Negotiation Law Blog

Welcome to the firm!  Now fasten your seat belts because it's going to be a bumpy ride. 

Your supervising partner might look like Dumbledore, but he's much more likely to feel like Voldemort (photo and wikipedia entry right). 

That's why we're beginning the new legal year with . . .

WRITING THE LEGAL RESEARCH MEMO:  ADVICE FOR FIRST YEAR ASSOCIATES 

Forget everything you've ever learned about legal research and writing.  Here's the answer to any question that begins with the words "can we . . . "  

YES.  

I once worked for a partner who asked every first year and new lateral associate whether our client could successfully plead a federal civil rights cause of action in case B, Q or X.  Not only were these cases highly unlikely to support such a cause of action, this question was never posed in any case where the facts detailed might.   

The research-question-posing lawyer was then the managing partner of an AmLaw 100 firm and a former Justice Department attorney who had worked under Robert Kennedy. Only this latter fact made any of us suspect that the question might conceivably be genuine and not simply a hazing ritual for the firm’s new young associates.

But what, you ask, if the answer is an unequivocal “no.” 

Herewith are a few ways of surviving the mysterious to malicious legal research assignment posed by Lord . . . uh . . . I mean Mister Voldemort.

The best way to insure your ability to provide even an equivocal “yes” is to ask the supervising partner what s/he is trying to accomplish by alleging this cause of action before commencing your legal research.

Knowing the answer to this question will permit you to suggest an alternative means of  accomplishing the same objective if you absolutely positively cannot say "yes."  

Other acceptable alternatives to “yes” or “here’s another great way of accomplishing the same goal” include:

1. It would be a stretch, but there are several cases suggesting that we might survive a demurrer. 
2. It will be tough to survive a demurrer but if we argue x, y and z, I believe we can avoid sanctions if our opponent seeks them.   
3. All of the American case law says we cannot allege this cause of action based on the facts you provided to me, but I checked the British authorities (or recent law review articles) and we can argue that the X line of case authority should be abandoned in favor of the British Rule (or Professor Tribe’s new theory of recovery).   
4. I took the liberty of ordering the file and reading all of the pre-litigation correspondence between the parties. There are some additional facts [that you didn’t tell me about] contained there that would allow us to bring this cause of action. 
5. If x, y or z, happened, we would be able to assert this cause of action. Have you asked the client whether any of these events occurred? Would you like me to make the call?

There are hundreds of ways to skin your partner’s cat and only one way to irritate, annoy, frustrate or – in extreme but not unheard of circumstances – enrage him. What is that one way?  To say, "no, I'm sorry, but you cannot do what you want to do and here are the 25 reasons why.”

What does this have to do with negotiation?  If you want your BATNA (Better Alternative to a Negotiated Agreement) to be better than finding other employment, you'll become expert at resolving the seemingly impossible problems posed to you by your superiors this year.  

Don't worry, it won't be all that long before you're the new Voldemort on the block.  In the meantime, welcome to the profession.  Mostly, it's challenging, rewarding and very often just plain fun.

FOR THE BOSSES AMONG YOU HERE'S AN HILARIOUS DOWNLOADABLE .PDF MUST READ MEMO FROM "CREATIVE" TO "THE SUITS" ON WHY THEY QUIT THEIR JOBS courtesy of the Bullshit Observer's post Dear Bosses, Here's Why We Quit Our Jobs.

(right:  12 Angry Men because this post will end up being about depositions, settlement and trial and not simply -- yawn -- reinsurance)

Business Insurance reported yesterday that the California Supreme Court has Shield[ed] Reinsurance Details in Abuse Case.  As B.I. wrote,

In Catholic Mutual Relief Society et al. vs. The Superior Court . . . , victims sought to learn whether the nonprofit entity, which administers self-insurance funds for more than 300 archdioceses and other Roman Catholic entities in the United States and Canada, could meet its policy obligation should they enter into a settlement with the Archdiocese of San Diego.

In 2004, a Los Angeles County trial court judge said the victims could seek reinsurance information . . . A state Court of Appeal . . . rul[ed] that California law authorizing limited discovery of a defendant’s insurance coverage does not authorize pretrial discovery of reinsurance agreements with a “nonparty” liability insurer.

On Monday, the California Supreme Court agreed. It found that discovery of reinsurance is allowed when a reinsurer’s policy functions “in the same way as a liability policy (fronting arrangement), or where the reinsurance agreement is itself the subject matter of the litigation at hand.”

I'd just been musing on this issue (really! -- listen, only nerds blog) because I think attorneys should use discovery as much as possible to settle litigation as to try it. 

Conducting Discovery to Settle the Case

I'm just back from vacation so I haven't yet read this Supreme Court opinion.  I have, however, fought the reinsurance issue more times than I care to remember.  I also once sought to discover the extent of a privately owned corporation's ability to pay a sizable judgment only to be thwarted by the rule that discovery must be relevant to the subject matter of the action (etc.)

Still, I recommend that counsel find creative ways to learn facts that will assist them in settling the case during depositions (where "background" questions receive less scrutiny than interrogatories).

What information pertinent to settlement is useful to obtain other than the ability to fund an award?  Plenty! but since I'm still on Hawaiian time and in an Hawaiian mind, I'll provide only a few -- let your own imagination make far longer lists than the following.

1. The identity of those making the settlement decision is question number one, not only to assure that you have the proper parties at your first settlement conference, but also because -- as McElhaney recently suggested -- you want to "hip" corporate deciders to some of the dangers of proceeding that the company's attorneys might not have mentioned (or couldn't stress strongly enough).  
2. Where the corporate entity is split into operating divisions, which division is going to take the "hit" if the case settles.
3. Whether there are any corporate acquisitions or mergers on the horizon -- or any major upheavals in management -- that might suggest that the executive team green-lighting the litigation is on its way out and less litigation-friendly management about to come on the scene.
4. Whether other litigation on this same issue, product, financial practice, etc. is pending, making the possibility of bad precedent an issue for any eventual settlement "team."

How can you obtain answers to these questions during a deposition when none of them are relevant to the subject matter of the action or likely to lead to the discovery of admissible evidence?  The same way you do everything else in your legal practice -- with chutzpah, imagination, creativity, preparation and sheer good luck.  

I'd innocently sprinkle most of these questions into the background portion of the deposition when opposing counsel is generally less attentive than during "substantive" questioning.  You can also get away with "it's just background, counsel" when s/he begins to awake with his/her morning latte.  If it's a big case with less experienced attorneys assigned to less important depositions, I'd first ask these questions of low level corporate representatives who might be, shall we say, under-represented. 

Then there's always simple dumb luck.  When I was a first year taking one of my first depositions, opposing counsel fell asleep after lunch!  He was snoring while his client innocently waited for me to continue questioning him as if this were a normal event!

I genuinely didn't know what to do. Could I legitimately and ethically continue to question my opponent's client in his "absence"?  I suppose a more experienced or aggressive attorney might have done so.  But because it just didn't seem right to me, I woke him up before continuing with my line of questioning. 

Some defenders, however, might just as well be asleep.  As I teach my NITA students, you can do that which you can (ethically) get away with in a deposition.  And that is quite a lot if you are a skillful poker player who doesn't let on that the questions you're asking might be strategically beneficial even though entirely irrelevant to the substance of the litigation.

It's the beginning of a new "school" year.  Go get 'em!

(right:  Working Mother Identifies the 50 Best Law Firms for Women)

The interview season is over and you have three job offers.

One is from BigLaw in Manhattan, a dazzling, dizzying opportunity coupled with a salary that (you believe) would end all of the financial insecurity you've experienced after 7 years of part-time jobs; student loans; and, macaroni and cheese dinners.  

The other offer is from the Justice Department in Washington, D.C. where you've been promised early trial experience and your own case load during your first year.  The salary is livable but you've got enormous student loans to pay back.  Still, you've always wanted to stand in a courtroom, look Jack Nicholson in the eyes and say, "I want the truth!!"  

Your last job offer is from a mid-size firm in your own home town.  You really like the people you met with there and you can see yourself spending an entire adult life with them.  Getting married, raising a family.  The local schools are good and the chance to build your own "book of business" is better here than in D.C., Manhattan, Los Angeles, Chicago or San Francisco.  You'd be a big fish in a little pond, not to mention remaining close to your extended family.

What to Do?

We have no specific advice.  We do want to alert you to Bazerman's and Malhotra's chapter on cognitive biases in their new book, Negotiation Genius, and particularly their section on

THE VIVIDNESS BIAS

(note to readers:  whenever the word "McKinsey" appears, think Skadden, or whatever law firm would most  dazzle your professors and classmates if you told them you'd been offered a job there).

Apparently, many Harvard MBA students change jobs very quickly after accepting their first position.  Why?  One important reason is the effect of the "vividness bias."   They explain:

Specifically, [the student job seekers] pay too much attention to the vivid features of their offers and overlook less vivid features that could have a greater impact on their satisfaction.  This is a potential trap even for seasoned negotiators.

M & B go on to conduct a little thought experiment, imagining their students talking about their job offers and, more particularly, the following attributes of those offers:

• great medical benefits
• proximity to extended family
• high degree of happiness apparent in the offeror's employees
• opportunity to travel to Europe on a regular basis
• $140K starting salary
• employees have a significant degree of control over work assignments
• the office space is comfortable; the environment inviting
• the offer is from McKinsey
• I would not have to travel too much

You know what's coming next. 

Which of these statements will travel most quickly through the MBA student grapevine, conveying the highest degree of prestige upon the  job-seeker.

For all of our knowledge and sophistication, we're pretty simple creatures.  Bazerman and Malhotra believe that "the answers to these questions are the high salary ($140,000) and the offer from McKinsey (a top consulting firm)."  They continue:

These two items are not only the easiest to communicate quickly, but also the easiest for others to evaluate.  Students who receive these offers will notice the impressed reactions of their peers when such information is shared, and these reactions will make the information more prominent in their mind[s].  As conversation after conversation focuses on these two factors, other aspects of the offer will be overshadowed or entirely sidelined.

One result:  students accept -- and soon quit -- high paying jobs with prestigious firms because they over-weighted vivid or prestigious attributes of their offers and under-weighted  other issues that would affect their professional and personal satisfaction, such as office location, collegiality, and travel.

Malhotra and Bazerman's suggested solution to counter the vividness bias is to create a scoring system that assigns "weights" to job attributes.  They suggest that a professional job seeker "who does not have at least five to ten issues ranked and weighted in her scoring system is probably not thinking rationally enough about all of the important issues in her job negotiations."

When performing this rigorous, logical, left-brained analysis of your job offers, remember what we recently learned from the Neuromarketing Blog's recent post on the new (must read) book -- The Best of the Brain. 

the left hemisphere of the brain tends to screen creative thoughts from the right hemisphere. Too much screening, and creativity is stifled; too little, and useless ideas can’t be eliminated. Creativity also requires topical knowledge and a detailed examination of the problem. While there’s no simple path to creative thinking for most of us, Kraft concludes by recommending that relaxing and stepping back from the problem are often helpful in letting the brain do its work. 

To conclude our series on job hunting for lawyers, I leave you with the the following list of dangers and pit-falls based upon my own experiences and those of my colleagues, all of whom have been practicing law for at least twenty-five years.

• property, power and prestige are the most dangerous siren-songs to follow (seethe Cost of a Thing is Your Life);
• if you're one of those people who believes you can take a BigLaw job, save your excess salary and then move "down" to a more congenial firm, just make sure you have the mental toughness to do so -- I have seen many lawyers "trapped" by the lifestyle this salary can afford them -- I know dozens who have been miserably stuck there for years if not decades;
• your mom and dad really will continue to love you no matter what you do; you do not have to take an impressive job to prove to them that the kid who could never keep his room clean is all grown up now and a credit to his family; and,
• money can't buy it (Annie Lenox)

Congratulations on the job offers. 

Choose wisely and well.  It's a great profession; one you and your family can be proud of of; and one you will never ever completely master -- meaning it will continue to astonish, trouble, bedevil and reward you for the rest of your life.

(pictured:  an overdressed 1985 Motorola Cell Phone from Bulletz of Knowledge post Dress the Elderly Cell Phone)

For the business, rather than a strictly legal, analysis of the recent Ninth Circuit and other California rulings on the unconscionability of consumer arbitration clauses, see the excerpt and link to Business Week's article on the issue below.

Cell-Phone Contract Disputes Heat Up -- Court rulings in California could lead to changes in dispute clauses in wireless contracts and fuel class actions against carriers by Olga Kharif 


Read almost any cell-phone contract and you'll discover that the longest passage deals with dispute resolution. While seemingly important matters like billing get only one paragraph, Verizon Wireless devotes six paragraphs to dispute resolution. At AT&T (T), the dispute section takes up 10 fat paragraphs and states: "You agree that, by entering into this Agreement, you and AT&T are each waiving the right to a trial by jury or to participate in a class action."

The small print keeps expanding in response to an influx of court cases—at least 10 of them in California over the past few years—questioning a wireless carrier's right to block consumers from suing or filing class-action claims. In late June a California appeals court reaffirmed a lower court's order that (T-Mobile USA) could not enforce a clause requiring arbitration of disputes with customers. And on Aug. 17, the U.S. Court of Appeals for the Ninth Circuit in California ruled that AT&T's prohibition against subscribers banding together in class actions, "is unconscionable, and, thus, unenforceable."

Click here for the remainder of the article.

(right:  unknown Harvard Law School Graduate from the HLS 2007 Commencement Page)

Yesterday, I suggested that young attorneys use the considerable bargaining power they do not believe they possess to negotiate the terms and conditions of their first year associate positions with the AmLaw 100.

Because I know a young man who is about to commence his first year in those ranks, I also know all of the reasons why this can't be done:

1. although the $$$ involved are considerable ($160K/year) the day-to-day terms and conditions of an AmLaw 100 first year's employment are so apparently set in stone that negotiating terms has not even crossed young lawyers' minds;
2. the push back from the top firms is predictable, even understandable:
   • making exceptions among first year ranks will sow seeds of dissent among all associates with unpredictable (but unquestionably bad) consequences;
   • WADITW:  We've Always Done It This Way.  
     • the system is in place
     • everyone depends upon it being this way
     • exceptions will invite chaos into an orderly and predictable regime
     • we're prospering
     • since it's not broken (from OUR perspective) don't fix it. 

HOW FIRST YEARS CAN NEGOTIATE THE TERMS AND CONDITIONS OF THEIR EMPLOYMENT

First, let's not kid ourselves, it would take brass $#%^'s to say to Skadden Arps, "listen, there are a few things I'd like in my employment contract that aren't contained in your offer."

On the other hand, if you're reading this from the point of view of a recent Harvard or Yale Law School Graduate who was Editor-in-Chief of the Law Review and a Clerk for a Federal Appellate Judge, now's the time to earn those %$#&# while at the same time creating the one and only professional life that you have already, in large part, earned. 

• You Are Not a Widget in a Widget Factory

Since your first year in law school, your employment search has made it seem as if there were only a few coins to earn and spend -- class standing; law review or moot court, and the relative prestige of your clerkship.  Oh yes, and the all important ability to get along reasonably well with your colleagues duirng your summer clerkship.  

Because there are many other bright, hard-working law students with qualifications similar to yours, you've come to think of yourself as fungible, which any fool can see you are not.  Nevertheless, there's good reason for you to believe that you must accept the terms offered by your future employer because the "system" was in place before you entered it; has been in place for decades and seems a whole lot more powerful than you are.

•     Identify and Leverage Your Unique Value     

In this situation, where you have no apparent bargaining power, Bazerman and Malhotra in their indispensable new book Negotiation Genius suggest that you "identify and leverage your distinct value proposition."  They call this your DVP because academics, like lawyers, love acronyms.

Malhotra and Bazerman explain:

How can you create and claim value when your counterpart [here, your potential employer] is only interested in discussing price [no matter how high that "price" might be]. 

[Y]ou can improve your prospects by changing the game you are being forced to play.  Consider that, in negotiation, your ability to legitimately claim value is a function of your ability to create value.  . . .

[V]ery often, you do bring something to table that distinguishes you from your competitors [i.e., other Law Review EOC's from Ivy League law schools].  This is your distinct value proposition (DVP) and it need not be a lower price . . .

If you bring . . . value-adding elements to the deal, you have the possibility of using them to get what you want . . . The key is to figure out how to make your DVP a factor in the negotiation.

Unique Value + Understanding Your Bargaining Partner's Interests + the Courage to Claim Value for Value = the Rest of Your Professional Life

You've been competing for so long in the stratosphere against the same cohort (people in the top 1%of the bell curve) that you've forgotten how uniquely valuable you are. 

• Therefore, step one to negotiating the professional life you want is to sit down, take a deep breath, and list everything of value you have to bestow on a law firm other than academic and clerkship accomplishments.
• Step Two is to identify your potential employer's interests, which include:  
  • landing you as a first year;
  • retaining you for at least five years so that your employer's considerable investment in recruiting you has the meaty pay-off of your billable hours and book-of-business-building ability that commences in earnest between your fifth to seventh years of employment; 
  • keeping the entire class of first-years stimulated, appreciated, and fairly rewarded; and (which will require a reasonable "excuse" for treating you differently);
  • creating new and valuable niches of expertise in the firm to increase the firm's market-share.
• Step three is to offer to meet more of your potential employer's interests than it ever considered you might be able to satisfy:
  • contracting to continue your employment through the end of your fifth year;
  • offering to defer a certain percentage of your yearly income until the end of your fifth year as your incentive to abide by your agreement;
  • offering to help the firm expand a new (or suffering) area of its current practice by committing to, for instance, write two publishable articles per year in that niche practice area; and/or,
  • if you have contacts, offer them now, i.e., "I've already spoken to my dad's friend, the CEO of X Corporation, and he's agreed to meet with the ___________ practice group for the purpose of putting this firm on its short list of "go to" counsel for, say, IP or securities fraud or regulatory litigation.

In exchange for which you want what? 

Well, how about a first year that is devoted solely to learning with no billable hour requirement.

If you're a litigator, you might want to observe and then take depositions, as well as defend them, during your first year.  You'd like the opportunity to join a team that is on its way to trial and you'd like to second (or third) chair that trial.  You want to argue motions and/or appeals.

If you're a transactional attorney, you want to go to client meetings, observe negotiations, help with the drafting of critical contract terms, and, be included in the strategy sessions.

Perhaps most importantly, you want to be included in practice development with one or more of the firm's few rainmakers.

These are just suggestions.  This is about what you want.    

You have value. 

Name it. 

Claim it. 

Negotiate it.

Quote of the Day from the New York Times (and story link) on the Padilla guilty verdict:

This demonstrates, at least for now, that the United States is fully capable of prosecuting terrorism while affording defendants the full procedural protections of the Constitution.

MICHAEL GREENBERGER, who teaches terrorism law at the University of Maryland law school, on the conviction of Jose Padilla.

What does this have to do with negotiation? 

Only a free people, governed by the rule of law, can hope to negotiate with their fellows the most productive, efficient, effective and fair terms and conditions of their work, their love, and their play. 

Those are today's thoughts from the intersection of Hawaii and the Internet News. 

Many thanks to Christine Mast over at DRI's informative, timely and well-written newsletter The Business Suit for mentioning the Settle It Now Negotiation Blog.

Christine is a partner with the Atlanta office of Hawkins & Parnell, LLP, a litigation boutique with offices in Dallas and Charleston, West Virginia. Absent the IP sub-specialty (see the IP ADR Blog) her practice pretty much mirrors my own before I abandoned ship and landed here on ADR Island. 

Chistine's commercial litigation specialties include insurance coverage and professional liability, fields in which I labored for many years

MAJOR ASIDE ON INSURANCE COVERAGE

If you're litigating a commercial case, are not a coverage specialist and have decided -- from reading the policy language -- that there's no coverage -- run to someone like Christine, or if it's a really really really big liability, my husband, Steve Goldberg over at Heller -- who litigated the World Trade Center coverage litigation on behalf of Silverstein's lender -- for counsel and advice.  It's not difficult -- it just requires specialized knowledge, knowledge many commercial litigators lack.  See the sad tale of Guess v. Jordache here.

END OF ASIDE

Christine says she's new to the blawgosphere so I wanted to thank her for the mention of our blog by showing her how the whole machinery of the thing works == like a giant internet barter circle of the kind described by author-lawyer Patricia Williams in her groundbreaking work, An Alchemy of Race and Rights.  See also the Benefits of Barter here.

People say "tit for tat" when they want to focus on the aggressive side of that game -- you hurt me; I hurt you.  When talking about it's beneficial effects, they use the words collaboration and reciprocity.  You link to me, I link to you.

But remember, there's a code of excellence here in the blawgosphere and I won't link to www.AccidentLawyers.com just because they mention me (not yet).

I mention Christine's article and the entire Newsletter because it's a great resource and my readers trust me to steer them to good stuff.

Because I'm an aggregator.  See The Long Tail.

Queen Latifa from Chicago on the seemier Tit for Tat side.

So, what do you say, Christine?  Get your law firm to take the blogging plunge by talking to my good friend Kevin O'Keefe over at LexBlog.  Online networking and practice development is geometric, as is LinkedIn, both of which I highly recommend, whether you're building your own business or just expanding your "book."

And, hey!  Thanks for the mention!

(left:  a mother and child reunion outside the L.A. County Jail)

The last time you heard news from the Los Angeles County Jail, it had to do with Paris Hilton's claustrophobia.  Today, we bring you less sizzling but perhaps more important news from our local jail cells. 

A Santa Clarita radio station has announced that Los Angeles County is introducing "disturbance mediation training services for jail inmates." 

The training, "aimed at reducing racial and gang-related violence" will be provided by the Amer-I-Can Foundation. 

According to its website, Amer-I-Can Foundation facilitators "initiated a truce between rival gangs in Watts, California in 1992, the year of the "Rodney King" riots.  

The Foundation provides resources to continue this movement to bring about peace and social change.

Settle It Now will be following this story to see what beneficial results mediation has in our overcrowded county jail system.

Finally, something I can share with my next door neighbor, the astral orbital engineer (see him live on YouTube here!) other than a cup of sugar. 

What, you ask, do I have of value for the master of space-time and creator of secret satellite networks about which I know NUTHING, Mr. Cheney, NUTHING, REALLY . . . 

 Why its the Space Law Probe Blog and the new book -- Dispute Resolution in International Space Law.

Thanks Space Law Probe!!!!

Many thanks to Beatrice O'Donnell and Thomas A. Lincoln for so thoroughly covering the email authentication and hearsay exception waterfront in Law.com today.

This is a question I get a lot from my NITA Depo and Trial Skills students.  This is a much more sophisticated answer than I've ever given so NITA STUDENTS HEAD'S UP on this one.

Here's an except with a link to the article, Authenticating Email Discovery as Evidence.

Just because I've become a Jedi negotiator does not mean I do not continue to love the adversarial process -- and I'm just geeky enough for evidence to have been my favorite class (and highest law school grade).  Thanks Professor Wydick.  

ESTABLISHING EMAIL AUTHENTICITY UNDER THE FEDERAL RULES OF EVIDENCE

The bar for establishing authenticity is not high under Federal Rule of Evidence 901. In the 3rd U.S. Circuit Court of Appeals, a court need only be able to legitimately infer that a document is genuine to find it to be "authentic." . . .

Some e-mails can be self-authenticated under Rule 902(7). Business labels, including signature blocks, that evidence the company from which an e-mail was sent, or even the name of a company in an e-mail address, might be sufficient proof of authenticity on their own.

Other circumstances, such as the distinctive characteristics of an author's e-mail address or the subject matter and style of the e-mail itself, may also be sufficient to establish authenticity.

BE PREPARED TO AUTHENTICATE EVERY STEP IN THE EMAIL CHAIN

An e-mail often has attached to it the e-mail or series of e-mails to which it is responding, creating an e-mail "chain," also known as a "string" or "thread." Some courts have found that each e-mail in a chain is a separate communication, subject to separate authentication and admissibility requirements. A lawyer should thus be prepared to authenticate every step of a chain. 

THE HEARSAY EXCEPTION IN EMAIL EVIDENCE 

The second major hurdle for getting an e-mail into evidence is the hearsay rule. By definition, hearsay is an out-of-court statement "offered in evidence to prove the matter asserted." The first way, therefore, to overcome a hearsay challenge to the admission of an e-mail is to claim that it's not hearsay at all.

An e-mail that is an admission by a party-opponent is "not hearsay." If your opponent is an individual, this is a simple test. In the corporate setting, however, damaging admissions may be authored by lower-level employees who do not have the authority to be making such statements. In order for the e-mail to qualify as a party admission, the author needs not only to be acting in the scope of his or her employment but also to have the proper authority.

Party-opponent admissions would also include statements by "a party's agent" concerning matters within the scope of the agency, i.e., "vicarious admissions." In addition, if your opponent's e-mails contain statements of others without reservation, e.g., when a party forwarded e-mails received from others, the e-mails may be introduced in evidence as "adoptive admissions" . . . This kind of statement has indicia of reliability because "the party has manifested an adoption or belief in its truth."

IT AIN'T AS EASY AS YOU THINK:  APPLYING THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE

Many practitioners would consider e-mails as classic examples of business records for corporate entities that routinely use e-mail for both internal and external communication. Under Federal Rule of Evidence 803(6), however, only "if it was the regular practice of that business activity" to make that record can a document come into evidence under the exception.

An e-mail might fit this "business records" exception if the company -- not just the individual, but the company itself -- has a reliable practice of sending, receiving and storing that kind of e-mail. A company might have that kind of practice if it takes and records purchase orders via e-mail. Notably, an e-mail that fits into the "business records" exception may also be self-authenticating, under Rule 902(11), if its authenticity is supported by an affidavit.

Many e-mails, however, do not meet the "business records" exception because they are merely chatter, statements that are made casually and not as a matter of obligation or even routine. An e-mail sent at an employee's sole discretion is not likely to have the necessary indicia of reliability and trustworthiness to be admitted as a "business record."

If an employee sends off a quick e-mail to a colleague commenting on the substance of a meeting with a business partner, it may not be admissible. By contrast, minutes of the same meeting kept by the same employee and circulated to all in attendance, in e-mail form, at the request of management could qualify under the "business records" exception.

Although there is not yet a well-established line of cases on this issue, courts appear concerned that if they allow e-mails into evidence as "business records" too easily, people will begin to use the convenience of e-mails to write self-serving internal communications.

AND HOW ABOUT THOSE BLACKBERRY COMMUNICATIONS?

With the advent of handheld devices as well as the ubiquity of laptop computers, e-mails may actually be admitted into evidence on the basis of "present sense impressions," or even as "excited utterances," as in Lorraine. People are often using e-mail to comment on events as they are transpiring, even during meetings.

If one can show that an e-mail was written while perceiving an event or immediately thereafter, or while under the stress caused by a startling event, it might meet the "present sense impression" or "excited utterance" standards of rules 803(1) and 803(2).

Of course, these standards are difficult to meet because contemporaneousness or near-immediacy is necessary. An e-mail might still meet the "present sense impression" standard if written 10 minutes after an event, but many e-mails are written hours or days later. 

The special problems posed by e-mails do not change the rules of impeachment. A lawyer's ability to cross-examine a witness with a prior inconsistent statement does not change merely because the statement is contained in an e-mail.

AND FOR THE UNDER 30 SET:  TEXT MESSAGES!

Text messages, instant messaging, chat rooms or "team rooms" (in which all materials concerning a project are preserved electronically for the entire project team to access) all present unique evidentiary challenges.

Practitioners need to be proactive in their efforts to ensure that key pieces of evidence can be admitted at trial. From the time of the initial review of documents through discovery, lawyers need to focus on how to get in or keep out such evidence.

Beatrice O’Donnell is a senior partner in the trial practice group of Duane Morris. She practices in the areas of product and professional liability, as well as commercial and insurance litigation. O’Donnell has tried to verdict more than 80 major civil jury trials in both state and federal courts, and has tried hundreds of arbitrations and mediations. She has been both national and regional coordinating counsel for a number of pharmaceutical and other clients facing mass tort litigation. Thomas A. Lincoln is an associate with the trial practice group of the firm.

Thomas A. Lincoln practices in the areas of products liability, consumer fraud, and commercial litigation, including complex litigation such as multidistrict litigation proceedings and class actions, representing both defendants and plaintiffs. Mr. Lincoln is admitted to practice in Pennsylvania. He is a 1999 graduate of New York University School of Law and a graduate, with honors, of Swarthmore College

(left:  photo of the fighting Judges; listen, they look like really really nice people; this could happen to any of us; thank goodness our fallible human behavior isn't likely to be reported on Fox News).

We owe this story (excerpt below) to an alert Wall Street Journal Law Blog reader commenting on Judge Ashamed of Strip Club Charges (I guess this qualifies as my sensationalist Judge posting of the year)  

 

MARSHALL, Ark. — A scheduling conflict between two judges needing to use the same Searcy County courtroom Wednesday morning started an argument that escalated to threats of arrest, witnesses said.

Searcy County District Judge Jerry Patterson said he and 20th Circuit Court Judge Rhonda K. Wood were scheduled to have the courtroom in Marshall. Patterson was set to hear small claims lawsuits, while Wood had criminal cases set to be heard.

Witnesses who declined to be identified told the Harrison Daily Times the two judges threatened each other with contempt citations — even arrest and possible jail time — over the scheduling dispute. Arkansas State Police spokesman Bill Sadler said a state trooper was dispatched to the courthouse over the dispute, but was called off before he arrived because "his services were not needed."

CONFLICT DE-ESCALATION

On the strip clubs I won't comment except to say (I guess I'm commenting) this is pretty low-level extramarital action -- embarassing -- but it shouldn't make headlines. (post on the social benefits of gossip soon)

The titillation of Judges in Strip Clubs aside (yeeccchhhhhh) I'm more interested in how to de-escalate a conflict over office/courtroom space.  Most of my readers are litigators (as were most Judges) and we are trained to escalate conflict until it's so uncomfortable the other guy cries "uncle."

So I'm providing a de-escalation technique that's as useful in negotiating over office space as it is a Middle East peace treaty.  

GRIT:  GRADUATED AND RECIPROCATED INITIATIVES IN TENSION REDUCTION

Using this technique, you can begin to de-escalate conflict even if your warring partner is not interested in doing so.  This calls for a great deal of maturity.  I'm thinking the best of my readers here.

1. make a small, unilateral (one-sided) concession to the other side; and
2. simultaneously communicate your desire or expectation that this gesture will be matched with an equal response from your opponent.
3. if s/he does respond positively, make a second concession, and a "peace spiral" is begun.
4. these concessions should be designed to build trust, but should not be terribly costly (materially or strategically), nor should they suggest weakness.
5. they should indicate a willingness to transform the conflict to a more cooperative and less adversarial approach.

GRIT WORKS IN INTERNATIONAL DIPLOMACY SO IT SHOULD WORK IN THE OFFICE TOO

Excerpt below from the indispensable CRInfo.

Anwar Sadat's trip to Jerusalem in 1977 was one example of GRIT at work. Before his trip, hostility and suspicion between Egypt and Israel was very high, and several wars had already occurred. In 1977, Sadat announced that he wanted to visit Jerusalem to increase trust and to diminish tensions between the two nations. The trip cost him very little, while it greatly improved his image in Israel and with its allies, and led to the historic Camp David Accords a year later.

Thanks to Concurring Opinions for directing us to TouchGraph where you can get a visual print-out of your blog's network neighborhood.  Below, Settle It Now's connections thanks to Geoff Sharp at Mediator Blah Blah who took a screenshot of it for me when I announced my inability to do so myself.  See how wonderful community can be?   

Geoff, would you like to teach me to fish or do me a similar favor for the IPADRBlog? 

(below:  Dustin Hoffman puzzling over his jury in Grisham's Runaway Jury - directed by Gary Fleder  Memorable movie quote:  You think your average juror is King Solomon? No, he's a roofer with a mortgage. He wants to go home and sit in his Barcalounger and let the cable TV wash over him. And this man doesn't give a single, solitary droplet of shit about truth, justice or your American way)

Concurring Opinions covers juror blogs today by, among other things, quoting a foreman's juror blog as follows.  

Today was the last day of jury duty. I served as foreman of the jury. By the end of the case I thoroughly disliked the defending attorney. He had abused, postured and bullied his way through the entire trial, and had treated the witnesses for the prosecution, who were solid citizens doing their jobs, with disrespect and contempt. I was concerned that his histrionics were going to affect some of the less sophisticated among the jury to the degree that it would be hard to reach a decision on matters that were more or less clear. Just prior to the closing statements I decided to see what effect I might be able to have on the outcome given the limited set of tools available to me...

[I] . . . paid special attention to the participation of an elderly woman of color who felt out of place among so many white men, and a quiet Hispanic man who had also been swayed by the theater of the defense. Within an hour we had a conviction on both counts, and on all of the sub clauses of the counts. At the end of it we all felt that we had done the right thing, which I think we did.

I have either rarely, or perhaps never attempted such a conscious manipulation of my presentation of self as an adult. The fact that nobody knew me was an asset.

Of course, if you've attended as many jury focus groups as you've tried cases to a jury, you already know this.  Know what?  Just how unpredictable and uncontrollable that 12-headed creature the jury can be.  

I don't mean to bury the lede (I'll make this the subject of a full post later) but I was talking to an old friend and jury consultant, Chris St. Hilaire of Jury Impact today (both of whom I highly recommend) about the dwindling jury trial and the use of  professionally prepared mediation presentations and mediation focus groups. 

Much much more about this later.

Stephanie West Allen of Idealawg asks, "If you have the mediator, why do you need the software? while Diane Levin of Online Guide to Mediation blogs on Tractis, a web-based platform to revolutionize the negotiation, management, and execution of contracts in e-commerce here.

 

Grandmother didn't just possess this wringer washer; she used it when I was a child.  And the clothesline at the right is the type planted in my suburban backyard in the early '60s - the one I used to hang the laundry on with clothespins when I was a child.

 

And this is the manual typewriter on which I learned the QWERTY keyboard in my junior year of highschool in 1968.  

And this (right) is the mimeograph machine we used to print flyers to announce our consciousness-raising groups in the early 1970's.  

It's not exactly walking 10 miles to school in the snow.  But, you know, I'm a HUGE FAN of progress.

So, I say -- bring Artificial Intelligence on!

For a real win-win, see the Professional Women's Network of Southern California Blog, subscribe to the feed, and join us in September for our first working meeting.

All is revealed at http://www.womenlawnet.blogspot.com  

(photo by  Ken Douglas)

For some of the reasons your clients might not want to include arbitration clauses in their consumer contracts, see the Metropolitan Corporate Counsel Article on Class Arbitration by P. Christine Deruelle and Robert Clayton Roesch of Weil, Gotshal & Manges LLP.

Excerpt on the Perils of Class Arbitration below: 

 
First, the scope of review available for an arbitrator's ruling is significantly limited. . .

Second, the conventional time and cost-savings of arbitration may be lost in class proceedings, since each of the interim phases related to class- and merits- arbitral awards will carry with them potential burdens relating to discovery, briefing, hearings, and time, money and effort spent in obtaining judicial review at each of the various phases, which will not necessarily be present in individual arbitrations.

Third, the parties' arbitrator selection process will likely be guided by different factors in a class arbitration proceeding than in an individual arbitration, since the fate of all of the class claims will be decided by a single arbitrator or panel.

Fourth, the specter of class arbitration disposes of the presumption of privacy and confidentiality in arbitration.

Part II of this two-part article will address potential means for companies and practitioners to attempt to avoid these and other pitfalls of class arbitration.

Don't let this summary lead you to believe that this article is not extensive, thorough and deep.  If this is a topic of interest to you, this is one of the best articles on the topic I've seen.  Do click on the above link and take a peek.