a chord with potential members because they see themselves in it, a vision that jibes with what potential members think of themselves and who they’d like to be.

This is heady but important. If we want lawyers to see joining the bar association as “the thing to do,” we must show them how membership is part of their vision of themselves. They must come to feel (I use that verb intentionally, not as a flabby substitute for the verb “to think”) that the bar association is modern, hip, attuned to their needs, alive in the same atmosphere of the other sorts of (mostly online) interactions they have. The bar association needs to be felt to be more like Google than the Rotary Club, more like Amazon or Pandora than like Montgomery Ward or the Columbia Record Club. That requires a major refocusing of bar association work: a shift to a nimbler, online, member-driven kind of interaction – a shift away from providing things toward fitting into (even helping generate) a vision of professional and personal life, a shift from what to why.

So, while the sand no longer filters through my toes and the sweat no longer streams down my forehead upon setting foot outdoors, I have not forgotten my adventures in Naples. It’s taken me a while to distil the essence of what we learned in that chilly conference room on the Gulf, to strip away the incidental details from the underlying theme. But I think I’ve done it: it’s the theme I’ve written about before, the idea that we are hurtling toward a future we can’t yet see, and looking backward won’t help. It doesn’t hurt to repeat this message over and over again. Old habits die hard, and old institutional habits die even harder. That means that we live in interesting times. May we be up to the challenge.

 

 

 

 

 

Save

Save

How Did Led Zeppelin Win? Easily.

By Mary F. Ognibene, McConville, Considine, Cooman & Morin, P.C.
Mary_Ognibene_5x71416775373

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.

Save

Save

Save

Save

Save

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.

Save

Save

Save

Save

Save

Save

Save

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.

Save

Save

Save

Save

Save

Save