Update on the $4.1 Billion Arbitration Award Confirmed as Judgment by Los Angeles Superior Court
Here's a copy of the Judgment Confirming Final Arbitration Award.
Comment later. In the meantime, Money Money Money from Cabaret.
Texas Bar Association You Tube Ideals that Unite Us
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$2,500 scholarship for under 18 winner / Thanks to Tamera Bennett for the link. Follow her on twitter here. Read her Copyright, Trademark and Entertainment Law Blog here.
It's Never Just About Money: The Wilson Sonsini Settlement
Big or small, litigation is never just about money. Nor is settlement just about the strength of the parties legal positions or even the relevant facts. Here, as reported by the Wall Street Journal Law Blog in Is It a Settlement? Wilson Pays Brocade to be Released From Backdating, its also about relationship and cooperation and respect. Who knew?
So why would the S[pecial Litigation Committee] release [Wilson Sonsini] and Larry Sonsini? The SLC wrote that it weighed the opinion of a legal ethics expert as well as testimony and documents related to Sonsini and the firm’s roles at Brocade. It also listened to Sonsini and his firm’s “contentions that Brocade employees misled WSGR about stock-option grants” and that the firm had negotiated a good settlement with the SEC and helped avoid DOJ action against Brocade. The committee also considered the firm’s longstanding relationship with Brocade and the firm’s “willingness” to help the company resolve any “outstanding questions” about the backdating.
For the entire WSJ Law Blog post, click here.
Below -- Annie Lennox' Money Can't Buy It -- with a little Demi Moore Striptease for our gentlemen readers' mid-week enjoyment (with apologies to the puritanical and those who simply can't abide Demi Moore).
The IP Executive Summary of Blawg Review # 171
There's been some salacious commentary (such as WAC's Like a Vixen) about Blawg Review # 171. I just want to say to anyone who missed the sexual revolution -- on either side of the generation gap -- we're sorry to have started it all. We just never really left high school.
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We've also heard some complaints that the most recent Blawg Review is just too darn long. In honor of our sister blog and those attorneys who are still billing 2400 hours/year, we give you the IP Executive Summary of the Virgin Blawg Review #171 below.
Isaac Newton. The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself. We consecrate Newton's virginity to this week's best IP and IT posts. William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement but it is Patry's final blog post that we celebrate as a true virginal moment. Pause here.
My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.
Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here.
Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly. Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.
We've heard tell that reading your iPhone has replaced the cigarette for post-coital bliss, in which case you'll be glad to hear Brett Trout at BlawgIT suggest that you might soon be watching television from that device. Protection, protection, protection. In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks "over"promises. Elsewhere, at least one IP Blogger wonders whether blog content licensing might be dying for lack of buyers? (people pay for Blog content while I give it away for free?????)
The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous. Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect. How did he do it? As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters "appear[ed] in the same frequency as in the language itself." So he
counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.
In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.
If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright."
On the matter of greater moment -- Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board." More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!)
Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review? This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360). While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up. All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.
Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement). While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and, Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.
Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows:
"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. . . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"
If you're sufficiently virginal to believe in magic, check out the Law and Magic Law Blog's announcement of the dismissal of a defamation lawsuit against Magic Mag as protected opinion while Ernie the Attorney has at least one more make to make your iPhone magic here.
Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit. 
Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . . Another available data base for the engineering-attorney crowd is the subject of Securing Innovations post IBM Technical Disclosures' Prior Art Data Base. Concurring Opinions covers IP in the News this week, Peter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and IP Kat curls up with Small and Sole.
Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was. Thanks for letting us play. And a very, very, very good night!
Blawg Review 170 Negotiates Simple Justice
My friend, Joe Mockus, a criminal defense attorney in the San Francisco Bay area, once asked me, "just what is it that you do all day long?" I know what Joe did. He had at least one hundred court appearances a day and once in awhile tried a major felony case. He was negotiating while I was writing stake-in-the-heart summary judgment motions in cases with 2 million documents coded in the Phillipines. I took a lot of depositions and, if I was very very very lucky, I got to try a case to a jury once every five to ten years.
If you're a civil litigator like me (read: "not really a trial attorney") and you haven't thought of criminal law since your first year of law school (it has something to do with a man jumping out a 20 story window and then being shot by an angry mistress from the 10th floor, right? Cf. Magnolia below) then amble on over to Scott Greenfield's Simple Justice for a satisfying look at the world criminal lawyers inhabit every day.
And next week, we'll be hosting the Blawg Review over at the IP ADR Blog. Which reminds me, this is likely the first and only post on this blog you'll get this week!
Habeas corpus actus reus corpus delicti crimen falsi crimen innominatum crimem laesae maiestatis de minimis non curat lex.
The Magnolia criminal law bar exam question half-way through this opening to the darkest comedy of the 20th Century, Magnolia.
Robert F. Kennedy on the Mindless Menace of Violence Forty Years Later
If you are of a certain age, you will vividly recall where you were forty years ago when you learned that the unthinkable had happend -- another Kennedy brother had been shot.
I was fifteen years old. The insistent ring of the telephone broke into my sleep in the early morning hours of June 6, 1968. It was my friend the [now] author and journalist Cathy Scott saying, "Kennedy's been shot."
"No he hasn't," I groggily responded. "That was years ago."
"No, no," she insisted. "That was John Kennedy. This is Bobby. Bobby's been shot."
Yesterday, the dreadful anniversary of Bobby Kennedy's death, I channel-surfed my way to the movie Bobby, depicting the world I was growing up in and in to. I had only recently turned my political opinions away from my parents' -- opposing instead of supporting -- the Viet Nam War.
McCarthy was my guy.
I thought Bobby was late to the anti-war party.
But what did I know? I was passing notes to my friends in second year French class about boys and assassinations (Martin Luther King, Jr.'s). Bhuddist monks were setting themselves aflame in public places. Race riots had only recently consumed the nation. My friends and I were negotiating adolescence during the time when those things that were changing ("the times") continue to consume our nation's attention today -- the conflicting values of the "culture wars."
The producers, director, writer and other creative forces behind "Bobby" chose to end their movie with the following speech -- On the Mindless Menace of Violence. Hearing it play out over images of Kennedy's last moments on the floor of the kitchen in the old Los Angeles Ambassador Hotel, it was as if the forty years between the night I groggily rose from my bed to watch another Kennedy brother's last moments and yesterday when I heard these words again as if for the first time had collapsed.
Bobby speaks here as plainly as he spoke to the nation then. Are we still not listening?
On the Mindless Menace of Violence
http://www.youtube.com/watch?v=WmRTAa4-QNc&feature=related
City Club of Cleveland, Cleveland, Ohio
April 5, 1968
This is a time of shame and sorrow. It is not a day for politics. I have saved this one opportunity, my only event of today, to speak briefly to you about the mindless menace of violence in America which again stains our land and every one of our lives.
It is not the concern of any one race. The victims of the violence are black and white, rich and poor, young and old, famous and unknown. They are, most important of all, human beings whom other human beings loved and needed. No one - no matter where he lives or what he does - can be certain who will suffer from some senseless act of bloodshed. And yet it goes on and on and on in this country of ours.
Why? What has violence ever accomplished? What has it ever created? No martyr's cause has ever been stilled by an assassin's bullet.
No wrongs have ever been righted by riots and civil disorders. A sniper is only a coward, not a hero; and an uncontrolled, uncontrollable mob is only the voice of madness, not the voice of reason.
Whenever any American's life is taken by another American unnecessarily - whether it is done in the name of the law or in the defiance of the law, by one man or a gang, in cold blood or in passion, in an attack of violence or in response to violence - whenever we tear at the fabric of the life which another man has painfully and clumsily woven for himself and his children, the whole nation is degraded.
"Among free men," said Abraham Lincoln, "there can be no successful appeal from the ballot to the bullet; and those who take such appeal are sure to lose their cause and pay the costs."
Yet we seemingly tolerate a rising level of violence that ignores our common humanity and our claims to civilization alike. We calmly accept newspaper reports of civilian slaughter in far-off lands. We glorify killing on movie and television screens and call it entertainment. We make it easy for men of all shades of sanity to acquire whatever weapons and ammunition they desire.
Too often we honor swagger and bluster and wielders of force; too often we excuse those who are willing to build their own lives on the shattered dreams of others. Some Americans who preach non-violence abroad fail to practice it here at home. Some who accuse others of inciting riots have by their own conduct invited them.
Some look for scapegoats, others look for conspiracies, but this much is clear: violence breeds violence, repression brings retaliation, and only a cleansing of our whole society can remove this sickness from our soul.
For there is another kind of violence, slower but just as deadly destructive as the shot or the bomb in the night. This is the violence of institutions; indifference and inaction and slow decay. This is the violence that afflicts the poor, that poisons relations between men because their skin has different colors. This is the slow destruction of a child by hunger, and schools without books and homes without heat in the winter.
This is the breaking of a man's spirit by denying him the chance to stand as a father and as a man among other men. And this too afflicts us all.
I have not come here to propose a set of specific remedies nor is there a single set. For a broad and adequate outline we know what must be done. When you teach a man to hate and fear his brother, when you teach that he is a lesser man because of his color or his beliefs or the policies he pursues, when you teach that those who differ from you threaten your freedom or your job or your family, then you also learn to confront others not as fellow citizens but as enemies, to be met not with cooperation but with conquest; to be subjugated and mastered.
We learn, at the last, to look at our brothers as aliens, men with whom we share a city, but not a community; men bound to us in common dwelling, but not in common effort. We learn to share only a common fear, only a common desire to retreat from each other, only a common impulse to meet disagreement with force. For all this, there are no final answers.
Yet we know what we must do. It is to achieve true justice among our fellow citizens. The question is not what programs we should seek to enact. The question is whether we can find in our own midst and in our own hearts that leadership of humane purpose that will recognize the terrible truths of our existence.
We must admit the vanity of our false distinctions among men and learn to find our own advancement in the search for the advancement of others. We must admit in ourselves that our own children's future cannot be built on the misfortunes of others. We must recognize that this short life can neither be ennobled or enriched by hatred or revenge.
Our lives on this planet are too short and the work to be done too great to let this spirit flourish any longer in our land. Of course we cannot vanquish it with a program, nor with a resolution.
But we can perhaps remember, if only for a time, that those who live with us are our brothers, that they share with us the same short moment of life; that they seek, as do we, nothing but the chance to live out their lives in purpose and in happiness, winning what satisfaction and fulfillment they can.
Surely, this bond of common faith, this bond of common goal, can begin to teach us something. Surely, we can learn, at least, to look at those around us as fellow men, and surely we can begin to work a little harder to bind up the wounds among us and to become in our own hearts brothers and countrymen once again.
Kennedy recited these lines by Aeschylus on announcing the death of Martin Luther King, Jr.
"He who learns must suffer. Even in our sleep, pain which cannot forget falls drop by drop upon the heart until, in our own despair, and against our will, comes wisdom by the awful grace of God."
Must read: NYT Columnist Bob Herbert's Savor the Moment, brief excerpt below:
Racism and sexism have not taken their leave. But the fact that Barack Obama is the presumptive nominee of the Democratic Party, and that the two finalists for that prize were a black man and a white woman, are historical events of the highest importance. We should not allow ourselves to overlook the wonder of this moment.
Blog entries of note on the RFK assassination and, more particularly, on the hope and action "Bobby" inspired below:
Robert F. Kennedy: What if He Had Lived, A Golden Age that Never Was by Blake Fleetwood in The Democratic Daily
A note on the Robert F. Kennedy Memorial from UCC Rev. Chuck Currie's Blog
NEW YORK STATE ASSEMBLY RENAMES TRIBOROUGH BRIDGE THE ROBERT F. KENNEDY BRIDGE from the Robert F. Kennedy, Jr. for President Blog.
A personal remembrance and link to another from Comments from Left Field
An RFK-Inspired Thought for the Day from the Law Consulting Blog
A Tiny Ripple of Hope from the Rainbow Law Blog
And this terrific compilation from Wednesday Night
Google, Viacom and YouTube: What's Holding Up a Settlement
Today the Silicon Alley Insider in its post Google, Viacom: We Won't Settle YouTube Fight Out Of Court asked the same question about Google and Viacom that we've been asking about J.K. Rawling and a middle school teacher -- Whuzzup with the whole settlement thing?
As Alley reports, David Eun, VP in charge of Google content partnerships told Dow Jones Newswires ``we're going all the way to the Supreme Court. We're very clear about it.''
In the law biz we call this "posturing," and that "all the way to the Supreme Court" comment we call laughable posturing. Alley says:
Call us dreamers, but we still think both sides could kiss and make up before this gets to the Supremes. After all, the two sides were negotiating for months before going hostile. And Sumner Redstone's other media company -- CBS -- seems quite happy with YouTube. So while both sides can argue that there are important principles at play here, we're pretty sure they can get resolved with an appropriately sized check.
Of course it might well not be the size of a check but some other set of commercial exchanges, concessions, or synergies that will eventually settle the thing.
These are business people for goodness sakes. And never was a business person born who wants to establish Supreme Court precedent. Talk about giving away your power and control.
We welcome comments from more knowledgeable readers!
50 Ways to Leave Your Dating Service Arbitration Agreement
You just slip out the back, Jack
Make a new plan, Stan
You don’t need to be coy, Roy
Just get yourself free
Hop on the bus, Gus
You don’t need to discuss much
Just drop off the key, Lee
And get yourself free
Where matchmaking service moved to compel arbitration of clients’ action alleging that "consulting agreements" were fraudulently induced, and agreements were [within a] class of contracts regulated by state law expressly rendering nonconforming contracts void and unenforceable, agreements’ failure to expressly set forth language required under dating service statutes--Civil Code Sec. 1694, et seq.--rendered [them] and [the] arbitration provisions [contained in them] unenforceable. Duffens v. Valenti - filed March 27, 2008, Fourth District, Div. One Cite as 2008 SOS 1811
John Adams and Ken Cloke's new Book Conflict Revolution
(image from Fixing Australia, the Blog)
My husband and I were watching part II of the John Adams series on HBO last night -- the part where Benjamin Franklin gives Adams (Paul Giamatti) some OJT on international diplomacy, beginning with -- and I paraphrase -- "you can't get a man to do what you want him to do by publicly humiliating him."
Later, Abigail Adams (Laura Linney) gives essentially the same advice in a womanly way.
"A man likes to make his own decisions," she says as she sends John off to the Continental Congress to seek men and arms (and help from the French) in Massachusetts' recent violent confrontations with the British Army.
Abigail takes a breath to make sure her head-strong husband can hear her.
"Men," she concludes, "do not like to have their decisions made for them."
Still, it wasn't until we reached the movie's scenes dramatizing the delegates' after-hours meetings in the local public house that my husband finally turned to me and said "they're mediating in separate caucus."
The Unity Necessary for Political Change Requires Mutual Self-Interest and Common Ground
The unity necessary to make the agonizingly difficult 1776 decision for independence, revolution and war was not achieved by persuasive argumentation, but by the alignment of each state's self-interest with the self-interest of each other state. This was Franklin's brilliance as international ambassador and as one of the founders of our unprecedented and improbable political enterprise - the united states.
All of which takes me to Ken Cloke's new book Conflict Revolution -- Mediating Evil, War, Injustice, and Terrorism -- which I've been reading in draft but that you'll soon be reading in print -- pre-order now -- courtesy of Janis Publications.
I want to tell you all about Ken's revolutionary shift from rights and power on the one hand to mutually beneficial interests on the other, but I've got work to do. For now, I'll leave you with a snippet from his last chapter which should whet your appetite for more.
Political theorist John Schaar wrote:
“The future is not some place we are going, but one we are creating. The paths are not to be found, but made. And the activity of making them changes both the maker and their destination.”
Ultimately, we are the social, economic, political, and environmental impediments we are seeking to overcome. All the problems and conflicts we want others to resolve are already present within us. The systems, paradigms, cultures, and environments we regard as dysfunctional exist not just around and between, but within each of us. They are us, even if we have devoted our lives to changing them, and must be transformed both within and without.
Systemic, paradigmatic, transformational, revolutionary changes therefore require personal as well as social revolutions. These revolutions do not happen merely by participating in recycling efforts to reduce environmental pollution. At their deepest level, they require us to actually experience ourselves as no different from the plants and animals we are destroying and, more problematically, from the people who are doing the destroying. Only by accepting personal responsibility for global problems on this scale can we discover where they begin inside us, and identify the practical steps we can take to stop them at their source.
Consequently, we not only need to transform the dominating and coercive nature of social, economic, political, and environmental power, and dismantle them at their systemic source by expanding the use of interest-based alternatives and increasing the ability of civil society to solve problems collaboratively. We also need to refuse to participate in them personally, even when they are dedicated to achieving “good” ends. This is no easy matter, both because a great deal is at stake and because domination and coercion are not just large-scale events, but small, barely noticeable everyday behaviors whose origin lies in all of us.
Negotiation, Mediation, Legal Careers, and the Rule of Law
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For more hilarious law cartoons by the fabulous Charles Fincher, click here.
Yesterday, I had the distinct pleasure of speaking to, and then participating in a mock mediation with, Lisa Klerman's USC Law School Mediation Clinic students.
Among these bright, energetic, earnest law students are some who would like to make mediation a career before a period of sufferance in the rights and remedies business. It always saddens me to be reminded that we "law elders" do not routinely make it clear to our young apprentices that the business and society of the law is as broad, exciting and varied as their own imaginations can make it. In other words, I encourage young people to do with their law degree whatever the heck they like, including mediating disputes. They need only understand that they are choosing an entrepreneurial rather than an institutional path. They are breaking new ground.
What does this have to do with negotiation? Our ability to negotiate our first post-law school employment opportunities or to end a hostage crisis is embedded in, supported by, and impossible without, a society governed by the rule of law.
Because I don't have a lot of time to explore this topic this morning, I'm cannibalizing my own work to ground both myself and my readers in the topic "culture and the law." We'll be returning often to this theme many times over the next several months.
This item is from YouTube and the Law: What it is or What it Will Be
Culture and consumers precede the law. They rarely, if ever, conform themselves to the needs, interests and desires of business. Culture and consumers govern business. Business does not govern them.
The law follows culture. As we noted over at the IP ADR Blog in Disputing Humor: Comedy, Folkways and the Internet, "the law" is not just a set of rules, but a life condition "in which [people] are carriers of rights and duties, privileges and immunities."
No formal structure supporting the system of law need be visible. . . Law can be found any place and any time that a group gathers together to pursue an objective. The rules, open or covert, by which they govern themselves, and the methods and techniques by which these rules are enforced is the law of the group. Judged by this broad standard, most law-making is too ephemeral to be even noticed. /*
In other words, we govern ourselves more or less naturally, until a conflict within the group arises. When that happens, the group is "forced to decide between conflicting claims [and the] law arises in an overt and relatively conspicuous fashion. The challenge forces decision, and decisions make law." Id.
*/ See, Weyrauch and Bell, Autonomous Lawmaking: The Case of the "Gypsies" (1993) 103 Yale L.J. 323 (1993) quoting Thomas A. Cowan & Donald A. Strickland, The Legal Structure of a Confined Microsociety (University of California, Berkeley Working Paper No. 34, 1965). The Weyrauch book on Gypsy Law can be found here.
Writers Guild Ready to Negotiate in Wake of Directors' New Deal
The Writers' Guild Responds with Predictable Petulance -- Analysis Later
Now that the DGA has reached a tentative agreement with the AMPTP, the terms of the deal will be carefully analyzed and evaluated by the WGA, the WGA's Negotiating Committee, the WGAW Board of Directors, and the WGAE Council. We will work with the full membership of both Guilds to discuss our strategies for our own negotiations and contract goals and how they may be affected by such a deal.
For over a month, we have been urging the conglomerates to return to the table and bargain in good faith. They have chosen to negotiate with the DGA instead. Now that those negotiations are completed, the AMPTP must return to the process of bargaining with the WGA. We hope that the DGA's tentative agreement will be a step forward in our effort to negotiate an agreement that is in the best interests of all writers.
Directors' Guild Announces Tentative Deal with Producers
Director's guild press release below. Analysis will follow.
LOS ANGELES - The Directors Guild of America (DGA) announced today that it has concluded a tentative agreement on the terms of a new 3-year collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP).
Highlights of the new agreement include:
- Increases both wages and residual bases for each year of the contract.
- Establishes DGA jurisdiction over programs produced for distribution on the Internet.
- Establishes new residuals formula for paid Internet downloads (electronic sell-through) that essentially doubles the rate currently paid by employers.
- Establishes residual rates for ad-supported streaming and use of clips on the Internet.
“Two words describe this agreement - groundbreaking and substantial,” said Gil Cates, chair of the DGA's Negotiations Committee, in announcing the terms of the new agreement.
“The gains in this contract for directors and their teams are extraordinary – and there are no rollbacks of any kind.”
Formal negotiations between the DGA’s 50-member Negotiations Committee and the AMPTP began Saturday, January 12, and were concluded today. Talks were led by Cates and DGA National Executive Director Jay D. Roth. They were preceded by months of informal discussions and nearly two years of preparation and research by Guild staff and consultants.
“This was a very difficult negotiation that required real give and take on both sides,” said DGA president Michael Apted. “Nonetheless, we managed to produce an agreement that enshrines the two fundamental principles we regard as absolutely crucial to any employment and compensation agreement in this digital age:First, jurisdiction is essential. Without secure jurisdiction over new-media production—both derivative and original—compensation formulas are meaningless.
Second, the Internet is not free. We must receive fair compensation for the use and reuse of our work on the Internet, whether it was originally created for other media platforms or expressly for online distribution.”
The agreement includes the following gains in New Media:
- Jurisdiction: The new agreement ensures that programming produced for the Internet (both original and derivative) will be directed by DGA members and their teams. The only exceptions are low-budget original shows on which production costs are less than $15,000 per minute, $300,000 per program, or $500,000 per series—whichever is lowest.
- Electronic Sell-Through: EST is the paid download of features and TV programming. The agreement more than doubles the EST residual for television and increases the feature film residual by 80% over the rate currently paid by the employers.
Specifically, the EST residual rates will be
- 70% for television downloads and
- 65% for film downloads, above a certain number of units downloaded. Below that, residuals will be based on formula employers currently pay.
Payments for EST will be based on distributor’s gross, which is the amount received by the entity responsible for distributing the film or television program on the Internet. Having distributor’s gross as the residuals basis was a key point in our negotiations.
The companies are now contractually obligated to give us unfettered access to their deals and data. This access is new and unprecedented and creates a transparency that has never existed before. Additionally, if the exhibitor or retailer is part of the producer’s corporate family, we have improved provisions for challenging any suspect transactions.
Ad-Supported Streaming: After an initial 17-day window for free promotional streaming of Internet programs, companies must pay 3% of the residual base (approximately $600 for network prime time 1-hour drama) for 26 weeks of streaming. They can continue to stream for an additional 26-week period by paying an additional 3% -- or a total of $1,200 for one year’s worth of streaming. (During a program's first season, the 17-day window is expanded to 24 days to help build audience.)
Sunset Provision: Allows both sides to revisit new media when agreement expires.
“Our fundamental goal in these negotiations was to protect our interests in the present while laying the groundwork for a future whose outlines are not yet clear,” said Cates. “We knew that gaining jurisdiction over new-media production and winning fair compensation for the reuse of our work on the Internet were the key issues for setting a framework for the future, but we also had to secure real gains for our members in today’s world.”
The new tentative agreement includes the following:
- Annual wage increases of 3% for primetime dramatic shows and daytime serials and 3.5% for all other covered programming.
- Outsized increase in director’s compensation on high-budget basic cable for series in the second and subsequent seasons.
- Annual residual increases of 3% for primetime shows and 3.5% for all other covered programming.
- Specific advances that pertain to members of the director’s team.
Details of the new agreement will be submitted to the Guild's National Board for approval at its regularly scheduled meeting on Saturday, January 26, 2008. The DGA’s current contracts expire on June 30, 2008.
Conflict in Our Own Backyard: Should Someone Accept Clooney & Hanks Offer to Mediate the Writers Strike
Finally an excuse to post a photo of the world's sexiest man on my blog!
The excuse?
Professor Carrie Menkel-Meadow's Concurring Opinion Post Can Actors Do Everything? letting us know that George Clooney and Tom Hanks have offered to mediate the writers strike as follows:
George Clooney, Tom Hanks and other actors have offered to step in and "mediate" the writer's strike. They say they will just tell the two sides "you have to live with this (particular terms) and get over it." Some bloggers suggest only "starpower" will make the producers bargain in good faith.
I hope these well intended actors know what they are doing when they offer to mediate. It sounds like they don’t. Mediators don’t tell the parties what to do (”you need to live with that and get over it”). They facilitate negotiations between the parties so they can (together) come to an agreement and “live with it.”
For the remainder of Professor Menkel-Meadow's post, click here.
Of course anyone can mediate. Each one of us do it on a daily basis in some form. Parents do it between children; children do it with their peers; employees do it on behalf of their employers or colleagues; and, I'm certain, actors and directors do it with an incredible array of difficult personalities both on and off-set every day.
Co-Mediation: An Idea Whose Time Has Come
I have a friend and colleague, fellow Judicate West panelist and AAA arbitrator Jay McCauley who co-mediates medical malpractice and other health care litigation with a physician mediator, Marc Lebed through their organization Medical Dispute Professionals.
They are harnessing the power of a subject-matter-specialist/mediator team to help doctors and patients resolve their disputes.
A similar process could well be the answer to the writers' strike. Substantial research has found that the most powerful persuasive force is the opinion of an individual who genuinely "feels your pain" or is inside your "decision cycle" (h/t to Colin Powell).
If Clooney and Hanks teamed up with a great mediator, it wouldn't surprise me if their addition to the mediation team might well make the difference between continued impasse and agreement.
It couldn't possibly hurt, could it?
From the "Where Do You Get Your Ideas" Files
If you're a writer -- you know -- of fiction -- and you somewhat compulsively track your blog statistics because, well, you don't smoke cigarettes anymore, your blogging day doesn't start any better than this.
Search google.com (sue step mother for wrongful death)
The mind reels with the possibilities. But I have paperwork to do.
The video, for those with procrastination in mind, takes about as long to watch as stepping outside to smoke a cigarette would. And "stop smoking" was one of your New Year's resolutions, right?
Divide and Conquer: Negotiating the Writers' Strike Past Impasse
(image from Wikimedia Commons: the Power of Free Content Media)
When you've got several to hundreds of bargaining partners, there is always a moment where the optimal negotiating move is to cut separate deals with those who are weaker (less well-equipped to continue the battle); stronger (better equipped to take a negotiating loss); more favorably disposed to your position or less fixed in their bargaining posture than other members of the opposition coalition.
No one wants to be the last man standing.
In this town of hyphenates (actor-producer-director) it makes sense for the embattled WGA to cut separate deals with those whose hyphenated descriptions include the word "writer." So it is that Forbes.com reports via Reuters in Striking writers union reaches deal with Letterman -- and the New York Times reports in Letterman and Writers Guild Reach Agreement -- that Letterman's "writer-friendly" company gave the writers "what they are asking for [because] they deserve it, and we’re happy to give it to them.” (quote from NYT)
Forbes.com excerpt below:
Negotiations between the WGA and major studios on a new contract covering 10,500 striking film and TV writers broke down Dec. 7, but the union has been pursuing separate talks with smaller, independent production companies.
The WGA's Hermanson told Reuters that talks between the union and Letterman's company had produced a "full, binding, independent agreement" that includes provisions for paying writers for work distributed over the Internet.
Compensation for Internet content has been the main sticking point in talks aimed at ending the WGA strike, now in its eighth week.
Several other late-night television hosts, including Jay Leno and Conan O'Brien of NBC and Jimmy Kimmel of ABC, are planning to resume broadcasts of new episodes on Jan. 2 without their writers.
The Angriest Lawyers on the Block: a Rorschach Test
From the Simple Justice Blog -- a Rorschah test.
And while we're on the topic of funny lawyer ads, see the ABA Journal's article Funny Lawyer Ads are No Joke in New York by Martha Neil, teh Journal's online legal affairs writer here.
The Writers Explain the Strike in Three Minutes and Fifty Seconds
Thanks to the National Law Journal's Los Angeles Legal Pad for posting this short video "Why We Strike."
A post explaining the reason the reasons given here feel pretty darn persuasive next.
And, by the way, we're really happy to see theL.A. Legal Pad becoming much more substantive a legal news source than it originally was.
We're pretty certain we have Jason Siegel to thank for this improvement in content and thank him we do!
We're looking forward to watching it grow!
Avoiding Evil and Promoting Good: the Chapter Being Procrastinated
(photo from Hippo Blog: Stanley Milgram redux)
O.K. I'm writing, I'm writing. But to write this book I also need to read. And that means accessing the internet as I write. Hence the last "negotiating procrastination" post.
"But wait a minute," you're saying, "I'm not reading this blog to be inside this woman's stream of consciousness."
But what If that stream of consciousness has dipped itself down into a really tremendous article by social psychologist Philip G. Zimbardo, who conducted the Stanford Prison Experiments in the early '70s that had to be shut down.
Why?
Because the student "guards" began tormenting the student "prisoners," the student "prisoners" began to have mental break-downs, and Zimbardo himself -- by his own accounting -- had become "a Prison Superintendent [who] began to talk, walk and act like a rigid institutional authority figure more concerned about the security of “my prison” than the needs of the young men entrusted to my care as a psychological researcher."
"Well, that might be interesting," you say.
It is! And you can read the entire article -- The Psychology of Power and Evil: All Power to the Person? To the Situation? To the System? here.
(above, a short documentary with original footage from the prison experiment)
Most Importantly, Here are a Few Prescriptions by Zimbardo for Creating a Culture of Good Rather than of Evil -- all text quoted from the end of the article:
Continue Reading...Money mediation redux
Still riffing off of Geoff Sharp's Money Mediation #1 (where's two big guy?)
I keep telling friends that the following formula is descriptive, not prescriptive, and yet, I don't think I really know what I'm talking about.
The formula? In a pure distributive bargain, the case will settle half-way in between the first two reasonable offers.
The belief? I believe the key phrase here is "reasonable," which is not surprising since the entire practice of the law seems to be precariously balanced atop that single word.
The observation? For the past three and one-half years of mediation practice I have performed this math equation (I know it's only arithmetic) at the moment I believe the first two reasonable offers have been put on the table. Often I'll go back to earlier offers -- ones I considered unreasonable. I generally find that the arithmetic works there too. Add the offer and the counter. Divide by two.
I do sometimes say "you seem to be heading toward $X" when the parties are claiming impasse and I'm not buying it. They seem surprised that I somehow know what they're thinking.
(twilight zone music here)
The Question. What's the deal with this little formula, taught to me as holy writ by the Mediating the Litigated case people.
Is it some sort of golden mean or cognitive bias (aha! woke you up Michael Webster in Canada!)
If any of the following people were to give an answer to this question, I'd be deliriously happy, which just goes to show you just how much I'm procrastinating writing chapter three:
Geoff Sharp (the "coalface" perspective)
Anyone at Indisputably.
Richard Rueben (who in any event owes me a phone call) at U. of Mo. (my social psych guru)
money money money money money money money money money money money money money
Take a look at Geoff Sharp's post on the so-called pure money case and then please please please send me your stories on meaning-making about money in the course of mediated or non-mediated negotiations.
(see our previous posts on the subjective experience of money here and here)
What do I mean by "meaning making"?
Let me give you an example of the type of story I'm looking for.
I was mediating a personal injury case and we'd reached impasse. The Plaintiff was having trouble understanding how the amounts of money being discussed could possibly adequately compensate her for her injury -- a self-report of daily 3-hour headaches.
After much discussion I sat down with my calculator and "translated" the final offer of settlement into an hourly wage for two years worth of headaches "if suffering were your full-time job."
The resulting "hourly income" was pretty substantial when viewed as an hourly payment for pain. This way of presenting defendant's offer broke the impasse.
Why?
Before we translated the total settlement offer (minus costs and fees) into a compensation scheme familiar to the Plaintiff -- an hourly wage -- she had no metric against which to value that offer. The money wasn't real until she understood it in terms of earnings.
I've heard many other stories like this but my appetite for them is insatiable. Whenever a mediator or lawyer tells me a story like this, I am always inspired and heartened. Their telling also helps me become better at facilitating "pure money" negotiations. I'm hoping they will also be useful to my readers.
Thanks to the Wise Law blog for picking up on the beginning of what I hope will be an expanding conversation among mediators and litigators about "pure money" negotiations.
More Thoughts from a Labor Negotiator on the Hollywood Writers' Strike
(right: Julia Louis-Dreyfus on the picket line)
When we first wrote about the writers' strike and the active picketing just down the street here at Paramount on Santa Monica and CBS on Beverly Boulevard, we asked our friend Jim Stott for comment.
Because Jim's excellent comment was buried in small type in our "comments" section, I give it its due here by bringing it up into a post of its own.
(for "live" WGA Strike Blogging from the Los Angeles Times, click here)
After noting that his own comments are not "in any way intended to minimize, diminish or otherwise criticize the hard efforts of the writers, producers or federal mediator's efforts to reach agreement in this ongoing dispute," Jim opines as follows:
Often, both parties become "blinded by the sparks" associated with their lack of progress at the bargaining table. In those situations, a psychological phenomenon occurs wherein parties start start to blame the 'other side' through personal attacks; one against the other. As this practice grows, the underlying issues that really need to be discussed are subsumed by the superficial and surface diatribes.
Obviously - to the outsider - settlement can only be reached when the parties focus on the substantive and underlying issues as a mutual and common problem. Often, both sides fail to realize that a problem for one contingent group is ultimately a problem for all contingents. If force, i.e., a work stoppage or lock-out is used as a means for getting the 'other side' to soften their positions, the latent residual feeling caused by such an action is often long-lasting and will materially damage the ongoing relationship between all stakeholders involved.
In practice and theory, writers need work provided by the producers, just as producers need the work-product of the writers. In negotiations, it is this symbiotic internal relationship that is most important. Long after the work stoppage has been resolved, the latent and labile underlying emotional distrust and dissatisfaction will continue; often for years.
The federal mediator assigned to this particular case is exceptionally well qualified. He is a colleague and friend. I have no doubt that his professional services provided in this situation were of the highest quality.
Rarely however, even with the presence of a mediator, negotiations break down and reach impasse. Intractable parties are often the stock-in-trade for federal mediators. It not at all unusual to hear the warring factions self-diagnose their positions as being "miles apart." On rare occasions though, parties are so far apart that their tangential distances and differences, when measured in cost and dollars can be significant.
It would appear that producers and writers are faced with unanticipated outcomes associated with the expotential growth of the broadband internet capacity and online streaming video and audio. On the one hand, producers may see this as a marketing and distribution opportunity, by which they will increase audience participation and marketshare. While at the same time however, writers may see this exploding media as one in which their recognition, compensation and earning potential has been and will be diluted and otherwise diminished.
These complex negotiations are never easy and are often rocky. The challenge to all the stakeholders is to continue the conversation and continue to make progress, albeit ever-so-slowly. Even if their conversations are not face-to-face, but done through an intermediary; they are critically important.
As long as all dialogue has stopped, there virtually is no chance the impasse will self-resolve; thus the stand off will continue indefinitely. This is precisely what happened in the Caterpillar work stoppage which lasted over five years. All communication stopped. Distrust on both sides grew expotentially. Replacement workers were hired. All the while, the union pickets were outside the plant, locked out, while the plant production continued to grow.
While this is an extreme case in labor management relationships, it is my hope that productive conversations, clandestine and off the record or not, continue. This is the only way in which this dispute will resolve without inflicting extensive and long-lasting damage to all stakeholders.
Currently, Jim Stott is a Principal and Senior Consultant with Stott & Associates of Gig Harbor, Washington. Until recently, he was Assistant Director at the Straus Institute for Dispute Resolution, Pepperdine University School of Law.
Prior to joining Straus, Jim spent nearly six years as a Commissioner with the Federal Mediation and Conciliation Service (FMCS) in Los Angeles and Washington, D.C., where he provided collective bargaining mediation and negotiation consultation services to federal agencies, private and public sector employers, and labor unions.
Jim was also instrumental in the design and development of joint labor/management committee problem solving protocols used by Los Angeles Dodgers, Southwest Airlines, Toyota, Kaiser Permanente, Boeing and Walt Disney Studios.
In his professional and academic career, Jim mediated more then 1,500 disputes. The majority of these conflicts were associated with employment, labor/management or collective bargaining issues. Jim has also provided pro-active and pre-emptive conflict management design systems. In his teaching and coaching capacity, he has taught mediation protocols and processes to over 1,500 students in academic settings, court programs, international labor unions as well as management/employer groups including CUE.
Jim holds a Bachelor of Science Degree in Business and Management from University of Redlands, as well as a Masters Degree in Dispute Resolution from Pepperdine University School of Law.
THANKS FOR THE GOOD THOUGHTS JIM!!
WE MISS YOU DOWN HERE IN SOUTHERN CALIFORNIA!!
Despite Writers' Last Minute Concession for Federal Mediator, Well-Funded Strike Enters Day Two
(Jay Leno who says "no writers, no show" -- photo from Yahoo Entertainment)
This very local news on the Writers' Guild strike is just in from the U.K. -- Writers Block Hollywood as Strike Takes TV Shows Off the Air (excerpt below, and kudos for yet another unknown artist of the terse and witty headline).
On Sunday, a federal mediator made a last big push to avert the strike. The Writers Guild made one big eleventh-hour concession, dropping its insistence on a doubling of royalties from DVD sales but that was not matched by anything substantial enough from the producers to clinch a deal.
After three months of contract negotiations, which never entirely looked like producing an agreement, both sides are extraordinarily well prepared. The writers have commandeered 300 strike captains on both coasts who will direct pickets and other protests, and have amassed a strike fund of about $12.5m (£7m)which they will farm out in the form of loans to the neediest writers and their families.
In the meantime, you can see Jay Leno and Julia-Louise Dreyfus on the picket line (see TV Squad here on Leno handing out Krispy Kremes to strikers) down the street here in front of the famous Paramount Studio Gate if you click on the L.A. Legal Pad's coverage of the strike which links to a Channel 2 newscast featuring those well-known comedians.
We'd love to hear from any of our readers who have experience negotiating labor disputes.
On YouTube, Litigation Can Kill You: What Does Mediation Have to Do with It?
(right: Carmela Soprano Files for Divorce)
I spent a great deal of time yesterday editing a video (my abysmal webcam and video editing skills live at Geoff Sharp's Mediation vBlog this morning do not beging to do justice to the intelligence and insight of Milan Slama, a community and business mediator who is the subject of the interview).
In the process, I "grazed" around YouTube (see my YouTube page here) to see what kinds of mediation and litigation videos people have uploaded.
I'm sorry to report that most of them are in these varieties:
- the "mediate because you really don't have access to justice" variety here and here -- delay; expense; "out of control nightmare";
- the angry "mediation (or litigation) doesn't work" genre -- here and here.
- the crazed litigant gunman here and here (the "adversarial process -- or even a patent application -- can kill you" narrative)'
- the "only lawyer you can afford is drunk" variety and, finally, to lighten the mood,
- the "we're Italian; we don't believe in divorce" Tony Soprano-style here.
At Geoff Sharp's MediationvBlog however, you'll see some pretty high level discussions about both the benefits and the challenges of both mediation and litigation for attorneys, mediators, judges and, lest we forget, clients.
There are a few words on negotiation tactics and strategy there as well.
Check it out.
Conflict Avoidance: Social Obligations, Larry David and Shame
How deeply do you renosonate with the feelings described by New York Times writer Bob Morris in yesterday's "Age of Dissonance" column, How to Avoid, Well, You.
THE invitation was too good to refuse — an August weekend at the august home of a friend on a little New England island.
Yet, from the moment I pulled up to the ferry dock, there was dread in my soul. Two years ago, I had offended an entire family of friends likely to be there. Would one of them be on the boat, where avoidance is impossible?
Checking a reservations list, I was relieved to find myself in the clear. But later, getting an ice cream on the island’s small village green felt like being in highly exclusive enemy terrain, and I walked with head down and turned in fear from each passing station wagon.
In the church thrift store where space is tight (and the clothes irresistible) I hid behind racks with my heart pounding as each shopper entered.
Why, he asks, are we afraid of the meeting (or confrontation) with the guy whose call we didn't return or manuscript we didn't read? Whose invitation we didn't accept, whose feelings we offended, or who stole our client?
HELP FOR THE CONFLICT AVOIDANT
It was my friend and colleague Ken Cloke who taught me there were five means of dealing with conflict (suppression, avoidance, resolution, transformation and transcendence) and University of Missouri Law Professor and friend Richard Reuben who taught me that there is no such thing as "bad" conflict.
It was through my communnity mediation experience, however, that I finally learned it was better to address than to avoid conflict. I have also learned that people will, given the right conditions, spontaneously reconcile. Those conditions? Having hope that reconciliation can be achieved without fear of sustaining psychological or physical harm, opening and maintaining channels of communication, and the assistance of a third party who is willing to patiently and lovingly sit with those in conflict like a parent with children recovering from a fever or bad dreams.
Listen, I have seen an elderly mother reconciled to a child who sued her and then served her with an eviction notice after two years of estrangement. I have seen (in a documentary film on restorative justice) a woman whose brother raped her at knife point, collapse sobbing into his embrace at a prison where he'd already been incarcerated for this crime for years. I have seen a man who refused to speak to his gay neighbors for five years stand up at the end of a community mediation and say, "may I hug the two of you?"
These events are not the rare occasion or the exception to the rule. Nor are they the result of anyone's brilliant mediation or conflict resolution skills.
They are the norm, the product of the process rather than the result of the technique.
A mediator can probably prevent these spontaneous acts of reconciliation, but s/he does not create them. At best, s/he presides over them, serves as their sponsor or appreciative audience, and counts herself privileged to have participated in them from the sidelines.
WHY WE AVOID CONFLICT
Mr. Morris asks us what it is that drives us to cower behind clothing racks to avoid seeing someone whose telephone call we "forgot" to return. What indeed, when when we live among people who have reconciled with brothers who raped them or assailants who killed members of their family?
The answer to the question is shame, the most powerful constellation of emotions we are capable of experiencing. The lengths to which we will go to avoid these feelings was hilariously depicted just last night on Curb Your Enthusiasm, an episode you're just going to have to see.
Your punishment for not getting your shame-education from pop television references is to read an excerpt from an academic article (written by someone very close to me) on the origins of shame and its role in restorative justice.
The word shame is derived from the Indo-European skem which means "to hide." Shame makes us want to hide - from ourselves, our God and our peers - making shame an existentially isolating state of mind. Feeling shame makes a person "dejection-based, passive, or helpless," causing the "ashamed person [to focus] more on devaluing or condemning his entire self" than upon his behavior. He sees himself "as fundamentally flawed, feels self-conscious about the visibility of his actions, fears scorn, and thus avoids or hides from others."
The shamed individual wants "to undo aspects of the self" whereas the guilt-ridden one wishes to undo aspects of his behavior. It is therefore not surprising that guilt tends to motivate restitution, confession, and apology, whereas shame tends to result in avoidance or anger.The psycho-biology of the constellation of emotions we call "shame" is innate. It produces a sudden loss of muscle tone in the neck and upper body; increases skin temperature on the face, frequently resulting in a blush and causes a brief period of incoordination and apparent disorganization. No matter what behavior is in progress when shame affect is triggered, it will be made momentarily impossible. Shame interrupts, halts, takes over, inconveniences, trips up, makes incompetent anything that had previously been interesting or enjoyable.
A state of cognitive shame follows this initial cluster of feelings. After the painful jolt of shame, we begin to search our "life scripts" for some way to integrate the shameful experience with our prior experiences, to make sense of the pain and disorientation caused by the sudden upset of a positive emotional state.
There you have it. Though it may seem more outrageous than comic for wildly successful adults to feign compliance with a social obligation by showing up a day late for a party pretending to have gotten the date wrong (the Larry David episode) it is no more or less absurd than the ordinary daily ways we all have of avoiding someone who might make us feel ashamed.
Tomorrow we will discuss ways to positively engage yourself with those who you may have inadvertenly offended.
Walking the Talk: Tit for Tat in a Collaborative and Reciprocal World
Many thanks to Christine Mast over at DRI's informative, timely and well-written newsletter The Business Suit for mentioning the Settle It Now Negotiation Blog.
Christine is a partner with the Atlanta office of Hawkins & Parnell, LLP, a litigation boutique with offices in Dallas and Charleston, West Virginia. Absent the IP sub-specialty (see the IP ADR Blog) her practice pretty much mirrors my own before I abandoned ship and landed here on ADR Island.
Chistine's commercial litigation specialties include insurance coverage and professional liability, fields in which I labored for many years
MAJOR ASIDE ON INSURANCE COVERAGE
If you're litigating a commercial case, are not a coverage specialist and have decided -- from reading the policy language -- that there's no coverage -- run to someone like Christine, or if it's a really really really big liability, my husband, Steve Goldberg over at Heller -- who litigated the World Trade Center coverage litigation on behalf of Silverstein's lender -- for counsel and advice. It's not difficult -- it just requires specialized knowledge, knowledge many commercial litigators lack. See the sad tale of Guess v. Jordache here.
END OF ASIDE
Christine says she's new to the blawgosphere so I wanted to thank her for the mention of our blog by showing her how the whole machinery of the thing works == like a giant internet barter circle of the kind described by author-lawyer Patricia Williams in her groundbreaking work, An Alchemy of Race and Rights. See also the Benefits of Barter here.
People say "tit for tat" when they want to focus on the aggressive side of that game -- you hurt me; I hurt you. When talking about it's beneficial effects, they use the words collaboration and reciprocity. You link to me, I link to you.
But remember, there's a code of excellence here in the blawgosphere and I won't link to www.AccidentLawyers.com just because they mention me (not yet).
I mention Christine's article and the entire Newsletter because it's a great resource and my readers trust me to steer them to good stuff.
Because I'm an aggregator. See The Long Tail.
Queen Latifa from Chicago on the seemier Tit for Tat side.
So, what do you say, Christine? Get your law firm to take the blogging plunge by talking to my good friend Kevin O'Keefe over at LexBlog. Online networking and practice development is geometric, as is LinkedIn, both of which I highly recommend, whether you're building your own business or just expanding your "book."
And, hey! Thanks for the mention!
Online Cyber-Bullying: Protection How To's in Next Post
(
right: Heathers: only the clothes and hair-do's are dated)
My former law partner, the ridiculously talented and prolific Eric Sinrod of Duane Morris has written an important article about teenage cyber-bullying here.
As Eric reports,
The Pew Internet & American Life Project Report was somewhat of a relief to read. However, another recent Pew report examines a different threat faced by teens: cyberbullying.
About one-third of teenagers on the Internet report that they have been targets of "menacing" online activities, such as receiving threatening messages, having their private e-mails or instant and text messages forwarded without consent, having an embarrassing photo posted without permission, or having rumors spread about them online. On top of this, girls are more likely than boys to be targets.
In terms of raw numbers, 15 percent of teenagers state that they have had private e-mail, instant messages or text messages forwarded or posted without permission; 13 percent claim that they have had rumors spread about them online; 13 percent have received a threatening or aggressive e-mail, instant message or text message; 6 percent have had embarrassing photos of them posted online without consent; and 32 percent fall within in at least one of the four foregoing categories.
Ch-ch-ch-changes
Plus ca change, plus c'est la meme chose. Teenage boys bully with their fists. Teenage girls bully with their emotional wits. No one, no one, is more skilled than a teenage girl with the stilleto to the softest part of her girl-target. I know this from research and from silly movies (my favorite of which is Heathers with Winona Ryder and Christian Slater -- put it on your Netflix list ).
The technology may have changed, but not the malice. When I was in highschool, my older sister became the target of a group of particularly malicious girls who called her on the telephone to sling at her every possible insult they could. I remember, I fielded the call for her.
What are sisters for?
Heather Chandler: "You were nothing before you met me. You were playing Barbies with Betty Finn. You were a Bluebird. You were a Brownie. You were a Girl Scout Cookie."
Another Reason to Negotiate Settlement: Jurors Blog Their Own Misconduct
(below: Dustin Hoffman puzzling over his jury in Grisham's Runaway Jury - directed by Gary Fleder Memorable movie quote: You think your average juror is King Solomon? No, he's a roofer with a mortgage. He wants to go home and sit in his Barcalounger and let the cable TV wash over him. And this man doesn't give a single, solitary droplet of shit about truth, justice or your American way)
Concurring Opinions covers juror blogs today by, among other things, quoting a foreman's juror blog as follows. 
Today was the last day of jury duty. I served as foreman of the jury. By the end of the case I thoroughly disliked the defending attorney. He had abused, postured and bullied his way through the entire trial, and had treated the witnesses for the prosecution, who were solid citizens doing their jobs, with disrespect and contempt. I was concerned that his histrionics were going to affect some of the less sophisticated among the jury to the degree that it would be hard to reach a decision on matters that were more or less clear. Just prior to the closing statements I decided to see what effect I might be able to have on the outcome given the limited set of tools available to me...
[I] . . . paid special attention to the participation of an elderly woman of color who felt out of place among so many white men, and a quiet Hispanic man who had also been swayed by the theater of the defense. Within an hour we had a conviction on both counts, and on all of the sub clauses of the counts. At the end of it we all felt that we had done the right thing, which I think we did.
I have either rarely, or perhaps never attempted such a conscious manipulation of my presentation of self as an adult. The fact that nobody knew me was an asset.
Of course, if you've attended as many jury focus groups as you've tried cases to a jury, you already know this. Know what? Just how unpredictable and uncontrollable that 12-headed creature the jury can be.
I don't mean to bury the lede (I'll make this the subject of a full post later) but I was talking to an old friend and jury consultant, Chris St. Hilaire of Jury Impact today (both of whom I highly recommend) about the dwindling jury trial and the use of professionally prepared mediation presentations and mediation focus groups.
Much much more about this later.
win win win win win win win
For a real win-win, see the Professional Women's Network of Southern California Blog, subscribe to the feed, and join us in September for our first working meeting.
All is revealed at http://www.womenlawnet.blogspot.com
the revolution will not be televised; it will appear on YouTube
Yesterday I wrote a pretty lengthy piece on theIP ADR Blog about the joke-theft controversy raging in Los Angeles (Funny, that was my joke) as covered by L.A. Times staff writer Robert W. Welkos.
(MAJOR ASIDE: You may be getting your news on the 'net, but remember that quality journalism continues to flow from the keyboards of dynamite reporters like Welkos, who, with co-writer Joel Sappell, gave us the brilliant six-part Scientology series in 1990, to the considerable risk of both men. Without newspapers, the blogosphere would pretty much fold itself up around yesterday's virtual fish and die there).
Having now buried the lede, I give you the burning ADR-Internet question of the day that concluded the IP ADR Blog's post, Disputing Humor: Comedy, Folkways and the Internet. .
A Conflict Resolution Process for the Future
Can we bring collaborative, value-creating dispute resolution norms and processes to this new culture? In other words, given the opportunity to create an entirely new way of resolving conflict in an entirely new culture, could we devise a system that is more self-determined, faster, cheaper, easier and softer on the people but just as hard on the problem as the old system was?
Could we abandon the adversarial paradigm because it's too expensive and cumbersome for the size and type of disputes that arise on the internet?
Could we build into that system the principles of accountability, forgiveness and reconciliation that are lacking in the present system -- a system that too often leaves people feeling so unresolved, so angry or bitter or frustrated?
I have no idea.
It feels good, though, to have finally formulated something of a question out of the chaos.
Please come on by and scrawl grafitti on our wall.
Everything Old is New Again: Attorneys Negotiate Pre-Filing Settlements
(Everything Old is New Again from All That Jazz; my favorite line from this movie: [stand-up comedian): This chick, man [referring to Kubler-Ross] without the sole benefit of dying herself, has broken down the process of dying into five stages: anger, denial, bargaining, depression and acceptance. Sounds like a Jewish law firm. 'Good morning, Angerdenialbargainingdepressionacceptance!'. )
Meet Early, Settle Often is music to our ears here at the Settle It Now Negotiation Law Blog.
The "new idea" is called "structured negotiation" (a lot like a multi-part construction dispute mediation) and the big news is that lawyers are doing it for themselves.
Now I don't really like to talk about how we used to walk to work in three feet of snow (no compuers, no word processing, no faxes, restricted access to copy machines, no Lexis/Westlaw) but we really did negotiate our own settlements on a weekly basis without filing suit first.
No mediators. Look Ma! no hands.
As Ken Cloke says, "mediation is a profession in pursuit of its own suicide," i.e., we really do want you to have and use these skills to negotiate your own settlements. Really, we do.
So I'm pleased to give you a link this morning to a Law.com article, California Attorneys Meet Early, Settle Often. Excerpt below:
Linda Dardarian and Elaine "Lainey" Feingold are in the midst of a long winning streak in disability access cases -- and so are their opponents.
In eight years, the San Francisco Bay Area plaintiffs lawyers have settled more than two dozen disputes without filing suit or even bringing in a mediator. . .When Dardarian and Feingold send demand letters to organizations they claim are violating disability access laws, they offer to avoid litigation by sitting down with a small group of defense lawyers and technical experts and working out an agreement, a format known as structured negotiation. The letters generally mention the legal basis for a claim of attorney fees, as well, Dardarian said.
From square one, the plaintiffs lawyers' success depends on carefully balancing cooperation with the looming threat of litigation. . .
"A lot depends on the trust you have with people and the way in which they approach you," she said.
Stewart said she knew Dardarian and Feingold were "credible, capable" lawyers from previous dealings with the two. More importantly, though, their demand letter laid out their claims and their desire to find a resolution.
"How can you say, 'No, we won't talk to you?' It's stupid, in most circumstances," said Stewart, who turned over the dispute to Julia Friedlander, the MTA's general counsel, and Deputy City Attorney Christiane Hayashi.
Interventions for Intractable Conflict: Peacemaking in a Tit for Tat World
Last week, along with my extern, Pepperdine Law School and Straus ADR student Cameron Mitchell, and my friend, the actor, musician, and singer-songwriter Lisa Douglass, I presented an Improv Seminar on Peacemaking in a Tit for Tat World using Baz Luhrman's hypnotic Romeo + Juliet as a jumping off point.
The Seminar was sponsored by the L.A. County Bar Association's Dispute Resolution Services and the SCMA's Salon Series. Thanks to Kathryn Turk of the West Hollywood Community Mediation Center and Jan Schau, President of the SCMA for the opportunity and facilities to host the Salon.
This is one the scenes we used to demonstrate how dangerous peacemaking can be in the absence of conflict resolution skills, particularly in response to an intractable conflict where communication is non-existent or diminished, the conflict itself is ritualized and celebrated, and extreme positions encouraged, as we see here, resulting in Mercutio's death.
We used an excerpt of Ken Cloke's article Mediators Without Borders: A Proposal to Resolve Political Conflicts as a teaching tool and many in attendance asked for the text. I've therefore summarized the important points we covered at the seminar and linked to the article above.
Five Strategies for Intervention in an Intractable Conflict
- actively encourage the open expression of the rage and grief stirred up by the conflict in a context that is constructive and oriented to resolution and reconciliation, such as that used by the South African Truth and Reconciliation Commission.
- dismantle the prejudices and stereotypes of the “enemy” through a combination of bias awareness, storytelling, dialogue, collaborative negotiation, and strategic planning techniques.
- develop skills within local neighborhoods and communities in group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.
- encourage forgiveness and reconciliation by creating openhearted communications and direct dialogues between former antagonists.
- institutionaliz[e] these skills so that future conflicts can be resolved without coercion or violence.
More on all of this later next week.
The Thinking Blogger Awards
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:
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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;
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the Electronic Intifada (which may not actually be a blog but which I read as if it were one),
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Lawrence Solum's Legal Theory Blog, for the truly geeky wanna-be academics in the crowd like me;
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George Wallace's cultural blog A Fool in the Forest (the blog equivalent of Finnegan's Wake); and,
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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).
What Would a 2007 Perry Mason Do? Put Up a Web Site
Vonage Takes Its Patent Fight to Internet Street with
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.
Free Lunches and the Short Con
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."
Continue Reading...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.
It's Not All Kum-by-Ya: William Ury on Saying "No"
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.
Kodachrome: Ex A in Keeping Up with the Times & Paul Simon Redux; You Can Play These Simultaneously
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.
Smoke: Tom Waits, Paul Auster, Harvey Keitel and Christmas on Easter Day
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.
The First and Last Time I'll Post My Own Poetry Here
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.
Lawyer Poets and Billy Collins
(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.
Billy Collins' Forgetfulness
An occasional sublime moment in the midst of our working days.
Win Win Win: Conflict Resolution on The Office
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."
Sadly, the video is no longer available on YouTube.
Live by Suit; Die by Suit: DMCA Notices Violate the DMCA?
(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)
Living "Abled" in Disability-Land
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.
Listening to the Voices of the Disabled: Employment Mediation
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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.
Viacom, Google/YouTube and the Law of Unintended Consequences
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.
Power and the Illusion of Power: Paddy Chayefsky's Network
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.
Google, YouTube, Viacom and the Future
(left: mountain sues lake for copyright infringement)
I can't be the first one to ask these questions, but here goes:
- 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.
- haven't these guys read The Long Tail? (see extended entry for a wikipedia primer on long tail or "niche" marketing).
- 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?
- 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:
Continue Reading...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."
Is Your Negotiating Partner Behaving Irrationally? Love in a Tit for Tat World
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:
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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:
Continue Reading...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.
Advice for Young Lawyers -- On the Job Deposition Training
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 charged with taking 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!
Continue Reading...The Art of Cross-Examination Hollywood Style
. . . 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.
Continue Reading...P.S. from Denise Howell's Bag & Baggage
Web 2.0 and The Machine in a nutshell by ZDNet's Dan Farber -- Worth watching: Michael Wesch, an assistant professor of cultural anthropology at Kansas State University, has posted a captivating and incisive 4-minute and 31-second video explaining the basic premise of Web 2.0, concluding that Web 2.0 is primarily about linking people. But it is the journey of this video that is the reward.
Blog etiquette requires that I link to this video rather than simply lift it & post it here but I can't figure out a way to link to any given article on Denise's blog -- only to the blog itself. So I'm lifting it here with apologies to Denise at Bag and Baggage.
Appointed Forever: New Bar & Grill Singers Video
For all of you federal practitioners out there and for my step-son, Adam, who's clerking for the Ninth Circuit in Hawaii this year (good gig!)
The Bar and Grill Singers do this for charity so please do go to their web site (here) and buy their CD's to benefit legal services in Central Texas.
Hi Adam!!
(for the I'm Billing Time Video click Here)
New Improved "I'm Billing Time"
The brilliant Bar and Grill Singers wrote the lyrics and sang the Billing Time song to Cyndi Lauper's Time after Time.
Only lawyers tend to find this funny. But they generally think it's hilarious.
If you're one of those whose day brightens because of I'm Billing Time, go to the Bar and Grill Singers website (link above) and buy this, and other CD's.
All profits will go to the Volunteer Legal Services of Central Texas.
MEDIATORS WITHOUT BORDERS HOLIDAY GREETING
Holiday Wishes and New Year Appreciations for the People Who Are Bringing Us MEDIATORS WITHOUT BORDERS in 2007! Click on the Link to Join or Donate Today Mediators Without Borders.
This holiday card is posted as a tribute to the newly formed Mediators Without Borders.
Neither this Blog nor the linked MWOB web pages are projects of Mediators Without Borders.
Mediators Wtihout Borders needs your contributions to put up its own blog and website as well as for all other administrative expenses.
For details and links to the Steering Committee's individual web sites, see the Southern California Mediation Association MWOB Blog Post Here.
HAPPY HOLIDAYS AND A PEACEFUL NEW YEAR!!
Mediators Without Borders Redux
The basic point of view.
