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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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Happy Thanksgiving!

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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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First, Let’s Kill All Those Shallow Interpretations of Shakespeare

By Kevin Ryan, Esq.

You know that quotation from Shakespeare about killing all the lawyers? What are we to make of it? Critics of the legal profession (serious or half-joking) love to trot the phrase out to lend pedigree to their view that lawyers are all highly paid sharks bent on enriching themselves by impoverishing others, making everything worse (except their own bank accounts) through protracted litigation. Is there something bad and unwholesome about modern life? Well then, say the critics, blame it on lawyers. The phrase pops up at parties and political rallies, in the mouths of wannabe wits and candidates for office. The Eagles even stuck the line in a song, evidently because it captured Don Henley’s feelings towards people who look for a quick injection of cash for imagined injuries and the lawyers who take those cases to court. Even in Elizabethan times, so the critics would have it, lawyers were despised as mongrels seeking to steal your money through Machiavellian maneuverings. Generally, one hopes, these critics don’t really want to kill lawyers, let alone all of them, let alone “tonight,” as Henley’s lyrics urge. But they do want to convey the thought that the world would be a better place without lawyers, that there’s something sleazy, dirty, unsavory about the profession. And if you are in the legal profession, you’ve been overexposed to the phrase, often by acquaintances testing the waters of your sense of humor – you know the sort: a poke in the ribs, a wry smile, a comment about your line of work, “Shakespeare said we should kill all the lawyers,” ha-ha-ha.

From what we know of his life, it is likely that Shakespeare himself did not have particularly positive relationships with lawyers and the legal system: both he and his father were perpetually being dragged into court for one reason or another. Still, the idea that getting rid of lawyers would improve humankind is shallow and ignorant (we should not have to recite all the benefits lawyers have brought to us over the centuries) – and we should be very wary of attributing such an idea to a writer universally appreciated for his depth and intelligence.

The legal profession – filled with well-educated and competitive sorts – has not stood by while the quip from Shakespeare gets bandied about. And so we get the other side. Many employ the phrase in order to turn it on its head, using it as part of a defense of lawyers. The pro-lawyer faction wants us to consider not the words themselves, but the context in which they appear. The actual phrase is: “The first thing we do, let’s kill all the lawyers,” and it’s from King Henry VI, Pt. II. You’ve read the play? No, you probably haven’t, for it’s not one of the Bard’s best loved works. (Yes, I have, since you asked.) One wag even commented that the play would have been entirely forgotten had it not been for this one line; that’s probably too strong, but there’s no doubt this play is seldom read, let alone performed. Anyway, Shakespeare, as literate readers know, put this phrase into the mouth of a villain, Dick the Butcher, a follower of the rebel Jack Cade, who hoped to become king by disrupting the social order.

And there you have it – the makings of an alternative interpretation, one in which context makes all the difference. Justice John Paul Stevens, in Walters v. Nat’l Assn. of Radiation Survivors (1985), gave classic expression to this view: “As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” Shakespeare, Justice Stevens believes, is telling us that eliminating lawyers permits tyrants to run amok on the rights and liberties of people; that’s why the Bard put the words into the mouth of a bad guy, a rebel, an anarchist. Shakespeare, we are subtly invited to conclude, knew the fundamental value of lawyers to civilization. Thus, far from being an attack on the profession, the exchange serves as a not-too-subtle defense of law and those who practice it against those who would establish tyranny (or, worse, anarchy – if you could establish anarchy).

But is this really any better than the crude “Shakespeare as lawyer-hater” interpretation? Having spent many of my (many) years in the groves of academe, I can hear the teeth-gnashing that this interpretation provokes. The Bard has been the victim, perhaps more than any other writer, of people hijacking a phrase here and a phrase there (like this one about lawyers) in order to enlist him in support of whatever position they want to espouse. I think it’s a fair observation about lawyers that, of all professional groups, they may be one of the most likely to commit this offense. Further, interpreting great literature (the teeth-gnashers would say) is a difficult, controversial, and endless endeavor. (Yes, I know: the notion of “great literature” is pretty darn fuzzy and controversial itself). And Shakespeare is notoriously challenging to interpret: library shelves are filled with competing attempts to explain the “meaning” of his works, and the Shakespeare industry rumbles on into the twenty-first century unperturbed by the passage of time. How can we know for certain what he meant, especially in a relatively obscure line in an even more obscure play?

But inconclusiveness of interpretation aside, Justice Stevens’s use of Shakespeare suffers from a host of difficulties. For one, it is painfully anachronistic. Shakespeare would’ve had no idea what a “totalitarian form of government” might be – in fact, it’s not clear that we do either, given the ongoing disputes among scholars about exactly what totalitarianism is and isn’t. Writing hundreds of years before the 20th century (and without the “benefit” of all that scholarship), Shakespeare could have had no inkling of the depth to which dictatorial power could extend into the everyday lives of people. He was aware of the force of royal absolutism: Queen Elizabeth was not reluctant to use her power to destroy her internal enemies (both religious and political), and her successor, King James I, did have grand visions of himself as an “absolute” ruler. But neither came close to being a totalitarian dictator: Elizabeth was not Hitler in skirts; royal power, even under the assertive James, did not come close to extending its tentacles deep into the everyday lives of individuals; and, in any event, James I ruled some years after Shakespeare wrote Henry VI, Pt. II. In short, Shakespeare could not have been saying anything about totalitarian government at all.

Even assuming we could agree (which, as I say, we can’t) on what “totalitarian government” is – that it’s something like Hitler’s Germany or Stalin’s Soviet Union – then we have to recognize the part played by lawyers in those very systems. Had it not been for the work of thousands of lawyers, those systems could not have functioned. And so the proper contrast may not be between totalitarianism on the one hand and the presence of lawyers on the other, as Stevens would have it, but between two kinds of systems, both of which make use of legal professionals (albeit in somewhat different ways). But that is not nearly so gratifying a portrait of lawyers as the Stevens camp likes to paint.

And finally, returning to the play itself, does it make any sense at all to refer to Cade and his anarchist henchmen as proponents of “totalitarian government”? Isn’t it rather the case that they proposed the elimination rather than the expansion of government? As for Shakespeare, he seems, if anything, to have been more disturbed by the threat of chaos represented by Cade and his band of thugs than worried about the prospect of a state that sees no limits to its power and that seeks to control every aspect of public and private life. He was, to be sure, wary of the royal power to shut him down (or worse), but it was the existing system that came closer to total power than anything the rude peasants tagging along with Cade might construct. If the views espoused by Dick the Butcher lay out a contrast to the rule of law, it depicts a world without law of any sort, not a world of total control by government.

Thus, even when we read the famous phrase in context, it is not all that clear what that context tells us. And it certainly doesn’t give us much insight into Shakespeare’s own views. Despite the comfort Justice Stevens offers a profession frequently laughed at, criticized, and even vilified, his interpretation of Shakespeare seems no sounder than those he opposes. Reading Shakespeare with Stevens may make us feel good, but that is hardly an appropriate standard of truth (certainly, we don’t use it as a standard in most other aspects of our lives). We may gain a feeling of superiority over those (other) “shallow” readers who cite the passage as if Shakespeare was endorsing the idea it expresses. But when examined more closely, this interpretation isn’t much deeper: it too just seems to be a way to snatch a line out of a play and make it mean whatever you want it to mean. And that, I suggest, falls short of the standards not just of critical interpretation, but of our profession as a whole.

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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