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.

 

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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?

4 Cybersecurity Tips For Lawyers

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.
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In the 21st century, technology has changed at an incredible rate. Sometimes the pace of change can seem overwhelming, especially for lawyers trying to manage their busy practices. Learning about and implementing new technologies into law practices can often be a difficult task–one that is complicated by ethical obligations which require that clients’ confidential information remain secure.

The good new is that there are steps you can take to increase your firm’s cybersecurity. Here are a few tips to get you on the path to having a more secure law firm.

1. Update your law firm’s software regularly

It’s imperative to update your software regularly in order to ensure that it is secure. Software updates often fix known security issues and if you fail to update your software, you may be unknowingly exposing all of your law firm’s data. That’s why it’s recommended that you enable automatic software updates for your firm’s software. And if you use cloud-based software for your law firm, you’re in luck! Your cloud-based software provider will automatically update your law firm software, ensuring that it is always up-to-date and secure.

2. Use secure communication tools

In the mid-90s, email was given the green light by legal ethics committees and lawyers began to use email to communicate confidential information to clients. That was then, this is now. Although it still is ethically permissible for lawyers to use email to share information that is not particularly sensitive, email is nevertheless outdated and unsecure by today’s standards.

Fortunately, there are far more secure alternatives these days when it comes to communicating with clients. Whether it’s using the client portals built into law practice management software, encrypted email, or using encrypted voice communication tools, you now have more secure options for sharing confidential client information.

3. Make sure to use encryption

Speaking of encryption, make sure to use it for every type of communication, across all of your devices. One option is to use Whats App for communicating with clients since it offers encrypted text and voice communications. Message on your iPhone is also encrypted and is more secure than traditional SMS messages. Similarly, Facetime on your iPhone provides encrypted voice communication features.

4. Ensure your mobile devices are secure

Finally, make sure to secure your mobile devices. For starters, always password protect your devices. Also, consider using a password manager such as LastPass to allow you to increase the complexity of passwords used while simultaneously increasing security. And last, but certainly not least, enable features on your devices that allow you to remotely wipe data from them should they be misplaced or stolen.

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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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.

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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.

 

 

 

 

 

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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?

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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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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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

What Do You Want Us to Be?

“So, if you want to reinvigorate the blog, you’ll need to write something regularly. How about starting this week?” She meant last week, and she gave me a look that carefully hid her recognition that this was unlikely. I said, foolishly, “Sure, I can do that” – not at all getting the irony of her question. Well, as it turned out, that first post was late in starting and Ben rode to the rescue with a fun post on the MCBA staff – and I was left to come up with something this week.

But that’s easy. I want to share a vision of the future of bar associations in general – and of this bar association in particular. I believe strongly that the bar association of the future will differ significantly from the bar association we know today. This is in part due to larger changes in economy and society, and in part due to generational shift. The fast pace of technological development means that bar associations need to be nimble and, if they are to keep their members, they must ride on the crest of the wave of change rather than trailing behind. And everyone who has studied the characteristics of Generation Y – our next generation of lawyers – has concluded that they expect different things from their association than do the Baby Boomers and Generation X. If we are to survive as a professional association, we need to begin now to provide those things, and do so in the manner expected by a generation reared on the Internet, used to having things work online quickly and efficiently, and seeking a wider range of benefits from their associational activity than continuing education and a handful of price reductions on services and products.

As executive director of the Monroe County Bar Association I want to find ways to make the bar central to your success as a lawyer. This means a wide range of things. When you want legal education about the latest developments in your field of practice, you know the MCBA will provide that education. When you need basic training in a new practice area, you can find that training through the bar association. When you need training on office systems or new technological tools, the MCBA provides that training. When you have a question about how to manage your practice, the MCBA has the answer. When you need advice on what systems and technologies you should adopt in your practice, you can get that advice from the MCBA. When you need to do legal research, the MCBA provides a platform for you to do that research easily and at little or no cost. When you need forms or other resources to make your practice go more smoothly and meet your clients’ needs, you can find those forms and resources via the MCBA. When you need information or have concerns about your mental or physical health, you can turn to the MCBA for useful, timely, and accurate information and assistance. When you have concerns about the welfare of our community, you can count on the association to share those concerns and offer opportunities for you to address together with other professionals. When you want to explore new ways to advance your career, you can count on the MCBA to let you know what’s out there and help you take advantage of your chances. When you are looking for ways to expand your practice, the MCBA is the place you turn for help. And when you want to connect with other legal professionals, whether to network or just to have fun, the MCBA offers ways to make that possible.

I hope you will let us know how we can best help you in your professional (and to some extent your personal) life. We are open to all ideas, no matter how big, no matter how “out of the box” (a cliché I don’t usually employ, but it fits here), no matter how unusual or weird they might be at first glance. What do YOU want from the MCBA? How can we make you more successful? How can we make your life easier? I urge you particularly to think out into the future – for the profession and the nature of law practice are changing, and in order to be successful you need to accept that fact and, to the extent you can, step into the flowing stream.

So please tell us what we can do to help you achieve your goals in the coming years. Every member of the MCBA team – all those folks Ben introduced you to in our last post – is open to your ideas and will bring them to the rest of the group for discussion and planning. Of course we can’t promise to do everything you ask of us, budgets and time being what they are. But we can guarantee that your suggestions and ideas will be taken very, very seriously and that, if we can do so within the constraints provided by our overall mission, our budget, and our schedules, we will do what we can to make the Monroe County Bar Association all that you want and need it to be. We look forward to working with you in the days, months, and years to come.

So there, Liz, I wrote a blog post. We’ll keep this up, regular posts being the sine qua non of successful blogging. Oops, Latin. Must be that Jesuit education, which pokes its head up now and again. I used to tell my students (no matter what course it was) that one of the benefits of the class was they got to learn Latin. Same goes for readers of this blog.

Valete,

Kevin