Southern California Arbitration Mediation and Conflict Resolution : Settle it Now Dispute Resolution Services : Serving Los Angeles, Beverly Hills, Century City : Settle It Now Negotiation Blog

(photo by Ashley Dinges)

If you're entering the job market, you'll want to check out Forbes' Magazine's Tips for Negotiating Your First Salary.

If you do not negotiate your first salary, you stand to lose half a million dollars over your lifetime. 

Who says?  The women who brought you Women Don't Ask: Negotiation and the Gender Divide

And for women entering the job market, here are the grim statistics: 

• women's earnings relative to men's have stagnated at 73.2 percent.
• In surveys, 2.5 times more women than men said they feel "a great deal of apprehension" about negotiating.
• Men initiate negotiations about four times as often as women.
• When asked to pick metaphors for the process of negotiating, men picked "winning a ballgame" and a "wrestling match," while women picked "going to the dentist."
• Women will pay as much as $1,353 to avoid negotiating the price of a car, which may help explain why 63 percent of Saturn car buyers are women.
• Women are more pessimistic about the how much is available when they do negotiate and so they typically ask for and get less when they do negotiate—on average, 30 percent less than men.
• 20 percent of adult women (22 million people) say they never negotiate at all, even though they often recognize negotiation as appropriate and even necessary.

Women Suffer When They Don't Negotiate

• By not negotiating a first salary, an individual stands to lose more than $500,000 by age 60—and men are more than four times as likely as women to negotiate a first salary.
• In one study, eight times as many men as women graduating with master's degrees from Carnegie Mellon negotiated their salaries.
• The men who negotiated were able to increase their starting salaries by an average of 7.4 percent, or about $4,000.
• In the same study, men's starting salaries were about $4,000 higher than the women's on average, suggesting that the gender gap between men and women might have been closed if more of the women had negotiated their starting salaries.
• Another study calculated that women who consistently negotiate their salary increases earn at least $1 million more during their careers than women who don't.
• In 2001 in the U.S. women held only 2.5 percent of the top jobs at American companies and only 10.9 percent of the board of directors' seats at Fortune 1000 companies.
• Women own about 40 percent of all businesses in the U.S. but receive only 2.3 percent of the available equity capital needed for growth.
• Male-owned companies receive the other 97.7. percent.

Women Have Lower Expectations and Lack Knowledge of their Worth

• Many women are so grateful to be offered a job that they accept what they are offered and don't negotiate their salaries.
• Women often don't know the market value of their work: Women report salary expectations between 3 and 32 percent lower than those of men for the same jobs
• men expect to earn 13 percent more than women during their first year of full-time work and 32 percent more at their career peaks.

You Can Do It

It's not that we're not good negotiators.  A Harvard study (which I'll find & link to later) showed that women negotiated as successfully as men when they were negotiating for someone else!

So just pretend you represent yourslef and go for it.

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Check out JAMES HALUCK v. RICOH ELECTRONICS, INC. making the case today for ADR.

As the Met News summarized today:

Judge’s flippant comments about defendant and counsel in presence of jury throughout trial created appearance of favoritism toward defendant and required reversal of judgment favoring defendant. Trial judge erred in viewing videotape, which defense said it intended to offer as evidence, in presence of defense counsel where plaintiffs’ counsel was not present and did not waive right to be present. Judge engaged in misconduct by conducting trial in "circus atmosphere" in which judge committed such improper actions as allowing defense counsel to sing "Twilight Zone" theme while cross-examining plaintiff, suggesting that plaintiff was not functioning within the bounds of reality; holding up signs reading "overruled" instead of ruling verbally on objections; making demeaning comments when overruling objections and otherwise belittling plaintiffs and their counsel; using soccer-style "red cards" to indicate when judge thought statements were improper; and making sarcastic remarks suggesting a belief that plaintiffs were not credible.

Judge’s instructions to jury in which he acknowledged that he "talk[ed] a lot" and told jurors they "shouldn’t take anything that I say seriously [because] I have no role in this trial" did not cure prejudice created by judge’s egregious misconduct throughout trial, nor was such misconduct ameliorated by judge’s frequent rulings adverse to defendant. Where judge’s conduct throughout trial created appearance of bias, appropriate remedy was to reverse judgment and order case assigned to new judge. Japanese Friendship, Commerce and Navigation Treaty of 1953, to extent it may preempt state antidiscrimination laws with respect to the hiring of Japanese nationals by Japanese companies doing business in the United States, does not apply to an action against a local subsidiary of a company incorporated elsewhere in the United States that is a subsidiary of a Japanese company.

Makes the movie And Justice For All look too favorable a representation of the judicial process (all the Judges I know excepted!)

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(photo:  Fighting Cats by Nikographer Jon)

From UK Mediator Justin Patten's (Human Law Blog) useful new e-mail newsletter and well-established blog -- 5 ways to avoid costly litigation, summarized below and linked here.  

1 Think carefully about the type of people that you do business with.

2 Be the kind of organisation which does not create disputes.

3 Seek to communicate effectively and consistently.

4 Have management trained to face up to the dispute. 

5 Have plain English and not too onerous legal terms.

For more details about Justin's mediation services, tailored mediation training or lunch time briefing sessions, call him at 01920 462202 or email Justin at  advice@human-law.co.uk

The Pitch

Justin Patten is an Accredited Mediator with the Academy of Experts who has advised in many workplace disputes. As a qualified solicitor he has also acted for clients on a wide range of employment disputes and is fully familiar with the legal process. Over the last 18 months he has elected to specialise in mediation, providing a full mediation service direct to businesses and via law firms, as well as providing practical mediation training. 

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Fear Factor:  Letting a Jury Decide Your Case

What drives the settlement of all cases involving personal injuries and even those opponent-neutral disputes between commercial competitors? 

Fear of juries, of course. 

Juries are the "better" (or "worse") alternatives to negotiated agreements that mediators talk about when they throw around the acronyms BATNA or WATNA (see mediator Jessica Notini's excellent primer Effective Alternatives Analysis In Mediation: “BATNA/WATNA” Analysis Demystified).  

The Elephant in the Settlement Room

Even though Adam Liptak's New York Times Select article, Oddity in Picking Jurors Opens Door to Racial Bias, concerns death penalty cases, the means of choosing the members of the final 12 (or six in federal court) also drives civil justice in America.    

The referenced "oddity" in American trial law?  The peremptory challenge that permits lawyers to exercise more or less control over the final composition of the jury than some believe is warranted in an aspirationally color-blind justice system.  As Adam Liptak reports,

Justice Thurgood Marshall wrote that . . . . “peremptories inject [racial discrimination] into the jury selection process[, the elimination of which] . . . “can be accomplished only by eliminating peremptory challenges entirely.”

Two years ago, in the Miller-El case, writes Liptak, "Justice Stephen G. Breyer appeared to endorse that view, saying that “peremptory challenges seem increasingly anomalous in our judicial system[,]”  writing that 

 England has eliminated peremptory challenges but “continues to administer fair trials based largely on random jury selection.

Liptak concludes by suggesting that

Peremptory strikes are an odd and arbitrary historical artifact. Unlike equal protection, they are not guaranteed by the Constitution, and in capital cases — where race matters most — they would not be missed.

The settlement angle on this?  You can see it coming. 

In American urban courtrooms throughout the country, settlement decisions are commonly based upon the probable racial, ethnic, gender, and socio-economic composition of a jury that will eventually give their thumbs up or down on the Plaintiff's case.  If settlement decisions are governed by audacity on the Plaintiffs' side and fear on the defense side, both are often pinned upon the presumed "passion and prejudice" the "have nots" will bring to decisions affecting the "haves."  

And as the gulf between these two groups widens, the fear on the defense side has become more palpable.  *

Is this any way to run a justice system in a racially polarized society?

The White Reaction to the Black Reaction to the O.J. Verdict

We talk about "race cards" in this country because of the O.J. Verdict.  It wasn't so much the result of the O.J. trial that shocked America, as it was was the white reaction to the black reaction to the verdict. 

As Harvard Professor Henry Louis Gates, Jr. wrote in the aftermath of that trial (Thirteen ways of looking at a black man’ (23 October 1995), the phrase 

’ “race card” … itself infuriates many blacks. [Federal Appellate Court] Judge Leon Higginbotham Jr. . . .[said of] charges that Johnnie Cochran played the race card. “This whole point is one hundred per cent inaccurate. . . . If you knew that the most important witness had a history of racism and hostility against black people, that should have been a relevant factor of inquiry even if the jury had been all white .. .

[Academic and activist] Angela Davis [says] ... “Race is not a card,” she says firmly. “The whole case was pervaded with issues of race.” ’

Is Race a Card?

This is too big a question for this post.  I grapple with this issue an upcoming article in the LaTrobe University Dispute Resolution Journal (Vol. No. 1, so you won't yet find it online) and will link to it when it is published.

Let's just say this.  The jury is, as it was meant to be, a microcosm of the society.  Though originally meant to be comprised of people who were witnesses or who could track down witnesses to directly learn about the events giving rise to the dispute, over time the jury became a presumably neutral body that would determine credibility, "find facts" and, with the Judge's instructions, apply the law to the facts the jury deems the more credible.  

In analyzing the potential pre-trial settlement of an action, the attorneys consider everthing to be a potential "card."  If the stakes are high enough, they hire jury consultants to advise them how to select a jury that favors their side because trial lawyers are advocates looking for a jury that will be prejudiced in their favor.

This is not news.  It is the judge and the jury that are supposed to be neutral, not the trial attorneys.  And if they can increase their chances of winning by leaving African Americans or Koreans or the marginally employed on a jury, they will do so.  If it helps their case to use their peremptories to empty the jury box of women or Gen-X'ers or engineers or African-Americans, they will do that too.

And This Has What To Do with Settlement?

For a negotiated agreement to do the job of resolving the dispute in a better way than its alternative -- trial -- the parties and the mediator will have to grapple with the racial and ethnic and gender elephants in the room.  

And it may just be that a mediator who is capable of setting aside his or her prejudices long enough to look past issues of race, ethnicity, nationality, obvious religious affiliation, and gender, might be the one who is most capable of helping the parties achieve something that resembles justice.  

_____________________________

*     By the 1980s the United States had become the most unequal industrialised country in terms of wealth. The top 1% of wealth holders (the ‘Super Rich’) controlled 39% of total household wealth in the United States in 1989, compared to 26% in France in 1986, about 25% in Canada in 1984, 18% in Great Britain, and 16% in Sweden in 1986. More than 46% of all outstanding stock, over half of financial securities, trusts, and unincorporated businesses, and 40% of investment real estate belong to the super rich. The bottom 90% are responsible for 70% of the indebtedness of American households. Wolff, How the pie is sliced: America's growing concentration of wealth’ (1995) 22 The American Prospect 58.

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From time to time I publish advice and "cheat sheets" for young lawyers who are just beginning practice.  This last week-end, I once again had the privilege of teaching some of the brightest young lawyers in the country how to take a deposition.

I've been teaching this workshop for the National Institute of Trial Advocacy since the mid-nineties.  The day before the workshop every year, I think, why did I sign up to teach this again?

And the first day of the workshop I answer, because these young lawyers learn with the speed that children heal.  They come in not knowing how to ask a simple question and leave three days later running a competent line of cross-examination.

I give you the "funnel technique" and will soon provide extra tips for your first or fifth or tenth deposition.

For more posts on taking depositions, click here, here, here and here.

Have a great career.  Many complain but, really, its a stimulating, character-building, multi-dimensional board game with real stakes.  You never master it.  That's the good of it.  There's always a challenge.

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I've been reading Stephanie West Allen's Renaissance Woman Blog, Idealawg, ever since I began blogging myself just about a year ago.

Here's the really really really good news.  Stephanie has started a new blog, Brains On Purpose™ Neuroscience and Conflict Resolution in collaboration with Jeffrey M. Schwartz, MD.

Check out their upcoming seminar in January in San Francisco as well.  

The blog is brand spanking new and I, for one, am greatly looking forward to getting a large part of my ADR-Neuroscience reading from these two experts in the field.

Add them to your news reader today!

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Nice perceptive piece on negotiating fees over at the Consultant Journal blog entitled Negotiating vs. Giving Up.  Thanks for the tip Andrea.

The above negotiation tip is sponsored by the acronym ZOPA.

Your mediator should never never never never let the parties believe they've reached impasse until the mediator is as certain as she can be that there is no Zone of Potential Agreement. 

How does s/he know?  Tune in for tips to knowing the mind of your mediator.

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In his article, Feeding Lawyers' Souls but Not Their Wallets, New York Times writer Adam Liptak reports on a recent federal appeals court opinion confirming the old legal saw that bad facts make bad law.

Should Pro Bono Attorneys Be Required to Accept "Psychic Reward" When Their Clients are Entitled  Attorneys Fees?

It seems that Gibson Dunn prevailed in a federal Voting Rights Act case after eight of its attorneys devoted 300 hours to the legal effort, resulting in a $107,000 bill, to be paid by the taxpayers of Albany County.

Most law firms the size, sophistication and power of Gibson do a lot of high profile pro bono work, with no expectation of reward.  When the law permits the recovery of legal fees, however, they are as entitled to be reimbursed as any other lawyer -- be s/he a solo practitioner, a public advocacy group, or a mid-sized law firm.

Sometimes only a firm like Gibson is capable of handling "small" cases on behalf of public-sprited NGO's.  I know.  I represented the Rain Forest Action Network when Occidental Petroleum brought suit against it for picketing the CEO's house in Brentwood.  Right or wrong, this is the type of case most attorneys could handle with a bit of a brush-up on the recent constitutional law on picketing.

Later, however, RAN needed an attorney to respond to a congressional subpoena implicitly threatening its tax-exempt status.  There aren't a lot of attorneys who can do this work, so I lateraled it to an AmLaw20 firm, with a D.C. office and lawyers capable of responding to power with power.

Let's Give the Federal Judges a Raise!

Federal judges -- all of whom are long past due for a pay raise -- sometimes cast a skeptical eye on fee requests by major international law firms.  When first year attorneys at these firms are making more than federal judges, we understand how it rankles.

But the "psychic reward" calculus seems not to have precedent -- nor credible legal basis -- as a response to any attorney's request for fees, be s/he a Gibson lawyer or a solo practitioner.     

Let's Get Back to Judging Fee Requests by their Merit

First, Voting Rights fee provisions are not simply meant to reimburse counsel.  Rather, we suspect, the exception from the "American Rule"  that governs most litigation, is to encourage attorneys -- not all of them Gibson, Dunns -- to take on cases for indigents harmed by civil rights abuses. 

We also suspect that fee awards in Voting Rights Act cases have some punitive purpose -- to encourage the government, for instance, to abide by the Act without lengthy and expensive legal resistance.

And hey!  Some attorneys get a lot of psychic reward from representing their corporate clients, not all -- or even most -- of whom are Simon Legrees of capitalism.  Rather, they're the types of enterprises that keep the American economy humming along for the benefit of most of our citizens. 

Would a court suggest that Yahoo's attorneys, or Google's, should be satisfied by the good they do for the economy of the country rather than seeking actual cash payment for the work they do?  What if their representation of Apple gives attorneys not only the "psychic" reward of playing golf once a week with the CEO, but also social capital -- access to people who can connect you to others who can make you even richer and more powerful than you already are. 

Should we consider that when granting or denying fee awards to the attorneys for Microsoft?

No Good Deed Goes Unpunished

We  shouldn't read this case as a happy occasion to bash attorneys who are signficantly more financially successful than the rest of us.  Rather, we should read it for the decision it is -- yet another occasion to confirm a second class status for the least of us, who this federal court presumes should be content to accept charity from attorneys who cannot hope to recover the fees that might be awarded if they represented clients with sufficient funds to to pay their attorneys in the first instance.   

If Gibson's fee was excessive, it should have been measured as all fee awards are -- based upon the sophistication and difficulty of the legal work required, the amount of time expended and the result achieved.

The fee should not, however, rest upon some unmeasurable "psychic award" that public spirited lawyers presumably receive when working pro bono or for a "good" cause.  

And the Settlement Angle? 

The news here is far from good as well.  If the indigent plaintiff is treated as a second class citizen by the courts, the wrongdoing defendant benefits at the expense of a good samaritan.  With more bargaining chips in hand, the defendant can cut a more advantageous bargain for itself.  The plaintiff -- bent primarily upon the public good -- must be satisfied with a lesser monetary reward and fewer bargaining chips to achieve the social justice s/he seeks.

Gibson did a good deed and is repaid for its public service by derision from the bench for its financial success and a diminished fee award.

No good deed goes unpunished.   

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We've taken to heart Justice Ruvolo's admonition that the Courts should put their resources into their central mission -- providing a litigation and trial forum to resolve disputes that the parties cannot or should not be required to resolve in "alternate" private forums.  

Though I'm an ADR fan, I don't think either arbitration or mediation should be utilized simply because the courts can't get your dispute resolved effectively, efficiently or in a cost-effective manner.

As we've noted before, no one wants to settle a case looking down the barrel of a gun.  Too often the "justice" system looks more like a .357 Magnum than the constitutionally mandated "fair trial" we've been brought up to believe in. 

Free the Defendants -- Dismiss Dubious Pleadings

Courts are at their most frustrating when they permit dubious or skeletal Complaints to stand, thereby requiring defendants to expend hundreds of thousands of dollars in legal fees to engage in the discovery and further pre-trial practice that they hope will extricate them from the litigation at the end of a (very long) day.  

Every time a Court requires the Plaintiff's Complaint to rise above the level of speculation, a justice angel earns her wings.

So it is with the Supreme Court's recent decision in Bell Atlantic v. Twombly, summarized by a recent Mayer Brown Antitrust Client Alert  Supreme Court Decision Signals a Major Victory for Antitrust Defendants in a Variety of Industries. (You know, you really should be blogging these great intellectual treasures -- talk to my friend Kevin O'Keefe at LexBlog about exhuming your best articles from the firm's web site and coming out into the blogosphere to play!)

Here's the good news on the new standard of pleading antitrust counts as reported by Mayer Brown:   

 The Court’s ruling brings Section 1 pleading rules into line with previous decisions that, at later stages of the litigation, a plaintiff’s proof must tend to exclude the possibility that defendants were acting independently. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752 (1984).

And it finally inters the oft-cited statement in Conley v. Gibson, 355 U.S. 41, 47 (1957), that a complaint should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”—a statement that some courts have held to permit highly speculative pleading revealing only “the theory of a claim.” Stating that this “famous observation has earned its retirement,” the Court concluded that it is “best forgotten as an incomplete, negative gloss” on standards that apply only once a claim has been stated adequately.

The Court’s decision has wide-reaching implications for federal antitrust litigation and signals a victory for antitrust defendants in a variety of industries. Paired with Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), this case reflects the Court’s sensitivity to the pressures of settlement prior to discovery and its concomitant willingness to interpret strictly the Rule 8 entitlement requirement.  (emphasis mine).

For more information about your antitrust ligitiation, Mayer's Client Alert suggests you contact Richard J. Favretto or Gary A. Winters, both in Mayer's D.C. office.  

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From time to time we take a look at social psychology and evolutionary biology because ADR practitioners must be good students and careful readers of predictable human behavior and ways to encourage change.

What better place to begin than with ourselves.  In this week's Blawg Review, Enrico Shaefer's Greatest American Lawyer gathers together the week's 411 on self-reported billing irregularities. 

I know this topic is compelling to lawyers because I've had more "hits" to the Bar & Grill Singers' "I'm Billing Time"  video (their song/my video) than for any other post.

Here it is again.  

On to disreputable billable hour violations . . . .

We're Hard Wired to Detect Cheating

In their article Evolutionary Psychology: A Primer, Leda Cosmides & John Tooby report on research finding that our reasoning abilities are more finely attuned to detect cheating than any other type of misbehavior.  Before discussing violations of social norms, Cosmide and Tooby explain the most fundamental norm in human behavior -- reciprocal altruism in social exchanges. 

The evolutionary analysis of social exchange parallels the economist's concept of trade. Sometimes known as "reciprocal altruism", social exchange is an "I'll scratch your back if you scratch mine" principle. . . [S]ocial exchange cannot evolve in a species or be stably sustained in a social group unless the [participant's] cognitive [abilities permit] a potential cooperator to detect individuals who cheat, so that they can be excluded from future interactions in which they would exploit cooperators.

Who are the cheaters?  Individuals who "accept[] a benefit without satisfying the requirements that  . . . [the] benefit  was made contingent upon."  You know, the people who earn a little extra by padding their billable time by two or three hours a week.  Benefit without satisfying its conditions.  Work for hire.

How Good Are We at Detecting Cheating?  Very, Very Good

The researchers designed an experiment to test whether we have a specialized "cognitive architecture" that permits us to detect "logical violations of conditional rules."  The result?  In response to a relatively simple logical problem-solving exercise designed to test this type of reasoning, Cosmides and Tooby found that fewer than 25% of subjects spontaneously detected the violation. 

What about our logical reasoning skills when it comes to detecting cheating or bluffing?  In these circumstances, we become very smart very fast.  The authors explain:

People who ordinarily cannot detect violations of if-then rules can do so easily and accurately when that violation represents cheating in a situation of social exchange . . . This is a situation in which one is entitled to a benefit only if one has fulfilled a requirement (e.g., "If you are to eat those cookies, then you must first fix your bed"; "If a man eats cassava root, then he must have a tattoo on his chest"; or, more generally, "If you take benefit B, then you must satisfy requirement R").

Cheating is accepting the benefit specified without satisfying the condition that provision of that benefit was made contingent upon (e.g., eating the cookies without having first fixed your bed).

When asked to look for violations of social contracts of this kind, the adaptively correct answer is immediately obvious to almost all subjects, who commonly experience a "pop out" effect.

Whenever the content of a problem asks subjects to look for cheaters in a social exchange -- even when the situation described is culturally unfamiliar and even bizarre -- subjects experience the problem as simple to solve, and their performance jumps dramatically.

In general, 65-80% of subjects get it right, the highest performance ever found for a task of this kind. 

No wonder we like to play Texas Hold'em.

And no wonder we get an uneasy feeling whenever we begin to sense that our opponent (or attorney!) is cheating us.  We just know it.

As I've often opined before, this is why the collective wisdom of juries as fact-finders will always trump panels of expert advisors.  They just know who's bluffing and who's not and they don't let a lot of legal or technical mumbo-jumbo interfere with their B.S. Detectors.  

Another Benefit of Getting Your Case Before a Mediator

After mediating full-time for three years, I realize it's not just how astute and perceptive I can be in reading people (there goes another of my own self-satisfied bubbles).  A mediator is simply in a unique position in an adversarial system.  We get to use our hard-wired bluffing skill because everyone talks to us more or less openly for several hours, which is longer than we really need to get a sense of who's bluffing and who's not.

Still, in order to detect this particular violation of the social contract, you do need a mediator more skilled at listening than s/he is at solving intricate logical puzzles.  Ideally, you look for both.   Education.  Training.  Experience.  But it's likely the mediator's ability to set everything else aside and simply listen as the parties explain themselves that separates the masters from the amateurs. 

How and why we too often override our gut feelings in this regard, permitting ourselves to be bilked and scammed, is the subject of Michael Webster's Blogs, which I highly recommend you make part of your skimming.  (who has time to actually read?)

And, oh yes.  It would be best not to cheat your clients.  Biting the hand that feeds you and all that.  Better to look him or her in the eye with a clear conscience and sleep soundly than make that 2200 hour bonus this year.

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From today's New York Times article Insurers Agree to Pay Billions at Ground Zero 

The Spitzer administration announced the settlement of all insurance claims at ground zero yesterday, ensuring that $4.55 billion will be available for rebuilding the World Trade Center site.

The agreement, which the insurers described as the largest single insurance settlement ever undertaken by the industry, ended a protracted legal battle with insurers over payouts related to the terrorist attack.

New York State and Port Authority officials said yesterday that the deal removed any uncertainty over how much money would be available for rebuilding and would enable them to obtain private financing for the $9 billion project.

You wouldn't think there'd be a legal practice/personal story to go along with this settlement, but because this is the kind of work I did (insurance coverage litigation) during my last decade in practice, and because I met my husband litigating my last major coverage case (Lloyds of London adv. Imperial Oil, Exxon's Canadian subsidiary) this coverage litigation is a very personal story for me. 

How's that for a narcissistic world view?

The Legal Practice Angle

On Labor Day 2001, Steve, my beloved, moved to Heller Ehrman's Los Angeles office after 30-plus years at Heller in San Francisco. Five days before September 11.

We both had the same practice problem.  These cases -- the Imperial Oil case and soon the WTC coverage litigation -- consume your legal practice for years.  When they're over, you often think you'll never work again.  It's a little like being an actor in Hollywood.  Sure, you were nominated for an Academy Award for The Devil Wears Prada, but will Meryl Streep get another decent role ever again?

So Steve was wringing his hands about where his next case would come from.  When your practice depends upon catastrophic events accompanied by ambiguous insurance policies (they're all ambiguous) you don't want to wish too hard for new work.  

By Labor Day '01, I'd moved on to antitrust litigation against the entire Southern California workers compensation industry and was busy learning the intricacies of claims adjustment for workers comp claims.  My practice had always been more eclectic than Steve's so it was a little easier for me to pick up new work when THE BIG ONE settled.

You can see the rest coming.  Steve's daughter called the morning of September 11 and said "America's under attack."  The most chilling and difficult to comprehend string of words I've heard since a friend called at 3 a.m. in June of '68 to say "Kennedy's been shot."  

The towers came down and the coverage litigation commenced a few weeks later.  Steve and I spent our first year of unwedded bliss one week together and one week apart as he shuttled back and forth to New York for the conferences and court appearances; the depositions; and finally the mediation.  Because Steve represented Silverstein's lender (a mere $850 million) his client settled out early and we were able to get used to living together on consecutive weeks.

I neither worry about nor wish for Steve to obtain new coverage litigation anymore.  I started my neutral practice in '04.  Just as there is enough conflict in the world to keep every mediator employed full time through the next century, there will sadly be enough major catastrophic events to keep Steve employed through retirement.

And then neither of us will have to follow the "number of occurrences" case law ever again!  See also the Insurance Scrawl on the "number of occurrences" issue here.  Report on the Jury Verdict here.

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I've been following numerous discussions on mediation ethics on a couple of ADR listserv's.  As a result, I can tell you there are a lot of ethical questions circulating among mediators, many of them too important to remain the subject of private discussion.

So I'm pleased to announce that the ABA has formed a new committee -- the Committee on Mediator Ethical Guidance.  According to the most recent ABA e-newsletter, the Committee

will provide advisory responses on ethics for mediators. Established by the ABA Section of Dispute Resolution, the committee will interpret the 2005 Model Standards of Conduct for Mediators published by the ABA, American Arbitration Association and Association for Conflict Resolution.

Check it out here.

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Henry David Thoreau, Walden (the 150th Anniversary Edition)

A couple of years ago, a friend bought me the 150th Anniversary Edition of Walden – a text I hadn’t read since high school. While building his spartan but serviceable cabin in the woods, Thoreau does a cost-benefit analysis of home ownership, calculating that “an average house . . . costs perhaps eight hundred dollars, and to lay up this sum will take from ten to fifteen years of the laborer's life.”

The thing, as we were taught in law school, speaks for itself.  Or as Thoreau put it, “the cost of a thing is the amount of life which is required to be exchanged for it, immediately or in the long run.”

This line stopped me dead in my tracks. Was this phrase more profound to me than the observation that “time is money” just because it appeared in 19th Century prose? Or had I simply lived too much of my life converting my own time into money, shaving hours into tenths, merging them weekly, monthly and yearly with my colleagues’ hours, converting the whole at year’s end into overhead, earnings, distributions and investments.

Whatever the reason, Thoreau's calculus made me suddenly recognize that the sheer raw number of my actual yearly wage had become more important to me than the things it might allow me to purchase, or even to store up against potential future calamity.  In all the getting and gathering, I thought, I may have lost the point of job, career, occupation.  

And this has to do with mediation in what way? 

I often quote Thoreau's aphorism when parties reach impasse.   It helps everyone make money transparent again.  That money is the means to particular end, not an end in itself.  That, even in this cynical age, most people would prefer a fair distribution of resources reached through compromise than total victory at all costs.  This continues to mark my own experiences as a mediator, despite the fact that the justice survey is continuing to run 50-50 on the question, "would you prefer to win unfairly or lose fairly."  

So as strange as it might seem, I heartily recommend Walden as one of the tomes you tote to the beach this summer along with your soda pop, sandwiches, cole slaw and sun screen.  

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As I mentioned yesterday, I've launched a new IP ADR Blog with IP attorney and triple-A arbitrator, Les Weinstein.

My mediation practice has been developing in the direction of an IP specialty for the past year. Nearly twenty years ago, Les advised me to specialize at a time when I was saying it's always best to be a generalist.   

He was right, of course, and in 1989, I moved to Buchalter, Nemer where I embarked upon a fifteen year career in environmental coverage litigation. 

Before joining Les as an associate at Pepper, Hamilton & Scheetz in the mid-80's, I'd handled trade name and unfair competition cases.  With Les, I did more copyright and patent work than I had before or since, although I continued to keep my hand in the IP field.  In fact, the last case I tried before leaving practice was a copyright case involving the infringing repackaging of an old Kung-Fu movie. 

That's the long introduction to the announcement that I've joined forces with Les again, to develop a specialty IP ADR practice.  We've each been individually pursuing IP ADR, Les more in the capacity of arbitrator and me more in the capacity of mediator.  We occasionally co-mediate multi-party IP disputes together and have found how well we work with one another.  

I don't know an IP attorney half Les' age who is more on the cutting edge of the emerging technological, commercial and legal issues than he is. He's an amazing guy with a big firm background -- Graham & James; Squire, Sanders & Dempsey & most recently, the IP firm of Sheldon Mak.  It's exciting to be practicing together again -- as neutrals.    

Together, we've launched an intellectual property ADR practice and blog. The temporary blog site is http://www.ipadrservices.blogspot.com. Kevin O'Keefe at LexBlog is going to set up the permanent blog for us.

Important aside:  an hour with Kevin on the telephone about marketing your practice with a blog is worth the price of the blog and its yearly maintenance.  (But don't tell Kevin what a great deal he and his company are or he'll raise his prices and I'm not yet that successful).  

The IP practice allows me to do what I love the most, which is to drive a business deal, maximizing commercial strategies and synergies, as well as long-term business planning.   

Most of all, I enjoy debunking the prevailing wisdom that a good settlement is one that makes everyone unhappy.  When I entered the mediation field, one of my private goals was to give my clients an opportunity to negotiate settlements that made them at least as happy as the business deals they routinely broker.  Although it doesn't, couldn't, happen every time, it happens a lot more in the IP field than in any other.  

When the parties realize that I'm prepared, indeed, eager, to roll up my sleeves to help them craft the same kind of sophisticated commercial deal that made them technological and commercial successes in the first place, they immediately get alot happier.

That's why I'm moving my practice in the direction of an IP specialty and why Les and I have started the IP ADR Blog.  I hope you'll visit us there.  

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Because I've joined my expanding IP ADR practice with that of AAA arbitrator and mediator Les Weinstein, we've set up a "place holder" IP ADR Blog to reflect our partnership (in the broadest, not the legal, sense) in all things IP.

Do visit the new site if you are the client with IP issues or an attorney with IP clients.

We're excited about the new venture and hope our readers will benefit from the expansion.

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Ask any lawyer what's the worst thing about legal practice and 9 times out of 10 the answer will be, "keeping track of my time."  

So a huge "thank you" to Tammy Lenski at Mediator Tech for hipping us to the best new way to keep track of time:  Jott.  

Others may use Jott to remind them to pick up a gallon of milk on the way home, but I'd suggest using it as your time-tracker.

The service is free.  You call the Jott telephone number (on speed dial), say "me" to its automated voice and dictate your 30-second (or less) message.

"The Larson matter.  I drafted the Complaint on May 16.  2.4 hours." 

Jott will send your message, transcribed, to your email box or, if you've got an assistant, to his.  

Done.  Thanks Jott!

Oh yes.  You can also use it to remind yourself to  pick up the milk on your way home.

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The Enemy of My Enemy is My Friend

Mr. and Ms. Keene (names changed) entered the community mediation conference room and cautiously took their places next to one another at the scarred wooden table.  Though slightly wary, their greetings were warm.  He touched her lightly on the arm.  She pulled away, but smiled back.  

After the preliminaries were out of the way -- introductions, "rules of the road," the signing of a confidentiality agreement -- Mr. Keene launched into a low-key but passionate tirade about . . . . . .

               THE ATTORNEYS . . . . . .

a topic upon which there was complete agreement.

The attorneys had been

• disrespectful, retiring to chambers with the judge while the parties sat outside the closed door listening to their attorneys' laughter;
• unresponsive to telephone calls; and,
• high-handed in responding to the Keenes' repeated requests to deviate from certain "standard" or "accepted" custody arrangements in favor of arrangements they knew were best for them and their child.  

I apologized for the way we attorneys sometimes act as if the dispute is our own; as if our relationship with Judge and opposing counsel is more important or compelling or fun than our interest in our clients; and, as if we know more about what's good for our clients' business (be it the business of running a family or a Fortune 500 company) than our clients do.  

By the time Mr. and Mrs. Keene arrived at the door of the Community Dispute Resolution Center, they were not simply exhausted and angry, they were nearly entirely disempowered.

"How do we 'de-power' our lawyers?" they asked.

"By taking your power back," I responded, alert again to my own inclinations to give unsolicited advice or raise problems only I might think the parties have. 

I've seen attorneys unite disputants before.  Early in my career, I observed the bitter progress of a case involving hundreds of millions of dollars in lost profits and a fight for the control of intellectual property worth more than a billion dollars.  After the parties had turned one another into the tax and custom authorities, they met without their white shoe attorneys, settled the case, and sued counsel for malpractice.

The Keenes left the mediation with an agreement in hand and their self-respect restored.   

I do not fault their attorneys.  I do not know what transpired before I arrived on the scene. 

I only know that at some point, the attorneys lost "control" of their clients by asserting too much of it. 

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When it comes to employment arbitration agreements, it seems like the more bases you try to cover, the less likely a Court is to enforce them.    

Even the highly respected Los Angeles-based international law firm of O'Melveny & Myers has proved itself unable to draft an employment arbitration agreement that satisfies California's procedural and substantive conscionability requirements.    

Just today, the Ninth Circuit Court of Appeal in Davis v. O'Melveny & Myers  held that the law firm's attempt to impose an arbitration agreement upon existing employees with a three-month notice period was both procedurally and substantively unconscionable.  (For a criticism of the opinion, click here).

In finding that O'Melveny's attempted imposition of the agreement on its employees was procedurally unconscionable, the Court stressed the firm's "overwhelming bargaining power" and the "take-it-or-leave-it" basis upon which the agreement was proffered.  Although the Court distinguished provisions that might permit an employee to negotiate a different deal, given its characterization of  O'Melveny's bargaining power, we don't imagine this Court would have read such a clause as anything other than illusory.      

As the Ninth Circuit stressed, however, a procedurally unconscionable agreement must be "analyzed in proportion to evidence of substantive unconscionability."  It thereupon went on to find four provisions substantively unconscionable:  the “notice,” confidentiality and, “business justification” provisions, as well as the limitation on initiation of administrative actions.

The challenged notice provision required the aggrieved employee to "give . . . notice of a Claim [within the year it arose] along with a demand for mediation" or it would be "lost forever."  Quoting Richards v. CH2M Hill, Inc., the Court held this provision substantively unconscionable because it would deprive the employee of the right to assert the "continuing violation doctrine available in FEHA suits" a benefit that flows only to the employer.  

The challenged confidentiality provision -- prohibiting mention of the mediation or arbitration "to anyone not directly involved" - was also found to be unduly favorable O'Melveny.  As the Court explained:

Such restrictions would prevent an employee from contacting other employees to assist in litigating (or arbitrating) an employee’s case. An inability to mention even the existence of a claim to current or former O’Melveny employees would handicap if not stifle an employee’s ability to investigate and engage in discovery. The restrictions would also place O’Melveny “in a far superior legal posture” by preventing plaintiffs from accessing precedent while allowing O’Melveny to learn how to negotiate and litigate its contracts in the future. Id. Strict confidentiality of all “pleadings, papers, orders, hearings, trials, or awards in the arbitration” could also prevent others from building cases. . . It might even chill enforcement  of Cal. Labor Code § 232.5, which forbids employers from keeping employees from disclosing certain “working conditions” and from retaliating against employees who do so.

The challenged exemption for alleged breaches of  confidentiality was also found to be unenforceable.  "As written," held the Court, the provision permitting a "non-mutual exception allowing [O'Melveny] a judicial remedy to protect confidential information" was “one-sided and thus substantively unconscionable.” 

Finally, the Court held that the agreement's preclusion of employee complaints to agencies charged with the well-being of California's citizens such as the Department of Labor, was contrary to public policy and therefore substantively unconscionable as a matter of law.  

There you have it.  One of the best law firms in the country was unable to draft an employment arbitration agreement that could pass public policy muster.  

Would anyone else like to give it a try?

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(flickr photo:  Elevate by Frozenquack)

Every lawyer, business person and neutral interested in controlling his/her future should read this month's article by Catherine Alman MacDonagh and Beth Marie Cuzzone, Perfecting Your Elevator Pitch in the ABA's current Law Practice Magazine.

When I was a young associate, a senior partner in my firm bragged that he could pick up a girl during the time it took the elevator to get from our floor, the 25th, to the ground.  

"That's what you have to be able to do to develop a practice," he said gruffly, as I recalled his earlier advice that all a woman has to do to pick up a guy is to "show up."  I was certain that "showing up" wasn't a sufficient skill to develop my own Fortune 500 clients but I puzzled over the elevator rule for many years as if it were a zen koan.  

Today I learn that "elevator pitch" is an actual term of art -- an "introduction and description of who you are and what you do . . . ; [an] opportunity to define (or redefine) your personal brand or your reputation." 

"Communicating your elevator pitch," say MacDonagh and Cuzzone, "allows [others] to remember how you help people" and gives them the ability to "be your commercial."   

To be effective, say the authors, your pitch should be ten to twenty seconds in duration, succinct and memorable, spotlight your uniqueness, focus on benefits and be effortless to deliver.  

Earlier today I read some great "elevator pitches" in a Los Angeles Times article about Stanford Business School's "Entrepreneur Idol" Competition.  The competition required the students to "pitch their best business ideas" in one minute to a panel of four venture capitalists and one technology blogger.   The prize was "$2,000 in seed money and connections to a top-level venture firm." 

Contest winner Linus Liang held up a diapered baby doll and asked, "What if I could tell you how you can save 4 million babies a year?"   His idea?  Create a low-cost incubator that could help infants in developing countries. 

I have a lot to say about "elevator pitches," but suggest you take a look at MacDonagh and Cuzzone's article first.  I'll get back to this topic soon.

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I was dancing at the Biltmore Hotel in Los Angeles the night Clinton was elected President.  My candidate hadn't won many Presidential elections, so I was pretty happy and danced into the early morning hours with a young stranger, a smoldering Latin who spoke in a heavily accented but intricately articulate English.    

Later, on a semi-blind date, I casually asked him why, as an Argentine national, he was involved in Democratic Party politics.

"Because Jimmy Carter saved my life," he responded.  

Then he told me his story, about love and betrayal and deception; about the Dirty War in Argentina; and, the experience of coming to America.    

He'd been a student demonstrator, having an affair with an activist while continuing to date his long-time girlfriend.  The things we do when we're young and casually cruel to the people we love.  The woman with whom he'd been having the affair was deeply involved in politics while he was recreationally protesting, burning mattresses in the streets, shouting slogans.

All three were arrested and sent to prison.  Conditions were dire.  There was much he didn't, and wouldn't, talk about.  

What he did say was this: 

"After Carter was elected, they sent the Red Cross in to check on prison conditions.  I was also an  Amnesty International Prisoner of Conscience, so it wasn't just Jimmy Carter.  Amnesty International saved my life too.  Saved all three of us."

So we do make a difference.  We can save lives. 

So I refer my readers to the Amesty International "Close Guantanamo" Blog.  

First knowledge.  Then action. 

It's the least we can do.

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While our brothers and sisters (at least one of whom, Omar Kahdr, was fifteen years old when first imprisoned) continue to suffer agonies beyond imagining at the off-shore U.S. gulag at Guantanamo, I decided to conduct an extremely unscientific survey at the intersection of Justice and Winning.

Before discussing some of those survey results (deadline extended -- take the survey NOW!) I remind my readers of the differences between distributive justice ("how much of the pie should I fairly get") and procedural justice ("how is my share of the pie fairly determined?").  See my earlier post on the several kinds of justice that scholars of dispute resolution study here.

Would We Rather Have Justice or a Bigger Piece of Pie?

One of the survey's goals is to find out what attorneys and mediators believe they would rather have --most of the pie or a fair means of dividing it.  

Responses on this topic continue to run neck and neck.  If forced to choose between winning in an unfair process or losing in a fair one, 53% of our mediators and attorneys would choose winning over fairness.  

What Our Respondents Think Justice Is

What do our respondents mean when they use the terms "fair" or "just"?  The survey permits a limited, but telling, range of "justice" options.  Our respondents were asked to check as many of the  "following factors that  indicate . . . the negotiation or mediation process was 'fair' or 'just.'"   

I list here only those that received more than 50% of the "vote."

The mediator

     "listened carefully to all parties"  . . . . . . . . . . . . 91%

     "appeared to understand party positions" . . . .84%

     "appeared to understand party needs" . . . . . .  84%

     "was impartial" . . . . . . . . . . . . . . . . . . . . . . . . . . . 83%

     "suggested resolution options impartially" . . . 69%

The parties

     "listened to one another"  . . . . . . . . . . . . . . . . . . .66%

     "were honest in what they disclosed" . . . . . . . . 64%

     "understood one another" . . . . . . . . . . . . . . . . . . 53%

To sum up, more than fifty percent of the (primarily mediator) respondents, if forced to choose, would rather "win" than have an attentive impartial mediator who understood party positions and needs and suggested resolution options impartially. 

More troublingly, if the choice comes down to winning or losing, most of our respondents would prefer to be dishonest or to have dishonesty mar the proceedings, than to honestly lose.

Think Locally, Act Globally

This is no idle survey.  When casting my own vote, I forced myself to think about how I really behave "locally" as opposed to the way I think I should behave.  If the cashier gives me more change than I deserve, I always give it back.  But if I don't discover her error until I get home, I'm unlikely to drive back. 

If we can extrapolate from this "local" practice, I am honest when it is convenient to be so and not so much when it is not.  

Which likely explains why a country of laws and, more particularly, why we as lawyers, have let the Guantanamo situation exist and persist.  It's not because we don't care.  It's because we're busy.   

Nor do I think that if any of us thought about it longer than it takes to fill out a survey, we would jettison procedural fairness for a result that is best for ourselves (be it the largest slice of the pie or the illusion of safety in a dangerous world).

Which takes us full circle to the pained recognition that we have allowed injustice to flourish at Guantanamo and elswhere on our watch.

Now what?  I recently said to someone, "I feel like standing naked in front of the White House with my hair on fire demanding representation and a fair process for the detainees.  But because I blog, I'm blogging about it." 

It's a start.  But it's not enough.

What do YOU think we should be doing? 

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OK, so the part about Paris Hilton was pure tabloid (sorry, Paris, just kidding) but look! the mysterious metallic ball part is true!  Though like most headline-catching mysteries, not all that interesting after you get past the excited utterance.

Justice, however, should be neither hype nor mystery.

There are only two days left for you to take the Negotiation Justice survey here.

Litigators:  tell your mediators what protections and benefits you're looking for in a mediation.

Mediators:  ask your lawyer friends to take the survey.

And, oh yes, the people whose disputes we resolve.  Clients.  Yes, that's you.  The people who hire lawyers.  Tell us all what it is you're really looking for.  We promise we'll undertake a great effort to serve you better.

Preview from the Justice Survey     

If you had to choose, would you prefer to lose in a fair process or win in an unfair process?

Win even if the process was unfair 54%

Lose so long as the process was fair 46%

Agree?  Disagree?  Take the survey and let us know!

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(photo:  Clean and tired by Rachel Devine)

I've blogged a lot about blogging/blawging here and spoken about it to groups of mediators for theSCMA and at the Straus Institute.

This morning, the In this case blog motivated me to give credit to flickr photographer, Sesame Ellis (aka Rachel Devine) whose glorious work -- like that reprinted with permission here  -- I've used to illustrate my blog. 

In other words, not only have I repeatedly used flickr artists' work without attribution, let alone permission, I've encouraged others to do so too.

This post is therefore both an amends and a notice to my fellow bloggers about using flickr copyrighted material without the permission of the artist.

Here's Ms. Ellis/Devine's response to my email this morning:    

I will allow you to use the image on your blog and I thank you for the link. Just for your future reference, not all photos that are marked public are free to use. A lot of people (including myself) use flickr as a blog and to showcase their everyday work.

Just like any other online portfolio, the images are all rights reserved unless otherwise stated. If you look below the green "This Photo Is Public" icon, it will state the rights available for the image. All of mine say "All Rights Reserved" which means they are not to be taken and used without my prior permission.

 There is an aspect to flickr called "Creative Commons" and that is where you will find the images that are free to use. I believe there is a way to search for those images only.

I really wish that Flickr would make it VERY clear regarding these issues of copyright and usage. It is disconcerting that someone like you who is obviously deeply educated in the law would not find the distinction obvious. I can only imagine how it appears to those who are not at all familiar with these things.

In response to Rachel's email, I went back to flickr to take a look at the copyright protection notice that I'd missed.  I hadn't missed it.  It's just not there.  I mean, Ms. Devine's "all rights reserved" tag and the little circled "c" is there.  But there's no warning about using such work without permission. 

I know, I know, I should know.  I guess I think the internet is another land.  And I forget my manners.

Flickr does explain its site's terms of use under "Copyright/IP Policy" in small print at the bottom of every page.  But that policy is more about the rules imposed upon those who post their images there. It provides precious little information about its artists' rights to forbid publication without permission.   

The creative commons license permissions are described in detail too, which is good for those who are willing to share without permission under the several designations described.  But even that page says little about those who don't operate under creative commons rules.   

So I'm passing along Rachel's reminder that "all rights reserved" means "hands off my work buster unless I say you can post it on the back that bus advertising your accident legal services with the 777-7777 number."   

At the same time, I'm posting a pretty straightforward (non-lawyer) explanation of the copyright laws as well as 10 Big Myths about Copyright Explained by internet publisher Brad Templeton. 

For the legal eagles, the Copyright Blog has an amusing history, a "fair use" calculator, and other great legal copyright insights and lore here.  

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(photo The Real Us . . . by sesame ellis, flickr) 

Thanks to Diane Levin (hey! nice new web site Diane) at the Online Guide to Mediation for hipping us to In this case . . . a blog of people telling their stories about the law.  

Brought to us by Tracey Broderick, the blog's mission is to bring you people's stories about their personal encounters with the justice system.  As Tracey explains:

In this case is a blog of personal stories about the American legal system. If you’ve gone through a divorce or served on a jury, you have a story. If you’ve served time or argued in court, you have a story. Any personal experience with the law can be a story. These stories show when the law does and doesn’t work; how it angers and inspires us. They describe the law and what it means to us all living our modern lives here in our country. This blog brings these stories together so we can hear each other.

I edit the stories. Some are sent to me; some are drawn from interviews with people who want to talk in person. I keep each story as true as possible to the words and voice of each person. If you have a story for the blog, please let me know–I love to help people be heard.

This blog should be required reading for anyone interested in justice issues -- attorneys, law professors, local, state and federal government officials, probation officers, therapists, social workers, arbitrators, mediators, police, sheriffs, bailiffs, judges, court reporters (the stenographers of raw American conflict), students of the criminal and civil justice systems, law students, activists, preachers, teachers, spouses, people who would like to be spouses, people who are tired of being spouses, parents, and children over the age of consent . . . . . gee, I think that means everyone.

Let me rephrase.  This blog should be required reading for everyone.  It's a small but powerful exercise in little "d" democracy.  The kind that grows from the ground up.  Not the kind that is brought to you by foreign lands at the point of a gun. 

And following Tracey's example, I too will henceforth give credit to the myriad flickr photographers whose photos I use more than once a grateful day of my year.

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Dear Readers,

I haven't received nearly enough attorney and/or disputant responses to the Mediation Negotiation Survey, but I can share with you some preliminary thoughts, primarily of mediators, about the qualities they think you're looking for.

Patience, by the way, is in the lead as the most-cited essential mediator quality.  

Are they right?  Take the Negotiation and Mediation Justice Survey to let them know now!

In Answer to What Qualities a Good Mediator Should Have, individual responses include:

1. Neither be naive nor cynical. 
2. Will re-focus us on what is important 
3. Skills to enhance communication between and with the parties and their counsels. 
4. intelligence
5. knowledge of the law and the court system
6. experience in the area in dispute and experience as a mediator in that area 
7. Will not intimidate the parties
8. Will NOT NOT NOT NOT talk to one party before the other party arrives if the mediation is to be conducted with both parties present. 
9. The understanding that the "truth" or whether someone is lying is unknowable in some or many instances. 
10. ability to listen 
11. patience 
12. patience
13. integrity
14. teachable
15. open-minded 
16. patience
17. ability to manage the process 
18. Resilience.
19. Accessibility. 
20. Will listen for what isn't said and will be a good coach. 
21. trustworthy 
22. Patience.
23. Intelligence.
24. A calm manner which encourages an appropriate hearing atmosphere. 
25. Will make sure both parties understand the cost (time, money and other) of not settling. 
26. sense of humor
27. perspective
28. sense of the bigger picture in the workplace/business in /about which the dispute occurred
29. ability to tease out any unspoken back- story between the parties and any goals additional to the outcome of the mediation for the parties
30. ability not to impart a sense that he/she is rushing for a plane
31. communicate that he/she is totally engaged even after the mediation ends, if called for. 
32. Flexibility. 
33. empathy
34. great facilitator
35. fair, fair and fair
36. sense of appropriate humor
37. act professional not personal
38. move along the process and keep control of the process
39. ability to deal with difficult personalities 
40. Is able to facilitate the discussion and feed back what he/she is hearing from both parties
    
    

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The question whether mediation should be "fair" or "just" elicited the following thoughtful response from one of our attorney readers, who, as you can tell from the context, primarily represents plaintiffs seeking to recover commercial debts allegedly owed by individuals and small businesses. 

Distributive Fairness

"I only think a settlement is 'fair,' says our reader, "when it incorporates the mathematical calculation of prospective damages multiplied by a risk factor of litigation (i.e. 80% chance of winning $100K, means an $80K settlement is fair)."

A mediated resolution that is "fair" under this definition only results, he continues,

 when the other side "does the math" - most defense counsel just bluster and try to throw up "what if" roadblocks that derail a serious discussion about resolving the whole dispute. They don't do the math, and even if they did, there is enough disagreement over the "odds" that the process is far from transparent.

Distributive Injustice 

"Perhaps," says our correspondent,

we have a different interpretation of what "fairness" is.  I have plenty of situations where I sue on [a] debt [where,] by the time the . . . . [contractual] interest and attorneys' fees get worked in . . . , a $5,000 debt becomes $12,000 judgment and no [one] in the world thinks this is fair. But most eventually "settle" . . . not because they want to, or believe that the . . . settlement is "fair", but because the option of coming up with [the funds] to hire an attorney, and then eventually lose, is less attractive than trying to pay on a monthly basis.

In this case, is the settlement  fair?

From my client's perspective, it will get paid more than 100% of its initial principal due, and this type of settlement completely negates the possibility of zero recovery for the creditor if the debtor is judgment proof. .   .  

[Many defendants are]  willing to pay to get out of the case for "peace of mind" and pay
more than what they thought was fair.

Fair resolutions only work when everyone is willing to play fairly - and because everyone (especially litigation attorneys) feels that dispute resolution is a zero sum game, the little tactics we use in litigation skew the process so ADR really becomes a big poker game. And when people hide information, and outside factors to the dispute loom larger than the dispute itself, it becomes less about fairness and more about force. 

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I listened to This American Life's broadcast on the detainees at Guantanamo for the first time this week and have this to say.

The last time I was this shocked by American injustice was in my childhood, sitting in my parents' living room watching black & white TV broadcasts of police taking fire hoses and attack dogs to peaceful demonstrators in Mississippi.

Really.  And there have been a lot of shocking events since then.

I'm providing you with a link to that This American Life episode below, after providing you with the following excerpt from Chris Suellentrop's New York Times Blog The Opinionator on the same subject. 

The Washington Post editorial page joins the editorial pages of The New York Times and The Los Angeles Times in despairing over the Democratic Congress’s failure to implement “the reform that may be most achievable — the restoration of the ancient right of habeas corpus to the Guantanamo detainees.”

House Democrats have not “hesitated to pick fights with the administration over such issues as whether the hiring and firing of U.S. attorneys was properly managed, or whether Karl Rove and Condoleezza Rice can be compelled to testify about their actions as presidential advisers,” the Post editorial notes.

“Why not fight for the right of habeas corpus? Maybe because it’s not really a priority for the Democrats, after all.”

Click here for This American Life's Peabody Award Winning Broadcast Habeaus Schmabeus -- MUST LISTENING for anyone interested in restoring the rule of law in the United States and having a rat's chance in %$^#@ of of holding our heads high (or least above ground level) in the international human rights community again.

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Having spent nearly my entire career litigating the terms of ambiguous contracts, I'm not certain careful drafting is the only answer, but its certainly one way to avoid the dreaded process server pounding on your door.   

As I used to tell my clients, litigation and trial are the legal equivalents of heart transplant surgery.  Pricey and potentially life-threatening.  Careful contract planning and drafting is the yearly medical physical -- prudent and worth its weight in top-flight litigators and dazzling trial lawyers.  

It is for this reason that I refer my readers to "AdamsDrafting," a first-class transactional blog and website I stumbled upon this morning.

Ken Adams, who will be here in Los Angeles in June has apparently made a career of spreading the wisdom of quality writing in the drafting of contracts.  Because it looks like he's the Shakespeare of the trade, I'm recommending that you subscribe to the RSS feed of AdamsDrafting Blog and avail yourself of Mr. Adams' wisdom when he appears in your town.

I'm not worried that Adams will put contract litigators and mediators out of business -- there's no way you can anticipate and provide against everything.  But you can avoid the repetititve pitfalls like the one Mr. Adams describes here.

Thanks for sharing the wisdom Ken!

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Here's what I like about the National Arbitration Forum -- it responds promptly and effectively to its clients -- a quality you look for in an ADR provider.

Earlier, I hipped my readers to NAF's inclusion of depublished cases in its excellent free ADR Law and Policy Update, a service upon which I rely to keep myself current. 

Because I was taught never to rely upon case summaries no matter what the source, before posting an update from NAF, I check it out on WestLaw or Lexis.  Sure enough, a couple of cases cited had been depublished. 

I let NAF know about California's (unhealthy) habit of depublishing more cases than it publishes and received, within days, the following response:  

Good Morning Vickie! In response to your email: our hope is that readers will routinely ensure a case is "good law" before citing it to a court or arbitrator. At any rate, we, the National Arbitration Forum, thank you for pointing out the recent increase in de-published California decisions.

In light of your helpful feedback, we plan to add a disclaimer to the ADR Case Law Archive and perhaps the ADR Law & Policy Update reminding subscribers not to assume that case summaries contain information about subsequent developments.

Thanks again for “hipping” us to the de-published decisions!

Best,

Christina Doucet
Communications Specialist
National Arbitration Forum (FORUM)

You're welcome Christina!  And thanks, as always, for your quick and satisfying response!

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The Litigation and Dispute Resolution Sections of the Los Angeles County Bar Association invite you to participate in the Second Day of WINNING IN NEGOTIATIONS.

(brief aside:  Do you want to score a victory for your client or simply resolve your dispute short of trial when mediating your case?  Let us hear your voice in our national  Negotiation and Mediation Justice Survey here -- 3 minutes max, promise)

Ad copy for the Negotiation Seminar below:

Want Inside Information Straight from Some of the Most Successful Professionals? Session 1 was great...Session 2 was awesome! Join us for the last session that will focus on your negotiation skills!!!

May 14th, 2007
6:30 pm -- 9:30 pm

In this cutting edge workshop, you will learn how to utilize effective and successful techniques and strategies to win in negotiations.

Please join the following attorneys and mediators for the last day of this interactive and highly engaging seminar entitled “Winning in Negotiation.” This panel will use film clips and interactive role playing to highlight new methods to achieve an understanding of negotiation principles and enhance your negotiation skills.

Panelists include:
 
Raymond P. Boucher, Kiesel Boucher & Larson Panelist
John A. Girardi, Girardi Keese & Crane Panelist
Stephen J. Henning, Wood, Smith, Henning & Berman, LLP
Jeffrey Kichaven, JAMS Moderator
Lisa Klerman, Mediation Office
Gig Kyriacou, Mediation Offices of Gig Kyriacou
Alexander S. Polsky, JAMS Moderator
Martin D. Singer, Lavely & Singer , Panelist
Amy Solomon,  Girardi Keese & Crane Panelist

Join us for insider tips from the best in the field: experienced negotiators and mediators, judges and other experts who will share their expertise with you.

Topics include:

• Distributive bargaining

• Development of target and resistance points

• Tactics in distributive negotiation

• Breaking Impasse

• Developing listening skills as a negotiator

• Why negotiations fail

• Negotiation role plays and discussion

... and so much more...

For more information please call Gemma at 213-896-6441; to register, CLICK HERE or call 213-896-6560.

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I don't have the statistics but know from experience that construction defect litigators mediate their cases to settlement more often than, say, general commercial litigators (my background).

Earlier in the week, I posted a "Negotiation and Mediation Justice Survey" in this blog whose purpose is manifold.

1. although justice and fairness issues are repeatedly raised in my mediation practice -- "s/he's extorting me" or "s/he victimized me," most of the mediators I've casually asked say "we're not in the 'justice' business, we're in the business of finally resolving disputes."
2. SO I WANT TO KNOW WHAT LAWYERS WHO ARE REGULAR ADR USERS REALLY THINK ABOUT JUSTICE/FAIRNESS ISSUES IN NEGOTIATIONS AND MEDIATIONS.

Your Views on Optimal Mediator Practices.

As I was devising the survey, I decided to take the opportunity to get a good sampling of mediator and attorney attitudes toward standards of mediation practice.  

So I put in some questions on the mediator qualities I've been told attorneys are looking for as well as those that I believe to be important, with an open-ended question to include anything I'd missed.

Here's the Problem

I've got wayyyyyyyyyyyyyy TOO MANY mediator responses and way too few attorney responses. 

I really need to hear from YOU -- THE CONSUMER OF MEDIATION SERVICES.

Already, the results are surprising.  I will share them with my readers (and with anyone who takes and identifies themselves at the end of the survey -- you may take it anonymously) in a couple of weeks.

I'm also writing a law review article (this is no idle threat, I have one published and one about to be published) on negotiation and mediation justice issues that will include your responses.

So I'm asking all Construction Defect Attorneys to let me know what they want and need from mediators in the hope that we can begin to have a national conversation between mediators and litigators about where we're meeting one another's expectations and where we're not.

It will be good for all of us.  Please take the survey!

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I don't have the statistics but know from experience that employment and family law attorneys mediate cases more often than any other specialty with the possible exception of construction defect litigators.

Earlier in the week, I posted a "Negotiation and Mediation Justice Survey" in this blog whose purpose is manifold.

1. although justice and fairness issues are repeatedly raised in my mediation practice -- "s/he's extorting me" or "s/he victimized me," most of the mediators I've casually asked say "we're not in the 'justice' business, we're in the business of finally resolving disputes."
2. SO I WANT TO KNOW WHAT LAWYERS WHO ARE REGULAR ADR USERS REALLY THINK ABOUT JUSTICE/FAIRNESS ISSUES IN NEGOTIATIONS AND MEDIATIONS.

As I was devising the survey, I decided to take the opportunity to get a good sampling of mediator and attorney attitudes toward standards of mediation practice.  

So I put in some questions on the mediator qualities I've been told attorneys are looking for as well as those that I believe to be important, with an open-ended question to include anything I'd missed.

Here's the Problem

I've got wayyyyyyyyyyyyyy TOO MANY mediator responses and way too few attorney responses. 

I really need to hear from YOU -- THE CONSUMER OF MEDIATION SERVICES.

Already, the results are surprising.  I will share them with my readers (and with anyone who takes and identifies themselves at the end of the survey -- you may take it anonymously) in a couple of weeks.

I'm also writing a law review article (this is no idle threat, I have one published and one about to be published) on negotiation and mediation justice issues that will include your responses.

So I'm asking all Employment Attorneys to let me know what they want and need from mediators in the hope that we can begin to have a national conversation between mediators and litigators about where we're meeting one another's expectations and where we're not.

It will be good for all of us.  Please take the survey!

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The big news in the arbitration world this week is the request made to the S.E.C. by Senators Leahy and Feingold to ban the mandatory arbitration of claims made by customers against their brokers.  An excerpt from the New York Times article Dear S.E.C., Reconsider Arbitration, with a link below.

ARGUING that it is wrong to force investors into arbitration when resolving disputes with their brokers, two prominent United States senators have asked the Securities and Exchange Commission to ban the Wall Street practice of requiring customers to sign away their rights to bring their grievances to court. 

Last Friday, Patrick J. Leahy, the Vermont Democrat who heads the Senate Judiciary Committee, and Russell D. Feingold, the Wisconsin Democrat and a committee member, wrote to Christopher Cox, the S.E.C. chairman, asking that it ban mandatory arbitration “in fulfillment of its statutory duty to protect individual investors.”

Arbitration is fine for straightforward disputes involving modest claims, the senators said. But for many investors, the courts are preferable. Arbitration not only lacks a court-supervised discovery process, they wrote, it does not require panelists to follow rules of evidence or provide written opinions justifying their decisions.

for remainder of article, click here.

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We've been following the case of Simmons v. Ghaderi since the opinion appeared in October of last year.  The case went up to the California Supreme Court for review in December '06. The issue, as defined by Dr. Ghaderi is:     

whether there can be an enforceable settlement agreement when all evidence upon which it is based is inadmissible under the mediation statutes. 

As our previous commentary on this case indicates, we believe this accurately states the matter at issue and the source of the lower court's error.   That commentary, along with a mediation analysis using the Simmons' facts as a hypothetical, can be found here, here and here.  

I'm supplying you with the reply brief only.  (and adding the recently posted CDRC Amicus Brief here)

Once upon a time (at least 20 years ago) a Superior Court Judge confided in me that if s/he were overwhelmed with work and facing a calendar call, s/he would read the reply brief only "because it contained all the arguments." 

YIKES!! 

This did considerably alter my briefing habits. 

Here the Reply covers most of the arguments in the Opening Brief and the responses to the Opposition, which I haven't seen.  If anyone wants to send it along to me, I'll post it too.

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. . . you'll want to attend Dina Lynch's upcoming Breakthrough Summit- Expanded 3 Keys on Friday, June 8, 2007, between 9 and noon PST at Preservation Park, Oakland, CA; Robinson Classroom.

Here's Dina's description of the seminar:

The Summit- the Power of Collaboration

There's palapable excitement that happens when folks get together to create something brand new and the Summit is no exception.

You'll be inspired by a ton of ideas that can shape your practice. You'll leave with your own written 'road map' and you'll be accompanied on your journey to success by all the interesting practitioners who will become part of your network.

With the ADRPracticeBuilder community and those folks, just imagine how supported and confident you'll feel.

Seminar Topics:

This is a full morning that will definitely give you food for thought and plenty to do!

Topics covered:

What Will Your Business Bring You?
Business Systems You Can't Survive Without, including Your Fab 4: Attorney, Bookkeeper, IT person and VA
Digging into the 4 Questions to Find your Niche
Related Niche Groups- Your Secret Weapon
Getting Known the Easy Way: Article Marketing
Your Cup is Overflowing: Eliminating Limiting Beliefs
You'll leave this fun, information-packed morning with a workbook that includes:

* a written Business Vision Statement * a Checklist for evaluating your 'business system health' * a Worksheet for explore the 4 Questions * a Roadmap for finding Related Niche Groups * a template for writing articles and submission site list

All this quality information and support for under $100!

SUMMIT DETAILS HERE 

For questions, please email email: dina@adrpracticebuilder.com or call 617 553-0423

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Our thanks to David W. Dresnick  of the Arbitration Mediation Group for passing along the recent New York Times article on the Vanishing Jury Trial -- Cases Keep Flowing in But the Jury Pool is Idle
By Adam Liptak, April 30, 2007 New York Times.

This excerpt was of the most interest to me & the most surprising:

The jury trial is a distinctively American tradition in a cultural sense, too. Almost all civil jury trials in the world take place here, and 90 percent of the criminal ones. But that tradition, which Prof. Paul Butler of George Washington University calls "as fundamental a part of our culture as jazz or rock 'n' roll," is dying.

(emphasis mine)

David Dresnick also generously passes along Knocking Heads Together from the February 3, 2007 issue of the Economist.  Excerpt below: 

Knocking heads together

Why go to court when you can settle cheaply, quickly and fairly elsewhere?

THE Bank of Credit and Commerce International's lawsuit against the Bank of England lasted 13 years and cost some £lO0m ($196m) in legal fees. The Bank of England's governor disgustedly described it as "the most expensive fishing exercise in history". The presiding judge, Mr. Justice Tomlinson, called it a "farce".

Had the parties agreed to mediation it would have taken probably a day and cost just a few thousand pounds. According to the London-based Centre for Effective Dis¬pute Resolution (CEDR), one of Europe's biggest mediation bodies, of the 3,000 or so commercial disputes that are subjected to mediation in London every year around 70-80 % reach a settlement within one or two days, with a further 10-15% settling a few weeks later.

Litigation used to be the natural way of settling disputes, especially in advanced countries. Then clogged courts and ever costlier lawsuits made arbitration look bet¬ter, especially in cross-border commercial disputes. But it often proves no cheaper, fairer or even quicker.

In America, from filing a complaint to arbitration decision takes, on average, 16.7 months. So out-of court alternative dispute resolution (ADR) procedures, such as mediation, are now in vogue. The late Sir Michael Kerr, former president of the London Court of Interna¬tional Arbitration, was a leading convert.

"In the same way’s I have had my mind changed about litigation in favor of arbitration, my long devotion to arbitration is now being eroded," he said.

for more, click here.

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Thank you to our friend Alicia Freundlich, a Straus LL.M candidate, for passing along this case summary copied verbatim from the Newsletter of the Business Law Section of the State Bar of California.  

(right)  More serious balloon popping by the ever popular Charles Fincher of LawComix.com, who every so graciously lets me use these fabulous lawyer cartoons for free.  Do support him by paying cold hard cash for a signed copy, or better yet, a custom-made print for your favorite partner, judge, client, administrator, legal assistant, or associate.

COURT UPHOLDS ARBITRATOR’S ABILITY TO USE “MULTIPLE INCREMENTAL OR SUCCESSIVE AWARD PROCESS” AS A MEANS OF FINALLY DECIDING ALL ISSUES

Roehl v. Ritchie

2007 DJDAR 1480, 2007 Cal App LEXIS 125  (Ct. App. 4TH Dist. 1/31/2007)

This case arose from a dispute between the sons of a decedent and his second wife over distribution of the estate. The dispute was arbitrated and the arbitrator issued an award on March 1, 2004 concerning most of the issues in controversy. Among other things, he ruled that the wife had a 75% interest in the decedent’s home and that the sons had a 25% interest, which should be distributed to them because the wife was still living in the home.. The arbitrator indicated that the home was valued at $575,000 based on a November 2003 appraisal which covered the home and some other assets. He ruled that the appraisal would be the basis for distribution “unless the trustee determines that changes will be needed…if…in light of new developments since [November 2003], a somewhat different distribution of assets would benefit the estate” and he offered to work with the trustee to ”review any questions he may have concerning the orders and findings made by the arbitrator”.

The wife died one week after the award was issued. The wife’s niece, her successor in interest, successfully moved to confirm the award and that decision was affirmed on appeal in an unpublished decision. While the appeal was pending, the trustee petitioned the arbitrator for instructions on several issues, including whether to value the home as of the time of the award or as of the time of the distribution of the estate assets. In October 2005, the arbitrator issued a second award in which he, inter alia, valued the home at $1,050,000. Because this would lead to a larger distribution to the sons, the wife’s niece opposed confirmation of the award on the ground that this was a correction or amendment of the original award and thus beyond the arbitrator’s power because it occurred long after the time allowed to correct or amend.

The trial court confirmed the award, the niece appealed, and the Court of Appeal affirmed. It ruled that the arbitrator, by allowing for an opportunity by the trustee to amend the valuation, plainly left the matter of the value of the home up for future consideration if the trustee determined that changes were needed.

Note: It can sometimes be difficult for a party to discern whether an arbitrator is correcting an award, amending it, or issuing an incremental or successive award and that is what happened in this case. Code of Civil Procedure 1284 provides that a party must apply to the arbitrator for correction of an award no later than ten days after service of a signed copy of the award on the applicant, other parties must object within ten days after the application is delivered or mailed to them, and the arbitrator must issue any corrected award not later than thirty days after service of a signed copy of the award on the applicant.

But, in Delaney v. Dahl, 99 Cal App 4th 647, 659 (2002), the Court of Appeal held that an arbitrator may amend the award at any time prior to confirmation of the award so long as the amendment is consistent with other findings on the merits of the controversy and does not cause demonstrable prejudice to the interests of a party. And in Hightower v Superior Court, 86 Cal App 4th 1415, 1431 (2001), the Court of Appeal affirmed an arbitrator’s ability to use “a multiple incremental or successive award process as a means, in an appropriate case, of finally deciding all submitted issues”.

(emphasis my own)

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We here at Settle It Now Negotiation Blog appreciate and rely upon the National Arbitration Forum's free ADR Law and Policy Update.  We republish NAF summaries of ADR cases important to our clients' and readers' practices.  

I've now hipped NAF to California's unusually high number of depublication orders resulting in the depublication of many of the recent ADR cases I've seen reported in NAF'S ADR LAPU.  

I find NAF's case summaries among the best in the field and continue to recommend that you subscribe to the free newsletter.  In doing so, however, I caution my California readers to check for depublication orders on the California cases reported.

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by clicking on THIS LINK HERE, NOT ON THE TITLE LINK.

MY GREAT GOOD BLOGGING FRIEND DINA LYNCH AT MEDIATION MENSCH AND ADR PRACTICE BUILDER ASKS OF THIS SURVEY: 

 "SHOULD I TAKE THE SURVEY AS A MEDIATOR OR A CLIENT/LAWYER?"

THANKS FOR HELPING ME SEE THE CONFUSION DINA!

HERE ARE THE FUNDAMENTAL QUESTIONS UNDERLYING THE SURVEY:

Are we as mediators in the business of delivering justice or simply final resolution?  

Do the attorneys and/or clients who use our services WANT US to be in the business of delivering justice (or enabling it?) when we help them resolve a dispute?

HERE'S THE ANSWER TO DINA'S QUESTION:

You can't really take the survey as a mediator.  You need to take it as a lawyer serving clients or as the client itself.

THE QUESTIONS ARE NOT ASPIRATIONAL, i.e., would you REALLY rather WIN at any cost or LOSE fairly?

That's a genuine question.

The answers can be anonymous.

It's not an easy question to answer truthfully. 

Try your best to put yourself back into a situation where you really wanted to prevail. 

Now answer the survey!  Here's the link to the survey again. 

We'll post the results here next week. 

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The year's must-read California Litigation Journal article is Justice Ignazio Ruvolo's "It's Time to Re-examine the State of Civil Litigation in California."  You have to be a member to read the issue on-line (here Crisis in the Courts?) but if you're not, find a friend who is and steal her copy. 

Justice Ruvolo begins his concise history of the state of California's courts by suggesting that "if your bar number has fewer than six digits, then you doubtlessly witnessed firsthand the crisis that was the progenitor of the current state of civil litigation in California."

He not only proceeds to swiftly chronicle the way we got to mega-firms, six-figure first year associate salaries, and partner-free-agency, but also to question whether the Courts are doing the public a disservice by continuing to provide ADR services.  A few thought-provoking excerpts below:

If the courts intend to stay in the ADR business for all time, some complain that they are not now competing with private ADR very successfully.  One reason for this non-competitiveness is inadequate funding . . . . [C]ourts cannot afford to provide uniform training for mediators or to pay for mediation services and must rely on voluntary panels which compete with fee-generating private ADR for the time of neutrals.  Some believe that the courts must necessarily impose a level of procedural uniformity for court-sponsored ADR that is inimical to the creativity and flexibility that is at the heart of successful mediation.

Of perhaps greater concern is the growing view that ADR-related activities by the trial courts are diverting money and resources away from the judiciary's core role:  that of providing adjudicative processes to litigants . . .

Since ADR has truly become part of the legal system's culture, perhaps then the courts could safely leave ADR largely to the private sector.  If the judiciary limits its role in ADR it will have the associated benefit of freeing judicial resources needed to shore up the court's adjudicative services.  Case management, as it relates to ADR, might focus on locating those cases in the civil justice system that are suited for non-traditional resolution but which lack the financial resources to employ ADR.  These are the cases that should be the beneficiaries of court-sponsored ADR.

(emphasis mine)

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I promise not to walk down memory lane about paper, pen, ink, envelopes, stamps and the leisurely way we all used to communicate with one another.

I will only refer you to humorist Dave Barry's review of SEND:  The Essential Guide to Email for Office and Home by David Shipley and Will Schwalbe from the coming week's New York Times Book Review.

(to buy it, click here)

Thank goodness Shipley and Schwalbe have included in their concise and lively tome,  “Five Ways to Apologize for an Inexcusably Tardy E-Mail Reply.”

Dave Barry's Belated Amends 

"On that last topic," writes Barry,

the authors advise that “it’s always better to send a hideously late response — even an inadequate one — rather than none at all, if you have any interest in maintaining a relationship.”

With that in mind, I want to state the following: Bill Osinski, I’m sorry I never replied to you regarding that thing you e-mailed me two years ago. I got swamped. It got so bad that I was doing my e-mail in the “Small World” ride. But that is no excuse, so I’m stating here in The New York Times Book Review that I am worthless scum.

Victoria Pynchon's Amends

I'm glad Dave Barry had only one such amends to make.  I have three currently keeping me awake at night (you'd think it would be more efficient to just get up out of bed and respond).  I'm certain there are more of which I'm blissfully unaware.

My friends are so used to the apology accompanied by the "worthless scum" admission, that I have to do Dave Barry one better and include in my amends a promise that in the future I will really really really make an effort never again be inexcusably tardy.  

Apologees, you know who you are.

More Unsolicited Advice for Young Attorneys

Because I'm getting a lot of "hits" to this post, I'm providing my readers with additional resources on effective use of email -- 20 Rules of Writing Effective Business Emails by Paul Soltoff of SendTec Marketing; the copyblogger's warnings about Five Grammatical Errors that Make You Look Dumb (yes in email too);  Is Email Marketing Right for Lawyers from Tom Kane's Legal Marketing Blog and Between Lawyers' dated (2005) but still essential E-Filing and the Learning Curve.

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From our friends at the Neuromarketing Blog, we learn that twenty-somethings are more risk-averse than seniors. 

Story:  Mediation Practice

In my mediation practice, I find that people accurately assess how risk-averse they are and that they will readily tell you why ("I was poor"; "I was rich"; "I survived the Viet Nam War"; "I lost my parents when I was ten and was sent to live in an orphanage" etc., etc.) 

Because I now help people make decisions on a weekly if not daily basis, I know that both the "why's" and the "therefore's" of risk-tolerance are as unique as fingerprints.

Story:  Dad and the Grapes of Wrath

I, for example, was raised by parents who experienced the Great Depression.  My father's family worked its way west from Nebraska to Portland and finding no source of sustenance there, drove the model-T south through California's fertile Imperial Valley, picking fruit and vegetables on the way (the entire family, including all children old enough to pick).  

Dad's family eventually settled in the foothills of San Diego (Ramona) where they raised chickens.  His mom took in the neighbors' laundry to fill in the financial gaps.  

Other than Mr. Thrifty, Dad is the most financially risk-averse person I know.  (oh no! you DO always marry your dad!)

Story:  Me and Mr. Thrifty

But let's go to the second generation.  Raised by depression-era parents, my older sister is incredibly financially risk-averse and I (to Mr. Thrifty's horror) am on the far end of risk-courting.  Mr. Thrifty's childhood financial distress, on the other hand, seems to have produced two financially prudent children -- neither pathologically "tight" nor abnormally risk-seeking.    

But this is all anecdote, you say. 

Yes, but the truth resides in the particular, not in the general. 

Story:  Innocence and Experience

At the beginning of the semester at the Straus Institute one year, the professor asked each student to jot his or her greatest fear on a piece of paper.  Roughly half of the class was post-forty mid-career people and the other half twenty-something law students.  

I was genuninely shocked by the result.  In a roomful of statistically over-achieving outliers, every  twenty-something law student said "failure" and every mid-career student said "nothing."  

If pressed, I'm sure we mid-career types could have populated a lengthy list of fears:  ill health, war, earthquake, loss of our children, etc., etc., etc.  That our first response was "nothing," however, said something about us.  What?  And why were all these bright, talented young people who were so clearly successfully achieving so afraid of failure.  

Then it struck me.  We mid-career people were not afraid of failure because we had likely already failed.  And survived.  Rather joyously.  The law students who haven't yet failed think failure will be a far greater catostrophe than it ever actually is.  This is not only the wisdom that comes with age, but also the new finding of the neuroeconomists.

Finally!  the Neuroscience

In a 2005 article in the Illinois Law Journal, Law and the Emotions: The Problems
Affective Forecasting (80 Ind.L.J. 155, 167)  Syracuse Law School Professor Jeremy A. Blumenthal summarizes the current research on one's ability to anticipate the degree of suffering that might be caused by failure as follows:

although people are relatively adept at knowing which emotion they will experience and whether it will be positive or negative, people are surprisingly inaccurate at predicting the intensity and the duration of those emotions. Moreover, this is so even for relatively “straightforward” emotional experiences, such as winning the lottery or suffering severe injuries.  It is on such inaccuracies—in predictions of the intensity and duration of future emotional experiences—that most of the affective forecasting research has been focused.

Id. (emphasis added).

Parting thought?  There's no greater gift to one's peace of mind than failure.  

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Birthday Gratitude List

1. Mr. Thrifty, who shares this birthday with me and who has taught me to think about money before I spend it (happy birthday, honey!)
2. My step-children, Adam and Julia, who were all grown up and educated by the time I met them, so "step-children" seems a misnomer.  They are gracious, kind, loving, and better Scrabble, Boggle and Uno players than I (damn them!)  They have taught me how to be part of a family and I am everlastingly grateful for their presence in my life.  
3. The extraordinary support and guidance from people too numerous to name when I changed careers from litigator to mediator. 
4. Being given the opportunity (by fate and by Mr. Thrifty) to finally make my passion my career.
5. Sobriety (13 years! hence the 4,745 gratitude lists).
6. Friends.
7. Poetry and literature.
8. The internet.
9. The geo-political challenges of the 21st century (we wouldn't want to get bored).
10. All my blogging buddies.

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We're not opining about the recent  patent ruling other than to say that the Supreme Court's KSR v. Teleflex opinion is causing quite a stir.

See the Wall Street Journal Law Blog Post and associated links to major news stories  as well as comments from patent law experts here.

For law students and new attorneys, the transcript of the oral argument before the Supreme Court is here for your edification.

That was Al Gore's granddad who invented the bread slicer, no?  Gore changed his name from Rohwedder at Ellis Island I understand.

For a cogent analysis by the Duane Morris firm of this and the Microsoft opinions handed down by the Supreme Court on the same day, click here.

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The Silence is Collapsing -- There is No Message from Mars Needs Guitars

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Among the benefits of the "meme tag" game is cross-disciplinary learning.  See Switch! - Cross-Disciplinary Learning at the Eide Neurolearning Blog, the one degree of separation between us and the Thinking Blogger Award. 

And check out the Creative Generalist while you're at it.

First, the excerpt from Eide Neurolearning:

The best way to have fun in science is to do something you are not trained for. - Seymour Benzer

Any student of creativity or innovation knows that changing disciplines seems to be a way of keeping 'fresh' and getting new ideas. Louis Pasteur got his start in crystallography, but then started solving problems in fermentation when a student of his brought him a factory problem. When a devastation of silkworms happened in Europe, they called Pasteur who exclaimed, "But I know nothing of silkworms." Nevertheless, he ended up solving the problem of silkworms by crossing over into the fields of microbiology and immunology.

In Root-Berstein's study of innovators, he found '[i]n every case that I have been able to examine, researchers who continued to be productive past middle age changed fields regularly. In effect they periodically returned to the state of a novice by taking up a new subject. They broke out of the patterns of work and thought to which they had become accustomed.'

For the remainder of the Eide's post, scroll down to Switch! here.

A Brief Comment on the Era of Legal Specialization

Attorneys entered the realm of specialization about twenty years ago.  Because novel legal problems are generally resolved for entire industries in fifteen or twenty years (i.e., how a Comprehensive General Liability Policy should be interpreted in response to a claim against an oil company for production-related environmental contamination) attorney-specialists are forced to change specialties at least once, if not two or three times during their working lives.

At one of the intersections between the end of one specialty (environmental insurance coverage) and my search for another, I began defending consumer class actions.  Although I'd once prosecuted a  commercial class action against a Japanese car manufacturer, that one case was the only experience I had in litigating class actions.      

In addition to not knowing what I should do in negotiating a settlement of my client's "fair share" of potential liability I also had no idea what I shouldn't do.  As a result, the settlement I negotiated was better than any achieved by the dozens of other similar companies who were my co-defendants.  

One afternoon, I received a call from senior counsel to the defendant who'd had the greatest potential liability exposure and who likely paid the most to settle the case. 

"How in the world did you get them to agree to an injunction-only settlement?" she asked.  "I've never seen anybody do that before."

"Thanks," I said.  "I guess I managed to do it because I didn't know that I couldn't."  

What Does Being a Generalist Have to Do with Negotiation and Mediation?

As I recently said in a moment of naked self-promotion, it's good to have a mediator who is "inside the other guy's decision cycle," i.e., someone familiar with the industry and the legal specialty involved.     

"The day of the generalist mediator is over," I'm told, just as I was told the "day of the legal generalist is over" sometime in the late '80s. 

But here's the exception to the rule.  Negotiator or mediator, the parties will teach you the critical facts and the lawyers will hip you to the law necessary to resolve the dispute even if you don't know bupkus about either.   

Often, the more you know, the less likely you will be open to innovative solutions to intractable problems.

I suppose the best of both worlds would be to practice (and negotiate) in your specialty while at the same time maintaining what Buddhists call a "beginner's mind." 

"In the beginner's mind there are many possibilities, but in the expert's there are few." - Shunryo Suzuki-Roshi from the Beginners Mind Blog.

No matter how much you know or think you know, set aside your pre-conceptions and pre-judgments as much as you are able.  Avoid "we've always done it this way" thinking.  Then, whether you're in a new field or an old one, you will surprise yourself and your bargaining partner with the high degree of creativity you are able to bring to the same old problems.

Did I also say it's lots more fun to do something new everyday?  And that conflict resolution -- whether you're judge or jury, advocate or negotiator, mediator or arbitrator -- is waaayyyyyyyyyyyyyy too hard unless you're having fun doing it.

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If mediation is the triumph of hope over experience, GOOD FOR US!

This, from today's New York Times (full article here):

With anxiety running high in classrooms across the nation after the Virginia Tech attacks, the authorities in Sacramento [California] arrested four secondary school students on Thursday, including one carrying a loaded gun. . . .

[A] 14-year old . . . had photographs of two female McClatchy [High School] students.  The police said they believed that the boys were planning to shoot them. . .

School counselors had been working on [a] problem [among four female McClatchy students] and planned to mediate the dispute on Thursday . . .

The police said they believed that the two boys [with the gun] . . . were enroute to the mediation, possibly to shoot their targets before or after the meeting."

We're hoping that if the police had not intervened, a shooting wouldn't have occurred after the mediation.

I'm also hoping mediators won't have to begin frisking their disputants before joint sessions, at least not here in Second Amendment land where we are packing 65 million hand guns!

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We're proud to say that our friend Stephanie West Allen was recently awarded the Thinking Blogger Award by the Eide Neurolearning Blog and that she passed it along to us.

 Hey listen!!  If Hollywood and the music industry can award themselves tens of thousands of real gold-plated statuettes a thousand times a year, why can't we give ourselves gold and silver virtual awards for contributing more "genuis" to the thinking world in any single day than the entire entertainment industry does in any decade you might want to name?

(Cf. Jerry Seinfeld's hilarious bit on award-giving during his speech accepting HBO's first "annual" HBO Comedy Award -- "you don't give awards to comedians," says he). 

 Stephanie has graciously asked me to play this meme tag game under the following rules:

1. If, and only if, you get tagged, write a post with links to 5 blogs that make you think,

2. Link to this post so that people can easily find the exact origin of the meme,

3. Optional: Proudly display the 'Thinking Blogger Award' with a link to the post that you wrote (here is an alternative silver version if gold doesn't fit your blog).

Stephanie asks that we "tag blogs with real merits, i.e. relative content, and above all - blogs that really get you thinking!" rather than those, say, with the highest first weekend box office gross (i.e., X-Men). 

The following blogs make me think:  

1. Geoff Sharp's Mediator Blah Blah, who writes like a truly great comedian; he makes it look easy; it hits your insight-center before you have a chance to self-censor; and, it's way deeper than you think; 
2. the Electronic Intifada (which may not actually be a blog but which I read as if it were one),
3. Lawrence Solum's Legal Theory Blog,  for the truly geeky wanna-be academics in the crowd like me;
4. George Wallace's cultural blog A Fool in the Forest (the blog equivalent of Finnegan's Wake); and,
5. Gini Nelson's Engaging Conflicts Blog for its audacious eclecticism. 

And because the Electronic Intifada may not actually be a blog, I'll add

Hugh ("we don't need no stinkin' awards") McLeod's Gaping Void (the blog equivalent of Kingsley Amis' Lucky Jim).

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Below is an excerpt of the Washington Post's review of Cobra II  The Inside Story of the Invasion and Occupation of Iraq, the book that is not simply sitting on my bedside table but which I am actually reading.  

It is too soon to provide my own brief review other than to say that I am no military history, nor even history, buff.  I just want to start making more sense out of what actually happened, admitting that I get most of my war analysis from the Daily Show and the New Yorker (the latter easier to admit than the former).

Although it's ok with me that blogging has completely replaced television as a leisure activity, Mr. Thrifty recently commented to its seems to have replaced reading books with covers and paper pages held in my hands.

Because that is not OK, I immediately headed off to my nearest Borders and its 3-for-the-price-of-2 table.  I decided to tackle Cobra first and am glad I did.  I am beginning to make sense of the actual front page and occasional network news again (the latter apparently available for download -- sans commercials! -- somewhere on the 'net since Thrifty has adopted a new marital habit of bringing his computer over to the couch where I'm blogging and turning on Katie Couric for me.  Ah togetherness!!).   

Before giving you the Washington Post Review, I'd like to suggest to my ADR buddies that they let us know what they're reading.  This isn't so much as a "meme" tag as it is a request to make reading material a category on their blogs, as I've just made "What I'm Reading Now" on mine.  

How about it Tammy Lenski, Diane Levin, Geoff Sharpe, and Stephanie West Allen?  Wouldn't you like your readers to know from time to time what it is that you're reading?  I'd sure appreciate knowing.

On their "inside story" of the war, Michael R. Gordon and Gen. Bernard E. Trainor . . . show that the U.S. military's tactical brilliance during the war's early stages came despite the strategic miscalculations of senior civilian and military leaders -- and that the Bush team's misjudgments made the current situation in Iraq far worse than it need have been.

Continue Reading...

Tags: International Diplomacy, What I'm Reading

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Vonage Takes Its Patent Fight to Internet Street with

Can You Patent an Orange?

We express no opinion whatsoever but like the video and its goofy country music.

Check out the low-tech YouTube customer testimonials while you're there.

Thanks to the Wall Street Journal Law Blog for hipping us to this.

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Step four in The Art of Getting the Best Deal:  Solve the Joint Problem

(left:  my first 2-wheeler on which my grandfather, the sign-painter, inscribed my name)

Exploring Different but Compatible Interests

Lax and Sebenius suggest that many negotiators "simply assume their interests to be the opposite of yours -- rather than different and potentially compatible."

You cannot, however, simply instruct the parties to search for different but compatible interests.  The mediator needs to listen long and carefully for the needs and concerns that are driving the parties' legal positions.

But First, a Little Reactive Devaluation*

You'll recall that the parties to my hypothetical patent infringement action had already made lists of extremely valuable non-economic benefits that they might exchange with one another to resolve the dispute.  They soon pushed those bargaining chips aside, however, quickly reverting to purely monetary issues.  

Why do litigants abandon business opportunities more valuable than their total monetary demand?   "Reactive devaluation." ** 

Money seems objective and certain while the value of intangibles is imprecise and risky. 

Non-quantifiable benefits are greeted with the suspicion one reserves for the street vendor hawking Louis Vuitton handbags.  This apprehension is probably expressed by litigators more often than any other professionals -- "if he wants it, it can't possibly be good for me."  

____________________

**  I learned everything I know about the social psychology of conflict from University of Missouri Law School Professor Richard Reuben.  This is one of his best and most comprehensive Power Point Presentations.  Take a look when you have a moment.  Learning social psychology is is like hitting the "reveal codes" key in WordPerfect or seeing the matrix:  your entire conflict-life is mapped, graphed and revealed.  Thanks again Richard! 

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Slight digression for moment of nostalgia and copyright notice. 

This (right) is my favorite Firesign theater album.  I heard it for the first time on FM radio in high school while vacuuming the living room floor (yes, young people used to do these chores). 

It led to harder comedy.  

Note to subsequent generations of young people -- FT's comedy remains hilarious and does not age with time.   

From Wikipedia:  this image is of a music album . . . and the copyright for it is most likely owned by either the publisher of the album or the artist(s) which produced the music or artwork in question. It is believed that the use of low-resolution images of album . . . solely to illustrate the album . . .  in question . . . qualifies as fair use under United States copyright law. Any other uses of this image, on Wikipedia or elsewhere, may be copyright infringement. See Wikipedia:Fair use for more information.

OK, I blew the entire post on that.

Part III (3) Three on Step IV (4) Four from the Lax & Sebenius article, The Art of the Best Deal follows.

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Thanks to the National Arbitration Forum for this update on proposed legislation governing debt settlement and management service providers and credit counselors.

Verbatim:  Enacts the Uniform Debt Settlement Services Act, the Debt Management Act, and the Credit Counselors Law to provide for the licensure and regulation of providers of debt settlement and debt management services. Relating to arbitration, the bill states:

 Except as permitted by the California Arbitration Act (Title 9 (commencing with Section 1280) of Part 3 of the Code of Civil Procedure), [the agreement shall not] contain a provision that modifies or limits otherwise available forums or procedural rights, including the right to trial by jury, that are generally available to the individual under law other than as provided in this division.

The bill would also forbid agreements from containing a choice of law provision other than California or applicable federal law.

Arbitration gurus?  How would this square with Greentree, etc.?

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From the ABC's of Beginning Your Blog by Karen Klein at  Business Week with a hat tip to Kevin O'Keefe at LexBlog.

1. position yourself as an expert and demonstrate your experience.
2. the information in your blog should directly help your market solve a problem or address their wants and needs
3. read other peoples' blogs and get a handle on what they're doing
4. reading blogs within your industry will give you a sense of what niches are underserved and will help get your own creative juices flowing so you can write authoritatively when it's your turn.
5. initiate conversations with other bloggers by commenting on their blog entries
6. when you set up your own blog, [they will be] more likely to link to you, and send their readers
7. you need to blog regularly, under your real identity with an authentic voice
8. be sure that you have something personal and interesting to write about.
9. cross-promote 
10. consider adding a blog to your existing Web site
11. for experimenting with a blog, there's nothing more simple than setting up one on Blogger.com, operated by Google 
12. use a "tagging" service, such as that provided by Technorati.com, to help advertise your blog
13. a tag is basically a label you give your blog -- say 'professional services.'
14. anyone who uses Technorati and has subscribed to that tag will receive a notification of your new blog entry on that subject
15. encourage your customers to subscribe to your blog's RSS feed. 

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As promised, we bring you Step Three from the Lax and Sebenius article, the "Art of Getting the Best Deal. 

Bringing the Deciders and Assessing Party Interests (a Brief Review)

Yesterday we stressed the importance of identifying the "deciders" and those who might get in the way of the deciders' decision (the known unknowns and the unknown unknowns).  

Today, we apply those principles, along with the third Batna step, to a hypothetical patent infringement mediation.  

Because litigators are trained to organize party interests around legal theories and business people to organize their own thinking around commercial interests, your mediator should be facile with both.  At some point, the mediator should assist the parties and their counsel in shifting their attention from litigation "interests" (costs, merits) to business and marketing interests.

Why?

Because there are thousands of ways to make a deal and only a handful of legal remedies to resolve a dispute.       

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(for more of the brilliant Charles Fincher, Jr., see LawComix.com)

When I hear from my old litigation buddies that "all mediators do is divide by two" I am tempted to wander into the "hard sell" marketing zone I usually avoid.  Last night at the Los Angeles ABTL dinner, for instance, I runined my record of never overtly marketing my services by nakedly promoting myself in response to one such complaint.

For those litigators disappointed by the mediation services they receive, I'm supplying an executive summary (with commentary) of Harvard negotiation gurus Lax and Sebenius excellent article, "The Art of Getting the Best Deal."  

Don't Say "Yes, Yes, Yes," When You Really Mean "No, No, No, No, No."

As Lax and Sebenius stress, business people should only say "yes" to a deal that "meets [their] real interests better than [their] best no-deal option."  Mediators call the "no-deal" option your BATNA -- a Better Alternative to a Negotiated Agreement.

Let me reiterate:  there is no reason to say "yes" to any deal that is worse than no deal.  Ever.  Period.

Tell that to the mediator the next time you're feeling pressured to accept an offer or meet a demand that makes your client really really really unhappy.  Say, "I can do better at trial."  Say, "I can negotiate a better deal than that."  Say, "if I can't negotiate a better deal that that today, I'll approach the matter differently tomorrow."  Say, "I don't believe the best settlement is one that leaves everyone unhappy."  Say, "that's not what I promise my clients when they hire me."  Say, "I've read Lax and Sebenius."  Say, "good luck with your mediation career" and pack your bag.  Bow out nicely but firmly. 

Find the Deciders and Draw a Deal Diagram

A deal diagram is not a decision tree.  Decision trees are about legal strategy.  Business decisions are not driven by legal strategy.  Business decisions are driven by finance, markets, business needs, and, commercial realities.  Only lawyers are kept awake at night by legal dilemmas.  CEO's are concerned with mergers and acquisitions, S.E.C. reporting requirements and how a settlement with a competitor might affect stock prices.

So what's a "deal diagram"?  I'll let Lax and Sebenius explain:

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Our friend Michael Webster at the Misleading Advertising Law Blog once reported on a securities scam that bilked almost $600,000 from elderly victims who were lured by a "free investment seminar, complete with lunch."

What is it about a free lunch, our correspondent asks, that would convince individuals to turn over their life savings to [a con man]? The answer, once again, can be found in the social psychological archives, particularly those described by Robert Cialdini.

Cialdini, says Michael, describes the influence tool here as "the rule for reciprocation."

The rule says that we should try to repay, in kind, what another person has provided us. If a woman does us a favour, we should do her one in return; if a man sends us a birthday present, we should remember his birthday with a gift of our own.

Although the reciprocation rule does not appear to require us to turn over our hard earned money to a criminal just because he has bought us lunch, some scientific experiments have shown that the rule can be used to obtain significant economic benefits. The old Amway trick of delivering a "free sample" of merchandise for a 24 trial period ensnared many a consumer who would not have purchased from Amway otherwise.

Why can the rule extract seemingly excessive favours? Cialdini identifies two reasons: (a) most of us find it highly disagreeable to be in a state of obligation, and will quickly try to remove ourselves from its grasp, and (b) to violate the rule is to be a moocher or a welsher. In order to avoid being labeled as such, we might agree to an unequal exchange of favours.

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If you're searching for answers to perplexing questions like "what is justice?" the Legal Theory Lexicon has the answers.   

"Why," you ask, "would anyone but first year law students, law professors or professional philosophers even care?"  The issue of "justice" is an academic question, you think, or one of those  3 a.m. dorm room inquiries, best answered with clouds of sweet herbal smoke hanging in the air.  There's no "real world" application for it, is there?

Well, yes. 

Those of us who are mediators are constantly grappling with and explaining issues of fairness, justice, and equity to people who feel:  (a)  they've been horribly injured, betrayed, bloodied, rejected, abandoned and generally %$#^&%'ed up by litigation -- we call these people plaintiffs; or who believe (b) they're being extorted, black-mailed, manipulated, stripped, disrespected and generally %$^&*#$'ed up by lawsuits -- we call these people defendants.

Problem solving, negotiating and integrative bargaining are all well and good, but until the parties gain some understanding of the principles operating the system in whose gears and levers they have become enmeshed, they will not be free to craft a meaningful resolution to their litigated disputes. 

And if you think this applies less to senior executives, owners, inventors, CEO's and the like than it does to the archetypal "man on the street," think again.  Only lawyers and judges feel comfortable in the legal system.  Everyone else feels damaged by it.

I've described elsewhere my attempts to acquaint litigants with the vagaries, inconsistencies, delays, burdens and costs of a legal system that has become their personal perfect storm of ill luck.  I probably don't need the arcane legal theory that goes with my plain talk about "justice."  Nevertheless, I am always searching for new ways to describe it  to myself if not necessarily to the parties whose dispute I help resolve.  

So for my edification and that of anyone else in the business of explaining THE LAW to those in its grip, I offer the following short essay on procedural justice from the Legal Theory Lexicon.  

Slicing a Cake Our approach to the idea of procedural justice may be made easier by using a simple example. Consider the familiar procedure for dividing a cake: the person who slices the cake picks last. What makes this a fair procedure? One answer to this question might be the following: there is an independent criterion of what constitutes a fair outcome, equal slices for all, and the slicer-picks-last rule assures that we will get to this outcome.

Slicer-picks-last is fair because guarantees accuracy. Or does it? If we really wanted to assure perfectly equal slices, then we could use a compass and the principles of plane geometry, with equal shares as a more reliable result. But this strikes us as an undue amount of fuss to go through when slicing a cake. Perhaps, the reason we believe that the slicer-picks-last rule is a fair procedure is that it strikes a fair balance between the importance of the outcome and the cost of getting there: the rule gets us close to equal shares most of the time at a reasonable price. Slicer-picks last might be considered fair, because does a good job of balancing. Or is there something more to the idea that the slicer-picks-last rule is fair?

Maybe the reason we believe that the slicer gets a fair share is because the slicer was the one who did the cutting; the slicer's participation in the cutting validates the outcome, even if the slicer ends up with a smaller slice (or among the calorie conscious, a bigger slice). Slicer-picks-last could be a fair rule, because of process independently of outcome.

Practical examples next.

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The original "Getting to Yes" guy -- William Ury -- talks about the power of a "positive no" in connection with his new book Getting Past "No" -- Negotiating in Difficult Situations.

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 (the incomparable Charles Fincher at LawComix.com)

I tell people to hell with charity, the only thing you'll get is what you're strong enough to get.   -- Saul Alinsky, labor and social activist 

This step by step guide is pretty much taken verbatim from MIT's Negotiation Basic's Web Page.  I do not differentiate between "distributive" and "integrative" techniques as does the MIT site; I have added links to key terms; and, I have added warnings flowing from my own negotiating history and mediation practice.   

Italicized text is my own.

A more lengthy and sophisticated guide, The Art of Getting the Best Deal by Harvard gurus Lax and Sebenuis can be accessed here.  Order their "must read" 3-D Negotiation NOW.

Step One

Figure out your own interests and reservation point (bottom line) by assessing your Best (and Worst) Alternatives to a Negotiated Agreement (BATNA and WATNA). 

Keep reviewing these points while you negotiate.

Step Two

Figure out the interests and reservation point of the Other, remembering that a negotiator's belief about the other side's bottom line is a powerful driver of settlement, i.e., do not be fooled into believing you have hit the other party's bottom line until (and sometimes after) they begin packing up their briefcases to leave the negotiation.  

Be alert to new data while you negotiate, remembering that the attorneys representing the parties have organized the facts around their legal positions while the parties have organized the facts around their business needs. 

Business needs will always drive settlement more than legal positions will.  You may be hearing them for the first time.  If you are negotiating with the mediator, make sure the mediator is making the effort to ascertain the parties' interests and is not stuck on the parties' legal positions.  

Step Three :  Ascertaining the Zone of Possible Agreement

Seek to move the reservation point of the Other to widen the bargaining range especially if there is a negative range. (This process is often begun by "sowing doubt")  

However, if necessary for a settlement that you must achieve, move your own reservation point. 

Do, however, beware of thinking you "must achieve" a settlement above or below your "bottom line" whenever you are hungry, angry, lonely (i.e., feeling isolated) or tired (H.A.L.T.) 

Sticking to your bottom line is the best means of insuring you do not leave the negotiation believing you have put too much money or left too much money on the table. 

Sometimes you're better off not getting to "yes."  

Through judiciously shared information and brainstorming, seek to expand the pie so that each side may get as much as possible of what it would like.

Explore moving the reservation points of each side.

Step Four

Seek a settlement as close as possible to the reservation point of the Other so that you win the maximum profit.

Decide on fair principles and objective criteria to determine how to divide the pie.

Step Five

Do what you can to see that both you and the Other come to see this settlement as the best possible one under the circumstances. 

MIXED MOTIVE BARGAINING

In almost all negotiating situations you will have "mixed motives," where you wish to create values with your Other, and then to claim your share. In these situations you may use tactics common to both distributive and integrative strategies, or switch at least a little from one strategy to the other.

For example one would show respect at all times and be cautiously forthcoming about one's interests, share information as trust grows, be truthful and consistent, seek common ground and agreement on principle, generate as many options as possible, and in general pursue the integrative path as long as possible, while explicitly safeguarding you own interests. In many situations you will be able to expand the pie before having to divide it.

These ideas are drawn from the experience of the author and from Walton and McKersie, A Behavioral Theory of Labor Negotiations, McGraw-Hill, 1965. They also owe much to the work of Roger Fisher and William Ury.

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Everyone who knows the difference between distributive and integrative bargaining and the iconic story of the ONE ORANGE should go directly this morning to Geoff's blog, Mediator Blah Blah.  First, a snippet to encourage you:   

Today I found myself inducted into the Mediators' Mile High Club at 23,000ft when two young, remarkably similar looking girls seated in 16E and 16F needed my help.

(yes, they look sweet and compliant now, but just wait until the plane takes off!)

for remainder of story click here.

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Though the April 30, 2007 BUSINESS WEEK doesn't say much new on the old "vanishing trial" issue, I found the comment in the final paragraph amusing . . .

As court battles become more rare, some experts fear the effects on the law David Berg, a longtime Houston trial lawyer, sees a future devoid of the courtroom dramas that have long captured the American imagination. In a manual on trial technique that he published last year, Berg wrote that he feared that "the great war stories of the next generation of trial lawyers would begin, 'And then, I looked that mediator in the eyes and I said....'"

Thanks to the Los Angeles Arbitration and Mediation Group for passing this along.

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This is taken straight from the Met News.  I will read this case and provide my analysis at the beginning of the coming week.

Where it was discovered after arbitration that the judge who granted order compelling arbitration had, prior to granting such order, engaged in discussions concerning possible employment as a dispute resolution neutral, it was proper to disqualify judge who granted the order compelling arbitration and vacate that order, but it was premature to vacate arbitration award. Where order compelling arbitration is void because judge was disqualified from granting it but is not set aside until after arbitration is concluded, award may stand if newly assigned judge makes a de novo determination that the parties were contractually bound to arbitrate, that acts of disqualified judge did not taint the arbitration, and that no other grounds exist to vacate the award.

Rossco Holdings v. Bank of America

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I'm posting I'm Billing Time Again along with an excerpt from Chuck Newton's Third Wave Law Firm Blog, Happiness Equals Reality Divided by Expectations

According to the New York Bar Association, turnover rates among mid-level associates in this city’s law firms is 36 percent. The whole system is predicated on burnout.

In 1981, Maslach, now vice-provost at the University of California, Berkeley, famously co-developed a detailed survey, known as the Maslach Burnout Inventory, to measure the syndrome. Her theory is that any one of the following six problems can fry us to a crisp: working too much; working in an unjust environment; working with little social support; working with little agency or control; working in the service of values we loathe; working for insufficient reward (whether the currency is money, prestige, or positive feedback).

It seems to me the first two of the six problems will most probably result in burnout in big law leading some to try a Third Wave practice. However, the working with little social support, little agency or control is probably more conducive for Third Wave burnout.

Farber often calls burnout “the gap between expectation and reward." I can tell you that in a Third Wave practice this gap is greatly cut.

"The great paradox of efficiency is that the more we speed up, the more acute our frustrations when we’re forced to slow down. Is it not possible that these ambient frustrations function as chronic stressors, and—in some subtle but crucial way—contribute to feeling worn out? Americans, Gleick writes, spend an estimated 3 billion minutes a year waiting on hold with the software industry; they race to airports only to wait for hours; they start to jitter inside elevators if the doors take more than four seconds to close. (Elevator engineers even have a term for how long it takes—door dwell—before people start jamming their fingers on the door close button, which is usually a placebo, a function already disabled by litigation-conscious building managers.)

'Gridlocked and tarmacked are metonyms of our era,” Gleick writes. “To be gridlocked or tarmacked is to be stuck in place, our fastest engines idling all around us, as time passes and blood pressures rise.

If one of the surest recipes for burnout, as Michael Leiter has said, is the sensation of inefficiency—particularly if we’re still expending energy and seeing little in return—then there may be something about the modern office that conspires to burn us out. In 2005, a psychiatrist at King’s College London did a study in which one group was asked to take an IQ test while doing nothing, and a second group to take an IQ test while distracted by e-mails and ringing telephones. The uninterrupted group did better by an average of ten points, which wasn’t much of a surprise. What was a surprise is that the e-mailers also did worse, by an average of six points, than a group in a similar study that had been tested while stoned."

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by Justin Kelly, ADRWorld.com

Maryland's highest court has approved an amendment to the state's Rules of Procedure that encourages lawyers to inform clients of alternative dispute resolution options when a new case is likely to be headed to court.

[T] Hon. Joseph F. Murphy, Jr. . . . said that the change would "highlight for counsel what they should be doing if ADR could work in their case," explaining . . . . the comment . . . that "where ADR is appropriate, lawyers should advise their clients of that fact." 

                                               *                             *                          *

Rule 2.1, which addresses the lawyer's role as a counselor, states, "In representing a client, a lawyer should exercise independent judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation."

                                          *                                  *                                        *

The amendment adds the following new sentence to Comment 5: "[W]hen a matter is likely to involve litigation, and in the opinion of the lawyer, one or more forms of alternative dispute resolution are reasonable alternatives to litigation, the lawyer should advise the client about those reasonable alternatives." 

"The amended Comment is intended to encourage informed discourse between the lawyer and client whenever ADR may be an appropriate option," the Reporter's Note says.

An earlier proposal to amend Comment 5 had suggested requiring lawyers to inform clients about ADR options. But a mandatory requirement was dropped out of concern that it would lead to litigation by clients against their attorneys.

Murphy noted that Comment 5 says that attorneys "should advise," instead of "shall advise," and that this was a "compromise." He said that as revised, Comment 5 imposes no "automatic" requirement to inform clients about ADR options.

Some other states have ADR-related provisions in their rules of professional conduct. Vermont has the "shall advise" language, while Alaska, Colorado, Hawaii, Massachusetts, Tennessee, and Virginia have the "should advise" language.

The change in Comment 5 will take effect July 1, 2007.

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While Joe Francis sits in jail for misbehaving during a mediation, we take a moment to contemplate mediation's first principles:  voluntariness and self-determination.  

In their exhaustive review of appellate mediation case law Disputing Irony:  A Systematic Look at Litigation about Mediation (Spring 2006) 11 Harv. Negot. L. Rev. 43, James R. Coben and Peter N. Thompson discuss the law to date on duress and undue influence.

As Coben and Thompson stress, 

To make a successful duress defense the proponent must establish that a wrongful threat by the adverse party deprived the proponent of free choice, resulting in an unfair agreement benefiting the adverse party. As with other contractual defenses, the standard is quite difficult to meet in a mediation context. A mediation party was successful in claiming duress in only one of the thirty-six opinions [reported during the prior five year period].

That as many as seven of the thirty-six cases reviewed were directed at alleged mediator coercion is troubling, particularly in light of Magistrate Brazil's opinion in Olam v. Congress Mortgage Co. * which makes pursuing any claim of duress or undue influence seem a foolhardy mission.  As Coben and Thompson note, although the plaintiff in Olam

was sixty-five years old, suffered from high blood pressure, headaches and abdominal pains, and testified that she was in pain, weak and dizzy, and that she was pressured by her lawyer, the defendants and their counsel, the court found that this agreement obtained at 1:00 A.M. after fifteen hours of mediation was not obtained by undue influence. 

Coben and Thompson revisited the issue of duress under the rubric of mediator misconduct, citing ten opinions where a party charged the mediator with exerting undue pressure to obtain agreement.  Most of these charges will look familiar to lawyers, who might ask themselves what they look like to the man or woman on the street:

• the gist of the complaint in several cases was the mediator's recitation of a list of "horribles" that the parties would suffer if they did not settle and had to experience the dreaded civil trial (called "reality-testing" by the authors)
• one claim was based upon the alleged coercive statement by the mediator that if the party  "didn't sign the agreement [he] would ruin [the mediator's] record of being always able to settle the case."
• another claim (this one successful) was based upon the mediator's alleged threat "to tell the judge that she was the cause of the settlement failure, speculat[ion] that the court would rule against her, and [pr]offered opinions about the potential legal costs[, as well as] how refusing to settle would affect her pensions.

We are bound to see more claims of mediator misconduct, duress and coercion.  The problem is clear.  We'll discuss potential solutions in future posts.     

* Note that the District Court's order requiring the mediator to testify would likely not stand up under the current law in California.  See In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56. 

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'Girls Gone Wild' Founder Joe Francis Charged With Bribing Jail Guard, Having Prescription Pills in His Cell Thursday, April 12, 2007 

PANAMA CITY, Florida — The millionaire founder of the Girls Gone Wild video empire was charged with bribing a jail guard for a bottle of water and having prescription sleeping pills in his cell, authorities said.

When he learned of the new charges Thursday, Joe Francis waived his right to a bond hearing for the contempt of court charge that had led to his being jailed. Francis cried as his mother blew him a kiss while he was led from a federal court room back to his cell.

"I didn't do anything," he told his parents as he was led away, The News Herald of Panama City reported.

Francis, 34, makes an estimated $29 million a year from the "Girls Gone Wild" videos, which show young women exposing their breasts and being shown in other sexually provocative situations.

On Thursday, he was charged with bribing a public servant, three counts of possessing a controlled substance and five counts of introducing contraband -- cash and drugs -- into a detention facility. The charges are third-degree felonies punishable by up to five years in prison.

Francis offered a jail guard $100 for a bottled water Wednesday evening, court records said. When the guard refused, Francis showed him $500, investigators said. Inmates are not allowed to have cash in the jail. 

The president of Mantra Films Inc., which produces the "Girls Gone Wild" videos, was arrested Thursday for supplying Francis with the pills and cash, Bay County Sheriff's Office spokeswoman Ruth Sasser said. Scott Barbour was charged with introduction of contraband into a detention facility. He was scheduled to have a first appearance Friday.

It was not known if Barbour had an attorney.

click here for rest of story

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The noisiest, most opinionated people in the world, Bloggers, will be observing a Day of Blog Silence on April 30, 2007, for the victims at Virginia Tech.  We invite our fellow bloggers to join in (thank you Tammy Lenski of Mediator Tech for the head's up). 

Before then, we noisily give you the following for your thoughtful consideration:

The Brady Campaign to Prevent Gun Violence

You've seen her interviewed by the network news about the tragedy at Virginia Tech.  Now buy my friend Princeton Professor Katherine Newman's book, Rampage, the Social Roots of School Shottings.  

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Appellate opinions concerning the enforceability of mediated settlement agreements are coming fast and furious.

If you haven't prepared your form term sheets and memoranda of understanding by now,  you might end up litigating the settlement whose purpose it was to stop the litigation. 

Oh the irony!    

Today's case Irvine v. Regents of University of California (4th Dist. 2007) was decided on a narrow procedural ground, leaving at large the questions of fraud, duress and mistake alleged by the Plaintiff as a bar to enforcement of her mediated settlement agreement.

The narrow issue here was whether a party could be excused from meeting the deadlines imposed by California Rule of Court 3.1385 simply by asserting that the challegned settlement agreement was uneforceable. 

The Irvine Court, reversing the trial court's Rule 3.1385 dismissal, answered the question in the affirmative, explaining: 

The only decision before the court at a rule 3.1385 hearing is whether to dismiss the case or restore it to the civil active list. By alleging a dispute over whether the parties reached a binding settlement, plaintiff demonstrated good cause to restore the case to the civil active list. In reaching this conclusion, we have not considered whether any of plaintiff's contentions have merit.

There you have it.  Now the parties will be litigating the compromise they reached to avoid litigation.  Don't let this happen to you.  Start (but do not finish) here, where I have provided articles and case law bearing upon the enforceability of mediated settlement agreements. 

If you want your agreements to be durable take the time to read the case law, check the statutory provisions and, yes, even read the Rules, like 3.1385 here, which requires that an action be dismissed within 45 days after the Court receives notice of settlement unless good cause is shown why the case should not be dismissed.

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Thanks to Michael D. Young of Judicate West and Weston Benshoof Rochefort Rubalcava & MacCuish for passing along a mediation story so improbable that you'd expect to see it appear on a mediator's bar exam.   

Young apparently reviewed the entire court file (!!) to supply the following tale of woe, ending in Joe Francis' jail sentence for mediation misconduct.  

Huh???? 

Read on, my friends, read on.

The Claimed Mediation Misconduct

In October of last year, defendant Joe (Girls Gone Wild) Francis was ordered to private mediation in a Florida civil action.  That mediation, to say the least, went badly.  

Florida's mediation confidentiality protections apparently include an exception for threats of physical violence.  It was this exception upon which Plaintiffs relied in telling the following tale out of mediation "school."      

Francis [arrived at the mediation] wearing sweat shorts, a backwards baseball cap, and was barefoot. He was playing [with an] electronic device. As [plaintiffs' counsel] began his presentation, Francis put his bare, dirty feet up on the table, facing plaintiffs' counsel.

[Plaintiffs' counsel] said four words, "Plaintiffs were minor girls,"  when Francis barked, "are the girls minors now?"  Continuing, [Plaintiffs' counsel] said, "plaintiffs are minor girls who were severely harmed by Defendant."

Francis then erupted. "Don't expect to get a fucking dime -- not one fucking dime!" This was Francis' mantra which he repeated, about fifteen times, during his tantrum that ensued. "I hold the purse strings. I will not settle this case, at all. I am only here because the court is making me be here!" 

As plaintiffs' attorneys were leaving, Francis' threats escalated. "We will bury you and your clients!" Francis threatened. As [Plaintiffs' counsel] walk[ed] out of the room, Francis got up and faced off with [him] . . . bark[ing], "I'm going to ruin you, your clients, and all of your ambulance chasing partners!"

Francis' aggressive move and threats to "bury" and "ruin" [Plaintiffs' counsel] were clearly an assault . . . intended to . . . prevent the mediation from ever beginning. As a result of Francis' assault . . . no mediation as to Francis as an individual defendant ever occurred.

Francis then made the only offer he was to make that day.  "Suck my dick," Francis shouted repeatedly, as plaintiffs' counsel left the mediation room.

Plaintiffs sought an order from the court requiring Francis to behave civilly and pay sanctions.  

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(The ultimate digression:  starting a post with a digression:  This beautiful blog was created, and is "hosted," by LexBlog, the only legal blog outfit in town worth talking to when you decide to drop blogger, typepad and the like and go professional).

That said (I don't say it enough -- thanks Kevin!) I learn from LexBlog's Blog today that Chubb Insurance has apparently reconsidered denying coverage to its attorney-blogging insureds.  And if I was going to reconsider a coverage decision, you bet your boots it would be my attorney-insureds that would make me re-consider the most quickly.

Here's Kevin's report: 

[Chubb] now says law firms publishing blogs will be covered by their malpractice policy so long as lawyers are not answering specific questions in a way that could be construed to be legal advice.

That from James Rhyner, worldwide lawyers professional manager for Chubb Specialty Insurance, in speaking with Lisa Berman, reporting for the New Jersey Law Journal (pdf of story).

Chubb does insure this new form of communication -- and will continue to do so within select parameters.

Ryhner also acknowledged, as reported by Berman, "[T]hat there have been no malpractice suits against blogging lawyers in the United States over bad legal advice. But he cites a U.K. suit involving Lloyd's of London that he is monitoring.

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We've talked before about complaints that mediators sometimes use time- authority- and fear-pressure tactics to wrest agreement from the parties. 

If a client can prove she was coerced into settling a Title VII case, the Federal District Court for the Northern District of California has a remedy for her -- rescission.  

As reported last year by the National Arbitration Forum, the Court In Ryles v. Palace Hotel, rescinded a mediated settlement agreement as violative of federal law governing the release of Title VII claims.  The release of such claims must be “voluntary, deliberate, and informed.”

As the National Arbitration Forum article explained

In applying that standard, courts must consider the “totality of the circumstances.” The factors to be considered include the clarity of the agreement, the claimant’s education and business experience, whether the atmosphere for the execution of the agreement was coercive, and whether the plaintiff had the benefit of counsel.

All but one of those factors favored enforcement. However, one of the factors – whether the atmosphere for the execution of the agreement was coercive – weighed heavily against enforcement because of the “intense pressure” applied by Ryles’ attorney. Based on that factor, the Court held that Ryles could rescind the settlement agreement.

In reaching its holding, the Court cited Ryles’ letter to the Court as bolstering her credibility. Moreover, the Court rejected Palace Hotel’s argument that California law required coercion by the other party to the contract, noting that the release of Title VII claims is governed by federal law.

More on mediation "duress" soon.

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 AP 4.17.07 courtesy of Law.com

The Supreme Court on Monday asked the Bush administration to weigh in on a patent case that could impact any company with global supply chains.

The Court has not yet decided whether to take the case, but instead asked the U.S. Solicitor General -- the government's lawyer -- to offer its opinion on whether the Court should wade into the dispute.

At issue is whether a patent holder can seek royalties from multiple companies as a patented product works its way through the manufacturing process.

Click here for remainder of article.

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Thirty years ago (more or less) my law school trial advocacy professor taught me this:

Trial is not about ascertaining the truth.  Nor is it about justice.  It is simply one way to finally resolve a dispute.

I have to admit that my legal career was probably more marked than others by the belief that I was working on the side of truth and justice.  

But then, I was working small. 

Did the word "sudden" mean "quick" or only "gradual" and "unexpected" within the meaning of the pollution exclusion contained in a policy of comprehensive general liability insurance? 

Was it misleading to omit the exchange rate from advertising for the transmission of money to foreign countries? 

Could you negligently conspire to drive a medical provider out of business? (answered affirmatively, believe it or not, by the trial court).

Now that my view of the adversarial system is one of mediator and sometimes arbitrator,  what the "truth" is seems murky again, the way it did when I was clerking for a federal district court judge during law school.

So this post is the beginning of a series of posts about "justice" and fact-finding.  A series that will follow the path of my interest and discovery.  A series that raises questions that might never be answered.

To begin the exploration, I borrow freely from the excellent article by Professor Lisa Blomgren Bingham  When We Hold No Truths to Be Self-Evident:  Truth, Belief, Trust and the Decline in Trials.  This article, from a 2006 Symposium Issue for the Journal of Dispute Resolution, can be found on Westlaw and Lexis-Nexis and likely elsewhere on the internet.  I do not, unfortunately, have a free link to the article itself. 

We start with JUSTICE.

Distributive Justice

Distributive justice has its roots in social equity theory. It posits that social behavior occurs in response to the distribution of outcomes. Distributive justice emphasizes fairness in the allocation of outcomes. Thus, in mediation research, distributive justice suggests that satisfaction is a function of outcome, specifically the fact and content of a settlement or resolution. In theory, participants are more satisfied when they believe that the settlement is fair and favorable. There is a substantial body of empirical research that supports the distributive justice model as an explanation of satisfaction. The research suggests that distributive justice is a better explanation for satisfaction related to conflicts over resource allocation, such as wage disputes than other cases in which fairness matters. 

Procedural Justice

Procedural justice refers to participants' perceptions about the fairness of the rules and procedures that regulate a process. In contrast to distributive justice, which suggests that satisfaction is a function of outcome (the content of the decision or resolution), procedural justice suggests that satisfaction is a function of the process (the steps taken to reach that decision). Among the traditional principles of procedural justice are impartiality, voice or opportunity to be heard, and grounds for decisions. 

Procedural issues such as neutrality of the process and decision-maker, treatment of the participants with dignity and respect, and the trustworthiness of the decision-making authority are important to enhancing perceptions of procedural justice. Extensive literature supports procedural justice theories of satisfaction in a variety of contexts involving both courts and dispute resolution. In general, research suggests that if organizational processes and procedures are perceived to be fair, participants will be more satisfied, more willing to accept the resolution of that procedure, and more likely to form positive attitudes about the organization.

Interactional Justice

Beginning in the 1980s, organizational justice researchers developed the notion of interactional justice, defined as the quality of interpersonal treatment received during the enactment of organizational procedures. In general, interactional justice reflects concerns about the fairness of the non-procedurally dictated aspects of interaction. Research has identified two components of interactional justice: interpersonal justice and informational justice. These two components overlap considerably. However, empirical research suggests that they should be considered separately as each has differential and independent effects upon perceptions of justice. 

Informational Justice

Informational justice focuses on the enactment of decision-making procedures. Research suggests that explanations about the procedures used to determine outcomes enhance perceptions of informational justice. Explanations provide the information needed to evaluate the structural aspects of the process and how it is enacted. However, for explanations to be perceived as fair they must be recognized as sincere and communicated without ulterior motives, be based on sound reasoning with logically relevant information, and be determined by legitimate rather than arbitrary factors.  

Interpersonal Justice

Interpersonal justice reflects the degree to which people are treated with politeness, dignity, and respect by authorities. The experience of interpersonal justice can alter reactions to decisions, because sensitivity can make people feel better about an unfavorable outcome. Interpersonal treatment includes interpersonal communication,  truthfulness, respect, propriety of questions, and justification, and honesty, courtesy, timely feedback, and respect for rights. 

What all of this means in the "lay" terms of this blog, will be the subject of later posts, all labeled, "Truth, Justice and the American Way"  if the topic is of interest to you and you'd like to follow it (and comment upon it!)

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Geoff Sharp kindly passes along his dad's advice not to be average and to always be in mid-career in his brilliant article on Starting a Mediation Practice here. (chart is Geoff's own)

My dad's career advice?  Never be a civil servant or wear a hat.  Huh???  Some dads give sound career advice and others zen koans to chew on for the rest of your life.  We love them equally because, well, because they're our dads!

Somedays, however, thinking of this little chart is all that keeps my internal energizer bunny rev'ving.

Have a great weekend.

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Mr. Thrifty, always alert to the potential that business might arrive on our doorstep in response to my blog postings says "huh?" 

It's not just that he doesn't share my quirky sense of humor, it's that he doesn't follow the blog.  For others who don't, the YouTube Kodak commercial below is an example of the opportunities available to "old" industry in Web 2.0 advertising sources. 

Look!  I've become a shill for Kodak!  So stop grumbling; have a little fun; play along & even this edged-out camera company may live to revive the "Kodak moment" as a provider of digital technology.  

And, for my own weird reasons, this CRACKS ME UP! 

 Below, Paul Simon's Kodachrome from the YouTube Archive of YesMan46.   And, if you're a boomer still nostalgic about the way Simon & Garfunkel moved you in Junior High (now "Middle") School, check out his new album here.  Walking down memory lane, I provide you with Kodachrome.

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Stephanie West Allen at Idealawg has tagged me and eleven others to respond to Alex Shalman's Gotta Get Goals by "list[ing] and writ[ing] about the top 5 to 10 goals that you gotta’ get so that you can truly say you have achieved your wildest dreams in life. These have to be your best, most exclusive, and over-the-top goals that you can pick off your goals list."

I'm thinking, SHOOT!! I already write about myself too much, but Stephanie is one of my favorite people so I hate to disappoint her on this meme.  Therefore, you can skip this post as more blather from the most narcissistic person on the planet or read my top ten. 

The casual observer may not think these goals much to hope for, but if I achieve them, I will have achieved more than I ever believed possible and will die a happy woman.  

1. to stay sober and help other alcoholics to achieve sobriety; this is my primary purpose; everything else is gravy.
2. when I say "stay sober," I mean, to maintain a peaceful and loving balance in my life no matter what my circumstances -- to be content and of service in a war zone, a jail cell, a hospital and on my death bed.
3. to make a difference in the world, every day, one person at a time.
4. to be awake, present, to my experience and compassionate to that of others.
5. to continue to overcome those defects in my character that keep me from being of service.
6. to be self-supporting through my own contributions.
7. to be humble and more even-tempered.
8. to express myself creatively without pretense, desire for fame or hope of financial reward.
9. to know myself, my strengths and my limitations.
10. to contribute to my family, my friends and my community at the highest level possible without self-aggrandizement or need of reward.

In the words of the poet Mary Oliver, I want to be able to say

all my life
I was a bride married to amazement.
I was the bridegroom, taking the world into my arms.

When it’s over, I don’t want to wonder
if I have made of my life something particular, and real.
I don’t want to find myself sighing and frightened,
or full of argument.

I don’t want to end up simply having visited this world.

If they haven't been tagged yet, I tag Michael Webster, Blaine Donais, Diana Skaggs, Cassandra Lawrence, Jan Schau, and, Geoff Sharp.

As always, Michael Webster says something incredibly provocative in response:

Gotta Get Goals.  Why? Why do we need goals? This is not a flip response to what appears to a very successful meme/linkbait project.

For the surprising answer, click here.

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The SCMA Newsletter, missing in action for more than a year, will soon find its way into the mailbox of all SCMA members.  

For this we owe thanks to Board Members and/or authors Lisa Klerman, Phyllis G. Pollack, Dorit Cypis, Nikki Tolt, Ed Davis, President Jan Frankel Schau and the invaluable administrative skills of Linda Cain.

I provide here a teaser from Phyllis Pollack's and my article A Mediator's Dilemma, exploring mediation ethics in the context of an illegal counterfeiting operation.  

How many of us have been in this situation? We’re mediating a fairly run-of-the-mill business case – a fight over the sale of an import business. During the course of the mediation, it slowly begins to dawn on us that the parties are bargaining over the value of a business that trades in counterfeit Louis Vuitton and Gucci handbags. Is this the moment when we ask ourselves, if I’m carrying a pricey Prada, should I push the parties out of my pad?

But that’s the Carrie Bradshaw question.

The mediator’s questions go more like this: as a neutral mediator, do I have a duty to: (a) chastise the parties for engaging in illegal conduct; (b) recuse myself to avoid participating in the creation of an illegal agreement; or (c) inform the parties that any settlement reached might not be enforced?

Before answering these difficult questions, consider the recent case of Hye Young Yoo v. Sue Jho (Calif. Court of Appeal, 2nd Dist).

Yoo, the purchaser of a counterfeit handbag business, sued the seller after investigators confiscated the counterfeit goods, which naturally caused the business to fail. Yoo wanted some or all of her money back and the trial Court (wearing black polyester) agreed -- to the tune of $103,250.

Not surprisingly, the appellate court, slightly more Manolo Blahnik but nevertheless also sporting Ace Uniforms, reversed, holding that when it comes to illegal contracts “the law will leave the parties as it finds them.” Id. In Yoo, leaving the parties the way the Court found them meant some pretty good times for the defendant. She stole Gucci and LV designs, sold them to (unsuspecting?) customers and made a cool $400K at a time when she was likely looking over her shoulder for the law to close in.

So, what’s a neutral mediator to do?

For the tentative resolution, click here.

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(on the other hand, laptopping beats sleeping)

See the WSJ Law Blog's post No Laptops for You concerning a Georgetown Law Prof who has banned laptops from his classroom.    

I'm teaching a class at Pepperdine Law School this semester and must admit that the temptation to ban laptops is great, particularly when you've worked hard to prepare an engaging lecture and are attempting to solicit lively participation from your students.  It's sometimes dispiriting to face a sea of black and silver laptop covers instead of interested faces poised to join a class discussion.    

It may seem like a small problem, unworthy of a post.  But it concerns the way we treat one another and the way we wish to be treated.  If we were chatting at a party and I pulled out my Blackberry to "multi-task," I'd be considered boorish and not a little dim-witted.  How different is that from the conversation that takes place in the classroom?  

With these thoughts in mind, I provide an excerpt below and link above:

[Georgetown Law School Professor] David Cole has banned laptops from his classroom, and he wrote an essay about it in Saturday’s WaPo. He cites two reasons for the ban:

“Note-taking on a laptop encourages verbatim transcription. The note-taker tends to go into stenographic mode and no longer processes information in a way that is conducive to the give and take of classroom discussion. Because taking notes the old-fashioned way, by hand, is so much slower, one actually has to listen, think and prioritize the most important themes.”

“Laptops create temptation to surf the Web, check e-mail, shop for shoes or instant-message friends. That’s not only distracting to the student who is checking Red Sox statistics [or the WSJ Law Blog!] but for all those who see him . . . doing something besides being involved in class. Together, the stenographic mode and Web surfing make for a much less engaged classroom, and that affects all students . . . .”

 

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As a follow-up to yesterday's post on collaboration and cooperation, we recommend a recent article in the Harvard Business School's invaluable online resource "Working Knowledge" -- The Value of Openness in Scientific Problem Solving, by Karim R. Lakhani, Lars Bo Jeppesen, Peter A. Lohse, and Jill A. Panetta.

The HBS Executive Summary below; link to full article above. 
  

Scientists are generally rewarded for discoveries they make as individuals or in small teams. While the sharing of information in science is an ideal, it is seldom practiced. In this research, Lakhani et al. used an approach common to open source software communities—which rely intensely on collaboration—and opened up a set of 166 scientific problems from the research laboratories of twenty-six firms to over 80,000 independent scientists. The outside scientists were able to solve one-third of the problems that the research laboratories were unable to solve internally.

Key concepts include:

Opening up problem information to a large group of outsiders can yield innovative technical solutions, increase the probability of success in science programs, and ultimately boost research productivity.

Open source software communities provide a model for improving the process of solving scientific problems.

Outsiders can see problems with fresh eyes; in this study, problems were solved by independent scientists with expertise at the boundary of or even outside their field.

Achieving true openness and collaboration will require change in the mindsets of both scientists and lab leadership.

A timely post for solving the problems of WORLD 3.0. 

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As Paul Auster has written, "the world comes into being only in the act of moving towards it." 

Which is as good a summary of the movie Smoke as you can get.

This clip, Augie's Christmas Story with Tom Waits' "You're Innocent When You Dream," is "just" the credits.

A small and touching silent film at the end of a great movie.  

An Easter Day offering.

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I took an urban hike with my good friend the composer, lyricist and novelist Kathleen Wakefield yesterday.  I live at the base of the Santa Monica mountain range, making for a good hour's hike from the Los Angeles Basin to the range's crest on Mulholland Drive and back (even if we only made it to Fountain) (yes, the Fountain of Bette Davis' famous response to the question "how do you get to Hollywood?"  -  "take Fountain") .

Because Kathleen makes her living selling her intellectual property, we were talking about the challenges raised by and opportunities presented to artists as their work becomes more and more their own property and less and less the business of those who "discover" it (A&R), produce it (Viacom, MGM, Capitol Records, etc.), sell it (Madison Avenue) and protect it (ASCAP, entertainment lawyers).

Our conversation naturally ranged to Web 2.0; a world without borders; and, global warming, all of which took me back to the book my friend Ken Cloke is writing called "Mediators Can Save the Planet."

Why mediators?  Because WORLD 3.0 will require that we supercharge our natural cooperative and altruistic natures while dampening our competitive drive without thereby discarding our ambition. 

What will it take?  A shift from competition to collaboration.  

Can we do it?  "Yes we can," says Al Gore in An Inconvenient Truth when his audience begins to move from denial to despair.

How?  At least one way to get the global cooperation ball rolling will be to school ourselves in empathy, a necessary prerequisite to tackling the problem of collaborative solutions to worldwide  problems. 

All of which leads us to an old but timely article Empathy, Morality and Otherness by Dr. Douglas Chismar.  Before proceeding to suggest art as one of the ways we can increase our ability to identify the injustices done to and suffering endured by "foreign" others, Dr. Chismar identifies three types of empathy triggers:  (1)  empathizer specificity; (2) situation specificity; and, (3) recipient specificity.  He writes:  

Empathizer specificity refers to the manner in which individual empathizers vary in their general level of empathic responsiveness as a personality trait. Some people empathize quite often and intensively, others rarely and only weakly.

Situation specificity refers to how empathizers respond selectively to a variety of different empathy opportunity situations. Certain circumstances, for example the Challenger disaster, have evoked widespread empathy, while others, such as the civil war in Rwanda, evoked little response.

Recipient specificity speaks of how empathizers respond differently to particular kinds of individuals. A neighboring family left homeless by fire may evoke considerable empathy while a wino on a street corner may stimulate little concern.

After discussing the many reasons why we understandably misread the injustices visited upon and fail to respond to the suffering of distant and foreign "others,"  Dr. Chrismar suggests that we nourish our natural empathy impulses with art.  "We need to find a way to take the initial impulse to empathize and nourish it," he argues,

 rather than letting it slide, as it is prone to do, into the rut of selectivity. Humans have discovered at least two strategies for increasing the frequency and intensity of empathy, and overcoming its partiality.

The first strategy is the largely cognitive operation of what is commonly referred to as “universalizability.” This consists of abstracting from one’s particular situation and viewing oneself as one among many. It takes various forms, including reversibility (placing oneself on the imaginary receiving end of an action) and a kind of stripping away of what makes one particular (“judging a man by the content of his character rather than the color of his skin)”.

 A second strategy appeals to the arts . . . Through drama, poetry, film, and other arts, imaginative participation in others’ experience is enabled where it would otherwise fail to occur. The arts, through creating a mock reality, thrive upon the sense of fascination with the different while creating situations in which empathy is powerfully and irresistibly generated.

Human tendencies towards curiosity and exploration are harnessed to project the emotions into alien situations. The accepted suspension of cultural norms, which has tended to characterize the artworld throughout its history, permits the feeling and expression of unconventional emotions, unloosing a stream of feelings otherwise bottled up in a business-like society.

There's much more of interest in this article to anyone engaged in the project of preparing ourselves for the challenges of the coming century, including the mass relocation of people due to the rise in the sea level and the potential for catastrophic species extinction -- neither of which is science fiction anywhere but in the Bush White House.

Check it out.

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(left:  courage)

In Lessons From a Large-Firm Partner Who Set Up His Own Shop ... and lived (well) to tell about it, Mark P. Zimmett tells the nitty-gritty of every BigLaw associate's and partner's ultimate fantasy -- solid, sophisticated legal work with your own name on the firm stationary.

For the full tale, see Mark's American Lawyer article here.  Excerpt below.    

Many partners in large firms dream of chucking it all and setting up their own practice. However, many also fear that without their firm's name recognition and resources, they will miss out on major matters. A seat at the table is no big deal in a penny-ante game.

But you can leave a big firm and keep a big practice. Today, one can handle sophisticated high-stakes legal work in a small firm. Add profits that can rival those at top 10 Am Law firms and control over your professional (and personal) life, and striking out on your own becomes an appealing alternative.

Getting started is relatively easy. As a friend described it: "Starting your own firm is only slightly more complicated than setting up the corner newsstand." True enough, but the real risks are realized along the way; like bungee-jumping with a family on your back, strapping on the harness is the easy part.

I hung out my shingle on Nov. 1, 1990, and hung out everything else with it.

For a local example, check out the excellent work being done by Lee and Tran formerly of Morgan Lewis, Quinn Emanuel, Skadden Arps, and Wilson Sonsini.

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See Diane Levin's interesting post about "Civil Gideon" rights and the charge that Judges and mediators strong-arm unrepresented litigants to settle their cases when they would prefer to proceed to trial.

This is not a new charge.  Nor is it a false one.  I continue to hear stories about strong-arm tactics in our local halls of justice.  And these tactics are not applied only to the pro per litigant.  I have seen attorneys deliver up their clients to court-annexed mediators as living sacrifices to bad legal advice or a simple lack of courage to deliver bad news about the course a case has taken.   

There is a difference between seeking the mediator's help with adjusting a party's overly optimistic expectations and ambushing your own client in court-annexed mediation proceedings.  I can hear the wails of my friends Joe Folger and Baruch Bush from Temple University and Hofstra Law School (respectively) (authors of The Promise of Mediation) now.

A snippet from Diane's post quoting and link to the longer, must-read post:

Russell Engler, a Professor at New England School of Law. In his 2006 article, "Shaping a Context-Based Civil Gideon from the Dynamics of Social Change," Professor Engler describes the actions of those standing in the way of progress thus:

In the courtroom, court personnel, including the judges, will likely encourage the unrepresented litigant to settle the case. That, in turn, may require the litigant to go to the hallway to negotiate with the lawyer, or to resort to some form of court-based mediation. The hallway negotiations are rife with instances of overreaching and unethical behavior by lawyers, unmonitored and unpunished by a legal system that depends on a high settlement rate. Where the litigants resist settlement, strong words from the judges, mediators or lawyers eventually induce litigants to settle. Few civil cases are tried, and most settlements involving the unrepresented poor occur with a minimum of judicial involvement. [Id. at 2.]

For the remainder of the article, click here.

Both Diane and I invite responses from our readers.

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I'm publishing the full text of my Law School's recent U.S. News and World Report rankings, primarily because I'm proud to say that Davis continues to deliver the goods on the diversity goals that made me choose it for my legal education thirty (gulp!) years ago.

I don't do much for Davis, despite how much it's done for me, both while studying for my J.D. and after.  It's not a name you toss around like Harvard or Yale or UCLA.  For anyone trying to make a decision about where to go to law school, here are the reasons why I truly loved my educational experience there:

• there were (and continue to be) only about 160 people in each class, making the atmosphere  as relaxed as law school likely can be; the faculty available for a chat; and, the "feel" of the school like a small town where people bring you casseroles when you're sick and cheer you on when you're engaged in a competitive endeavor;
• the quality of scholarship and standards in teaching were and are extremely high;
• the student body is diverse;
• there's ABSOLUTELY NOTHING TO DO THERE but study and hang out with your classmates (Davis is near many wonderful places -- San Francisco, Tahoe, gold country -- but Davis itself is precisely nowhere -- this is good for people who have a little ADHD and need to concentrate on their studies);
• they're one of the few west coast universities with real squash courts;
• the local legal community is tremendously supportive and small enough itself to provide opportunities for early real legal experience, like second-chairing trials, attending client meetings, participating in settlement negotiations, and meeting the Judges (both State and Federal) as a summer associate; and,  
• the local bench is among the finest in the State.

Amazingly, some of the best professors I had '77-'80 are still teaching at Davis:  Dick Wydick (who offered to bet me 100 to 1 that I'd pass the bar exam when I was freaking out about it the summer of '80 -- he also made this offer to my study partners, Peter Offenbecher and Sam Foulk -- I remember Peter musing aloud, "you know, it might be worth throwing the bar in July if I put enough money on the table" -- and, no, Peter did not take a dive); Floyd Feeney (who kindly hired me as a first year to help with a book on ancient criminal procedure); and, Bruce Wolk (to whom I'll ever be grateful for slipping helpful explanatory material in my student mailbox when my clueless questions in Fed Tax 1 made him realize I greatly needed help).  

The only burning alumni question I have:  is there still a pinball machine in the basement?

GO AGGIES! 

The Davis press release below.

UC Davis School of Law received high marks from its peers—faculty at other law schools and lawyers and judges throughout the United States—in the latest U.S. News & World Report ranking of America's Best Graduate Schools. The 2008 Edition includes an assessment of all 184 accredited law schools in the United States by peers and by lawyers and judges. UC Davis Law tied at 23 in the peer assessment category and at 32 in the assessment by lawyers and judges.

The report, released on March 30, 2007, showed UC Davis School of Law continues to rank in the first tier of all law schools, and while serving under 600 students is one of the highest-ranked small public law schools in the country.

“We are very excited to be recognized for our achievements particularly by our peers and those in the legal profession,” said Dean Rex Perschbacher, “although we encourage students and the public to look beyond national rankings and choose a school that meets the individual needs of each student.”

“Our school offers an exceptional legal education while retaining a close-knit community atmosphere through smaller classes and greater faculty interaction,” he added. “Those in the legal profession know the quality of our students, and our peers recognize the excellent scholarship and teaching by our faculty.”

U.S. News also recognized the Law School's strength in diversity, showing it among the top 25 in the United States in this category. This recognition is not new to Davis. In 2005, the National Jurist magazine ran a story on the “Best Schools for Minorities,” and named UC Davis School of Law as one of the very top law schools in the United States for minorities, with both a high minority enrollment and one of the most diverse law faculties in the country. The Princeton Review's 2006 edition of the Best 159 Law Schools ranked Davis in the top 10 for “Best Environment for Minority Students” and “Most Diverse Faculty.”

The school has a dynamic academic program with strengths in business law, criminal law and procedure, environmental and natural resources law, human rights and social justice law, intellectual property law, international law, and public interest law. The school also offers community clinics in the areas of family protection, immigration, prison law, and civil rights. In these clinics, second- and third-year students represent clients under the supervision of experienced faculty to develop their practical skills.

“We provide our students with comprehensive courses in a variety of legal areas and balance their coursework with real-life experiences in our clinics,” said Perschbacher.

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(BELOW, Katherine Hepburn and Burt Lancaster in The Rainmaker.  Dated and melodramatic.  But because this scene was my dramatic interpretation selection for high school speech tournaments in 1969, I can't think of rainmaking without recalling this scene)

Pull out that divining rod and begin prospecting for rainwater in your own backyard with marketing guru Sara Holtz's Women Rainmakers Blog.

Start with Your Mother Was Right Part II to get an idea of the ample marketing resources you already possess.  Resources that you need only begin to use.  It's EASY, say I, who developed not a LICK of business in 25 years of practice and am now a business development queen (since I only eat what I can kill). 

But it's not desperation that made me realize I had what it took to develop business.  It was simple necessity.  Everything else followed, without having to change my personality or do or say stuff that wasn't "me."  I'm not golfing or talking about the Final Four or pushing myself on the attorneys who have become my market.  But, this isn't about me.  This is about you.  Here's Sara Holtz's advice on that subject from "Your Mother was Right."  

Your mother told you that when others inquired about you, it was polite to reciprocate and ask about them. What she didn't tell you is it is also good for business development.

I was reminded of this during two recent conversations.

I was speaking with a (male) client. He is a funny, personable sort. In the course of our conversation, I asked him a number of questions - What was new with him? What were his plans for the holidays? What were his kids up to?

He didn't ask me a single question in return.

Least you think this is a "guy thing", I had a similar experience when having dinner with a (female) classmate from Law School. We had an entire dinner in which she failed to ask me a single question about myself or my family, even though that had been the focus of our conversation about her.

I was a bit puzzled in both situations. What do I make of this?  

That it was a missed opportunity to enhance their relationships with me. Carried over to the business development context, don't make the same mistake. Make a point to ask appropriate questions, learn about the other person, let them know that you are interested in them. It will strengthen your relationships. And strong relationships are good for business.

I'll add to this that both lawyers and neutrals are problem solvers.  You don't need to know what complicated antitrust problem your dinner companion is wrestling with (unless she's dying to talk about it).  Casual conversation over a relaxing meal will inevitably reveal some challenge your dinner companion is facing.

Be a problem solver.  I can now do this in minutes, holding a glass of soda water at any bar function anywhere anytime.  I do not tell people I am a mediator.  It tends to make them start looking over my shoulder for someone else to talk to.  They're afraid I'm going to try to sell them my services.  I simply ask lots and lots and lots of questions about them.  How's your practice?  Are you progressing as you want to?  How's the firm doing?  Are your associates getting the training they need, etc., etc.  At some point, I begin helping my new bar association friend with one or more of these challenges.  

Eventually they look at me with real interest and say "what is it that you do anyway?"  That's when I tell them, "I'm a professional problem-solver -- a mediator."  We exchange cards.  The business does not come directly and sometimes not at all.  But at the next bar association function, I often see my new old friend, ask how he's rising to the challenge we discussed when last we met.  He introduces me to someone else with kind words about how I helped him with, say, the paper clip supply in the mailroom.  Really, any  problem solving whatsoever will do.

This is how you build a network, a reputation and a business. If I'd known it was this easy, I'd have had a book of business before I was made (a non-equity) partner.  You can build yours too.  Starting now.

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I am constantly reminding my readers that we are hard-wired cooperators.  Cooperation alone, regardless of result, makes us happy.  Better yet, cooperation almost always results in a better deal for everyone. 

This is not do-good, crystal-reading, pentagram-worshiping kum-by-ya feel good west coast touchy-feely nonsense.  This is evolutionary biology.

In this week's Sunday New York Times Natalie Angier reminds us that cooperation is not only the necessary pre-condition to the survival of the human species as a group, but is also the pre-condition to each of our individual lives.  In her fascinating article, Sociable Darwinism, Ms. Angier reviews Evolution for Everyone (etc.) by Professor David Sloan Wilson at Binghamton University.  

As Ms. Angier explains:

Wilson has long been interested in the evolution of cooperative and altruistic behavior, and much of the book is devoted to the premise that “goodness can evolve, at least when the appropriate conditions are met.” As he sees it, all of life is characterized by a “cosmic” struggle between good and evil, the high-strung terms we apply to behaviors that are either cooperative or selfish, civic or anomic.

The constant give-and-take between me versus we extends down to the tiniest and most primal elements of life. Short biochemical sequences may want to replicate themselves ad infinitum, their neighboring sequences be damned; yet genes get together under the aegis of cells and reproduce in orderly fashion as genomes, as collectives of sequences, setting aside some of their immediate selfish urges for the sake of long-term genomic survival.

Cells further collude as organs, and organs pool their talents and become bodies. The conflict between being well behaved, being good, not gulping down more than your share, and being selfish enough to get your fair share, “is eternal and encompasses virtually all species on earth,” he writes, and it likely occurs on any other planet that supports life, too, “because it is predicted at such a fundamental level by evolutionary theory.”

How do higher patterns of cooperative behavior emerge from aggregates of small, selfish units? With carrots, sticks and ceaseless surveillance. In the human body, for example, nascent tumor cells arise on a shockingly regular basis, each determined to replicate without bound; again and again, immune cells attack the malignancies, destroying the outlaw cells and themselves in the process. The larger body survives to breed, and hence spawn a legacy far sturdier than any tumor mass could manage.

For the remainder of this article, click here.  For how this phenomenon applies to the legal profession, see Unhappy Lawyers and the Cooperative Hard Wire here.   

To read Professor Wilson's book, EVOLUTION FOR EVERYONE -- How Darwin’s Theory Can Change the Way We Think About Our Lives, click on the title.

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In response to my over-50 peers' dire predictions that the internet will make books with covers and typeset lines obsolete, I chortle back, "but I love the internet.  I love wikipedia. I love Youtube and Flickr and Google." 

They look at me like I'm nuts. 

"But what about newspapers," they say, "and reading and poetry?  What about sitting in an easy chair with a new novel in your hands and a cup of coffee by your side?"

"Books and newspapers don't hyperlink," I respond.  "Nor do they give me access to thousands of libraries.  With search capacity." 

"Here's the thing," I continue.  "I can sit on the couch in my L.A. Spanish stucco house -- built in 1928, at the very beginning of electricity and motorized mobility -- with my Dell computer on my lap, looking up occasionally at the vase of spring flowers on my coffee table, the bird of paradise just beyond my curtained window and the palm trees in the neighbors' yard across the street while I browse the Library of Congress for an article on the history of Islam." 

"And if books with covers become artifacts like 78-rpm records?  I'll have my artifacts here, in the bookcase behind me and on shelves in my office.  Perhaps we'll have public newspaper like we now have public television and radio, for the old folks among us.  No need to worry about someone acquiring monopoly control over the news.  The bloggers will continue to newscast and the ordinary citizen to upload to YouTube scenes of the local police tazering citizens.  And we won't have to cut down any more trees to make the paper on which to hold the words."

Does it get any better than that?

The point of this post?   I am once again burying the lede is favor of the aimless morning ramble before I jump back in to my real work -- the work they pay me to do. 

The point of this post is to ask you to go RIGHT NOW over to wikipedia's entry on mediation and make it better as suggested by John Helie in There Goes That Internet Thingy Again! in mediate.com this month.

Thanks John!

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In the recent case of Equal Employment Opportunity Commission v. Woodmen of the World Life Insurance Society, 2007 WL 702758 (C.A.8 (Neb.)) ("Woodmen"), the U.S. Court of Appeals for the Eighth Circuit held that an employee bound by an arbitration agreement may not seek damages against her employer as an intervenor in an EEOC enforcement action.  

On appeal from the district court's refusal to grant the employer's motion to compel arbitration, the Eighth Circuit reasoned that requiring Ms. Rollins to arbitrate her claims would interfere with the EEOC's ability to pursue its enforcement action.  The appellate court  also rejected claimant's argument that the arbitration agreement was preempted by the enforcement action under Waffle House.

The Court explained:

Had the Supreme Court intended to preclude an employee from asserting claims in arbitration against the employer concurrently with the EEOC enforcement action . . . , it would not have had occasion or need to discuss the possible ramifications of an arbitration award [in its Waffle House decision].

The Woodmen court concluded that neither Title VII nor Waffle House precluded Ms. Rollins from arbitrating all of the cross-claims she asserted as an intervenor in the EEOC's enforcement action.  In fact, the FAA compelled her to do so. 

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below, 360 degrees of l.a. subway by Masumi Hayashi

I've told my own hard lesson about projecting a positive professional image before here and here. 

There's nothing like a 360 review to get you thinking about why you're (pick one) not getting the plum assignments; being passed over for partnership; or, not winning the corporate "beauty contest."  There's a great Q&A over at HBS Working Knowledge with Laura Roberts, Assistant Professor of Organizational Behavior at the Harvard Business School on Creating a Positive Professional Image (before others do it for you).  Here's an excerpt and a link.  

Most people want to be described as technically competent, socially skilled, of strong character and integrity, and committed to your work, your team, and your company. Research shows that the most favorably regarded traits are trustworthiness, caring, humility, and capability.

Ask yourself the question: What do I want my key constituents to say about me when I'm not in the room? This description is your desired professional image. Likewise, you might ask yourself the question: What am I concerned that my key constituents might say about me when I'm not in the room? The answer to this question represents your undesired professional image.

My old friend and former legal associate, environmental attorney James Dragna at Bingham McCutheon, the best client developer in the business, used to say, "if people have the choice between someone competent they want to hang out with and someone they don't, they'll choose the guy [or gal] they trust and like."

Yes, you can improve your technical capability, but those other three qualities -- trustworthiness, caring and humility -- are choices we can make on any given day.  That's the good news.  Even if you never could get the punch-line to a joke right and don't care who the final four might be.  

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Thanks again to our friends at Duane Morris we learn that one federal circuit court has lowered the threshhold for declaratory judgment jurisdiction in patent actions.  

SanDisk Corp. v. STMicroelectronics, Inc., et al., No. 05-1300

On March 26, 2007, the Federal Circuit significantly lowered the bar for determining when a prospective patent licensee can initiate a declaratory judgment action. In response to the Supreme Court’s rejection of the Federal Circuit’s “reasonable apprehension of suit” test for determining declaratory judgment jurisdiction in MedImmune Inc. v. Genentech, Inc., et al., 127 S. Ct. 764 (January 9, 2007), the Federal Circuit set forth a new rule and held that in the context of pre-litigation licensing negotiations “where a patentee asserts rights under a patent based on certain identified ongoing or planned activity of another party,” declaratory judgment jurisdiction will arise.

To read the full text of this Alert, please click here.

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Research shows that how we perceive a particular offer's value is highly influenced by any relevant number that enters the negotiation environment -- an anchor.

The greater the ambiguity and uncertainty, the stronger the anchoring effect of the first offer, which will exert a strong pull throughout the rest of the negotiation.

researchers had real estate agents inspect a house and estimate its appraisal value and its purchase price 

• then they manipulated the house's list price, providing high and low anchors

• all of the agents' estimates were influenced by the list price, even though they denied factoring the list price into their decisions

• when they explained the basis for their estimates, they cited features of the property that would justify those estimates

in another study, researchers sent customers to mechanics to obtain estimates on the value of a car

• after the customer offered his own opinion of the car's value, he asked the mechanic for an estimate
• half the mechanics were given a low anchor and half were given a high anchor
• the mechanics estimated the car to be worth a thousand dollars more when they were given the high-anchor value

a Northwestern busienss law school professor explained the phenomenon this way

• items being negotiated have both positive and negative qualities—qualities that suggest a higher price and qualities that suggest a lower price
• high anchors selectively direct our attention toward an item's positive attributes; low anchors direct our attention to its flaws
• a high list price directed real estate agents' attention to the house's positive features (such as spacious rooms or a new roof) while pushing negative features (such as a small yard or an old furnace) to the back recesses of their minds
• similarly, a low anchor led mechanics to focus on a car's worn belts and ailing clutch rather than its low mileage and pristine interior 

making the first offer anchors the negotiation in favor of the offeror

• the author of the article from which these insights were gleaned found that when a seller makes the first offer, the final settlement price tends to be higher than when the buyer makes the first offer 
• the amount of the first offer affects the outcome, with more aggressive or extreme first offers leading to a better outcome for the person who made the offer
• Initial offers predict final settlement prices better than subsequent concessionary behaviors do

how extreme should your first offer be?

• this author's research suggests that first offers should be quite aggressive but not absurdly so 
• the fear that an aggressive first offer will scare or annoy the other side and perhaps even cause him to walk away in disgust is typically exaggerated
• most negotiators make first offers that are not aggressive enough
• a nonaggressive first offer requires small concessions or a decision to stand by the original demand
• one of the best predictors of negotiator satisfaction with an outcome is the number and size of the concessions extracted from an opponent
• by making an aggressive first offer your opponent is able to "extract" concessions from you
• in that case, you'll not only get a better outcome, but you'll also increase the other side's satisfaction

from "Should You Make the First Offer?"  by Adam D. Galinsky, an assistant professor at Northwestern University's Kellogg Graduate School of Management, in Evanston, Illinois.

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(this wave is so big, you can hear the wind whistling on the tape)

The importation of counterfeit goods into Southern California is a problem for many of my lawyer-clients' clients. 

The old saw that an ounce of prevention is worth a pound of cure is particularly appropriate where neither lawsuits nor negotiated agreements are effective deterrents.  I am therefore bringing you prevention suggestions from the law firm of Porter, Wright, Morris & Arthur, Recordation of Copyright and Trademark Registrations with Customs -- Combatting Counterfeit Goods, a brief excerpt of which we copy below.     

Counterfeit goods rob United States businesses of billions of dollars in revenue each year. They also damage brand reputation, which is difficult to quantify. U.S. Customs and Border Protection has authority to stop or seize counterfeit goods entering the United States; in fact, in 2005 alone, Customs performed over 8,000 seizures of counterfeit goods valued at more than $93 million.1 Trademark and copyright owners may record their U.S. trademark and copyright registrations with Customs to help Customs identify goods it has authority to seize.

For remainder of article, click here.

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I always wanted to have my own literary journal and, thanks to the internet, I have one --  the r.kv.r.y. quarterly literary journal -- where this poem -- Space Time is Curved -- resides.  For wikipedia's entry on Spacetime, click here.

Most of the poets and writers I publish are strangers to me.  They find the journal primarily through Poets & Writers Magazine, which has an inexpensive classified ad section.  Or they know other people who already published in r.kv.r.y.  Having the journal allows me to publish the work of my friends, all of whom are better poets than I.  Joe Mockus and Richard Wirick, for instance, whose work I've recently mentioned and who only happen to both be attorneys.  

The best thing about writing poetry, for an amateur like me, is that it slows the world down.  It makes me look more carefully.  It sends me to the bookstore to purchase Audubon Guides to the trees, flowers and birds I've never learned by name.  Curlew, whimbrel, nuthatch, and, yes, even booby, brown and blue-footed (sula leucogaster and nebouxii)  for those times when your poem needs a little whimsey.   Sycamore, hawthorne and laurelcherry trees.  Valerian, elder, thistle and honeysuckle.  It recalls the time when people had the time to notice and name the world around them.

As Shakespeare famously wrote:  a poet gives to airy nothings a local habitation and a name.

The second best thing about writing poetry in mid-life is reading it again.  Kinnell and Creeley.  Berrigan, Bishop and Bukowski.  Wright and Collins and Neruda.  Dickinson, cummings, Levertov and Auden.  Merwin, Sexton and Graham.  You could live your entire life inside the poems of just this handful of great  20th Century poets.  

r.kv.r.y. has a "favorite poets" page and we invite you to send us yours.  

This is a lazy Saturday post, waiting for my husband to arrive home from New York City.  And before the cleaning and shopping for Monday's Seder begins.  

I hope you're having a pleasant weekend too.

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Ron Miller over at the Trial Lawyer Resource Center posted a good article on negotiating settlements with insurance adjusters recently called Listening During Settlement Negotiations

Miller's helpful tips include nuggets such as:

The Adjuster Is Not Your High School Girlfriend: If negotiations end badly, agree to disagree and file suit. Do not get mad at the claims adjuster. You can remind the adjuster that you have facts about the case (the quality of the client or whatever the facts may be) that reviewing the medical records could not possibly give the adjuster. If this is the problem, it is obviously not the adjuster's fault that the medical records don't fully give a lens to the value of the case. Discovery can resolve this and, if it does not, this is why we have juries. Don't take it personally.

Check it out. 

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(video by JWTNY whose other work can be seen here).

The business of lawyers is words.  Their precise meaning. How they function, alone and together. Sometimes a comma makes all the difference between winning and losing a case. Once, for a few tens of millions of dollars, one of my partners asked the Court of Appeal to rule that the word "sudden" meant "quick," not "gradual."  (case mentioned here)

No kidding.

And everyone was worried about the outcome.

So the law is a poet's profession.  Or, poets gravitate toward the law because, unlike poets, lawyers get paid to write.

The poets among us are so common that we have our own web site -- Strangers to Us All:  Contemporary Lawyer Poets -- constructed by Law Professor James R. Elkins at West Virginia University. 

Some of my friends are listed there -- Rick Wirick -- an insurance coverage attorney with the firm of Fainsbert Mase & Snyder LLP in Los Angeles.  Rick's book of prose poetry -- 100 Siberian Postcards -- will have American debut at Book Soup in West Hollywood in late April of this year (you can listen to Rick read some of these here).     

My old college friend Joe Mockus is also on Professor Elkins web site.  Joe is a criminal defense attorney in Oakland (Garcia, Schnayerson & Mockus) whose firm once represented Jello Biafra of the Dead Kennedys in a Free Speech case (listen to Biafra chat with prosecutor Guardino on an episode of This American Life here).  Joe's one of the best poets I know.  But he doesn't send his work out and I have to beg him for it so I can publish him in the literary journal I edit, the r.kv.r.y. quarterly.  You can find Joe's poems here and here. 

I am more indebted to poetry than I could ever tell you unless we were chatting over a latte and I was talking too much.

Enjoy the Billy Collins.  The poetry alone is wonderful -- touching.  The videos are amazing.  Thank you YouTube for putting the means of distribution into the hands of the artists. 

I cannot resist also giving you The Best Cigarette Poem Video.  Hypnotic. 

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An occasional sublime moment in the midst of our working days.

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Anyone representing contractors, developers, sub-contractors or insurance carriers in construction defect or coverage actions should read the most recent California case law on the duty to pay defense costs for complex construction defect cases.  

By "complex," I mean those cases where the HOA sues the developer who sues the general who sues the sub's, all of whom seek coverage from their carriers.  As any player in these 15-ring circuses knows, defense costs are often paid by an additional insured endorsement contained in the policies of one or two of the sub-contractors.    

That's what happened here.  The Court does a great job of clearly explaining the difference between equitable contribution and subrogation where the policies at issue provide potential coverage for some but not all of the causes of action.  The additional twist here involves excess carriers.

I'm not going to brief this case here (relying on my insurance blogging colleagues to do so).  I do want to alert attorneys for the HOAs, developers, contractors, and insurance carriers for whom I mediate construction defect and coverage cases to this important contribution to the most pressing question at any construction defect settlement conference  -- "whose got the money to settle this thing?" 

The case is Transcontinental Insurance Company v. Insurance Company of the State of Pennsylvania, filed on February 28, 2007 and published on March 27, 2007 by the Fourth District, Div. Three.

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(above, Charles Fincher's illustrative cartoon)  

I was talking to an attorney friend this morning about an upcoming mediation in a complex commercial case.  Lots and lots of $$$$$ at issue.  Last week -- a week before the mediation is set to convene --  his team scored a pre-trial victory on an eight figure issue.

If I'd had time to think about it, I'd have given him the mediation strategy advice he was already suggesting to himself.

DON'T GLOAT.

Aside from your mother's advice to never be a "bad winner" and your own certain knowledge that your shiny new pre-trial ruling can always be reversed, stifling your gloat-reflex will have at least two beneficial effects on your upcoming negotiation.  

1. your opponents' reflexive desire to retaliate by launching an all-out thermo-nuclear-legal attack will be quieted, if not eliminated; and,  
2. your opponents' ability to use their higher "executive" brain functions during the upcoming negotiations will be increased, soothing the fear and anger flight-fight mechanism of the  brain's reptilian amygdala, which, when triggered, overrides the sophisticated "executive" brain functions necessary to a successful high-stakes negotiation.

So, my friend had it right on the money this morning.  The hardest thing about the upcoming negotiation will be not to gloat.  

Make "not gloating" the center of your strategy, I replied, and you'll settle that multi-bazillion dollar case and make your corporate client truly happy.

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It's Friday.  Time to chill out a little and take ourselves just ever so slightly less seriously.

Here, for your viewing enjoyment, a parody of Employment Conflict Resolution from the hilarious televsion series "The Office." 

See Death and Taxes Blog for the written transcript here.

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(left:  old tech)

As if the DMCA weren't already the Full Employment for BigLaw Act of 2007, we have a new DMCA cause of action -- improper take down notices.

Read today's Wall Street Journal Law Blog report on the new suit against Viacom, the latest in the YouTube wars.  This one was filed by "fair use" activist groups claiming that Viacom's demands to YouTube that it remove parodies of Viacom/Comedy Central programming themselves violate the DMCA.  

I will continue to be a broken record (a broken download?) on litigation about online content.

There are an infinite number of business solutions to the business problems (opportunities) created by Web 2.0.  As always, there are only a few, and frustratingly chimeral, legal solutions.  

I'll urge anyone within shouting distance of BigMedia to read 3D Negotiation by Lax and Sebenius, whose "brainest guys in the universe" credentials go like this:

David Lax and James Sebenius . . . combine decades of high-level, practical experience negotiating in the corporate, financial, and diplomatic realms with academic expertise that helped develop much of the modern field of negotiation.

Professor Sebenius is the first Gordon Donaldson Professor at Harvard Business School and a member of the Executive Committee that oversees the activities of the Program on Negotiation at Harvard Law School. David Lax, described by Forbes magazine as a "new negotiation theorist" on the cutting edge of his field, served as a professor at Harvard Business School from 1981-1989.

Lax and Sebenius co-founded the Negotiation Roundtable, a working research group sponsored by Harvard Business School and the Kennedy School of Government, and Sebenius currently serves as its Director.

This isn't "win win" negotiation strategy.  This is the way to outwit the entire legal system and most of your commercial competitors.  Why?  Because a business deal creates its own legal world -- the new one that precedent couldn't possibly have predicted.

But there's no reason to rely on me.  Check out 3-D & draw your own conclusions.   

                                (right:  new tech)

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(right:  practice, practice, practice)

Take a look at Steven Archer's article on the Dangers of the Usual Stipulation for the reasons why the "usual" proposed stipulation is filled with traps for the unwary. 

Mr. Archer thoughtfully provides what he believes is a bullet-proof stip, which I'm providing below (with my contribution limited to reducing his stipulation to bullet points).

Mr. Archer is a partner with the highly esteemed national law firm of Robins, Kaplan, Miller and Ciresi.   

Thanks to the always helpful Illinois Trial Practice Blog for introducing us to this helpful article in its own post -- Beware the Usual Stipulations. 

That said, here are the matters Mr. Archer recommends be included in all stipulations entered into at the close of every deposition.

I propose that we agree to

• relieve the reporter of his/her statutory duty to maintain custody of the original transcript.
• after it has been transcribed, the reporter shall send the original transcript [by UPS, FedEx, DHL, or the equivalent] to the witness at [witness’s office or residence address].
• the witness shall have 30 days within which to read and review the transcript, make any changes that he/she deems appropriate and list any such changes on the errata page provided by the reporter.
• upon completion of the review and listing the changes, if any, the witness shall then sign the transcript under penalty of perjury where indicated at the end of the transcript.
• the reporter shall provide a preposted and preaddressed envelope so that the witness may then send the reviewed, corrected, and executed original transcript and errata page to [counsel].
• [counsel] will maintain custody of the original executed transcript and will agree to produce it and lodge it with the court at the time of trial or for any motion for which it may be required upon reasonable request.
• [counsel] will also advise all other counsel in writing of any changes, corrections, additions, or deletions made by the witness at the time of the review of the transcript and will provide all counsel with a copy of the errata and signature pages within 10 days of counsel’s receipt of the original executed transcript from the witness.
• should the original executed transcript not be reviewed, corrected (if necessary), or signed by the witness within that time frame, or should the original executed transcript later become lost or otherwise unavailable, the parties agree that a certified copy may be used for all purposes, as if it were a duly executed and corrected original transcript.
  

As Archer notes, don't try to memorize this.  Just copy it and stick it in your briefcase.  We're all tired at the end of a long deposition day and it's no time to strut your stuff by proving to opposing counsel that you've memorized the $#^%& thing. 

Better yet, for each case agree upon the deposition stipulation ahead of time and ask the court reporter to attach the fully executed copy to the transcript.  This is particularly helpful in big cases where many associates and partners are taking depositions on the same case.

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Thanks to Concurring Opinions for the day's only hilarity -- talking urinal cakes.  Unfortunately, the Concurring Opinions link to the Pioneer Press audio is broken. So here's the audio from the same program in New Mexico -- same cakes across the United Stakes, uh, States.      

OK, now I'm going to have to add a "humor" category to this blog.

Quote below from the Pioneer Press article referenced by Concurring Opinions. 

Guys who use urinals in some bars on St. Patrick's Day might get a special message about drunken driving.

The Minnesota Department of Public Safety is deploying "talking urinal cakes" in about 100 bars to encourage people not to drink and drive. In St. Paul, patrons may find them at The Liffey and Patrick McGovern's Pub on West Seventh Street.

The cakes, activated by a motion-sensor, offer a message with a woman's sultry voice saying, "Hey there, big guy, having a few drinks?"

The message is targeted toward primary DWI offenders: young men, according to the Department of Public Safety.

Each year in Minnesota, alcohol-related crashes account for around 200 traffic deaths. Last year, about 42,000 motorists were arrested for DWI, a record high.

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Further commentary on walking (or riding) a mile in someone else's shoes.

The following YouTube clip -- a British public service announcement -- turns the world upside down to help "the rest of us" have a glimpse of what the experience of being disabled might feel like.

Its well worth the couple of minutes it takes to view it. 

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I'm co-teaching a class (with long time employment mediator Stefan Mason) at the Straus Institute this semester.  We covered the Americans with Disabilities Act last night and spent an hour of the class "listening" to the voices of the disabled by watching YouTube videos, one of which I provide for my readers below.

The first "adult" book I ever read was To Kill a Mockingbird (film link here and movie clip here) when I was in the fifth grade. I know it's considered sentimental and not well written by the academy these days.  But what do you say about a book that changes someones life?  

Surely, I had never before heard the phrase

You never really understand a person until you consider things from his point of view-until you climb in his skin and walk around in it.  ~Atticus Finch

And as much as Harper Lee loved and respected Atticus, I did too.  In my ten-year old heart, he embodied everything I was already beginning to care about -- tolerance, respect, kindness, generosity and a fierce devotion to justice regardless of the consequences.

With Atticus' advice still sounding in my head forty years later, I bring you the voices of disability from Stefan's and my ADA class last night.  The Credo for Support.  Listen.  Reflect.  Your next mediation with someone who's disabled will be transformed by this.

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(pictured:  garden diety of children)

Arbitration award is unenforceable against party who was a minor entitled to disaffirm the underlying agreement.  His minority status coupled with the absence of the appointment of a guardian ad litem entitled him to disaffirm the award and judgment even after statutory deadline for moving to vacate the award had passed.

Disaffirmance by the minor did not, however, affect the enforceability of the underlying agreement or of arbitration award against the parent who agreed to be personally liable for the minor’s obligations under the contract.
Berg v. Traylor - filed March 19, 2007, Second District, Div. Two, 2007 SOS 1269

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Looking for an exhaustive analysis of the historical and technological context in which Viacom brings its billion dollar lawsuit against Google/YouTube?   

Plagarism Today, the blog of a graphic designer and amateur legal analyst, provides history, background and suggested reading along with the following conclusion. 

It’s important to note that this dispute isn’t just about clips from South Park and The Daily Show, it’s an element of a much larger struggle, one to determine the future direction of our culture.

History has shown us that the entities that control what information or art is viewed, be it the church, printing guilds, the government, copyright holders or search engines, control our culture.

Since the new is always built upon the old, at least to some degree, those who control the present have a heavy hand in determining tomorrow’s direction. Though the public at large has the final say, the “invisible hand’ of our cultural capitalism is guided by a very visible and observable force.

That is why this lawsuit will likely be a turning point in many regards. Perhaps even more so than the MGM v. Grokster ruling, this lawsuit could easily shape the legal climate for the Web for many years to come and, with that, the future of art, science and technology.

This case is bigger than either side likely realizes it is and that is what worries me. Both sides are protecting their interests, but one has to wonder if they have an eye on the larger picture.

If they don’t, no matter who wins, it could be catastrophic.

We’ve already seen what happens when two sides move forward into a court of law with only their personal agenda in mind, let us hope we are not subjected to that again.

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Network (above) skewers network televsion as it existed in 1976 and, more importantly, predicted a future media dystopia as close to hand as your remote control.     

In this scene, the President of the fictional UBS Network attempts to "convert" the network's insane news anchor to the theology of the global marketplace.  It's one of the most prescient and hilarious commentaries on money, power and global politics ever written.

Norman Lear has said of Network:  This is not a satire; it's a documentary.  

Rent it, buy it, watch it. 

You will find in Network the first imaginings of reality television in a country that was then celebrating the 200th Anniversary of the American Revolution and which had, only the year before, painfully extracted the last of its troops from Viet Nam.  Saturday Night Live was breaking network taboos in its first year on the air ('75-'76) and the Twin Towers had been standing sentinel over the foot of Manhattan for only three years.  

The following year -- 1977 -- I'd watch in amazement from the sidewalk near the New York Supreme Court in Foley Square as a mountain-climber from Queens,  George Willig, climbed the South Tower (2 WTC).   But I digress.

When Network was first released, I was working in the typing pool (IBM Selectric:  5 carbon copies) of a midtown law firm, studying for the LSAT and learning what it was like to be truly poor (rats in the lobby, cockroaches in the kitchen and la Migra pounding on our apartment door at 3 a.m. as  we listened to neighbors escaping through the building's otherwise unsued dumb-waiter system).  

When my husband and I had arrived in New York City the year before, it had been teetering on the edge of bankruptcy and its pleas for help from the federal government had been famously rebuffed, prompting the notorious New York Daily News headline: "Ford to City: Drop Dead."  

New York City thirty years ago.  New Orleans today.  Plus ça change, plus c'est la même chose.

Paddy Chayefsky's prophetic vision grows more eerily accurate with each passing year.  In 2006, this script was voted one of the top ten movie scripts of all-time by the Writer's Guild of America.

This posting has nothing whatsoever to do with mediation, negotiation, lawsuits, business or legal practice except that it is about power, the wielding of power and the illusion of power.

It's a Sunday digression.  

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(left:  mountain sues lake for copyright infringement)

Re: today's New York Times coverage of the $1 billion Viacom lawsuit against Google under the Digital Millennium Copyright Act.

I can't be the first one to ask these questions, but here goes:

1. why don't the media giants recognize that when I post a scene from A Few Good Men in a blog read primarily by attorneys (a damn good media market) it's free advertising to a new generation of lawyers who were in elementary school when FGM was released in 1992.  This goes in spades for equally good (or better) lawyer movies like The Verdict, screenplay by the brilliant David Mamet with Paul Newman doing some of the best acting in is entire career.  Today's young lawyers were in their bassinets when this one was released in 1982.  And where do they learn about the old movies they may want to see?  From the internet. 
2. haven't these guys read The Long Tail? (see extended entry for a wikipedia primer on long tail or "niche" marketing).
3. don't they know that most young people (say, everyone under 30) believe that content should be free.  That by yanking movie clips or sound bites from YouTube they are alienating huge numbers of potential viewers under 30?  
4. wouldn't Viacom be better off spending $100,000 per month devising a way to use YouTube's media-delivery system to its own benefit rather than paying people that same sum to track down its "pirated" YouTube content and execute it there?    

There's an old saying that "what you resist persists."  The internet, YouTube, google, blogs, mp3 players, ripping, burning and copying are here to stay. 

The means of production (and co-production) is in the hands of the people.

Still, large concentrations of capital remain (and will always remain) in the hands of corporate giants. 

This is not David and Goliath because David just wants to listen to his music, man.  The people who want to "monetize" David's listening (and recording) enjoyment will always find a way to do so.  That's their job.

The people will continue to create and share.  Mix and burn.  Copy and compile.  

Not that I mind Big Media wasting their money trying to stop the tide of progress. 

It's just that I'd rather they use it to make better movies.

For a far more sophisticated viewpoint than my own, take a look at the MIT Convergence Culture Consortium blog on CBS' Use of YouTube for "Cross Platform Distribution" of March Madness, noting: 

Not surprisingly, the blogosphere points to the irony of Viacom's suing YouTube while CBS is finding effective and profitable ways to work with the video sharing site. David A. Utter with WebProNews points out that the first CBS March Madness clip on YouTube prominently displays UPS advertising and indicates the potential for major profit for the network and YouTube as well. Utter says, "Why Viacom misses the potential of YouTube while their former brethren at CBS embrace it would be a question we would like to see Viacom answer if their YouTube/Google lawsuit ever comes to trial."

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Diane Pfadenhauer of Strategic HR Lawyer recently asked the question

Can the Employer be Liable for Discrimination if the Person Who Terminated the Employee Harbored no Discriminatory Motive?

The answer?  Only the US Supreme Court will know.  Excerpt from Ms. Pfadenhauer's excellent employment blog below:

One of the more interesting cases that the US Supreme Court will hear this year (BCI Coca-Cola Bottling Co v. Equal Employment Opportunity Commission) surrounds a human resources manager who terminated an employee based almost exclusively on information from the employee's supervisor. According the the EEOC, the supervisor allegedly had a history of treating black employees more adversely when compared to others and had a history of making racially disparaging remarks in the workplace. The human resources manager, who harbored no discriminatory motive, relied on the word of the supervisor when terminating the employee. In addition, the HR manager did not know that the employee was black.

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Geoff Sharp of Mediator blah blah answers the perennial question -- how do I broach settlement with the other guy -- hilariously this morning, crediting "Lowering the Bar" Blog. 

The answer?  By being the same jackass you are in litigation.  

Exhibit "A" here.

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Amy Lieberman, executive director of Insight Employment Mediation in Scottsdale, Arizona, recently published an intriguing article in the AAA Dispute Resolution Journal, The "A" List of Emotions in Mediation from Anxiety to Agreement. 

For my commercial litigator and business clients, I know, I know, it's "only about money" and you "don't take it personally." 

If you'll recall, however, there was that time you felt like lunging across the conference table at a recalcitrant witness or slammed your briefcase shut before storming out of a mediation in response to an "insulting" offer.  

Well, "A"nger isn't the only mediation emotion according to Ms. Lieberman.  You can pretty much define the entire settlement conference by concentrating on the letter "A."

For the truly emotionally well-balanced, you still might find your client or opposing counsel lurking here among the "A" emotional trees as described and amplified by Employment Mediator Amy Lieberman. 

Anxiety is called the "most common emotion experienced by parties waiting for a mediation to begin.  They know," Ms. Lieberman writes,

their own views of the conflict and strongly believe in the rightness of their positions. They each believe the other is being unreasonable and fear that the conflict will escalate, so that the goal of resolving the dispute in mediation will not be achieved. 

Anger follows anxiety like night follows day.  My friend the psychoanalyst says that anger consolidates our sense of ourselves when fear or anger threaten to overwhelm us.  Ms. Lieberman cautions that although "we may know intellectually that displaying anger is unlikely to help us achieve a resolution . . . we may be unable to prevent an angry outburst or other negative expression that could derail the mediation."

My own advice is to express your disgust to the mediator, who can reframe frustration into action, irritation into problem-solving and "A"nger into "A"greement (see below).

Ah, Adrenaline.  Someone once told me that trial attorneys are "stress-adrenaline" addicts.  I guess I'll have to raise my hand on that one.  If winning didn't give me a rush, the loses would be too costly to bear.  When you're a mediation advocate, however, its best to channel your adrenaline to the issues, not the people.  As Ury and Fisher, the famous "Getting to Yes" authors routinely counsel, "be hard on the problem and soft on the people."  

Awareness makes the "A" list.  Although the parties know one another's positions all too well before the mediation commences, counsels Ms. Lieberman, they often do not know "what led to those positions or the underlying interests or needs of the other side.  This is especially true," she writes,

where there is a breakdown in communications between the [parties and often also the] lawyers involved. .  .  Even when there is communication, the parties are often unable or unwilling to really listen to what the other has to say. .  .  It is typically th[e] new awareness that leads to the "magic" of mediation. The magic is the willingness of parties, based on new information, to view the conflict in a different light. It is this willingness that opens the door to resolution.

Acknowledgment is the beginning of Mediation Magic or "A"greement "A"lchemy.  Invariably, the first opportunity the parties have had to acknowledge their understanding of the other side's "position" occurs during the mediation.  Acknowledgement, writes Ms. Lieberman, often causes one's opponent to "shift closer towards an amicable resolution. Even a slight shift can start the ball rolling." 

That's my experience as well.

A is for Active Participation, the sine qua non of a successful mediation.  Sometimes hours pass while each "side" waits for the other to step up to the zone of potential agreement, the point of probable impasse, the moment everyone fears -- the time when everyone "a"cknowledges the case will never settle because the "other guy" is being unreasonable.  

Amy says "progress fosters progress" and I agree. 

To generate movement, I'll often call upon the more daring of the two parties to be the first to step up to the plate of impasse, i.e., to imake an offer that represents a "stretch," thereby encouraging the other side to do the same. 

It benefits no one to bargain in the nano- and strato- spheres when everyone knows that settlement won't be possible until the parties see the whites of each other's eyes. 

There are two A's in Acquiescence and Agreement.

Here Ms. Lieberman and I part semantic company.  I have to say that "acquiesce" should not be in any litigator's vocabulary.  Agreement yes.  Acquiescence, no.  I do agree with Amy that finding an agreement the parties "can live with" is a realistic goal. 

In my mind, that represents a sound business decision based upon a reasoned cost-benefit analysis.  Although this may be merely a matter of word choice, I'll wager that if you use the word "acquiescence" with your litigation colleagues, the first "A" words that come to their minds will be Anger and Adrenaline. 

As Amy finally reminds us, all the hard work of mediation goes for naught if we don't prepare Agreements the parties can enforce.  For my articles on the enforceability of mediated settlement agreement term sheets and memoranda of understanding, click here, here, here and here.

Thanks for the tips, Amy!

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(photo, a member of the Warlocks)

Yesterday's ruling in Levitz v. the Warlocks is important to practitioners primarily as a reminder that an "agreement in principle" may not be an agreement at all; and, if the parties do reach a "conditional settlement" whose terms won't be performed within 45 days after agreement is reached: 

1. they must file a notice of conditional settlement with the Court;
2. the notice must specify the date by which dismissal is to be filed; and,
3. the plaintiff must serve and file a request for dismissal within 45 days after the date that the notice specifies for performance.

If the plaintiff does not file the required request for dismissal within the 45 day period, the Court "must dismiss the entire case unless good cause is shown why the case should not be dismissed.” Id. citing Cal. Rules of Court, rule 225(c) -- now Rule 3.185.

We do not expect to see many cases similar to Levitz where both plaintiff and defendants sought to re-schedule the matter for trial after they failed to reach an agreement "relating to complex rights relating to royalties and publishing in the music business," despite everyone's best efforts to do so. 

The lesson here is more for judges than for lawyers.  The record (detailed in the extended entry below) chronicles the events causing the trial court's justifiable frustration with predictions by counsel that settlement was "only a day away."     

Nevertheless, the Court of Appeal stressed that the trial court is not authorized by any Rule of Court or other authority, to dismiss an action as a sanction for the parties' failure to explain why their settlement negotiations failed to bear fruit.   

The appellate court explained its reversal of the trial court's dismissal as follows:    

 In their first communication with the court about their tentative settlement, the parties notified it they had a settlement “in principle,” meaning they had yet to fix its exact terms. A settlement with open material terms is not a “conditional settlement” [and therefore not subject to Rule 225 - now 3.185].  

To the contrary, it is not a settlement at all because, like all contracts, it is not binding until the settling parties agree on all its material terms. (citation omitted).  . . . A “conditional settlement” . . . involves a complete meeting of the minds but with some portion of it requiring more than 45 days for its performance.

Because the parties never entered into a binding settlement, rule 225 [now 3.185] did not apply. The court thus acted beyond its authority when it relied on [that rule] and we therefore reverse the dismissal and order the action’s reinstatement. "

Id. (emphasis added).  

The appellate court concludes its opinion by warning that a dismissal could never be ordered as a sanction against both parties because it harms only one -- the plaintiff.    

For the full text of the case, see Levitz v. The Warlocks - 2007 SOS 1195 and for the case chronology leading to the trial court's decision, see the extended entry below.  

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(cartoon from AdamZyglis.com)

Want to know what the jury might think of your case?  Here, courtesy of Blawg Review # 99 and several other linked connections, is the day-by-day journal of Juror #9 in the Scooter Libby Trial.

Here's a taste of the daily journal, beginning with the first day of deliberations.

"This is a case about memory, about recollections and about words." We've heard from the fighting Irishman and weeping Wells, a gaggle of Pulitzer Prize winners, and some of the best and brightest from the CIA, State Department, FBI and office of the Vice President. The Honorable Reggie Walton has just provided us final instructions.

Deliberations in the case of the United States vs. I. Lewis "Scooter" Libby in District Court for the District of Columbia are ready to commence, when one of the jurors offers an unsolicited statement regarding the solemn task before us.

"I think they're lying. Every one of them."

Better than all the Grisham you've ever read, yes?  Thanks to all the intervening links:  Blawg Review,  Begging to Differ (author of Review No. 99) Real Lawyers Have Blogs and The Huffington Post.

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Just the other day we were talking about tit for tat violence in Romeo and Juliet.  Today, USNews.com in Friends, Family and Foes, in Iraq, Sunnis and Shiites Fight, But Sometimes They Marry, brings us a Shiite-Sunni wedding worthy of Friar Tuck's imaginings when he married the star-crossed lovers. 

 "In one respect I'll thy assistant be," he says of the upcoming secret nuptials, "for this alliance may so happy prove, to turn your households rancour to pure love." (Act 2, Scene 3). 

It's hard not to have one's hope slightly buoyed by this symbolic gesture.

"The bride," USNews.com reports,

is a university student from a storied Sunni tribe, the groom a technician at an Iraqi cellphone company and the son of a prominent Shiite tribal leader. It could almost be a Baghdad version of Romeo and Juliet but with a twist--the marriage was arranged by their parents, in part as a willful symbol of defiance against the sectarian violence that has riven Iraq.

The unlikely nuptials might appear to be a doomed gesture in a place where tension between Sunnis and Shiites seems to keep escalating with random killings and tit-for-tat retaliations. Shiite families have been chased out of suddenly unfriendly Sunni neighborhoods, and vice versa. The sectarian strife has been aggravated by growing confusion over the loyalty of Iraq's Shiite-dominated security forces and a months-long delay in forming a new government.

But the wedding also serves as a reminder of the complexity of the Iraqi mosaic, where Sunnis and Shiites have long been deeply interwoven. Not long ago, a Sunni-Shiite wedding would have been unremarkable. But in today's Baghdad, it is a brave and fraught venture. For these two families, it also means wrestling with the uncertain future of their troubled nation--and placing what amounts to a high-stakes bet that, in part because of events like this one, Iraq will not descend into a full-fledged civil war.

For the full account, click on the title of the article above.

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The Settle It Now Negotiation Law Blog welcomes Proskauer Rose's Privacy Practice Group Blog to the blogosphere.

I know one member of this dynamic practice group -- Tanya Forsheit -- who is a model of savvy associate business development as well as a tireless worker for the community of women lawyers through her membership on the Board of Governors of the Women Lawyer's Association of Los Angeles. 

It was not that long ago that Tanya posted her first article on the Los Angeles County Bar Association Blog site.  I'm pleased to see that her entire group is now bringing its expertise, knowledge, wisdom and know-how not only to its clients, but  to anyone else whose vital commercial interests include the growing area of Privacy Law.

Because I can't describe Proskauer's blog any better than it does, I give you the Privacy Law Group's first welcome message with a link below:  

Welcome to the Proskauer Privacy Law Blog. Proskauer’s Privacy and Data Security Practice Group is tremendously pleased to bring you what we hope will become a trusted source for summary and analysis of breaking legal developments in the evolving field of privacy and data security law. This blog is designed in part to complement our recent privacy treatise published by PLI entitled Proskauer on Privacy: A Guide to Privacy and Data Security Law in the Information Age.

Today we bring you posts regarding (1) the introduction of federal legislation that would give the Attorney General very broad authority to enact rules requiring Internet Service Providers to retain records so law enforcement can access customers’ online activities; (2) adoption by the EU Data Protection Working Party of a new model application form for Binding Corporate Rules; and (3) some of the many new proposed bills in the 110th Congress regarding data security breach notification that would preempt the more than 35 currently existing state laws.

In addition, you can find posts that I previously contributed to the California Privacy Law blog hosted by the Los Angeles County Bar Association.

Of course, we are interested in your feedback, and welcome your suggestions and comments. We look forward to hearing from you.

For the posts referenced in Proskauer's welcome message, click here.

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This January Seth Godin's [Marketing] Blog made a succint distinction between marketing strategy and tactics that is as applicable to negotiation as it is to business development.  "The right strategy makes any tactic work better," said Godin.

The right strategy puts less pressure on executing your tactics perfectly.

Here's the obligatory January skiing analogy: Carving your turns better is a tactic. Choosing the right ski area in the first place is a strategy. Everyone skis better in Utah, it turns out.

If you are tired of hammering your head against the wall, if it feels like you never are good enough, or that you're working way too hard, it doesn't mean you're a loser. It means you've got the wrong strategy.

It takes real guts to abandon a strategy, especially if you've gotten super good at the tactics. That's precisely the reason that switching strategies is often such a good idea. Because your competition is afraid to.

Thanks Seth!  Great advice!

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Baz Luhrmann's hallucinatory Romeo and Juliet, the ultimate Shakesperean lesson in the dangers of fiercely playing Tit for Tat.   

The Americans are fond of explaining almost all the actions of their lives by the principle of self-interest rightly understood. In this respect I think they frequently fail to do themselves justice. -- Alexis de Tocqueville

We've mentioned these principles before:

• negotiators will reflexively play the childhood game of tit for tat (you cooperate, I cooperate; you defect, I punish; you cooperate, I cooperate again) because, as the game theorists tell us, we evolved as a human society as a result;
• negotiators are also inequality averse, just like the capuchin monkeys who act against their own apparent self-interest by refusing to work when one of their fellows begins making five times the salary for the same amount of work.  

Herbert Gintis, an Emeritus Professor of Economics at the University of Massachusetts, discusses these issues in Game Theory and Human Behavior.  

The point of the following excerpts from Professor Gintis' research is this -- what negotiators tend to call irrational bargaining behavior  -- not accepting an objectively  "good deal" -- is not necessarily irrational or "overly emotional."  It is simply driven by considerations that hard numbers do not explain.

Gintis explains: 

The inequality-averse individual is willing to reduce his own payoff to increase the degree of equality in the group (whence widespread support for charity and social welfare programs). But he is especially displeased when placed on the losing side of an unequal relationship.

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Hat tip to Elliott Wilcox' Winning Trial Advocacy Techniques for hipping us to Abraham Lincoln's Advice to Young Lawyers, including the best advice for success in any field -- "always bear in mind that your own resolution to succeed, is more important than any other one thing."

The most common complaint I hear from young attorneys at all levels is the lack of mentoring available to them.  Since the internet is their domain, I ask those attorneys over thirty-five to pick up this "Advice to Young Lawyers" meme tag and run with it.  

In particular, I ask the following attorney-bloggers to share their best advice with our young readers --Arnie Herz of Legal Sanity, Evan Shaeffer of the Legal Underground, George M. Wallace of Fool in the Forest, Wilson Sonsini's Cathy Kirkman of the Silicon Valley Media Law Blog, and, Diana Skaggs of the Divorce Law Journal.

Thanks folks!  Please pass the baton along to your favorite, most wise, attorney bloggers.

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OK, so I didn't quit practice just because of the new electronic discovery rules.  I can say, however, that I'm mighty glad I don't have to deal with this.

Duane Morris, which acquired my firm after I left it, graciously includes me on their legal update mailing list.  Today, they supply this helpful roadmap for navigating the new rules, an excerpt of which you can find below:

 

Electronic Discovery: Know What You Have Before Your Adversary Does -- Understanding “What, Where & How” in the New Technological Landscape

Federal Rule 26(f)(2) and (3), as well as many similar local federal court rules and state court rules, requires parties to begin the discovery process by identifying and resolving “any issues relating to the disclosure or discovery of electronically stored information, including the form or forms in which it should be produced.”

The incorporation of ESI into the text of the rule alters profoundly the “what, where and how” of discovery. In order to avoid pitfalls and maximize the benefit of an early conference (whether required by court rule or simply initiated as good practice), one should understand the new “what, where and how” of e-discovery.

Click here for the full Duane Morris E-Discovery Alert.

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The New York Times Sunday Magazine cover story this coming week -- The Brain on the Stand -- covers a lot of territory on the use (and potential abuse) of neuroscience in the legal system.     

While the scientists debate whether  knowledge gleaned from sophisticated brain imagery demonstrates that our brain activity  controls our  behavior or simply reflects it, those of us concerned with decision making have much to learn from it.         

Because my work is pretty much exclusively devoted to finding mutually beneficial resolutions to hotly contested litigation, neuroscience insights into how and why we make decisions -- and how we might make them better -- have been invaluable in my practice.    

In this article, author Jeffrey Rosen describes the results of one neuroscientific experiment suggesting that dampening our emotional reactions to the regretably common "insulting first offer" might keep us in the negotiation process long enough to let our more rational responses prevail.     

He explains:

'A remarkable technique called transcranial magnetic stimulation, for example, has been used to stimulate or inhibit specific regions of the brain. It can temporarily alter how we think and feel.

Using T.M.S., Ernst Fehr and Daria Knoch of the University of Zurich temporarily disrupted each side of the dorsolateral prefrontal cortex in test subjects. They asked their subjects to participate in an experiment that economists call the ultimatum game.

One person is given $20 and told to divide it with a partner. If the partner rejects the proposed amount as too low, neither person gets any money.

Subjects whose prefrontal cortexes were functioning properly tended to reject offers of $4 or less: they would rather get no money than accept an offer that struck them as insulting and unfair.

[remember -- even monkeys would rather earn no "salary" than let their "CEO" monkey make five times as much as they do -- so this is animal behavior]

But subjects whose right prefrontal cortexes were suppressed by T.M.S. tended to accept the $4 offer. Although the offer still struck them as insulting, they were able to suppress their indignation and to pursue the selfishly rational conclusion that a low offer is better than nothing.

I do not cite this research to suggest that we should be satisfied with "insulting and unfair" proposals.  I cite it only for the thoughtful consideration of litigants and business people everywhere. 

It is perfectly 'rational" to respond to an insulting offer by rejecting it.  Being alert to our tendency to allow emotions to reign in response might give us the breathing room we need to calm our clients and continue to pursue a settlement negotiations that could well lead to resolutions that are neither insulting nor unfair.

The article is invaluable reading for anyone wanting to answer the question -- what in the world could the other side be thinking?  A question that can only be answered when the parties sit down together with a commitment to seeing the negotiation through.  

And if you're not already on speaking terms with your amygdala, click here for a fuller (lay) explanation of its effect on decision making.

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No, just because it's in a business record doesn't mean everything that record says can come into evidence.  

Single hearsay

Ledger says employee Jones was paid $500 in cash on June 5, 2005.

Double hearsay

Note in employer's file (maintained in the regular course of business & brought within exception to hearsay rule) says "Darlene says she paid employee Jones $500 in cash on June 5, 2005." 

Why does double hearsay matter in a deposition? 

Because if you don't know its double hearsay, you might not track down "Darlene" or find another way to prove that employee Jones was paid $500 in cash on June 5, 2005.  

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Nothing throws more fear into the heart of a young litigator than using documents at a deposition.

Here's the good news.  It's easy if you know the rules and follow the steps.

Here are the steps.

1. Mark them
2. Authenticate them
3. Lay the foundation for the business records exception to the hearsay rule
4. Lay the foundation for any available hearsay exception for hearsay statements contained in the business record itself;
5. Question the witness about the documents
   • to refresh his/her recollection
   • to impeach his/her testimony
   • to obtain an explanation of the meaning of language contained in them
   • to forward your case and tell your client's story

Feel free to bring "cheat sheets" with you to the deposition, remembering that you can rarely save your face and your ass at the same time.

MARK IT

• Scratch an exhibit number on the document (or post-it) if it hasn't previously been marked
• Hand copies to opposing counsel and to the court reporter
• Say, "the Court Reporter will mark as Exhibit Q, correspondence from X to Y dated June 16, 2003, carrying Bates Stamp number 325490."
• Pause as the reporter affixes an exhibit number to the document and hands it to the witness
• Say to the witness, "do you now have exhibit Q before you?"

AUTHENTICATE IT

Q.     "Please identify Exhibit Q for the record."

A.     "It's a letter I wrote to Mr. Jones."

Q.     "Is that your signature at the bottom of the second page?"

A.     "Yes it is."

Q.     Is this a true and correct copy of the letter you wrote to Mr. Jones on such and such a date?

A.     Yes, it is.

OR

A.     "It's a letter I received from Mr. Green."

Q.     "Is that Mr. Green's signature on page three of Ex. Q?"

A.     "Yes."

Q.     "How are you able to recognize it?"

A.     "Because I . . . corresponded with him regularly or I've seen him sign his name on several occasions and I recognize this to be his signature."

Q.     "Is this a true and correct copy of a letter from Mr. Green that you received on or about such and such a date?"

A.     "Yes it is."

ESTABLISH THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE

Q.     You were employed by ABC Company in 2002?  

A.     Yes I was.

Q.     The Court reporter has marked and placed before you Exhibit Y, carrying Bates Stamp range 20056-98.   Can you identify Ex. Y for the record.

A.     Yes.  It appears to be a copy of ABC Company's ledger book.  

Q.     What is the function of the ledger book?

A.     We use it to record all of our sales and payments.

Q.     Are the entries in Ex. Y made at or near the time of the recorded sales and payments.

A.     Yes

Q.   Are the entries made as part of the regular business of ABC Co?

A.     Yes.

Q.     Is Ex. Y, the ledger book, kept in the ordinary course of ABC's business?

A.     Yes.

Q.     How is it that you're familiar with the ledger book?

A.     "It's prepared . . . . by me (or under my supervision)" or "as part of my job duties, I review the ledger on a monthly basis" or "I've occasionally seen the ledger and am aware that it is maintained by Mr. Brown, who works in the accounting department" or any other way in which the witness is familiar with the document.

You've now accomplished that which, I'm afraid to say, 90% of the attorneys taking depositions fail to accomplish every day.  If you don't get any other useful testimony from this witness, you will have created a record that will permit you to use these documents as evidence in summary judgment motions and at trial.  

We will cover in a subsequent post the following two steps -- laying the foundation for hearsay exceptions to hearsay statements contained in business records and using the document itself to forward your case. 

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  Thousands of young attorneys will sit down to take their first deposition every year the same way I did, with roughly the same amount of dread and exactly the same amount of training. 

A lot and none whatsoever.

So that someone might benefit from my own painful experience more than twenty-five years ago, I give you my earliest deposition mistakes.

Within my first month of practice, I was assigned an "easy" first deposition.  We represented an injured plaintiff who broke her arm in a skating rink accident.  I was assigned to take the deposition of the young man who'd caused her to fall.  No documents.  Just the facts m'aam.

Here's what I learned the hard way.

You don't have to rephrase a question in response to an objection.

I did this dozens of times in a two-hour period.  At lunch, one of the grizzled old Sacramento P.I. defense attorneys grabbed me around the shoulders so hard I felt like I might break.   

"Just wait for the answer," he whispered in my ear.  "You don't need to re-phrase the question.  If the witness doesn't answer, ask the court reporter to read it back.  Say, 'do you have the question in mind?  Yes?  Would you answer it please?'" 

I fell all over myself thanking this kind man who growled in response, "I just wanna get outta here before Christmas."

The court reporter doesn't really "strike" anything from the record.

This is someone else's painful story.  I was defending a deposition that was obviously the examiner's first time.  Every time he rephrased a question mid-phrase, he'd turn to the court reporter and say, "strike that." 

Then he waited for her to do something.  When she didn't, a confused look would cross his face and he'd return to his questioning.  He must have done this a dozen times during the first hour.

Each time, the reporter just smiled that inscrutable court reporter smile, benevolent, knowing and, as I thought during most of my first year of practice, thinking, "what an idiot!"  

After several of these lengthy pauses, the reporter took pity on the poor attorney, put her hand gently on his arm and whispered, sotto voce, "I'll explain at the break."

There is no usual stipulation.  

At the end of the many depositions I'd seen before I first took my own, I watched attorneys look across the conference table and ask, "the usual stipulations?"  

So that's what I did in my first deposition.

"The usual stipulations counsel?"

Defense counsel eyed me with the admixture of pity and contempt seasoned lawyers reserve for new admittees.  This is the moment during which they decide whether to bat you around the deposition room like a cat toy or exercise mercy. 

"Why don't you put the usual stipulation on the record, counsel," he said, choosing option no. 1.  Not a question.  A declarative sentence.  An injunction.  A challenge.

Even then, a terrified newbie, I wasn't entirely a fool.  Never underestimate the power of youth and femininity.  If I could have batted my eyelashes I would have. 

What I did say, sweetly and with great deference, was this, "No, please.  You know them far better than I.  I'll let you put them on the record."

Score one for the first year attorney, who then went back to her boss to ask what the %$^# the usual stipulaitons were.

And for a break with your third Grande Latte of the day, check out this video of a first DAY lawyer defending a phony deposition in a phony sexual harassment action -- videotaped to great hilarity by his employer.  He handled himself pretty darn well under the circumstances! 

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Business Mediation Guru Robert A. Steinberg took on the vexing question most often posed to mediators in a dynamite Daily Journal article just last month -- How and When to Broach Settlement. 

If you're not on Bob's mailing list, you should be.  Here's a taste of the DJ Article that will pump you up.  Follow Bob's sound advice and you'll approach settlement without ever again worrying that the beach bully might kick sand in your face.

For all its rational veneer, negotiation is at base animal behavior. We fear to raise settlement because we think that “blinking first” is an admission of weakness and will cost us some measure of settlement value.

Parties often talk settlement at the beginning of the case, before they have spent much money, or after the completion of discovery, when they have developed the information they feel they need for trial. But you should consider raising settlement at other times: before a risk-magnifying event (such as a major motion or a heavy financial commitment) or whenever the settlement value of your case is most favorable.

For the remainder of Bob's article, click here.

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I am not certain I would read the recent EC&J v. Kessel case as broadly as did the The Institute for Conflict Management's ADR Blogger, but I haven't had time to carefully read the opinion myself (which I will do, and report to you within the week). 

So that you're alert to the opinion, I refer you to the ICM's ADR post, Court Rules Pre-Dispute Arbitration Clauses Valid in Fee Disputes.

The ICM blogger explains: 

A California appeals court has opened the door to the enforcement of pre-dispute arbitration agreements between attorneys and their clients, ruling that once a client waives the right to non-binding arbitration under the state’s Mandatory Fee Arbitration Act, a court may compel binding arbitration based on the agreement of the parties.

California’s Second Appellate District rejected the notion that language in the MFAA requiring a post-dispute binding agreement to arbitrate bars enforcement of a pre-dispute binding arbitration agreement, ruling that the statutory language only prohibits enforcement of pre-dispute arbitration agreements governed by the MFAA ( Ervin, Cohen & Jessup, LLP v. Steven H. Kassel et al., No. 191761, 2/14/2007).

For the remainder of the article, click here and for the opinion itself, click here.

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Even if attorney-mediator Laurel Kaufer were not in my small and cherished group of "Fabulous Women Neutrals," I would still be publicly applauding the launch of the Mississippi Mediation Project, selflessly sheparded from concept to realization by Ms. Kaufer's enormous creative and dedicated efforts.

Not to re-invent the wheel, we crib here from reporter Amber Craig's article posted on gulflive.com Project Donates Largest Collection of Mediation Books in State to Ina Thompason Library. 

 

The Mississippi Mediation Project concluded the final day of its conflict resolution session Wednesday by dedicating a section of mediation books to the Ina Thompson Public Library in Moss Point.

The three-day conference organized by the non-profit organization brought top mediation experts from across the nation to Pelican Landing, where 30 people from Jackson, Harrison and Hancock counties learned problem-solving skills.

Laurel Kaufer, the project's founder, called the Essential Problem Solving Skills workshop a success.

"It was beyond my expectations," Kaufer said.

Kaufer, who traveled to Moss Point from her home in Los Angeles, said this particular group was exceptional, because there was no attrition in the attendance. The number of people actually grew after the first day, Kaufer said.

"After the first day, people called their co-workers and bosses and said, You have to come to this,'" Kaufer said.

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From Larry Bodine's excellent LawMarketing Blog comes the following news flash:

CORPORATE COUNSEL IS REALLY JUST NOT THAT INTO YOU.

Your neighborhood GC not only wants her attorney to concentrate on the corporation's business but when she hears from you, she'd really rather hear about herself.

So do you continue sending your clients arcane "legal updates" on the laws of attachment in California or changes in the evidence code? Do you buy ads in "Super Lawyers?"

No, silly. You send your clients a glossy magazine ABOUT THEMSELVES.

As Bodine writes:

At least one law firm is taking the lead in giving the client what they want. Bass, Berry & Sims* has . . . produced a second issue of a 30-page oversize magazine for clients called momentum that talks about client success stories. The brilliance of the editorial focus is that when clients and targets receive it, they'll see articles about themselves, not the law firm talking about itself.

(*Note the Bass Berry firm motto on its home page: "it's not enough to know the law, we have to know our clients' businesses.")

The firm . . spent the money to make it look like a newstand magazine: . . . a table of contents organized by 14 industries, lots of pictures with people . . . , a cover with pictures of the chairman and CEO of HCA Inc. . . . sidebars with drawings of their clients, and did I mention lots of pictures? . . . .

The writing is so well done that the law firm name is not even mentioned.

Here's why the magazine markets the firm so well:

They don't "market their organization" -- . . . [i]nstead they have "organized around the market," a smart marketing technique in which the law firm features all it's glamorous brand name clients.

It's fun. Page 27 has a recipe for cornbread dressing from Cracker Barrel restaurants . . . (something that plays better, I assume in Bass Berry's market than it would in, say Los Angeles, but fun is key)

The graphics are superb -- . . . . [with] "Not Quite 20 Questions" profiling clients concisely with a flattering hand-drawn portrait. I'll bet every client requested to have the original artwork.

It's designed to actually be read -- with short articles, short paragraphs and short sentences.

And if you don't have a marketing budget big enough to put out a glossy rag the size of W? . . . have I mentioned blogs lately?

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Remember the adage, what can go wrong, will go wrong?

We know we don't need to remind our readers of the perils of trial.  And though we never advise our clients to make a bad business deal to extricate themselves from a lawsuit, we continue to recommend that they seek business solutions to business problems before throwing their fate to the winds of trials.

This morning we're commending to our readers' attention Canon's recent devastating trial loss, courtesy of Reuters.

When Canon was sued by a small, money-losing U.S. technology firm two years ago, the dispute was over a patent license that had cost the Japanese electronics giant a one-time payment of $5.6 million.

But now that the lawsuit has caused Canon to lose the license, a fresh agreement with Texas-based Nano-Proprietary could be worth millions of dollars more, lawyers said.

Last week, a U.S. court ruled against Canon, saying the company breached its deal with Nano-Proprietary by trying to share the flat display technology with Toshiba.

The court's decision (PDF) is a major setback and perhaps an embarrassment for Tokyo-based Canon, the third-biggest patent owner in the United States.

"It seems strange Canon managed to go all the way to trial and lose," said Peter Godwin, a Tokyo-based partner at law firm Herbert Smith. "Assuming they were advised they were at risk, you'd expect a company of the size of Canon to have reached a settlement before that."

For the remainder of the story, click here.

For our commentary, read the following post.

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One of my former law partners, Cyberspace Attorney Extraordinaire and the King of Business Development, Eric Sinrod, now of Duane Morris, reports that domain name disputes are being arbitrated in greater and greater numbers. 

As Eric reports in his weekly column for CNET, the National Arbitration Forum's domain name resolutions

climbed by a whopping 21 percent in 2006 from the prior year. Indeed, the NAF handled 1,658 Internet trademark disputes in 2006, the largest filing year in the history of the NAF domain name dispute program.

Since the inception of the program, the NAF has presided over more than 7,600 Internet domain name disputes. A number of famous trademarks have been at stake in the proceedings, such as trademarks relating to the New York Yankees, George Foreman, Vin Diesel and Louis Vuitton.

What's the upshot? Trademark holders are more than willing to go after and seek the transfer of domain names that incorporate their marks. Meanwhile, domain name registrants at times are digging in their heels and are trying to keep the domain names they have registered. There seems to be no let-up in this fertile dispute area. In fact, there appears to be a real uptick in such cases.

One such case surrounded the use of "Mr. Charbucks" in the sale of a rival coffee brand to Starbucks.

for the remainder of this article, click here

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Jack Welch shares a golf-cart with former President Bill Clinton 

We've mentioned the benefits of small talk for settling lawsuits before. 

In a recent post entitled What Am I Supposed to Know About  (thanks to mediator blah blah for directing our attention there) professional firm management guru David Maister, praises the marketing value of small talk.  In this post, he suggests that we might  want to be conversant with the following topics to hold up our end of a conversation at a dinner party or on the golf links with potential clients. 

• Local politics
• National Politics
• International affairs not directly involving your own country
• The latest tech gadgets
• The latest fiction best-sellers
• The latest non-fiction best-sellers
• What’s hot on television
• The latest art exhibition to open in your town
• The popular music charts
• Yo-yo Ma’s latest album
• What’s good on Broadway this season
• The latest movies
• Local sports teams
• Sports events not involving local teams
• Latest theories of child-rearing

I'm tired already.  It's hard enough to keep up with what actually interests me let alone with what doesn't interest me in the least.  

Does that mean that my more eclectically knowledgeable mediator peers will be better able to settle lawsuits and develop business?  I don't think so.  Why?   Because they're really just not that into you. 

So here's the super-secret intergalactic decoder-ring mystery of small talk revealed.  Ready?  

 ASK QUESTIONS.

You don't need to know anything about sports, local politics, literature, brain surgery, travel in Cambodia, statistical analysis, Islam, the movies, Anna Nicole Smith or the British monarchy.

In fact, the LESS you know, the better.

WHY?

Because the less you know, the more interest you'll take in your fellows.  Show an interest in what your clients, potential clients and negotiating partners are interested in and you will make friends for life.

Eventually, these people will get around to asking what it is that you do, thinking it must be something pretty wonderful because you're one of the few people who appear to be smart and forward-looking enough to be so deeply interested in how fascinating they are. 

I tell students to whom I teach the art of taking pre-trial testimony, that this is the same principle as the one you use to pick up men in bars -- a talent I have not used in at least 20 years, having turned this dark art into a power for the good.

As we've previously noted, small talk settles lawsuits and greases the wheels of commerce.

The lawyer who gets credit for that new case from the Fortune 50 company is not alas, the lawyer doing the actual work.  It's the lawyer with the monthly golf date with general counsel or the CEO. And what that lawyer talks about on the links is not what she knows about the principle products of Paraguay or any other topic of general or specific interest.  What she talks about is whatever is of current interest in the GC or the CEO.

And the only way to know that, is to take a genuine interest in others and ask a lot of questions.

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From the Law and Humanities Blog, we learn that Reading Literature Gives You More Empathy

(click on the image left for the Law and Humanities Institute, sponsor of the Blog)

How could this not be true?  At ten, I was reduced to sobs by the fate of a sled dog in Call of the Wild; longed to eat peppermints on a Brooklyn fire escape near the tree growing there; watched Atlanta burn with reddened eyes by flashlight while my sister slept peacefully in the next bed; and, came of age in sunny suburban San Diego reading Anne Frank's desperate hopes for a new life in her family's hiding place.    

Now the British Psychological Society tells us what every Lit Major has always known, "the more fiction a person reads, the more empathy they have."  Not only that, but

the better they perform on tests of social understanding and awareness. By contrast, reading more non-fiction, fact-based books shows the opposite association. That’s according to Raymond Mar and colleagues who say their finding could have implications for educating children and adults about understanding others.

Finding out how much people read is always difficult because it’s socially desirable for people to report that they read a lot. Mar and colleagues avoided this by asking 94 participants to identify the names of fiction and non-fiction authors embedded in a long list of names that also included non-authors. Prior research has shown this test correlates well with how much people actually read. Among the authors listed were Matt Ridley, Naomi Wolf (non-fiction), Toni Morrison and PD James (fiction).

The more authors of fiction that a participant recognised, the higher they tended to score on measures of social awareness and tests of empathy – for example being able to recognise a person’s emotions from a picture showing their eyes only, or being able to take another person’s perspective. Recognising more non-fiction authors showed the opposite association.

For the complete post and links to the source material, click here.  Who said we'd never put those endless hours of dreamy, solitary reading to good use?

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Today we bring you practice development tips from Larry and Robert Kohn of Kohn Communications.  I re-print here verbatim the Kohn's Ten Counter-Intutitive Tips for Working a Room, all of which have worked for me. 

(cartoon from the Gaping Void -- the cartoon's sentiment is ironic, not true; it is, however, what many of us fear -- if we follow our dreams, they will bankrupt us -- not true not true!)

Don’t try to be charming. Effectively working a room does not require that you tell funny jokes or impress your targets with your charisma. The smart strategy for working a room is to think of it as research – a task with which lawyers and mediators already feel comfortable. Your job is to meet people and ask questions. Be interested in the people you meet. The focus should be on learning about the people you meet and the organizations they support - not strutting your stuff.

Go to poorly attended programs.  Realistically, you can only have quality conversations with a handful of people. Large crowds offer a false promise of increased introductions. A large crowd can feel overwhelming and make you more shy. A sparse attendance can be more relaxed and facilitates your meeting the people who have come.

Pick programs that don’t interest you. Programs that interest you may not be the programs that interest your targets. As you consider opportunities for working a room, pick programs that will be interesting to the people you want to meet. 

Avoid your friends. One of the biggest mistakes people make when working a room is they go with their friends and inevitably stay with them throughout the evening. Your goal is to meet new people. So, don’t invite your friends to join you or, if you do, make a pact not to stay together when you arrive.

Don’t be fashionable. People think it’s fashionable to arrive late. The problem is it’s very difficult to break into established cliques already engaged in conversation. If you arrive early, you will easily be able to visit with others in the room. In fact, it is almost impossible not to.

Pick the longest drink line. Usually, you want to get a drink as soon as possible. However, when you’re working a room, a long drink line gives you the ability to talk with the person in front of you and in back of you. The longer the line, the more time you have to get acquainted.

Don’t tell people what you do. Conventional sales wisdom is to come up with some catchy description of your service. The problem is that a catchy comment may position you incorrectly for that target. The better technique is to spend your time finding out what other people do. There will be plenty of time to talk about who you are after you qualify the person you’re talking to. The more you learn about the people you meet, the more effective you will be at customizing your explanation of your services.

Don’t give out your card.  Handing out your card does not give you control of the follow-up. Your  goal is to always get their card. That way, you are in a better position to stay in touch and build a relationship over time. By not giving out you card, you also avoid being bothered by people who you don’t want to hear from in the future.

Get the cards of non-prospects. If you find yourself talking with someone who is not a good prospect, the best way to end the conversation is to ask for their card. When you do, you can comfortably excuse yourself and move on to more fertile opportunities.

Don’t be a leader. Most people like to lead the charge to exit an event to avoid the exiting crowd. But, by lingering, you’ll have more opportunities to meet those who have remained. Often they are the officers of an organization or the people in charge of the event and they may be some of your best contacts.

By following these counter-intuitive techniques, you can expect to build your practice with comfort and ease. You won’t feel pressured to be charismatic.You won’t feel pressured to sell your services on the spot. You’ll meet more people, and you’ll learn more about them. The information you obtain will make it easier to connect, easier to follow up and easier to close.

Lawrence M. Kohn and Robert N. Kohn are principals of Kohn Communications, a marketing and management consulting firm specializing in professional service firms.

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I once knew a writer who despaired of ever being published.  The publications to which he submitted his material?

The New Yorker; The Atlantic Monthly; Harpers, and the Sunday New York Times Magazine. 

Discouraged, the writer would say to me, I'm just not going to write peppy feel-good articles for Dog World!!!"

 Patience.  Balance.  In between Dog World and the New York Times you will find a place to publish your articles.

Keep your dreams big and your steps small. 

Ask yourself these questions:

1. who is my market?
2. what do I know that people in my market need or want to know?
3. what publications do the people in my market read?

Pick a topic.  Write 1,000 words.  Send it off.  It really is that easy.

Here are some publications with low barriers to entry, i.e., you do not need to be Hemingway to publish here.  

The Southern California Mediation Association Newsletter.  I'm now co-editor of this newsletter.  The SCMA has a blog too!  We will publish your short mediation pieces there.  Even though it's local, it is on the internet and therefore reaches the entire world.

mediate.com.  You already know it.  They are hungry for content.  Write and publish.

The National Institute for Advanced Conflict Resolution.  They have a monthly newsletter and web site you can submit your articles to.  

Local and national bar association newsletters and journals in your market, i.e., the Los Angeles County, Beverly Hills, San Fernando Valley, etc. Bar Association newsletters and specialty bar associations like the several local newsletters published by the Association of Business Trial Lawyers and Federal Bar Association ADR section newsletter and blog.  

The Daily Journal and other non-bar legal publications.

If you're academically minded, Dispute Resolution Journals such as the one published by Pepperdine University School of Law.

A chronic self-publisher, I also have my own quasi-academic Dispute Resolution Journal for which I'm always seeking articles!

And have I said "create your own blog" lately?  See Blogging for Mediators 101!

There are many other journals and newsletters with low barriers to entry.  I ask my readers to please leave comments identifying them. 

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The world can never be assumed to exist.  It comes into being only in the act of moving towards it.  Ese est percipii.  Nothing can be taken for granted:  we do not find  ourselves in the midst of an already established world, we do not, as if by preordained birthright, automatically take possession of our surroundings.  Each moment,each thing, must be earned, wrested away from the confusion of inert matter, by a steadiness of gaze, a purity of perception so intense that the effort, in itself, takes on the value of a religious act.  The slate has  been wiped clean. It is up to the poet to write his own book. Paul Auster, The Decisive Moment from The Art of Hunger

I quote poet, novelist, critic and screenwriter, Paul Auster, because there is magic in this excerpt from his essay on the poetry of Charles Reznikoff.  

"The world . . . comes into being only in the act of moving towards it."  For whatever reason I had at the time, when I was a senior in High School, I wrote these words on my PeeGee folder -- "whatever you can do or dream you can, begin it; boldness has genuis, power and magic in it."  (Goethe)

Everything else is detail; putting one foot after the other; accomplishing one small task a day. 

That said, I begin with the educational resources that form the heart and soul of my practice and my business.  

EDUCATIONAL RESOURCES

I enrolled in the Straus Institute for Dispute Resolution in May of 2004, with the goal of earning my LL.M in a year's time.  The pro's and con's:

1. it is true, as I was warned by Institute co-director, Peter Robinson, that the mere possession of the LL.M degree would not aid my career.  
2. what I did gain from my LL.M studies was:
   1. access to the best mediators in the country.
   2. a first class liberal arts education in conflict resolution, including cross-cultural studies; religion and conflict; the social psychology of conflict; arbitration practice; settlement and negotiation theory and practice; international diplomatic theory and practice; introduction to fields entirely new to me such as restorative justice (the mediation of crimes, including mass crimes such as genocide in Rwanda and the wounds of aparthied in South Africa through Truth and Reconciliation Commissions); the ideological foundations of ADR practice; and, communication skills, in addition to the standard mediation training.
   3. the opportunity to create externships in my target market, gaining access to people and places I would never have been able to obtain on my own.
   4. the opportunity to collaborate with some of the best ADR practicioners and academics in the country -- opening doors to collaborative seminars and co-authored articles with some of the most prominent mediators and conflict resolution scholars and educators in the world.

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Diane Levin of the online guide to mediation explains memes for the rest of us:

Memes, for those of you who may be unfamiliar with the word, are ideas or units of cultural information that replicate and are transmitted virally from one human being to the next. In cyberspace, bloggers spread memes by tagging other bloggers and inviting them to amplify or discuss the idea, transmitting it in turn to other bloggers, and enabling the meme to propagate rapidly.

Tammy Lenski has created a meme for mediators, riffing on a post by Vickie Pynchon, on "How to Start a Mediation Practice"--a must-read for anyone interested in becoming a mediator. Tammy recounts her own proven formula for success in launching a practice as a mediator and has "tagged" Mediation Mensch Dina Beach Lynch and me, inviting us to continue the conversation on this theme.

Since the meme is coming back around to me, I "tag" Kristina Haymes of Mediation Marketing Tips whose excellent mediation marketing advice has been a great help to me.

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First, a huge round of Settle It Now applause for my fellow ADR Bloggers -- Diane Levin of the Online Guide to Mediation, Tammy Lenski of Mediator Tech, Dina Lynch of Mediation Mensch and the ADR Practice Builder, Kristina Haymes of Mediation Marketing Tips, and Geoff Sharp of Mediator blah blah.

These people are my mediation posse even though I've not met any one of them.  They keep my spirits up when they start to flag, share their abundant resources, wisdom and strength with me, and hip me to new ways to market my practice, new case law, new mediation techniques, and new ways to express my mediation practice in the world.  I genuinely don't know what I'd be doing without them.

If you blog, they will come.  I don't have sufficient thank you's in my gratitude bag for these wonderful ADR professionals.  Visit their sites often.  If you take the blogging plunge, they will arrive at your front door like the townspeople of some mythical Elysian American 1950's farm community, with flowers, tips on dealing with the local merchants, casseroles and favorite recipes.  Life doesn't get any better than that.

Part III of Building Your Mediation Practice next.

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MY BUSINESS PLAN

When first asked for my “business plan” by someone for whom planning does not mean picking up Chinese on the way home, I had only five principles at the ready:

1) Be conscious;
2) Be teachable;
3) Be of service;
4) Always say “yes” to a mediation request; and,
5) Be the exception to the rule.

That was it.

Well, and Also, I . . .

. . . gave my new business a name (duly registering it with the proper authorities), “bought” it business cards (free at Vista Print) and built it a web-site (with Yahoo’s free web builder).

Then I dove off the cliff by (gasp) quitting my day-job and

• joining every professional organization where my market was likely to congregate; 
• sticking out my hand to say “hi, I’m Vickie Pynchon” whether I wanted to or not; 
• taking every mediation class that intrigued me; 
• volunteering my mediation services – mainly on the Los Angeles Superior Court Pro Bono Panel – so that I could practice my skills before rolling them out to former colleagues; 
• talking passionately about mediation whenever asked; 
• writing articles about my new profession and submitting them to publications (which always need content); 
• asking seasoned mediators if I could observe them in action and for tips on commencing a mediation practice; 
• offering to be of service whenever I could to whomever I could; 
• speaking about mediation and negotiation skills to attorneys free of charge; 
• speaking to local business groups about matters of interest to them;
• attending law related and mediation conferences and workshops; 
• taking people in my market out to lunch; out for coffee, etc.; 
• becoming engaged in community activities again; 
• liberating my frustrated inner ad-executive by making post-cards about my new practice and filling them with catchy slogans and useful information; 
• being of service to the organizations I joined (they always need volunteers); and, 
• making too many plans, so that when some of them didn’t pan out it was ok with me.
  

BUILD A NETWORK

To build my network I simply paid attention to what people were interested in and offered to hook them up with others who I thought might be able to satisfy their interests. As more people introduced me to other people who might be of assistance to me, I connected them up with other people who might be of assistance to them.

$$$$$$$

Financing the whole thing, I not only lived on my savings, I also bartered a lot of my services in exchange for others.

LEARNING

Speed-learning my new profession, I kept a journal of my mediations. Not only did it allow me to second guess my own performance before I was strong enough to actually ask my clients how I was doing, it also supplied me with material for the articles I began to write.

ENDURANCE

Keeping my spirits up, I surrounded myself with “winners” -- with people who said “you can do it; of course you can do it!!!” I smiled nicely at people (the vast majority) who told me I’d never be able to build a practice because (pick one) -- the field is full; I hadn’t been a judge; the pro bono panel was ruining free market enterprise; better people than I was had failed, etc., etc.

I treated these people kindly, thinking that most people simply don’t believe in the powers of imagination, faith and audacity. I also reminded myself that I became a pretty good lawyer at an age when I was still afraid of the dark, my own shadow, and anyone who’d been over thirty when I was eighteen.

PRACTICING MY PROFESSIONAL PRINCIPLES IN ALL MY AFFAIRS

And, with everything that needed to be learned about resolving rather than escalating conflict, I began to practice peace-making in all my affairs.

TO REITERATE

Be conscious

This is sometimes called “mindfulness.” Author and mediator Ken Cloke has described mindfulness as

the capacity to be present and aware of what is happening inside you, while at the same time developing awareness of what is happening inside others. It includes the experience of relationships as malleable and subject to transformation at any moment. A mediator exercising mindfulness practices a type of concentration that gives rise to insight and creative intervention techniques. Whenever we allow ourselves to hear at a deep level what the other person is saying, credit it, discover its meaning, and give ourselves permission to present that meaning in the form of a question to the parties, we are using mindfulness to inform the mediation process.

Be teachable

Nan-in, a Japanese master during the Meiji era (1868-1912), received a university professor who came to inquire about Zen. Nan-in served tea. He poured his visitor’s cup full, and then kept on pouring. The professor watched the overflow until he could no longer restrain himself. “It is overfull. No more will go in!” “Like this cup,” Nan-in said, “you are full of your own opinions and speculations. How can I show you Zen unless you first empty your cup?”

Shaseki-shu in Paul Reps, Zen Flesh, Zen Bones

Be of service

Mediation is a helping profession. When I show myself able to be of assistance to people, I build a reputation as being a willing, cheerful, attentive and useful helper.

Always say “yes” to a mediation request

The answer to any request for assistance with mediation is simply “yes.” Yes, I will help set up the chairs, make the coffee, print the flyers, clean up the conference room. Yes, I will introduce you to attorneys I know. Yes, I will speak about mediation at your gathering. Yes, I will contribute an article to your newsletter. Yes, you may observe my mediations. Yes, you may have the number of my (pick one) web guy, accountant, assistant, teacher, friend, confidant, personal trainer, marketing adviser, etc., etc., etc. Yes, yes, yes.

Be the exception to the rule

Whatever else I am, good, bad or indifferent, I am unique. I am the exception to any rule that guarantees my failure.

That's it. 

I'll be commencing my third year of mediation practice in June and it is working.  It has been a lot of work and a lot of fun.  There's no reason in the world why you can't do it too!  After all, there's more conflict in human affairs than water in the ocean or stars in the sky.  Turn around and take a look over your shoulder.  There's a dispute waiting to be resolved right over there.   All you have to do is to let them know you've learned how to help them negotiate that contract, settle that lawsuit, or make peace with those neighbors.  Mediation is the better mousetrap.  Join us!

Tomorrow I'll provide you with links to resources that have been useful in building my practice.

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In the Fall of 2006, Loeb & Loeb attorney Peter S. Selvin, a member of the Board of Governors of the Los Angeles chapter of the Association for Business Trial Lawyers ("ABTL") wrote a thorough and timely article on the availability of insurance coverage to settle business tort litigation, a short excerpt of which we publish here with a link to the full article.    

Lawsuits involving business or commercial disputes often trigger the coverage provisions of standard form Commercial General Liability ("CGL") policies.

In lawsuits involving claims of infringement, misappropriation or the violation of the right of privacy, the key portion of a CGL policy is the "personal injury" or "advertising injury" coverage found in Coverage B of the current CGL policy form [Insurance Services Office Commercial General Liability Insurance Policy Form, Section I Coverage B (2001)]. That language provides as follows:

a. We will pay those sums that the insured becomes legally obligated to pay as damages because of "personal and advertising injury" to which this insurance applies. We will have the right and duty to defend any "suit" seeking those damages…

b. This insurance applies to "personal and advertising injury" caused by an offense arising out of your business but only if the offense was committed in the "coverage territory" during the policy period.

This article explores the scope of, and recent developments concerning, this aspect of CGL coverage. Practitioners should note that coverage for business torts may also be provided under Coverage A of CGL policies. See, e.g., Ericsson, Inc. v. St. Paul Fire & Marine Ins. Co., 423 F. Supp. 2d 587 (N.D. Tex. 2006) (class action claims against cell phone manufacturer for injuries caused by radio frequency radiation fall within Coverage A for "bodily injury"); Prime TV, LLC v. Travelers Ins. Co., 223 F. Supp. 2d 744 (M.D. N.C. 2002) (insurer required to defend insured in class action suit because sending unsolicited faxes constituted "property damage").

Click here for remainder of article

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Thanks to Blawgletter for reporting arbitration case law updates in Oregon with an eye for the literary as follows:

Striking down as unconscionable a ban on class actions in an "arbitration rider" to a loan agreement, the court in Vasquez-Lopez v. Beneficial Oregon, Inc., No. A125270 (Ore. Ct. App. Jan. 31, 2007), rejected the lender's argument that the ban favored neither side:

We are reminded of the observation by a character in an Anatole France novel that "the majestic equality of the laws * * * forbid[s] rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread." Anatole France, The Red Lily, 95 (Winifred Stephens trans., Frederic Chapman Ed. 1894). Although the arbitration rider with majestic equality forbids lenders as well as borrowers from bringing class actions, the likelihood of the lender seeking to do so against its own customers is as likely as the rich seeking to sleep under bridges.

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Thanks to the Wall Street Journal Law Blog for turning us on to the New York Times article When Lawyers and Juries Mete Out Punishment.

First, as a follow-up to our "Few Good Men" post yesterday (see screenplay here) we quote the quotable Mr. Sorkin again as an introduciton to the cross-examination question that launched a $246 million punitive damage award:

KAFFEE
What possible good could come from putting Jessep on the stand?

JO
He told Kendrick to order the Code Red.

KAFFEE
He did?! Why didn't you say so!? That's qreat! And of course you have proof of that.

JO
I--

KAFFEE
Ah, I keep forgetting: You were sick the day they taught law at law school.

JO
You put him on the stand and you get it from him!

KAFFEE
Yes. No problem. We get it from him.
(to SAM)
Colonel, isn't it true that you ordered the Code Red on Santiago?

SAM
Look, we're all a little--

KAFFEE
I'm sorry, your time's run out. What do we have for the losers, Judge? Well, for our defendants it's a lifetime at exotic Fort Levenworth. And for defense counsel Kaffee? That's right--It's-- A Court- Martial. Yes, Johnny, after falsely accusing a marine officer of conspiracy, Lt. Kaffee will have a long and prosperous career teaching typewriter maintenance at the Rocco Columbo School for Women. Thank you for playing "Should We or Should-We-Not Follow the Advice of the Galacticly Stupid". 

It's hard being a trial lawyer.  Very hard.  So I'm not going to accuse the attorney who asked the question at the heart of the New York Times piece of being "galacticly stupid."  Nor, however, am I going to charge the jury with being "inflamed by passion and prejudice."  Maybe just inflamed by passion.  Which is what we ask from juries, isn't it?  That they get angry at injustice.  With all due deliberation and based on the evidence.  That they take a cold hard look at certain business practices, draw the conclusion that those practices caused the party before them to suffer unbearable injuries and then award as punitive damages an amount to "deter" that business practice.  

And if the jury makes a mistake?  Well, fortunately, we're only just beginning to ask that question about the more important decisions juries make every day -- whether to sentence men and women to lengthy prison sentences, or even to death, for causing injuries as severe as those suffered when products go bad.      

With that, I give you the New York Times on the final question to the husband of the woman paralyzed when her Ford Explorer rolled over.
 

The witness was Barry Wilson, whose wife, Benetta, was paralyzed when her Ford Explorer rolled over. Mr. Wilson had cut back on his work hours to care for her. He showered her and catheterized her, and he woke several times each night to move her, to avoid bedsores.

Mr. Sonnett saw an opening, and he ended his examination with a flourish.

“The silver lining,” he said to Mr. Wilson, “to the extent that there could be one, it has brought you and Benetta and the family closer together?”

Mr. Wilson did not see the upside. “I don’t think it’s a benefit or a plus in any way,” he said.

It was the silver-lining question, an appeals court later ruled, that “may well have inflamed the passions of the jury.” In their lawsuit, the couple said Ford had made the Explorer dangerously prone to rolling over and then outfitted it with a weak roof. The jury agreed, hitting Ford twice. First, it awarded $123 million to compensate the Wilsons. Benetta Buell-Wilson had been an athletic graduate student, and now she lives in constant and increasing pain.

For the recent Supreme Court decision striking down the $79+ million punitive award against Philip Morris, see the Southern California Law Blog report here. 

For a little history on cigarette advertising, we give you Philip Morris ads on the original I Love Lucy television series.

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. . . if you're one of my NITA students, please take the Negotiation and Mediation Justice Survey here (3 minutes max I promise!)

The lengthy cross-examination was written by the man who brought you The West Wing, Aaron Sorkin.  Do not attempt this in a court of law without a screenwriter by your side.

And just in case you think you're uniquely insecure, the brilliant Mr. Sorkin, who added, "you can't handle the truth" to the small pantheon of justifiably immortal movie lines has this to say about the process of writing:

"I love writing but hate starting. The page is awfully white and it says, 'You may have fooled some of the people some of the time but those days are over, giftless. I'm not your agent and I'm not your mommy, I'm a white piece of paper, you wanna dance with me?' and I really, really don't. I'll go peaceable-like."

THE SET UP

KAFFEE Colonel, when you learned of Santiago's letter to the NIS, you had a meeting with your two senior officers, is that right?

JESSEP Yes.

KAFFEE The Executive Officer, Lt. Jonathan Kendrick, and the Company Commander, Captain Matthew Markinson.

JESSEP Yes.

KAFFEE Yes sir. Colonel, at the time of this meeting, you gave Lt. Kendrick an order, is that right?

JESSEP I told Kendrick to tell his men that Santiago wasn't to be touched.

KAFFEE And did you give an order to Captain Markinson as well?

JESSEP I ordered Markinscn to have Santiago transferred off the base immediately.

KAFFEE Why?

JESSEP I felt that his life might be in danger once word of the letter got out.

KAFFEE Grave danger?

JESSEP Is there another kind?

KAFFEE holds up a document from his table.

KAFFEE We have the transfer order that you and Markinson co-signed, ordering that Santiago be lifted on a flight leaving Guantanamo at six the next morning. Was that the first flight off the base?

JESSEP The six a.m. flight was the first flight off the base.

THE SEEMINGLY INNOCENT LINE OF QUESTIONING SET-UP

KAFFEE gets a document from his table.

KAFFEE (continuing) After Dawson and Downey's arrest on the night of the sixth, Santiago's barracks room was sealed off and its contents inventoried. (reading) Pairs of camouflage pants, 6 camouflage shirts, 2 pairs of boots, 1 pair of brown shoes, 1 pair of tennis shoes, 8 khaki tee- shirts, 2 belts, 1 sweater--

ROSS Please the Court, is there a question anywhere in our future?

RANDOLPH Lt. Kaffee, I have to--

KAFFEE I'm wondering why Santiago wasn't packed.

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As we noted yesterday, counsel know all too well that their clients arrive at mediation with "an unwarranted faith in the righteousness of [their] position" and that their obligation is to "bring rationality, objectivity and experience to bear on the matter."

Easier said than done, right? 

To help your mediator help you, I offer the following 5 & 5 on the why's of client hopes and the how's of diminished expectations.  

Five Reasons Why Your Clients Have Unwarranted Faith in the Righteousness of their Cause

1. when she first told you her version of the facts, she left a few things out -- like how her  partner caught her cooking the books before he "breached" the partnership agreement by refusing to let her back on the business premises.     
2. you're a zealous advocate -- not only are you paid to be -- your ethical responsibilities require it.  Despite all of your efforts to describe the perils of litigation, your client only really paid attention during the parts where you told her how great her case was. 
3. your client hasn't spoken with his business partner, supplier, importer, competitor, licensee, etc. since the dispute arose two or three years ago.  There's been no opportunity for the parties to reality test their positions with the only other party who actually knows what happened. The social psychologists called this state one of  "autistic hostility."  
4. as much as you try to anticipate the opposition's arguments, your job is to win.  It's impossible not to spend the bulk of your time justifying your client's actions and excusing his errors.
5. to work as hard as you do on your client's behalf, you must believe in the merits of her case.

Five Ways Your Mediator Can Help You "Depress" Your Clients' Unreasonable Expectations

1. let the mediator know you need some help with your client.  Call him ahead of time if he doesn't call you to discuss the nuances of the mediation session itself.  You can be candid without giving away the store. 
2. let the mediator be the "fall guy," taking the "hit" for delivering this bad news -- while you, one of the best attorneys in town, were busily developing a great case, the other side's attorney was doing precisely the same thing.
3. allow the mediator to develop as strong a personal relationship with your client as possible and permit her to ask probing questions that will gently reveal the problems with your case that have developed over the course of time. 
4. be willing to break away from your client for separate session cacucuses with the mediator to discuss how things are going in the attorney-client dynamic so that course-change is possible.
5. let the mediator know that your client is going to need more time to digest bad news -- if your mediator doesn't offer, ask him to arrange for the offer/demand to remain on the table for a  pre-determined amount of time and ask him to follow up with both parties during that period of time.

Remember:  there's no such thing as impasse, only a recess in the settlement discussions.  

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From the intersection of Do and Don't, we thank Concurring Opinions for hipping us to the latest, clearest, most skimmable advice on blogging for the Fortune 50 of Law Firms (and you know who you are). 

This advice comes from Law.com care of the able Alysa N. Zeltzer and John E. Villafranco at Kelley Drye Collier Shannon in Washington, D.C..  (no blog of your own Kelley Drye?)

If this teaser interests you, click on the title for the full article. 

As Blogging Grows, So Do Its Do's and Don'ts
By Alysa N. Zeltzer and John E. Villafranco
Internet Law & Strategy
February 20, 2007

With the rush to create content, it's easy to forget that all business communications directed to the public are subject to a variety of laws, regulations and other legal concerns. This article provides a high-level overview of the key points to keep in mind as you assess whether your company-related blog is legally compliant.

THE DO'S

DO make a clear decision on whether the company will sponsor and/or host a blog (or several), and what the objectives are for each blog. Blogs don't make sense for all companies and you should be clear about why having a blog (or several) will advance the corporate interests as well as interest readers, and are worth the resources to start and keep one or more blogs running

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Way back in 1997, John Blumberg of the Blumberg Law Offices in Long Beach California asked in a Daily Journal article whether lawyers had a duty to give ADR advice.

Alternative dispute resolution, wrote Blumberg, 

has reached such a level of acceptance and availability that failure of an attorney to consider its possibilities or to inform the client of its existence may amount to legal malpractice. This is not to say that every case must be settled. It is to say, however, that an attorney's duty to a client includes "the obligation to attempt to effectuate a reasonable settlement of the . . . action where the general standards of professional care [require] that the most reasonable manner of disposing of the action was by settlement." Lysick v. Walcom (1968) 258 Cal.App.2d 136. 

Even a client's opposition to settlement, wrote Blumberg,

 does not excuse an attorney's duty to consider and advise the client about settlement. After all, the lawyer's superior skill and knowledge is what the client is paying for. Lucas v. Hamm (1961) 56 Cal.2d 583, 591.

It is not uncommon, noted Blumberg

for the client to have an unwarranted faith in the righteousness of his or her position. The lawyer's obligation is to bring rationality, objectivity and experience to bear on the matter. 

The most compelling point in this still timely and cogent advice on ADR is the one about the client's "unwarranted faith in the righteousness of his or her position."

Often, attorneys bring their clients to mediators to help them restore the "rationality, objectivity and experience" the client needs to hear without damaging the attorney-client relationship.  Many mediators have written about this process before me.  Tomorrow, I'll give you the ten greatest barriers to getting your client back into a realistic risk-management state of mind and the ten ways you can seek the mediators help in achieving that goal while continuing to maximize the settlment value of your case.

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The Verdict - screenplay by David Mamet

[the church has offered a check for $210,000 to settle the case]

Frank Galvin: How did you settle on the amount?

Bishop Brophy: We thought it was just.

Frank Galvin: You thought it was just?

Bishop Brophy: Yes.

Frank Galvin: Because it struck me, um, how neatly 'three' went into this figure: 210,000. That means I would keep seventy.

Bishop Brophy: That was our insurance company's recommendation.

Frank Galvin: Yes, that would be.

Bishop Brophy: Nothing we can do can make that woman well.

Frank Galvin: And no one will know the truth.

Bishop Brophy: What is the truth?

Frank Galvin: That that poor girl put her trust into the... into the hands of two men who took her life. She's in a coma. Her life is gone. She has no home, no family. She's tied to a machine. She has no friends. And the people who should care for her - her doctors... and you and me - have been bought off to look the other way. We've been paid to look the other way. I came here to take your money. I brought snapshots to show you so I could get your money. I can't do it; I can't take it. 'Cause if I take the money I'm lost. I'll just be a... rich ambulance chaser. I can't do it. I can't take it. 

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Cruising Evan Schaeffer's Trial Blog, I found this excellent advice, reprinted here verbatim.

Does It Matter Whether the Mediator Came from the Defense or Plaintiff Side of the Bar?

In selecting a mediator, I don’t pay too much attention to whether the mediator was (or is) a plaintiffs’ lawyer, a defense lawyer, or a judge. Instead, I focus on the mediator’s results: does he or she have the reputation as someone who can get cases settled?

Using this criterion, I also don’t care if I end up using a mediator who was first suggested by my opponent. It’s one of the beauties of mediation: Unlike an arbitrator, the mediator cannot bind you or your client. Therefore, you don’t have to worry that he or she might harbor a secret bias that will sink your case. If it turns out that the mediator is favoring the other side, you can say no during the mediation and walk away.

Bottom line: Don’t obsess over the mediator’s past work history. Ask other lawyers how effective the mediator was at getting the parties to agree, and leave it at that.

Why Colin Powell?  Because he's the man who said the most important knowledge you could have in conducting international negotiations is to be aware of the "other guy's decision cycle."

Reading trial lawyer blogs helps a mediator do that.

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If you're about to ink a settlement resulting from a mediation, you and your mediator have all worked tremendously hard to reach an agreement.

Now you want that agreement to be enforceable.

We are therefore providing you with a sample agreement, relevant California case law, and selected articles about the enforcement of mediated settlement agreements.

We provide this information NOT AS LEGAL ADVICE but as a resource for attorneys in crafting their own form term sheets and memoranda of understanding.

You don't need to carry around paper and pen anymore; Judicate West mediator, the Hon. Stuart T. Waldrip (Ret.) suggests that you do what he does -- keep this form on a jump or "flash" drive (I carry one on my keychain) so you can plug it into an available computer & leave the mediation with a fully executed typewritten agreement.

And, by the way, congratulations on closing the deal!

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