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Victoria Pynchon

As the co-founder of She Negotiates Consulting and Training, I offer my services as a keynote speaker, trainer and consultant....

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She Negotiates

She Negotiates

The 33 cent wage and income gap is unacceptable and unnecessary. So is the cliché glass ceiling. Bottom line, our...

What Makes a Great Legal Blog? For Niki Black It's Passion

From the Detroit Legal News, Nicole Black on Blawging: It's All About the Passion.

Regardless of your goals, there's no point in blogging unless you enjoy the process of writing and have a passion for your subject matter. Otherwise, the blog will fall flat. While it may achieve desired goals of increasing search engine optimization, it will ultimately be uninteresting and will have few regular readers.

The best blogs come from the heart. The lawyer's voice and passion for the subject matter are obvious. The blogger offers his or her opinions without hesitation and isn't afraid to express a minority viewpoint.

A few blogs spring to mind as prime examples of this type of blogging. Some are well known, others less so. But all are great examples of blogs that continually draw readers in and bring them back for more.

Whose blogs are great?  Read on here!

(Thanks for including the Negotiation Law Blog Niki!)

The Goddess of Discovery Arrives in the Blogosphere

A criminal defense lawyer I know used to ask me "just exactly what is it that you 'litigators' do everyday anyway?'"

What we do, my friend, is discovery.  


Saying that discovery is part of litigation practice is like talking about the wet part of the ocean.

How do you know when you're finally finished with legal practice?  When do the heavens open up and angels descend with the news that you've finally done enough and may now go and do that which you truly love? 

It's usually a discovery moment.

For one of my former law partners, it came on the heels of a five page meet and confer letter.  Single spaced.  When my friend's secretary came into her office with the written response, the expression on her face ranged between shock and amusement. 

"You're not really going to send this, are you?"

"Yes, I am.  Let me sign it."

"No no no no no no no.  I can't let you do this."

"Yes you can.  Let me sign it."



Here's the response that struck fear into the heart of an overworked legal secretary: 


And yes.  She sent it.

For those of you who have not yet reached the promised land of Discovery Whatever, I've got very very very good news for you.

The Discovery Referee Speaks!  And she is a Goddess.  Goddess Kathy Gallo to be exact.

Yesterday's post reminds us what we ought to know intuitively during our first deposition - the Court Reporter is the Goddess of the Deposition (my own stories of first encounters with the Sphinx of the Transcript are here)

Continue Reading

Mothers Day Issue of Blawg Review #263 is Up and Running at the She Negotiates Blog

We’re celebrating Mothers Day by posting Blawg Review #263 at the She Negotiates Blog for one obvious and some not so obvious reasons.  The obvious reason is the word “She.”  The not-so-obvious reasons are:  (1) Mother’s Day was a peace and reconciliation movement before it was a holiday; and, (2) peace exists only when we have the political will to seek and the negotiation tools achieve the resolution of conflict.

In addition to the main post, we've also posted Blawg Review #263 on our She Networks, She Succeeds, She Transforms and She Resolves pages (up at the top of the blog).

She Negotiates Blawg Review #263

She’s She Negotiates, the newest blawg on the block, taking the baton from The Public Intellectual’s brilliant Blawg Review #262, and getting ready  to host Blawg Review #263 for Mother’s Day 2010

She negotiates Blawg Review.

In addition to celebrating mothers, we’ll be celebrating all women who negotiate (do you know any who don’t?) posting Blawg Review #263 on all of She Negotiates' pages –  She Networks, She Resolves, She Succeeds and She Transforms, as well as on the She Negotiates posting page.

So if you’re a legal blogger and you have Blawg Review envy, now’s your big chance.  Join She Negotiates to Power Her Dreams (it’s free!) and leave your link at the group “Blawg Review #263.”

The first woman legal blogger who joins She Negotiates to Power Her Dreams and leaves a May 3-week post beginning with the words, she negotiates, she succeeds, she networks, she resolves or she transforms will win a free ticket to the Negotiation for Women Workshop at the Pasadena Women’s City Club on June 10 (7-10 p.m.) with attorney-mediator, arbitrator and negotiation trainer Victoria Pynchon and east-coast business negotiation guru John Tinghitella.

The second woman legal blogger will win a free autographed copy of the book (due out in the very late Spring) A is for A**hole, the Grownups’ ABC’s of Conflict Resolution.

The third woman legal blogger will win a reduced priced month-long online personally tutored She Negotiates! Workshop at Craving Balance ($175 for a course costing $375).  As with the last workshop Victoria Pynchon taught with life-balance coach and trainer Lisa Gates, they guarantee that any woman fully participating in the course will make back its cost within thirty days of taking it or her money back!

So get ready to celebrate the woman who negotiate, network, resolve, succeed, and transform with a nod to mom for Blawg Review #263!

What women are saying about the Craving Balance Negotiation Course:

"I learned more during this hands-on negotiating course than in another higher priced class.  Victoria and Lisa helped me make the emotional changes necessary to demand a higher value for my work, and taught a step by step process for getting the most from sales negotiations." 

Linda Gryczan, Helena, Montana



Two New Blogs to Help You "Win" Your Settlement Negotiation

Yes, Virginia, lawyers do "win" mediated settlement negotiations every work day.  They do so by:

  1. their reputation for success at trial;
  2. their ability to choose the right moment to first discuss settlement;
  3. their ability to "control" their team and their client ("control" being a legal term for good client relations arising from top notch client communication skills);
  4. their negotiation skill set - both in terms of long-term strategy and "at the table" tactics;
  5. their persuasive skill set - both with opposing counsel and with the mediator;
  6. their ability to conduct a risk-benefit analysis that approximates the true likelihood of their probable success at trial;
  7. their determination to make aggressive but reasonable first offers;
  8. their possession of and willingness to stick to a set of flexible "bottom lines" that give them sufficient room to "horse trade" and "hang the meat low enough for the dog to smell it;
  9. their ability to bring the right people to the table at the right time; and,
  10. their ability to walk away without dramatics if the other side is unwilling to negotiate in the realm of reality.

Some of these skills are in all litigators' arsenals.  Where most litigators are the weakest is in the negotiation of settlements.  I know it not only because it was my greatest area of weakness ("I'm paid to win not to settle") but because I see it evidenced in mediation when attorneys bargain half the day away in the useless strato- and nano-spheres.

Here are two new resources you should have at hand every working day.  "Having blog resources at hand," by the way, means having a google or other news reader to send you RSS feeds. 

Decision Tree Analysis - the Decision Tree Analysis Blog by PaperChace.  There's a ten-day free trial of PaperChace's decision tree analysis software for mediators, a free trial I'll take advantage of once the $^%@# book is finished (any day now, really).  Laywers love numbers in the way only people who don't understand them can.  I've had cases settle promptly as soon as everyone has put themselves to the task of making numeric estimates of their chances of success on the merits at any given stage of the litigation.  For making the uncertain certain and depressing overly optimistic client expectations there's nothing quite like numbers.  Do check it out.

There's another mediation blog to read as well, but not simply "yet another" blog by yet another mediator.  This is Lee Jay Berman, one of the best and busiest mediators in town, the teacher of thousands in Pepperdine's internationally known and respected "Mediating the Litigated Case" and President of his own mediation think-tank and training station - the American Institute of Mediation.

The blog, Eye on Conflict, will deliver to you free of charge the wisdom, education and training you'd otherwise pay thousands of dollars for.  Listen, I spent two full years at the Straus Institute earning my LL.M in dispute resolution and every time I talk to Lee Jay he tells me something that improves my ability to help lawyers negotiate settlement 100%.  Today Lee Jay mourns the passing of a giant in our field - Richard Millen.  As you read Lee Jay's tribute, you come to understand just how deeply embedded he and his vision are in mediation theory and practice in Southern California.

Put these two dynamite resources in your news reader and be as good a settlement negotiator as you are a litigator and trial attorney.



Blawg Review #234

Sociologist Elise Boulding has said that we live in a “200 year present,” a “social space which reaches into the past and into the future” -- a space in which “we can move around directly in our own lives and indirectly by touching the lives of the young and old around us.” Miall, Ramsbotham and Woodhouse, Contemporary Conflict Resolution.

What does the 200-year present have to do with conflict resolution week?  It reminds us that new forms never really completely replace the old ones.  We continue to employ every technique we've ever used to suppress, avoid, deny, resolve, transform, or transcend conflict, including force (violent and non-violent such as injunctions subject of a Trial Warrior Blog post this week); thievery (the Trade Secrets Blog); shaming (which Scott Greenfield does to bloggers "looking for fights and dumb as dirt" and which Volokh suggests we do to health insurers); bullying (solutions to which appear at the Citizen Media Law Project); torture (still with us at the Crim Prof Blog); cheating (Make Yourself Better with Their Secrets at Concretely Ambiguous) ingratiation (at the Law School Expert); persuasive argumentation; appeal to third party authority; bargaining; communication; and, problem solving (The Tao of Advice at the Business of Creativity). 

Whichever dispute resolution mechanism you use, it should be much improved if you take up  juggling (as reported this week at Idealawg).

Transformative conflict resolution of the type covered by New York City police officer, Jeff Thompson at Enjoy Mediation, requires accountability (by lawyers, for instance, to the principle of justice at Law21); recognition (at JD Bliss); apology, amends, reconciliation (at Opinio Juris); power with (negotiation and cooperation at the Ohio Family Law Blog) instead of power over (at the Election Law Blog); and, interests rather than rights (at the Gay Couples Law Blog).

No brand of law-giver or enforcer has ever entirely left the scene.  Cops, negotiators, mediators (on the international scene at the Business Conflict Blog); conciliators, arbitrators, trial attorneys (marking tattoos as exhibits over at LawComix), corporate lawyers, legislators  (fomenting a Franken Amendment at the ADR Prof Blawg); judges (whether elected or appointed at Legally Unbound), and, juries (who might be biased at SCOTUS Blog). 

And of course the gadflies (wolf protection lawsuits anyone? at  Point of Law). 

Win, lose, settle, enjoin (at Charon QC) or simply give up (6 Ways We Gave Up Our Privacy at CSO Security and Risk).  We regulate crime and prescribe punishment (Polanski at Sentencing Law and Policy and The End of an Era at Defending People). 

We wage war (at Prawfs Blog) and seek peace (at the Delaware Employment Law Blog) as conflict inevitably erupts over Obama's (embarrassing) peace prize (at Balkinization).

And, lest we forget our primary purpose, we bend our efforts toward justice (which, according to BLT is not necessarily available to card-carrying members of the ACLU).

My own personal 200-year present spans the life of my maternal grandparents who were nine years old in 1909, and that of my step-children’s children, who (assuming they procreate on a reasonable schedule) should be ninety-five'ish in 2109

My grandfather, born in 1900, witnessed the birth of electricity, saw the first automobile roll off an assembly line [2] and stood awestruck in a cornfield as one of mankind’s first airplanes took flight. [3]  Although we've progressed from bi-planes to jets and rockets (some of which may someday be green) we still fly balloons of the type first launched in 1783 -- both Goodyear Blimps and the backyard variety, covered this week by Legal Blog Watch as Law and More

asked here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law.

Grandpa's first war was, well, the First and his second was the Second,[4]  as if there'd never been any wars before the Great One. By the time I was born, mid-century, we'd fought the war to end all wars twice and knew we'd never survive a third

My imagined grandchildren, [6] born sometime between today and 2014, will not be strangers to any of my grandfather’s technologies. Despite the advent of compact fluorescent light bulbs, the early lives of my step-children's children will likely pass under the glow of the same incandescent lights that brightened granddad’s one-room school house. They will be transported to school in cars with internal combustion engines, learn the same alphabet from the same cardboard and paper books (as well as from the "e" variety) [7] and play many of the same games [8]  he did – hop scotch, jump rope and ring-around the rosy. 

Change will etch itself into the lives of my grandchildren as surely as it did my own, my parents' and my grandparents'.  Hybrids will give way to fully electric (and perhaps hemp-powered) [9] vehicles (effective or defective) and though electricity will continue to be  generated by hydroelectric dams, wind farms and nuclear power plants, some new and unimaginable source of power will surely push back the nights of my grand children's children. [10]

Law, politics, society and culture also exist in the 200-year present of conflict resolution.  [11] In my personal 200-year span, the law seems to have changed the most profoundly. Was it the law first and culture later?  Or do they weave our future together?

The first U.S. woman lawyer, Myra Bradwell, was admitted to practice a mere ten years before my grandmother was born. Mrs. Bradwell’s legal career was the subject of one of the sorriest U.S. Supreme Court decisions ever handed down, in which the Court opined,

The civil law as well as nature itself, has always recognized a wide difference in the respective spheres and destinies of man and woman. Man is, or should be, woman’s protector and defender.  The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say the identity, of interests and views which belong, or should belong, to the family institution is repugnant to the idea for a woman adopting a distinct and independent career from that of her husband … for these reasons I think that the laws of Illinois now complained of are not obnoxious to the charge of any abridging any of the privileges and immunities of cities of the United States.


Another nineteen years would pass after Bradwell began her practice before she (and my nineteen year old grandmother) were guaranteed the right to vote. [13] And another 30 years would pass after my women's movement -- the Second Wave -- before we'd have our own  business magazine -   ForbesWoman (my part in it here).  And let us not forget that despite the 20th Century's great civil rights achievements, when America catches a cold, black America gets pneumonia.  See e.g. Problems All Around for Blacks in Big Law at Being a Black Lawyer.

My grandparents', parents' and step-children's 20th Century was dominated by genocide [14] on a scale and a technological precision unimaginable to our earlier forebears.  Mid-century brought with it the threat of nuclear annihilation but also liberated millions of people enslaved by colonialism.  We cured polio in my own lifetime with both "dead" and "live" vaccines (neither of them counterfeit) - a singular moment in scientific history during which no one took ownership of the cure and no one tried to stop others from seeking another, a problem Patently O addressed this week in Reverse Payments.

Whether god or satan, heaven or hell, war or peace "won" the twentieth century, the world's greatest peace-making body was created during it -- the United Nations.  And here in the U.S., the “living room war,” Viet Nam, coupled with the largest generation of adolescents ever to grace American society, ended the forcible induction of young men into the military[15]

With the recent discovery of our earliest ancestor, Ardi, our biological and social lives exist in a 4.4 million year now. Our physical bodies “evolve” in the womb along the same lines as did our species and, once born, we carry with us our earliest organs. [16] Most critical of these to conflict escalation and avoidance is our “fight-flight” mechanism – the amygdala.[17] And the most pertinent biological agents to promote the collaborative resolution of conflict are our “mirror neurons” which

 provide a powerful biological foundation for the evolution of culture . . . absorb[ing] it directly, with each generation teaching the next by social sharing, imitation and observation.


As “exquisitely social creatures,” our “survival depends on understanding the actions, intentions and emotions of others.” Id. That our misunderstandings and cognitive biases -- mentioned by Volokh on Paternalism and Michael Carbone on reactive devaluation at Mediation Strategies this week -- threaten our survival as a species is undeniable (cf. Lawyers Must Survive or Face Extinction at the Lawyerist)

How we’ve manage to survive despite our tendency to misread one another’s actions, intentions and emotions, is often the subject of those who advise us how to choose and move juries -- here -- Anne Reed at Deliberations (explaining why "they" don't see things like "we" do here); and, the Jury Room (explaining why pain hurts more intensely when we believe it's been intentionally inflicted here). 

The Most Effective Conflict Resolution Technology is the Oldest

One of our true original gangsters, Al Capone, is reported to have said that “you can get much further with a kind word and a gun than you can with a kind word alone” and one of our greatest Presidents, Theodore Roosevelt said “speak softly and carry a big stick.”

Capone and Roosevelt didn't know it, but they were talking about the most effective (and most ancient) form of conflict resolution – tit for tat. In 1980, political Scientist Robert Axelrod asked game theory experts to submit computer programs designed to prevail in a game that provided the highest reward to cooperating pairs -- the famous Prisoner's Dilemma. (See also Max Kennerly's excellent post on Game Theory and Medical Malpractice Settlements at the Philadelphia Litigation and Trial Blog).

The winner of Axelrod's competition was a program named tit for tat.  Tit for tat was programmed to cooperate [19]  with its first encounter with any other programmed player.  It  rewarded cooperation with cooperation (just as networking will reward the savvy lawyer over at Chuck Newton's Ride the Third Wave) and punished non-cooperation with retaliation. Because Tit for Tat retaliated in the face of non-cooperation (just as a former employee did according to Hell Hath No Fury at Chicago Law Blogger) it was never repeatedly victimized. And because Tit for Tat “forgave” non-cooperators upon their return to cooperative game playing (as some believe Mr. Polanski should be forgiven over at the Marquette U. Law School Faculty Blog) it never got locked into mutually costly chains of mutual betrayal. [20]

As Robert Wright, author of The Moral Animal explained, had Tit for Tat been tossed into the game with 50 steadfast non-cooperators, there would have been a 49-way tie for first place. But none of the players' programs failed to cooperate in at least some circumstances, leaving Tit for Tat the clear victor.  According to Wright, humans, like the programs in Axelrod's competition, are evolutionarily “designed” to cooperate under at least some circumstances. The engine and benefit of cooperation is present in our neurochemistry.  When scientists observed the brain activity of volunteers playing the Prisoner’s Dilemma game, for instance, they found that the participants' “reward circuits” were activated and their impulsive "me first" circuits inhibited when they cooperated. Cooperation, retaliation, forgiveness and a return to cooperation. Tit for Tat. 

Laws and Lawyers

First and most importantly, I suppose, are the social media signs that you're "tweeting" like a lawyer over at the Social Media Law Student Blog.  Why first or important?  Know thyself.  Everything else follows that.

We don't "dis" lawyers here at the Negotiation Blog.  We simply remind ourselves that our primary purpose is the promotion of justice, with a stable societal order closely behind.  Most people don't understand, for instance, that Shakespeare's famous the first thing we do, let's kill all the lawyers was not an insult.  In King Henry IV, Act IV, Scene II, Shakespeare's sentiment was not his own, but that of a revolutionary who wished to destroy the social order.

The historic "present" of laws and lawyers is in the thousands, not simply the hundreds, of years. Hammurabi (make of his choice for the memorialization of his laws what you will) was the sixth king of Babylon, remembered for creating -- in his own name (and likeness?) - the first written and systematic legal code. 

These laws provided for a mix of physical punishment - 60 lashes with an ox hide whip - ‘measure for measure’ awards (still with us in the form of lethal injection as covered by The StandDown Texas Project) – eye for eye, bone fracture for bone fracture – and monetary compensation – 20 shekels for tooth injuries – (preserved by workplace injury awards such as those discussed at the Workers Compensation Blog) depended not only upon the type of injury, but the social classes involved in the loss, i.e., ‘measure for measure’ sanctions were specified for losses among the upper classes while monetary awards were required for losses caused to and by commoners (reminding us that disrespect still too often turns on social status or "outsider" classification as discussed at Balkinization this week).  [23] 

For the wrongful killing of another, for instance, the victim’s kin were paid according to the social status of the deceased party. Thus the ‘man price’ for killing a peasant was 200 shillings and that for a nobleman 1200 shillings. Payments were not, however, tailored to the loss, but fixed according to types of affront, a distinction we continue to make when we punish intentional torts more severely than negligent ones.  [24]>

Criminal law and civil, it all comes down to a process that is "due" (a topic covered in a blistering post about tea-partiers and other "protectors" of the Constitution at the Criminal Jurisdiction Law Blog) and a set of guidelines against which we can exercise some small degree of control over our own commercial and personal futures (like those subject of Delays Not "Party Time, Excellent" for Subcontractor at the Construction Contract Review).

Lawyers, litigators and trial lawyers are too often demonized by the ADR community as if you could get someone to sit down to negotiate without first pointing the gun of litigation at their heads; I salute you (and myself, for that matter!) for bringing us all to the bargaining table.  See Steve Mehta's recent post at Mediation Matters, Factors When Peace Makes Sense for a note that touches upon the symbiotic relationship between litigation and mediation, litigators and mediators.

I shouldn't cite single legal blogs twice, but I cannot resist this quote of Scott Greenfield's on another pundit's view of the future lawyers have in store for them, i.e., 

shucking oysters for a living if we don't accept a future of lawyers being piece workers in factories, sending our work off to Bangalore in pdf files and complementing people on their choice of forms at Legal Zoom.

Legal Rebels:  the Sky is Falling at Simple JusticeCharon QC also weighs in on the ABA Legal Rebels project here.


Which came first? Public civil trials or private arbitrations? You’ll be surprised, I’ll wager, to hear that arbitration was one of the earliest forms of dispute resolution, practiced by the juris consults of the Roman Empire. Roman arbitration predates the adversarial system of common law by more than a thousand years. [25]

Ah, the glory of Rome! The juris consulti were (like too many mediators) amateurs who dabbled in dispute resolution, raising the question whether they (and we) should be certified or regulated as Diane Levin asks at The Mediation Channel this week.  The Roman hobbyists gave legal opinions (responsa) to all comers (a practice known as publice respondere). They also served the needs of Roman judges and governors would routinely consult with advisory panels of jurisconsults before rendering decisions. Thus, the Romans – god bless them! - were the first to have a class of people who spent their days thinking about legal problems (an activity some readers will recall Ralph Nader calling "mental gymnastics in an iron cage").

18th Century Dispute Resolution Technology:  The (Inevitably Polarizing) Adversarial System

It was Buckminster Fuller who famously opined that the "significant problems we face cannot be solved at the same level of thinking we were at when we created them."  If you keep this aphorism in mind for the remainder of this post, you'll likely have some extraordinarily innovative comments to make in the comment section below.

As the Law Guru wiki reminds us, we can trace the adversarial system to the "medieval mode of trial by combat, in which some litigants were allowed a champion to represent them."  We owe our present day adversarialism, however, to the common law's use of the jury - the power of argumentation replacing the power of the sword.

The Act abolishing the infamous Star Chamber in 1641 also granted every "freeman" the right to trial by "lawful judgment of his peers" or by the "law of the land" before the Crown could "take[] or imprison[]" him or "disseis[e] [him] of his freehold or liberties, or free customs."  Nor could he any longer be "outlawed or exciled or otherwise destroyed."  Nor could the King "pass upon him or condemn him." 

English colonies like our own adopted the jury trial system and we, of course, enshrined that system in the Fifth, Sixth, and Seventh Amendments.  Whether this 17th century dispute resolution technology can be fine-tuned to keep abreast of 21st century dispute creation technology (particularly in the quickly moving area of intellectual property) remains one of the pressing questions of legal and ADR policy and practice, particularly in a week in which a Superior Court verbally punished the lawyers before it for filing The Most Oppressive Motion Ever Presented (see the Laconic Law Blog).  The motion? 

Defendants['] . . . motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Id. (and ouch!)  On a less Dickensian note (think Bleak House) take a look at the IP Maximizer's post on IP litigation not being smart source of revenue for inventors

Mediator, author and activist, Ken Cloke, suggests that interest-based resolutions to conflict must replace power and rights based resolutions if we expect to create a future in which justice prevails.  As Ken wrote in Conflict Revolution:

Approaching evil and injustice from an interest-based perspective means listening to the deeper truths that gave rise to them, extending compassion even to those who were responsible for evils or injustices, and seeking not merely to replace one evil or injustice with another, but to reduce their attractiveness by designing outcomes, processes, and relationships that encourage adversaries to work collaboratively to satisfy their interests.

Evil and injustice can therefore be considered byproducts of reliance on power or rights, and failures or refusals to learn and evolve.

All political systems generate chronic conflicts that reveal their internal weaknesses, external pressures, and demands for evolutionary change. Power- and rights-based systems are adversarial and unstable, and therefore avoid, deny, resist, and defend themselves against change. As a result, they suppress conflicts or treat them as purely interpersonal, leaving insiders less informed and able to adapt, and outsiders feeling they were treated unjustly and contemplating evil in response.

As pressures to change increase, these systems must either adapt, or turn reactionary and take a punitive, retaliatory attitude toward those seeking to promote change, delaying their own evolution. Only interest-based systems are fully able to seek out their weaknesses, proactively evolve, transform conflicts into sources of learning, and celebrate those who brought them to their attention.

These are the words I leave with the readers of Blawg Review #234 because they are the ones that informed my personal and professional transformation from a legal career based on rights and remedies to one based upon interests and consensus. 

Whatever my own personal 200-year present was, is and will be, it is pointed in the direction of peace with justice, with an enormous and probably unwarranted optimism best expressed by the man after whom my law school was namedMartin Luther King, Jr.  - the arc of history is long, but it bends toward justice.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues. Next week's host, Counsel to Counsel, will devote its round-up of the week's best legal posts to the Great Recession.

[1]             See the WSJ Law Blog’s post on the evolving law on gay marriage this week – Procreat[ion] Not Required.

[2]             Alas, there will always be lemons over at the Texas Lemon Law Blog (save those repair invoices!)

[3]             See Ruth Bader Ginsberg Hospitalized at the Volokh Conspiracy, reporting on Ginsberg’s fall from the seat of an airplane before take-off.

[4]             See the Law History Blog on Brewer’s Why America Fights.

[6]             Grandchildren who will not, I hope, have to deal with my Alzheimers, the perils of which are described at the Slutsky Elder Law and Estate Planning Blog.

[7]             Though, of course, e-books will be read side-by-side with hard copy as paper and cardboard eventually goes the way of Colonial era hornbooks. See Downloadable e-Books Change the Face of Brick and Mortar Libraries at the Law Librarian Blog.

[8]              Those games will, of course, exist side by side the video variety, many of which are recommended as Tools for Special Needs Students and Educators at the Adjunct Law Prof Blog this week.

[9]               See Hemp and Audacity at the U.S. Ag and Food Law Policy Blog.

[12]             Alas there’s still a gender gap as described this week at Ms. JD.

[13]             Voting rights are still a matter of concern today, of course. See Judge Says Virginia Violated Rights of Overseas Voters at the Blog of Legal Times.

[14]             See Rachel Anderson’s Law Blog on the scope of immunity for foreign officials that Anderson believes may have important implications for Plaintiffs seeking recompense for genocide.

[15]             One generation wants out and the other wants in. See Don’t Ask, Don’t Tell, Don’t Teach at Sexual Orientation and the Law Blog.

[16]             Earlier scientific theory posited that each human embryo (see Embryo Mix-Up at the Proud Parenting Blog) passes through a progression of abbreviated stages that resemble the main evolutionary stages of its ancestors, i.e., that the fertilized egg starts as a single cell (just like our first living evolutionary ancestor); as the egg repeatedly divides it develops into an embryo with a segmented arrangement (the “worm” stage); these segments develop into vertebrae, muscles and something that sort of looks like gills (the “fish” stage); limb buds develop with paddle-like hands and feet, and there appears to be a “tail” (the “amphibian” stage); and, by the eighth week of development, most organs are nearly complete, the limbs develop fingers and toes, and the “tail” disappears (the human stage). It turns out that this one-to-one correlation was too simplistic, but it remains safe to say that our biological development still passes through several stages that “recapitulate” the evolution of our species.

[17]          The amygdala is a region of the brain that permits the formation and storage of memories associated with emotional events. It permits us to “read” the emotional responses of our fellows and is thought to facilitated our ability to form relationships and live and work in groups. It is also the source of our “fight or flight” response to danger.

[18] In Cells that Read Minds, New York Times Science writer Sandra Blakeslee explained:

Studies show that some mirror neurons fire when a person reaches for a glass or watches someone else reach for a glass; others fire when the person puts the glass down and still others fire when the person reaches for a toothbrush and so on. They respond when someone kicks a ball, sees a ball being kicked, hears a ball being kicked and says or hears the word "kick."

 “When you see me perform an action - such as picking up a baseball - you automatically simulate the action in your own brain,” said Dr. Marco Iacoboni, a neuroscientist at the University of California, Los Angeles, who studies mirror neurons. ”Circuits in your brain, which we do not yet entirely understand, inhibit you from moving while you simulate,” he said. ”But you understand my action because you have in your brain a template for that action based on your own movements. “

[20]             Check out the post on the Betrayal of Corporate Clients at the Investment Fraud Lawyer Blog.

[21]             Wrongful death compensation over at the Product Liability Law Blog.

[22]             Looking toward the future, the Neuroethics and the Law Blog predicts that in the “experiential future, we will have better technologies to measure physical pain, pain relief, and emotional distress. These technologies should not only change tort law and related compensation schemes but should also change our assessments of criminal blameworthiness and punishment severity” here.

[23]             This week Beck and Herrmann at the Drug and Device Law Blog note that “shame works wonders” in their post on the Free Speech Challenges to the FDA.

[24]             Intentionally left blank.

[25]             ADR professionals are often heard critics of the adversarial system, as can be seen over at the Australian Dispute Resolvers Blog where author Chris Whitelaw (really??) quotes the Journal of Law and Medicine as follows:

The adversarial system of medical negligence fails to satisfy the main aims of tort law, those being equitable compensation of plaintiffs, correction of mistakes and deterrence of negligence. Instead doctors experience litigation as a punishment and, in order to avoid exposure to the system, have resorted not to corrective or educational measures but to defensive medicine, a practice which the evidence indicates both decreases patient autonomy and increases iatrogenic injury.

 (Iatrogenic, by the way, is a fancy term for “we have know idea whatsoever what the source of this ailment is). Chris is looking for comments so run on over there if you’ve been thinking about medical malpractice litigation during the marathon American health care debates.


Negotiating the 21st Century: Blawg Review #207 at Jordan Furlong's Law 21

It's law week in Canada and the brilliantly prolific Jordan Furlong at Law21 celebrates justice with Blawg Review #207:  All the News that Fits, helpfully including the following outline for his comprehensive review of the best posts in last week's Blawgosphere.  If you haven't yet given yourself the pleasure of Jordan's prose, this week is the week to do so.

(image:  a rejected "finalist" for the flag of Canada:  a "[c]ompromise idea created by Alan Beddoe, who wanted to appease the Royalists and the French population.")

Section A - News

  1. The Recession
  2. Prosecutors on the Ropes
  3. Same-sex Marriage

Section B - World

  1. International Justice
  2. Spotlight: Canada

Section C - Business

  1. Law Practice Innovation
  2. Google
  3. Copyright

Section D - Life
Section E - Sports
Section F - Technology
Section G - Education
Section H - Community
Section I - Religion
Section J - Comics
Section K - Editorial

As Jordan reminds us

Exactly four years ago this week, Blawg Review made its debut. Two hundred and seven installations later — stop and think about that for a second, of all the work by Ed, Colin,Victoria and others — it’s still going strong. If you’re a law blogger who hasn’t yet stepped up and hosted this brilliant and critically important example of citizen legal journalism, you owe it  — to yourself, to your blawgging colleagues, and most importantly, to the public at large that needs to hear what we know — to sign up now.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues

Above the Law Slays a Few Sacred Cows for Blawg Review #204

It rarely gets any better than this.  Here's Elie Mystal's intro to tempt you into the the whole catastrophe.

Here at Above the Law, we thrive on taking a vat of hydrochloric acid to the veneer of the legal profession and exposing the original craftsmanship underneath. Nothing is sacred.

When given the opportunity to serve for Blawg Review -- the "blog carnival for everyone interested in law" -- I was excited to take Above the Law's brand of rousing rabble out on the road. How many "Sacred Cows" are out there? How many can I hunt and grill? And as Denise Howell might ask me on her "Yo Comments Are Whack" podcast: "how many cow jokes can you take in one week before you end up on a liposuction table?" Eric Turkewitz already tussled with Oprah this week, so the easiest mark has already been bagged.

Of course, ATL is also a news organization. So while I had high hopes of continuing my friendly banter with Loyola Law School Dean Victor Gold, the news of the week inexorably pushes me in one direction. Luckily, it turns out that the thing everybody was blogging about this week is the biggest sacred cow of all, and it is ripe for poaching.

Put down those canned objections to interrogatories and read on here.

Negotiating the Recession with Social Networking

If you want to negotiate from a position of power, you need to know Robert Cialdini's Rules of Influence:
  • Reciprocation - People tend to return a favor. Thus, the pervasiveness of free samples in marketing. In his conferences, he often uses the example of Ethiopia providing thousands of dollars in humanitarian aid to Mexico just after the 1985 earthquake, despite Ethiopia suffering from a crippling famine and civil war at the time. Ethiopia had been reciprocating for the diplomatic support Mexico provided when Italy invaded Ethiopia in 1937.
  • Commitment and Consistency - If people commit, orally or in writing, to an idea or goal, they are more likely to honor that commitment. Even if the original incentive or motivation is removed after they have already agreed, they will continue to honor the agreement. For example, in car sales, suddenly raising the price at the last moment works because the buyer has already decided to buy. See cognitive dissonance.
  • Social Proof - People will do things that they see other people are doing. For example, in one experiment, one or more confederates would look up into the sky; bystanders would then look up into the sky to see what they were seeing. At one point this experiment aborted, as so many people were looking up that they stopped traffic. See conformity, and the Asch conformity experiments.
  • Authority - People will tend to obey authority figures, even if they are asked to perform objectionable acts. Cialdini cites incidents, such as the Milgram experiments in the early 1960s and the My Lai massacre.
  • Liking - People are easily persuaded by other people that they like. Cialdini cites the marketing of Tupperware in what might now be called viral marketing. People were more likely to buy if they liked the person selling it to them. Some of the many biases favoring more attractive people are discussed. See physical attractiveness stereotype.
  • Scarcity - Perceived scarcity will generate demand. For example, saying offers are available for a "limited time only" encourages sales
The internet is a great place to establish yourself as authoritative; a wonderful venue to do people favors; a great place to create a community in which you become well liked; and a fabulous forum to create social proof of your value.
We call the use of the internet for these purposes "social networking."
An actual but "virtual" friend of mine, Jackie Hutter of the IP Maximizer Blog, has used social networking to the greatest legal marketing advantage as anyone else I know. 
Here's Jackie's recent power point on the in's and out's of creating your online market through an online presence. Check it out.

Blawgs Without Borders at Blawg Review #202

The scope and depth of Blawg Review #202 across the pond at Head of Legal sets the aspirational Blawg Review bar high and just where it ought to be too!  No sense summarizing excellence but I will leave you with the resources Carl Gardner left at the close of his comprehensive global post.

Just before I leave: if you've enjoyed looking at the global blawgosphere, Charon's international resources may help you as much as they helped me. He's produced a Netvibes page covering the main UK blawgs and Pageflakes full of feeds from US blawgs, Canadian blawgs and blawgs from Australia, New Zealand, Scotland and Ireland.

I hope you liked Blawg Review #202; and I think you should expect something quite different next week from the notorious Geeklawyer. He tells me he's having technical difficulties at the moment - but fear not! All will be well in time for Blawg Review #203.

Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Brit Bloggers at Blawg Review #'s 202 and 203: Nobody Does It Better

Litigation, Negotiation, Mediation, Oh My! The CharonQC Podcast

It's the British, of course, who we have to thank for the common law, the adversarial system of justice and that most lyrical denunciation of lawyers' passionate pursuit of legal procedure, Bleak House.  Charon QC is a serial podcaster, writer and producer of the satiric online soap opera West London Man, founder of the largest private law school in Great Britain, and all around QC about town.

My postcast interview with the great QC is here and his own is below.

Podcast 94: US lawyer Victoria Pynchon on ADR, mediation and settlement in the USA

Today I am talking to Victoria Pynchon, a US lawyer based in Los Angeles, California. She was a commercial litigator and trial attorney for 24 years before shifting her practice from representing clients in court to helping lawyers settle lawsuits hat involve greater risk, expense or time than their clients wish to expend. She this work through Judicate West Dispute Resolution Services, serves as a private judge (arbitrator) for the American Arbitration Association, is an adjunct professor at Pepperdine University and blogs at IP ADR and Settle it now. Interestingly Vickie also acts as a sherpa for Blawg Review the international rolling carnival of law bloggers and is on Twitter.

So who is Charon QC?  Let him tell you himself in this Podcast Interview at Family Lore, the blog of British family law attorney John Bolch.  To get an even better idea of Charon QC and the many reasons to read his blog, I give you his own introduction to himself at Charon QC the Blawg.

“Charon QC” is a lawyer, after a fashion, but is not a practitioner. He has taught law for many years - and, to his surprise, still enjoys law; although he enjoys other academic interests as well. Law is fascinating more in the human interest than the letter, but compared to literature, science or philosophy, it does not engage the mind in quite the same way. He awarded himself the title QC when the Lord Chancellor suspended the award for real lawyers. Now, as no-one can instruct him in any matter, or would wish to, he is free to comment as he wishes on matters which catch his attention. He is, of course, a figment of a febrile imagination . He drinks Rioja - in fact he will drink any red wine, smokes Silk cut, reads all the newspapers (3 Tabloids 4 broadsheets…most days) , has a passion for motorbikes and sips espressos three time a day - ordering two each time. He sleeps for 4 hours a night - but that is his problem. He gets up and starts work (sometimes, it has to be said… writing a blog post) between 3.30 - 4.00 every morning…

He is also a habitue of The Bollo and The Swan in Chiswick/Acton - and some other well known bars in London. When he finds a meal he enjoys - he eats it every day until he can no longer face eating it again. At breakfast, he always has one egg, two slices of toast, two slices of bacon, some baked beans, two espressos, a glass of tap water and an undisclosed number of Silk Cut cigarettes - and always starts eating the egg first… on a bit of buttered toast; turning the plate around so the egg is conveniently on the right hand side of the plate. He did not know he did this until it was pointed out to him by several friends. Breakfast takes approximately 35 minutes and is often taken while reading his tabloid of choice and The Indie… and then it is but a short motorbike ride back to his Staterooms where the day can begin. Breakfast is at 7.00 and more often than not Charon sits at a table outside - even in very cold weather - so he can keep an eye on the world as it goes by. He can also smoke outside without offending other early risers.

Likelihood of Confusion's Chanukah Blawg Review Mashup

LIKELIHOOD OF CONFUSION® hosts Blawg Review # 191 celebrating the Festival of Lights and wishing all of us   חג חנכה שמח or    Happy Chanukah

We here in the Goldberg-Pynchon household celebrate both Chanukah and Christmas, as you can see from the really really bad iPhone photo of last night's menorah blazing before the tree in the background. 

The Menorah represents Torah She'baal Peh or the "Oral Law" which is a companion of the Written Torah; the part that man can derive, embellish, and - in a sense - 'create' by using his own diligence and intelligence in accord with the God-given hermeneutical principles.  In other words, the Torah She'baal Peh is the original mash-up and hence a fitting symbol for Ron Coleman's brilliant (pun intended) Blawg Review #191.

Eight days, we learn from Ron's post, is the Hebrew equivalent of This is Spinal Tap's 11 on the dial

Nigel Tufnel: t's not ten. You see, most blokes, you know, will be playing at ten. You're on ten here, all the way up, all the way up, all the way up, you're on ten on your guitar. Where can you go from there? Where?
Marty DiBergi: I don't know.
Nigel Tufnel: Nowhere. Exactly. What we do is, if we need that extra push over the cliff, you know what we do?
Marty DiBergi: Put it up to eleven.

But I digress.

Listen, I have nothing to add.  Which is why I'm fooling around here.  You just have to go to Ron's Blawg Review to get the full magnificence of the effort.  I've done one of these Blawg reviews myself and collapsed from exhaustion.  Ron put the whole thing off until the Sunday it was due (if he's not lying to me) which means . . . . well . . . .  he's AWESOME.  And, god bless him, if you ever feel geeky, you know there's a least one legal blogger geekier than thou.

(8's being so . . . well, holy or something . . . we do note that if you let the "1" in the hundreds place stand for the "servant" candle and subtract the remaining "1" from the 9 in the 10's column, you get Blawg Review #8 which was hosted by Crime and Federalism back in 2005.  But that's not all.  This is my 1,007th post -- really -- EIGHT!!  All of which simply re-proves this:  you can make something of nothing and nothing of something, particularly if you ever attended law school).

And for our Jewish readers' viewing and listening pleasure, Adam Sandler singing his infamous Chanukah song.


 Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

Blawg Review Thanks Giving # 188 at Alice's Restaurant with New York Personal Injury Law Blog

You have to be of a certain age, an age I myself am barely tall enough to be (right, 23 in 1975) or of a certain nostalgic hippie-era state of mind (right again) which Eric Turkewitz must himself be since he cannot have lived nearly as many years as I have, to celebrate Blawg Review #188 with an authentic Alice's Restaurant Thanksgiving dinner.

That's what Turkewitz did, imagining all of us sitting in the back of a patrol car, driving to the quote Scene of the Crime unquote; telling us about the biggest crime of the last fifty years, so big that everybody wanted to get in the newspaper story about it.

Talking about how

Alice came by

and with a few nasty words to the cop on the side, bailed the Thanksgiving guests out of jail, went back to the church, had a another thanksgiving dinner that couldn't be beat, and didn't get up until the next morning, when we all had to go to court.

It was a typical case of American blind justice, Turkewitz suggests, and there wasn't nothing we could do about it, and the judge wasn't going to look at the twenty seven eight-by-ten color glossy pictures with the circles and arrows and a paragraph on the back of each one explaining what each one was to be used as evidence.

We were all fined $50 and had to pick up the garbage in the snow, but that's not what Turkewitz came to tell you about.  Didn't come to talk about the draft either since he can't be old enough to remember  the building they had down New York City called Whitehall Street, where you walk in, you get injected, inspected, detected, infected, neglected and selected.

But he's always wanted to be the all American kid from New York who tells the army shrink I want to kill. I mean, I wanna, I wanna kill. Kill. I wanna, I wanna see, I wanna see blood and gore and guts and veins in my teeth. Eat dead burnt bodies. I mean kill, Kill, KILL, KILL" so that a sargent would come over, pin a medal on him, send him down the hall, say "You're our boy."

Wanted to see himself getting sat down on the Group W bench where they put you if you may not be moral enough to join the army after committing your special crime, with all kinds of mean nasty ugly looking people on the bench there. Mother rapers. Father stabbers. Father rapers! Father rapers sitting right there on the bench! Mean and nasty and ugly and horrible crime-type guys sitting on the bench.

Turkewitz talked about everything being fine, imagining everyone could smoke cigarettes and all kinds of things, until the Sargeant came over and asked  "KID, HAVE YOU REHABILITATED YOURSELF?") so T could say  "I'm sittin' here on the bench, I mean I'm sittin here on the Group W bench 'cause you want to know if I'm moral enough join the army, burn women, kids, houses and villages after bein' a litterbug."

And friends, somewhere in Washington enshrined in some little folder, is a study in black and white of T's fingerprints. And the only reason he's singing his Blawg Review song now is cause you may know somebody in a similar situation, or you may be in a similar situation, and if you're in a situation like that there's only one thing you can do and that's walk into the shrink wherever you are ,just walk in say "Shrink, You can get anything you want, at Alice's restaurant.". And walk out.

You know, if one person, just one person does it they may think he's really sick and they won't take him. And if two people, two people do it, in harmony, they may think they're both faggots and they won't take either of them. And three people do it, three, can you imagine, three people walking in singin a bar of Alice's Restaurant and walking out. They may think it's an organization. And can you, can you imagine fifty people a day,I said fifty people a day walking in singin a bar of Alice's Restaurant and walking out. And friends they may thinks it's a movement. And that's what it is , the Alice's Restaurant Anti-Massacre Movement, and all you got to do to join is sing it the next time it come's around on the guitar.

With thanks to Eric Turkewitz, apologies to Arlo Guthrie and fond remembrances of the idealism of my youth.

Next week, Colin Samuels' fourth Blawg Review at Infamy or Praise.

Blog Bites Bar ; Goes to Court

See the Complaint here.

h/t to @taxgirl

As the ABA Journal explains:

A law firm contends new Louisiana lawyer advertising rules slated to take effect in April will restrict its right to comment on Twitter, Facebook, online bulletin boards and blogs.

The Wolfe Law Group filed a federal suit today challenging the rules, claiming they would subject each of the firm’s online posts to an evaluation and a $175 fee, according to a press release. The construction law firm says in the suit that its own blog may qualify for an exemption for law firm websites, but its comments on other blogs would not.

The firm claims the rules would restrict its First Amendment right to speak freely about its trade. To make its point, the law firm has launched a blog called Blogging is Speaking.

Sometimes your business or professional negotiation has to take place in Court.  This is an example.

Survive with the Fittest Lawyers on Evolution Day with Blawg Review # 187

Leave it to a legal marketing blog -- Lawyer Casting - to choose Evolution Day for its first entry into the BlawgReviewOSphere.  As blogger Joshua Fruchter explains in Blawg Review #187, because the anniversary of Charles Darwin's publication of The Origin of Species on November 24, 1859 is inextricably intertwined with the idea that only the fittest survive, Evolution Day should be celebrated with advice for survival.  And so it is.

For those of us who toil the legal fields, Fruchter suggests a range of survival options including

There's advice for law firms here as well, so crawl on out of the loser gene pool and make your way over to Blawg Review # 187.  The survival of the legal species might just well depend upon it!

Note that Eric Turkewitz at the New York Personal Injury Law Blog  will host Blawg Review #188.  Anyone interested in participating in future blog carnivals should take a look at Blawg Review, which has information about next week's host and instructions on how to get your blawg posts reviewed in upcoming issues.

Finally, in true celebration of Evolution Day, take a look at some of the most enduring misconceptions about Darwin's paradigm breaking theory here, including the fact -- noted by Fruchter -- that Darwin did not originate the phrase "survival of the fittest."


*/ Pepper Hamilton is podcasting??????  A short but vivid season of my legal career was served as a Pepper associate back in the late '80s (Alum Network here) when this grand old Philadelphia law firm turned 100 at which time it was still using quill pens - at least in the Philly office.  In the Los Angeles office, we associates routinely gathered in the library (yes! with books) and were required to share the one Lexis/Nexis research station which we were forbidden to use except in the most dire circumstances and with pre-approval.



Bring Your No. 2 Pencil to Blawg Review #182

I'm poll watching in Nevada. Why this is so exhausting I'm not certain.  The poll workers are uniformly great.  Patient.  Persistent.  Painstaking. 

The people who are voting remind me of jurors in the way they approach their civic duty.  Today, for instance, there was a major discussion in line about those people (a lot) who are voting only for President -- skipping past the proposed bond-raising, law changing and judge choosing issues.

"It would be wrong," one of the group finally concluded, "to vote on these issues because we don't understand them."  Everyone in the huddle quickly concurred and the line fell silent again.  They are voting for the next President of the country and they are feeling like their vote matters.  And since I'm in a "battle ground" state, Nevada, their vote matters more than mine does because California is in the bag for the Dems. 

But I was going to tell you how fabulous Blawg Review #182 over at Preaching to the Perverted is.  You'll have to forgive me for digressing and for now saying simply go right over to Preaching now because it's without question the bet blawg review of the year. 


Blawg Review # 181 Celebrates International Conflict Resolution Day

It's effective, it's efficient and it's client-centered.  Just what we need to weather the financial storm.

 What?  The mediated resolution of litigated cases. 

Nobody blogs it better than Diane Levin at the Mediation Channel, who hosts Blawg Review # 181 in celebration of International Conflict Resolution Day.   BR's anonymous Ed. recently had these kind and grateful  words for Diane:

We'd like to take this opportunity to thank Diane for her many contributions to Blawg Review, having now hosted four outstanding presentations -- #43, #94, #130 and #181. Behind the scenes, in her role as a Blawg Review Sherpa, Diane has made contributions to many other issues of Blawg Review, too. So, speaking for myself and all the other Blawg Review hosts she's helped along the way, we'd like to say thanks a bunch and give you this extra little bit of link love to show our heartfelt appreciation.

Tomorrow I'll start my day by reading, and giving my own readers a head's up on what looks to be one of the best Blawg Reviews of the year by the best ADR blogger ever.

Anyone working up the nerve to host, click here. Lesser mortals can submit their week's best post by taking a look at the submission guidelines here. Next week Blawg Review  will appear at ..


Preaching to the Perverted.

(totally unrelated photo; just getting my iPhone photos from Paris in the mix)

But what a Blawg Review Diane has given us.  Thank goodness it's Columbus Day or I'd be short-changing my actual work-work by reading #181 half the day and its links the other half of the day.  And don't expect Diane to limit herself to mediation.  Most of us are also lawyers, after all, so she also covers the best legal posts of the week on the topic of the law, legal practice, life as lawyers -- the "whole catastrophe" as Zorba said. 

Geoff Sharp is spot on in urging you to read Blawg Review #181.  It could be malpractice not to do so!!

Brilliant Diane!  Thanks.



Blawg Review #178 Celebrates One Web Day

If you believe that law blogging is not only informative and entertaining, but capable of transforming our lives, our society, our culture and our legal system as well, run don't walk over to Peter Black's Freedom to Differ which not only rocks, it twitters, on One Web Day.  Surely this will be the BlawgReview of the year!

. . . .one recurring theme on this blog has always been a recognition of the value in a strong and free internet.  Therefore it is an honour to be able to host Blawg Review on Monday September 22, 2008, which is One Web Day 2008.  One Web Day was founded three years ago by Professor Susan Crawford from the University of Michigan, and she describes it as an "Earth Day for the internet".  The One Web Day website describes the day in the following terms:

The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet.  So, think of OneWebDay as an environmental movement for the Internet ecosystem. It’s a platform for people to educate and activate others about issues that are important for the Internet’s future.

If you'd like to host BlawgReview or submit to it, click here.  All future BlawgReview hosts please note -- THE BAR HAS BEEN RAISED!

John DeGroote's Settlement Perspective is the Great New Kid on the Block

John DeGroote of Settlement Perspectives soon to appear at Mediate.com Featured Blogs.  The missing link between mediators and litigators. 

The client!!

Now we just need a blogging claims adjuster and we can bring peace to the Middle East.

Below are John's impressive credentials.  We meant to meet for a "quick" cup of coffee.  We talked negotiation strategy and tactics for nearly three hours.

As I review websites I often wonder about the experiences of the authors and the biases they bring, so I feel I should disclose mine for those who want to know more. I have been fortunate to work with two “hands on” in-house legal teams, with settlement negotiations handled primarily by employed lawyers rather than their law firms. I am also lucky to have practiced in law firms with true trial lawyers who generated genuine negotiating leverage whether settlement was their objective or not. Through these experiences I have settled cases threatened, pending or mediated in about 20 states - from Montana to Florida and from New Hampshire to California - and have managed the resolution of disputes around the world. Working with and against some very good lawyers and employing some of the truly legendary mediators, I feel fortunate to have seen a real cross-section of styles and approaches. In almost all of these cases I have had the opportunity to work behind closed doors with the people who really decide when cases settle - CEOs, CFOs, General Counsel, COOs, individual plaintiffs, insurers, board members, auditors, and more.

Legal Literacy Hosts Blawg Review # 176

Legal Literacy hosts Blawg Review # 176 and just in time for the Presidential election!  We're reminded that today is International Literary Day; that millions of people throughout the world do not have the opportunity to learn the 3Rs; that the U.N. is ushering in the UN Literacy Decade; and, most importantly to local national concerns,  that "literacy is what gives us the freedom and the key to survive" both individually and as a thriving democracy.

I've been talking about the election to a lot of people because I'm involved in the campaign.  I cannot tell you how many well-educated people are relying upon their "gut feelings" to choose the next President  because they aren't "really interested" in or "don't have the time to explore" the actual issues.   

So I do what I'm trained to do as a mediator.  Ask a lot of non-threatening well-meant questions to help people think about the decision that so many of us and our forebears fought so hard to win the right to make.   Of couse I'd like them to vote for my candidate.  But if they decide, after thinking through the issues, that they want the other guy, I won't argue.  I might, however, ask a few more questions.


5 Blogs and 5 Blawgers

It's been a long while since any of us have received a “five things” meme! Jordan Furlong of Law 21 tagged Susan Carter Liebel of Build a Solo Practice who tagged me, as did Diane Levin at the Mediation Channel (tagged by anonymous Ed. at Blawg Review).

As Susan explains:

The idea is to post links to five great blogs (other than law blogs) on your blawg and tag five of your favorite blawgers to do the same under the post title ‘5 Blogs & 5 Blawgers.'

I'm tagging the following 20-something law bloggers to pick up the meme before I fulfill my own meme-blagations: 

 Brett McKay at The Frugal Law Student, Erin Morgan at Life of a Law Student, any of several bloggers in their 20's at Fight the Hypo; The Anonymous Deaf Law Student; and Bekki at Nuts and Boalts.

I'm in New York City

where labor unions still celebrate Labor Day (above)

My meme delay is largely to to the fact that my computer crashed (below).  The screen wouldn't even go on.  Sigh. 

(note my new diet)

So I wrote this post on napkins at the Cafe Europa at 6th and 46th, just two blocks from the office building where I typed in a typing pool '75-'76 and then worked as a paralegal (Shepardizing the old way) '76-'77.  

The City is a crystalline container of my youth.

It makes me think of my first husband, the social worker and his friends the community organizers and my days in the "New" Left , which retreated into our universities and was granted tenure during the Reagan Revolution ("drug store truck drivin' man")

where it irrirtated or enraged subsequent generations of "fiscally conservative, socially liberal" University students.  American Universities - the mausoleum of the "New" Left.

(the German voice over stops when Baez begins to sing).

I don't want to send you to blogs.  I want to send you to the very few magazines of general circulation that not only recall phrases like "activism," "community organizing," "grass roots" and the grimly prescient "military industrial complex."  (President, War Hero and General Dwight D. Eisenhower) but still actually use them (don't worry, I'm not sending you to Mother Jones or In These Times). 

I'm going to tag five 20-someting bloggers in an attempt to break through my own habits of mind and ask them to send me to five new places that represent progress or change or simply another way of looking at the same old issues at depth.

(above:  my Central Park flag lapel pin so you won't think I don't love America)

Here are the Five (non)Blogs If You Want to Skip the Overly Long NYC Windup

Harpers, particularly Lewis Lapham's rants against business-as-usual and things-as-they-are.  There's in-depth investigative reporting on the Bush Administration's war on the rule of law or the privatization of the public schools.  It's always a little depressing because it generally reminds you how little you know no matter how you try to stay tuned in and how little power the electorate has.  Readings, from the surreal to the truly terrifying, sometimes both at once (sorry, but these require a subscription, well worth the investment).

The New Yorker.  I know.  Thisis predictable but you have to read the foreign policy articles to know what's really going on.  And this is from the point of view of the "establishment."  Like this one about Abu Ghraib that went beyond the photos and the headlines.  This 2003 article on the occupation of Iraq is one of those pieces of journalism that made me realize just how little I knew and how much more I needed to.  The only way to deal with the relentlessness of a weekly New Yorker subscription.  Throw the magazine out when the next one comes whether you've read it or not.

The LA Weekly.  I'm sure you have a journal like this in your town. The local entertainment scene.  Personal ads.  And admirably decent political reporting performed by what we used to call the "alternative press."  (maybe they still do).

The London Review of Books.  If you're looking for a little anti-Americanism, this journal is for you.  I tired of it after 9/11, but it was and is a tonic to navel gazing Americans who can't imagine what the rest of the world is thinking about us.  The other problem with this journal is that you have to have been smart enough to have actually understood the entire Joyce oeuvre to grasp it, Finnegan's WakeI was a LIT-TRA-CHUR major at a fine University and I just never understood most of what was printed here.  Still, it's worth recommending to anyone who might.

Granta.  It's a quarterly literary journal out of Britain but it's not, you know, difficult.  The issue titled What We Think of America (self-described below) made me angry, sad, joyful, perplexed and grateful.  And Granta accomplishes this nearly every issue.  Check out the issue on Factories, particularly the Isabel Hilton's article Made in China and the View from Africa.  Granta makes me think things I haven't thought before.  And when you're 50+ that's more than a plus.  It's a revelation.

The September 11 attacks on the US provoked shock and pity in the rest of the world, but mingled with the sympathy was something harsher: anti-Americanism. It wasn't confined to the West Bank or Kabul. It could be heard in English country pubs, in the bars of Paris and Rome, the tea stalls of New Delhi. ‘Hubris’ was the general idea: in one opinion poll, two-thirds of the respondents outside the US agreed to the proposition that it was ‘good that Americans now know what it’s like to be vulnerable’.

Is the US really so disliked? If so, why? In this issue twenty-four writers drawn from many countries describe the part America has played in their lives – for better or worse – and deliver their estimates of the good and the bad it has done as the world's supreme political, military, economic and cultural power.

I know I promised to tag my five 20-somethings but I'll have to come back to it.  My napkin ran out.


Negotiate Sobriety with the Labor Day Edition of Blawg Review # 175 at Austin DWI Lawyer

If you've never been asked to perform a field sobriety test, raise your hand.  That's what I thought.  Only Ken Adams whose Dilbert post was one of my week's favorites.

And for the three of you who have not yet seen this video of why not to come to court drunk and how not to respond to the Judge's questions in an intoxicated state, see this hilarious video. 


The rest of us -- most of us - by the grace of whatever Higher Power we invoke in our darker moments - have not needed the services of Jamie Spencer at the Austin DWI Lawyer Blog, host of the Labor Day Edition of Blawg Review #175.

This week, Jamie brings us, among other great posts of last week:

Res Ipsa's tutorial on FirefoxJordan Furlong’s radical suggestion that non-lawyers (ever heard of a "non-physician"?) can do a lot of good legal work without putting the rest of us out of work; Dan Hull's recommendation that first and second year associates be paid in experience rather than dollars (make law school one year and you're on Dan);  Lawrence Taylor's frightening image of cops with needles;  our sister blog's coverage of the recent FBI Blogger arrest and tips on negotiating with the FBI when they're on your doorstep; Susan Crawford's thoughts on nondiscriminatory Internet accessRandazza's trip down baby-boom lane in a "Fuck the Draft" leather jacket (yes, Gen X and Y, we'll be happy to receive your thank you notes for abolishing the draft now); Mark Hermann's post on enjoining a drug companies to give patients access to unapproved, experimental drugs; and much, much more. 

Check Blawg Review for submission guidelines to host Legal Literacy, a blog I've never visited but will now add to my Google reader as a good source for material on its topic -- building bridges between business and the law.  

Finally, my best field sobriety test anecdote from the police report:

Police officer:  Please recite the alphabet backwards.

Driver: (laughing)  Are you kidding?  I can't even do that when I'm sober!

Here's the web page for The Other Bar for any attorney who believes he or she may have just a tiny problem, perhaps a small issue, with drugs or alcohol.  There's no day quite like the day you finally realize that there's a single, relatively simple solution to an enormous number of personal and professional problems.

Step One:  We admitted we were powerless over alcohol—that our lives had become unmanageable.

Swim on Over to Blawg Review #173 at Chicago IP Litigation

It's a small internet world.  David Donaghue of DLA Piper who hosts Blawg Review # 173 at the Chicago IP Litigation Blog shares not only the insane continuing desire to host Blawg Reviews with me, but also a LexBlog platform and  a history of high school swimming competitions -- me back and free -- he fly and IM (my fly looks more like a caterpillar; I bow deeply to anyone who competes in the fly and in the IM that requires fly skill). 

My 'net connections also create two degrees of separation between me and an Olympic medalist.  Pictured here is New Zealand meditator Geoff Sharp's nephew sporting a bronze rowing medal for New Zealand, surrounded by his cousins, three of whom are Geoff's bright, talented and good looking children.

Don't you love the internet?  If so, swim on over to Blawg Review # 173 for some of the best posts of last week in the legal blogosphere.

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.

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 BaseConcurring Opinions covers IP in the News this weekPeter 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!

The Virgin Blawg Review # 171 is Sleeping . . . . .

but Blawg Review # 171 is designed to wake you up!


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.

Mediator Geoff Sharp Up Close and Personal (with Vickie Pynchon tagging along)

© 2008 The Daily Journal Corporation.
All rights reserved.

June 23, 2008

By Greg Katz
Daily Journal Staff Writer 

SANTA MONICA - Nearly everybody in the Southern California mediation community knows the face of mediator Geoff Sharp but not too many have met him.

That's because the New Zealand-based mediator's scruffy mug sits atop his popular ADR blog, Mediator Blah ... Blah ..., at mediatorblahblah.blogspot.com.

Sitting down for coffee at a beachfront hotel with Los Angeles mediator and fellow ADR blogger Victoria Pynchon, Sharp said his blog is what got him his ticket for this trip to Southern California.

He was in town at the request of the Pepperdine University School of Law, giving a lecture at the Straus Institute for Dispute Resolution's annual summer dispute resolution conference last week.

"For someone like me to get to Pepperdine - why would you ask a farm boy like me?" Sharp said, laughing. "The blog's the only way that I talk to these people."

Sharp's witty and concise blog helps chart the course of the online mediation conversation. There are about 150 ADR blogs worldwide, according to one blogger, and many of them link back to Sharp's.

He blogs a potpourri of ADR links, anecdotes and opinions on a wide range of mediation topics, most of them relevant to both local and international audiences.

In one recent post, he chided some "lazy" neutrals who have given parties the impression that mediation is "a process where you show up at a downtown building but never speak to, or even meet, the room full of people with whom you have your problem and whose cooperation you require to solve it."

In another post, Sharp described a mediation in which a lawyer asked him to calculate the hypotenuse of a right triangle.

Sharp said he initially was worried that he couldn't do it.

"But I am pleased to report dear reader, that I was equal to the task," he wrote.

Sharp also broaches sensitive subjects, writing at length about how difficult it is for mediators to build their practices.

But whether the difficulties of mediation are financial or mathematical, he wouldn't think about going back to litigating.

In the late 1990s, Sharp left his litigation practice at Bell Gully, a large New Zealand law firm, to start mediating.

Sharp is now a member of the advanced mediation panels for both of New Zealand's widely recognized mediation training organizations, LEADR and the Arbitration and Mediation Institute of New Zealand.

He also is consulting with the International Mediation Institute on its proposed mediator qualifications standards. Mediator standards are a frequent subject of his blog posts, as well.

He said he relishes the freedom he gained from leaving a big firm, though mediating often proves lonely.

"If you ask why [mediators] blog, it's because we're so solitary," Sharp said.

Becoming an ADR blogger, he said, was like making friends "on the same block in a new town," even though most other bloggers are in other countries.

Sharp said that blogging about mediations, with their strict confidentiality rules, can be complicated.

At first, he would post about specific events in mediations, such as one lawyer who wore his Bluetooth headset throughout a mediation, even when he "went to the john," Sharp said.

Was it blinking?" Pynchon chimed in.

But now, with a wider audience, Sharp focuses on the more philosophical and legal issues in mediation. When he wants to tell a particular story, he embellishes the events that happened in mediation so no one feels their confidential conduct is being publicized.

"I haven't let the facts get in the way of a good story," says the disclaimer on his blog.

Pynchon, who writes the popular ADR blog Settle It Now, at negotiationlawblog.com, said that even when bloggers are careful, mediator blogs can disturb parties. One party recently came to Pynchon asking whether a post referred to that party's case.

It didn't.

Another post, about the California Supreme Court mediation confidentiality case, Simmons v. Ghaderi, provoked the defendant to call Pynchon personally.

"It's like having a cartoon character come to life," Pynchon said of being contacted by someone she only knew through reading briefs and opinions. Simmons v. Ghaderi, 143 Cal.App.4th 410 49 Cal.Rptr.3d 342 (2006).

But despite the occasional hassle, blogging has become a way of life for the two mediators.
"For me, blogging and dispute resolution rest on the same principles: collaboration and reciprocity," Pynchon said.

Sharp nodded his agreement.

"I don't do this profit," he said with a smile. "I do it for ego."

Negotiating Your Mid-Life Career Crisis with 360 Career Coach Lisa Gates

Practicing law, particularly litigation, is often frustrating, sometimes humiliating, and frequently simply dispiriting.  On the other hand, the practice of law can be thrilling, intellectually stimulating, challenging, absorbing, and a darn good way to make a good living.

When you shift the purpose of your legal practice from winning cases (litigating) to negotiating settlements (mediating) you also shift your focus from solving intellectual legal puzzles to serving individual party interests.  As a result, you give considerably more thought on a daily basis to what makes people really happy, or, at a minimum, fairly well satisfied.  

That's why you find "work life balance" and career advice in a negotiation blog -- because you cannot negotiate what you really want in exchange for what you do unless you are able to plumb the depths of your own true desire and discard any out-moded ideas about what "should" make you happy.

For these reasons I bring you a dynamite (and very funny) article by career coach Lisa Gates of 360 Alliance Coaching. If you're slogging around not knowing what to do with your early- mid- or late-legal-career-crisis, you couldn't do any better than to book a few sessions with Lisa. 

Her excellent post -- 29 Worn Out Perspectives in Need of the "Oh Really" Factor -- from LifeHack below.  

We all have places in our lives where we get stuck, augured in by a particular belief like, “work is hard,” or “children are too expensive,” or “politicians are evil.” To make matters worse, we often can’t distinguish between the truth and a disempowering belief because we attach little refrains like, “that’s just the way it is.” It’s as if our minds have become the honeymoon destination for Archie Bunker and Nurse Ratched.

If we really listen, we will hear a quality of flatness, resignation or a dissonant righteousness in our speaking. To bring choice, openness, and inquiry back into your reality try adding the challenge “oh really?” to these 29 worn out perspectives (or your own) and turn up the heat on those victim-making, life-killing, soul-sucking, war-making phrases that have been sapping your fulfillment.

1. I don’t have the time.
2. Everything on my to-do list is important and essential.
3. I can’t quit. If I do, everything will fall apart.
4. If I take time off, I’ll lose my game.
5. Nobody will hire me, I’m too old.
6. You’re supposed to get married and then have the baby.
7. Get your diploma, go to college, get a master’s, get married, get a career, have a family, grow old, die.
8. I need an MFA to get published.
9. Art is good, but if you want to make a living, you have to get a real job.
10. I am a complete loser without my [to-do list] [blackberry] [iphone] [rolodex].
11. You’re a loser if you use a rolodex.
12. I can’t delete all those emails.
13. You have to get a telephone. Everyone has a telephone.
14. Nobody will respect me if I don’t have a Ph.D.
15. I have to know how it ends before I begin.
16. You have to start at the bottom if you want to get to the top.
17. A black man can never be president.
18. My vote doesn’t count.
19. Women over 50 should not have long hair.
20. I’m not creative.
21. Investing is pointless as my age; I should have started years ago.
22. It’s all my mother’s fault.
23. It’s all your mother’s fault.
24. I don’t have any choice.
25. If I don’t make it by 30, I never will.
26. If you’re an artist, you need a career to fall back on.
27. Finding love is just not in the cards for me.
28. I’d rather travel, but I have to get a degree first.
29. There’s nothing I can do about it (the all-time favorite).

Now that you’ve disrupted the homeostasis, what other perspectives are now clamoring to be heard?

About Author: Lisa Gates is a coach and completion catalyst - the crazy glue on the soles of your sneakers that keeps you committed to your book, your project, your big idea. Committed to inspiring the leadership possibilities of livelihoods in action, Lisa has three words for all idea-crazed writers, entrepreneurs and dreamers: Someday is now. Find her at 360 Alliance Coaching.

Settle It Now Announces the Launch of Forbes.com's Business and Finance Blog Network



 Forbes.com to Launch Business and Finance Blog Network.  Excerpt below: 

Today Forbes.com, home page for the world's business leaders, announced the creation of a Business and Finance Blog Network, comprised of a community of pre-screened, influential business and financial blogs.

The Blog Network's content will focus on senior business decision makers and high-net-worth investors. Topics will be relevant to the banking, trading, hedge fund management, affluent investing, and senior business decision-making communities. Participation in the network is by invitation only, and all blogs are vetted by Forbes.com editors for appropriate content, and to ensure that they are in keeping with the Forbes editorial brand.

The network will allow advertisers to target a highly engaged, exclusive niche audience of senior business decision makers and affluent investors easily and effectively. Four hundred-plus blogs have already joined the network, with many more expected to sign on before the official launch in the next few weeks.

"There is no denying the growing importance and influence of blogs within the media landscape," said Forbes.com President and Chief Executive Officer Jim Spanfeller. "Forbes.com can ensure advertisers are reaching a hard-to-find and very desirable audience within safe, well-lit environments by exclusively inviting 'best of breed' business and investing bloggers to our new Business and Finance Blog Network."

Nick Ricci has been appointed General Manager, Sales. He will be responsible for overseeing the sales, marketing and promotion for the Blog Network as well as the Forbes Audience Network (FAN), which launched in November 2007. Nick joins Forbes.com from About.com, where he served as Senior Vice President, Sales and Ad Operations. He has also held senior sales management and marketing positions at Times Mirror Magazines, Cox Interactive Sales, and Hachette Filipacchi Media US. Nick is already in the process of hiring and building a dedicated network sales team.

"I'm thrilled that Nick has joined Forbes.com to oversee the sales efforts for the Blog Network," added Spanfeller. "He is a seasoned executive with several years of sales and marketing experience who will play a key role in driving the network's success."

Click here for the remainder of the article.

Thanks to the indefatigable Sharon Gitelle for her hard and dedicated work putting this network together.

Smart Bloggers Who go to Trial Expand the Pie

What's the secret of a happy law-life? 

Being right? 


Delegating responsibilities

That's what Connecticut employment lawyer and blogger, Daniel Schwartz, has done while he's trying one of those employment cases that resist negotiatied resolution. 

Not only is the delegation of Dan's blogging responsibilities smart, it's pie-expanding

Though Dan's readers are likely missing his voice with their daily coffee and eggs, he's turned their loss into other bloggers' gain by asking several of his colleagues to "guest blog" while he's gone.

Yesterday, for instance, Dan kicked off guest blogger week with the Evil HR Lady's commentary on Walmart and Blogging here.  As Dan explained . . . .

I should tell you that I do know [Evil's] first name; but she has told me that she'd hunt me down if I revealed her identity. So instead, I've asked her to provide a short blurb to introduce her; here was her candid response:

Evil HR Lady works for a Fortune 500 Company making sure that as many people as possible get fired. Hence, the Evil part of her name. She blogs and takes questions here.

Nothing like an HR person with a sense of humor, right? Well, she also has a very entertaining blog that is part Ask Amy, and part Jack and Suzy Welch. . . . 

Today, Dan graciously allowed me to introduce a few mediation principles into his blog with The Division of Chores and Partnership Compensation, Part I. 

Even though I do hate the term 'win-win' as far too redolent of marshmellows roasting over a camp fire ("say, pass the Hershey's chocolate, would you?") Dan is exemplifying the essence of integrative, interest-based "win-win" problem solving for his readers. 

While he rides off on his white stead to win win win win win his client's case at trial!

Thanks for the opportunity to meet your readers, Dan.  And go get 'em!

Why the Legal Blogosphere? Try Ken Adams

O.K., from time to time I draft a brief for someone.  It keeps my hand in the game and REALLY -- it's MUCH EASIER to make $$$ doing what I did for 25 years than for what I've been doing for four.  I have HIGH HOPES that my research and writing mini-career will soon be shut down by my ADR career, but in the meantime . .. . . .

Shameless plug:  Listen . . . . I'm very very very very good at negotiating the resolution of complex commercial litigation.  I should be in heavy rotation.  Try me!  I won't let you down.

What this post is really about

Not that long ago, appellate attorney Greg May asked the readers of his excellent California Blog of Appeal how they used the legal blogosphere to help their clients.  I answered, but I didn't have anything really exciting to report.  Until this morning.

Yesterday, I spent hours researching a fairly obscure contract interpretation question.  I didn't find case ONE and I'm a pretty good little first year research associate -- always was.  So what did I do?  I turned to my virtual buddy, Ken Adams (who never writes a rambling post like this one) over at the brilliant, thorough and sophisticated Adams Drafting.  My brain must have been turned off yesterday because I couldn't find anything by searching his blog either.

So I did what I told my readers over at the IP ADR blog to to yesterday -- say "please."

Voila!!  In my in-box this morning, a link to the most comprehensive, practical, brilliant (relatively lengthy) article ON MY PRECISE LEGAL QUESTION that could easily make the difference between winning a $2.5 million appeal or losing it.

Listen.  You can't find this stuff in academic articles.  And you can't find it in Witkin or CalJur or AmJur or in the case law.  You can't find it in the California Civil Code's canons of construction or maxims of jurisprudence (my favorite:  "superfluity does not vitiate").

Ken Adams is the foremost authority on contract drafting in the nation.  And I have that wisdom tucked into my back pocket the moment it finally occurs to me to go over to his blog to have a look see.  

So that's how I use the legal blogosphere.  It's my law firm.  It's my community.  It's my home. 

How much better does it get?

Thanks Ken!

Want to Understand Your Jury Pool? Watch Campaign News

Trial attorneys, negotiators, mediators and settlement judges all share the same essential concern -- how to reach and persuade our audience.    

Trial lawyers have a product to sell -- their client's narrative -- which is always just one version of the "truth."  Negotiators are also selling -- a business proposition their bargaining partner will find attractive.  Settlement judges who have not been trained as mediators are generally selling fear -- the uncertainty!  the expense!  the delay! 

And mediators?  What's on display at our hot dog stand?  The needs and desires of the parties, certainly.  Many arrive at the mediation without having given any thought to their own true wishes at all.  We tend to go a little deeper than the negotiators, who are selling the future rather than also attempting to repair the past.  We try not to be fear mongers like some of the worst settlement head-bangers we remember from our own legal practice.  And, unlike trial lawyers, we straddle the "truth," attempting to harmonize the parties' narratives rather than selling one version as superior to the other. 

So what are we mediators really selling?  Reconciliation. Accountability. Understanding. Consensus.

And this Bears Upon Political Campaigns and Jury Trials in What Way?  

I don't subscribe to many blogs, diverting the few dozen that capture my interest to my news reader.  I do subscribe to Anne Read's Deliberations, however, because she really "gets" people's pre-dispositions -- the ones I need to understand for the purpose of helping my clients to comprehend -- appreciate even -- the other guy's point of view.     

Today, for instance, Anne reminds us that we are in the midst of a Great National Jury Seminar.  All we have to do is click on the campaign news. As usual, Anne is looking past the easy answers -- race, gender -- in favor of exploring the deeper reasons we might vote for someone of our own nationality or hair color -- shared stories.  Here, for example,

What do race and gender really mean? Most studies of jurors conclude that juror demographics don't directly affect verdicts -- with the important exception that jurors lean toward parties of their own ethnicity. (That's from Devine et al, Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups, 7 Psychology, Law, & Public Policy 622 (2000)). But at the same time, we know that people of different races and genders often have shared experiences. Since experiences in turn shape attitudes, race and gender matter in ways that go beyond loyalty, but are difficult to define.

Trial lawyers have long wanted to understand this better -- and these days, so does every news organization in America. One fascinating piece of this is how individual one's group identity can be, as Newsweek explains in an article that's well worth reading in full:

Which candidate a voter identifies with is one of the most important gut-level heuristics, since it is tantamount to deciding that someone is enough like you to "understand the concerns of people like you," as pollsters put it. "If you feel a candidate is like you racially or by gender, you're more likely to believe that that candidate will support what you support," says [Harvard political scientist Pippa] Norris. But with a white woman and a black man vying for the Democratic nomination, where does that leave black women? Whom they most identify with depends on which aspect of their own identity dominates their self-image. . . . . 

Read on here (my emphasis)

We're in the People Business

So are we all just Willy Lomans, carrying our self-esteem, our hopes and dreams, our successes and failures in our sample cases -- to display -- or not -- when a customer calls?  I think we are.  And the mistake we make, when we make one, is to direct our customers' attention only to the glittering lures -- the "sales" talk -- the promises of a brighter future, a better marriage, a faster car.

If we take a deep breath from time to time and listen to ourselves instead of pontificating and persuading, we'll be reminded that we're all seeking the same thing.  Community.  Belonging.  Understanding.  Even shared sacrifice.  Every negotiation, every mediation, every trial represents a human relationship in crisis.  If we really get that, we can start working together again, in the same general direction, even when our ideas about how to accomplish that differ.  

An Unpaid Political Stream of Consciousness

Listen.  No one will gasp in surprise when I say I'm a lifelong Democrat.  Nor will my readers likely be surprised to hear me articulate my fondest election year desire -- that Hillary and Barack -- sooner rather than later -- will find a way to join experience with vision for the purpose of leading this country out of the long season of division that, let's be frank, began in the sixties and has never healed.  That they will together lead this country back to what it's truly best at -- uniting a diverse, fractious, irritable, needy, greedy, fearful, hopeful people into a single nation with a higher purpose than our own individual and narrow interests.  The United States.

If both candidates could put their campaigns -- their money; their volunteers; their momentum -- together for the purpose of healing discord and revealing a new national consensus -- we would not simply feel great about our country again, we'd actually be great again.  

There's a New Mediator on the Blog Block Talking "True" and "False" Mediations

Let's welcome New York attorney-mediator Christian S. Herzeca of Mediation Meditations to the blogging block and thank him for joining the conversation about what "true" mediation really is. 

Who is to say that a mediator is truly practicing true or false mediation?

I attended a conference regarding mediation in personal injury cases, where insurance company defendants were discussing the relative merits of mediation versus showing willingness to go to trial. I was appalled to hear a panel member, a sitting judge, describe what he referred to as the mediation that he practices in his cases. He described his mediation by invoking the law of the jungle, predators and predation, excoriating "weak" plaintiffs and coercing them to settle by telling them in chambers that the strong defendant would devour them at trial. He seemed impressed by his analogy. I remember talking to another panel member, a retired judge, after the conference, shaking our heads as we agreed that if this can pass for mediation, then there is no useful meaning to the practice. 

Click here for the remainder of the post.

WELCOME CHRISTIAN!!   And thanks for adding us to your blog roll . . . in just a minute now you'll be added to ours too.

Some Vioxx Attorneys Seek Judicial Relief from Ethical Conundrum

Claiming that the $4.85 billion Vioxx Settlement improperly "allows [defendant] Merck to dictate the advice a lawyer will offer" to clients, some Vioxx plaintiffs' attorneys have asked the federal judge overseeing the deal to "keep some of their clients outside the settlement while still allowing other clients to accept it."

Under the global settlement agreement reached by lead counsel in New Orleans last month, "if the lawyers want any of their clients to receive money from the settlement, they must recommend the deal to all their clients." 

Those attorneys resisting the requirement are saying not only that the provision "would prevent them from offering the best independent judgment for each client" but that "[a]greeing to the provision might open them to future lawsuits from disgruntled clients."

All quotations above are from Alex Berenson's New York Times article, Some Lawyers Seek Changes in Vioxx Settlement. 

Previous commentary on the ethics of this provision by legal bloggers, including our own thoughts here, can be found at the Legal Ethics Forum here, the Wall Street Journal Law Blog here, FindLaw here; the Mass Tort Litigation Blog here;  Drug and Device Law here (but please don't call them for comment); Texas Lawyer here; and, Pharmalot here.

Have you ever seen such high level free legal advice in your lifetime?  And it's not even redundant.  So, no, Concurring Opinions, I don't think we've saturated the legal blogosphere.  I think everyone is just taking a deep breath to sort through the talent and find their niche.

In the meantime, have we stopped being troubled by the advertisement of pharmaceuticals direct to consumer (image above) as if they were laundry soap? 

Settle It Now Joins the Forbes.com Business and Finance Network

(Notting Hill Gate by Paolo Margari)

What is that advertisement at the top of Victoria Pynchon's Negotiation Law Blog?

It's the first of several ads to be delivered on this site by Forbes.com.

Why is she junking up her blog with advertising; does she need the $$$ that badly?  . 

It's true that I will earn some income (a few dollars a month?  a couple of hundred?  I have no idea). 

But I'm not in it for the ad revenue.  

Why then?

Believe it or not, this blog is not merely a marketing device.  It is also an attempt to spread the good news of collaborative problem solving and interest-based negotiation to whomever those skills might help in their business and personal lives.  

Learning interest-based negotiation and mediation skills radically changed the quality of my life, my work and my personal relationships.  I don't just want to share that, I'll go all the way to say I have a mission to share that. 

O.K., But What Does This Have to Do With Advertising from Forbes.com

I'm joining the Forbes.com Business and Financial Network to bring the Settle It Now Negotiation Blog to as many people as might find it useful, most particularly business people and attorneys.

Forbes.com's homepage has -- drum roll please -- 20 million visitors a month. 

I have 5,000-6,000 visitors a month. 

I'd like to have more.

I'm truly hoping that the Forbes.com network will provide a greater array of information and advice to my existing five to six thousand monthly visitors and that the addition of my blog to the network will get the central message of this blog to more people.

What is your blog's central message anyway?

Here it is.  

A community thrives on collaboration and reciprocity.  All communities -- local and global -- thrive on collaboration and reciprocity.  And individuals living in collaborative and reciprocal communities are happier and healthier than those who don't.

The rest is implementation.  And practice.

So, let's see how this Forbes.com community can further that goal. 

Hop on board!  The train is getting ready to leave the station. 

But don't worry about being left behind.  We're a local so you can jump on any time you're ready!! 

Rounding Up Power and Persuasion

(Power by Michael Nagel)

Thanks to Personal Injury Law Roundup No. 39 for mentioning our piece on the persuasive power of the WGA Strike Video.

Although I mediated many cases as a litigator and trial lawyer, it wasn't until I began serving as a mediator that I realized how much trial attorneys and mediators have in common.  

Yes, yes, I know -- trial lawyers are trained assassins and mediators are neutral facilitators of negotiated resolutions.  And yet we both use the power of persuasion to assist us in "selling" our wares to our respective audiences -- trial lawyers to juries and mediators to the disputants and their counsel.

I'm a regular reader of trial blogs for this reason and hope that trial attorneys and mediators will continue having a dialogue about those matters that are of common interest to them.

Nice roundup guys and thanks again for including me! 

Online Networking: Negotiating Your Own Levels of Risk

(disclaimer, right:  this is not the sky; photo by NilsGeyland)

Check out C.C. Holland's Law.com article Mind the Ethics of Online Networking about ethical problems that might arise if you use Linkedin, Facebook and the like to build your legal or neutral practice. 

If you're risk averse, Holland and lawyers she interviews advise caution.  

First, Why Do Those of Us Who Use Social Networking Sites or (Gasp!) Blogs, Take the Risks

Holland identifes a handful of internet lawyer pioneers, including your faithful blogger.

Colin Coleman, a business attorney in Needham, Mass., uses the networking site LinkedIn to build professional relationships and make introductions. Beverly Hills, Calif.-based Victoria Pynchon, who recently launched a commercial-litigation mediation practice, likes the way Facebook mimics a neighborhood and allows people to get to know her. And Southern California entertainment lawyer Richard Jefferson maintains a MySpace page to ensure his clients consider him cutting-edge.

While their focuses are different, all three attorneys share one trait: They've recognized the value of these social-networking sites to help support and expand their businesses.

Early adopter attorneys are clearly at the forefront of a new networking movement. At the same time, these pioneers are blazing ethics trails into previously uncharted territory.

Gee, I Didn't Feel as if I Was "Blazing Ethics Trails into Uncharted Territory."

O.K., I sound a little bit like a jerk when I'm quoted as saying

I'm a pretty ethical person and I'm not risk averse -- that's why you buy malpractice insurance.  I don't let fears of liability keep me from doing anything."

Particularly when it's followed by Holland's comment that "most standard malpractice policies would not cover an ethical or disciplinary violation regarding an advertisement or communication to potential clients."

I'd meant to conclude that remark with advice given me long ago:  that good relationships with your clients is the best guard against malpractice.  Even so, as Holland correctly notes, if I'm violating ethical rules, neither good client relations nor malpractice insurance will protect me.

And what I don't know can hurt me.  From Holland's article I learn that:

the LinkedIn site . . . testimonials -- e.g., "Jane is a fabulous attorney who really knows her stuff" . . . [run afoul of] . . . the California rules governing advertising and solicitation [unless the testimonial-carrying page] contains an express disclaimer. 

My LinkedIn testimonials are primarily from attorneys for whom I've provided mediation services.  Though of course they all differ, each offer the opinion that I'm a pretty darn good mediator.  Here are a couple of edited examples:

I have had the pleasure of using Ms. Pynchon on several high dollar (and some low dollar) mediation sessions. While the amounts in controversy varied, her results were always great. Did she mediate a settlement in every case - no (but she's come pretty close with a 90% track record).  .  . . Overall, for my tough cases, I always call Vick[ie] first [because] I know that Vick[ie] can find a way to reach compromise when others will give up or run out of creative options. . . . July 13, 2007

Top qualities: Great Results, Expert, Creative  Tappan Zee
hired Victoria as a Attorney in 2005, and hired Victoria more than once

Ms. Pynchon is a brilliant mediator. Not only does she have a natural talent for mediation, but she is committed to improving her skills through hard work and study . . . which translate into the ability to quickly analyze the facts and law of a case and then be able to talk to the attorneys and the parties knowledgeably. I recommend Ms. Pynchon without reservation.”

Top qualities: Great Results, Expert, Creative Lilys Mccoy
hired Victoria as a Mediation in 2005, and hired Victoria more than once

So I should disclaim these by saying, for instance, that although these lawyers thought I did a great job "results might vary and side-effects could include nausea, dizziness, upset stomach and  irritation"? 

I don't mean to make light of the issue, but I've never found disclaimers of any sort of much use to anyone.  And other than Tappan's comment that I generally resolved about 90% of his cases, these are all opinions as to quality, not representations of fact. 

Still, I do have a disclaimer on this blog, warning my readers that:  

This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. 

I suppose that's all I really have to say on my Linked In and FaceBook pages and I guess I'd better do so.  Today, in fact.

But d'you think I really need to say that the photo on those sites is two years old when I was twenty pounds lighter?

Welcome HealthCare Neutral ADR Blog!

(right, new blogger and health care mediator Richard J. Webb)

I was just in the hospital with a friend the other day, standing next to her bed while the "physician in charge of Motion Picture Blue Cross" was copping an attitude in response to her request to see the x-ray of her comminuted multiple ankle fracture.

"Why are you insulted?" she was asking when I entered the room.

My friend was trying to understand why the hospital wanted her moved to a skilled nursing facility before it moved her (and her morphine drip) back to the hospital for surgery. .  

Her physician had already told us that he wouldn't advise moving her but that "Motion Picture Blue Cross" was insisting that her hospital stay be terminated.  Immediately.  I'd been unable to convince him that his patient was seeking medical, not coverage advice.  He looked 15 (o.k., I grow old) and sounded cowed by the carrier.

"My husband sues insurance carriers and I represent them so we've got the carrier angle covered," I'd told him.  "So please just give us your medical advice."

So I'd just been saying that hospitals "desperately need conflict resolution training!"

And voila!!  The HealthCare Neutral ADR Blog appears in the blogging universe care of LexBlog  and fellow Straus Institute trained mediator Richard J. Webb, a New Jersey health care neutral

Here's what Richard says of his blog.  

With this post, I start my first blog and what I think is the only blog site devoted to the topic of alternative dispute resolution in the healthcare industry. As stated above on the masthead, I intend to blog at the intersection of ADR and healthcare law.

Welcome to the neighborhood Richard!  If Diane Levin's welcome wagon hasn't yet appeared at your front door, you're in for a delightful surprise very soon from the award-winning Online Guide to Mediation.  Diane's the O.G. of the mediation 'hood.  

Also bringing a list of local eateries, schools, dry cleaning shops and political functionaries will be my ADR blog-posse Geoff Sharp of Mediator Blah BlahTammy Lenski of Mediator Tech; Paula Lawhon of San Francisco Mediation Blog; Stephanie West Allen of Brains on Purpose (conflict resolution and neuroscience); Dina Lynch of ADR PracticeBuilder; Gini Nelson of Engaging Conflicts; Kristina Haymes of Mediation Marketing Tips; Christopher Annunziata of the CKA Mediation Blog; and everyone on Mediate.com's "Featured Blogs" page.

We're all looking forward to getting to know you and to learn much much more about health care ADR.  And if  you're ever in town, I know a nice little hospital that could use your help!

ODR CyberWeek 2007: Taking Peacemaking Public

TIME:  Friday, October 19, 4 PM Eastern (20 GMT)

CALL IN NUMBER:  The Highspeed audio bridge conference room number is 5650382 and is available by phone at **New Access Numbers (10/16/07) 1-605-475-8590 and by Skype at +990008275650382. The audio conference is required for participation.

THE PANEL:  Gini Nelson, Vickie Pynchon, Colm Brannigan and Diane Levin.

THE DISCUSSION:  Conflict resolution specialists Nelson, Pynchon, Brannigan and Levin will join in conversation with three non-conflict specialists who reach the public directly and effectively:

QUESTIONS TO BE CONSIDERED:  Some of questions to be considered: "Why aren't people beating down the doors of peacemakers, whether mediators, facilitators or negotiators? and, "How can the internet engage people online in ways that facilitate and promote peacemaking?"

Live Blogging from London with Attorney Mediator Justin Patten

Yes, we did talk mediation marketing and who should make the first offer over a wonderful lunch today at the London Law Society, but we also covered childcare, American politics (oh, do let's change the subject) and the dreadful exchange rate (oh, do let's change the subject).

Thank you to commercial attorney and mediator Justin Patten of Human Law for escorting us about and giving good advice about visiting the Royal Hall of Justice, which we did, peaking in on what appeared to be a criminal appellate argument (3 red-robed Justices & prisoner in the "dock") and one final argument in a civil case (one red-robed judge).  

Unfortunately, I failed to catch Jeremy Phillips of IP Kat or Andrew Mills of Freeth Cartwright and the IMPACT blog on camera after a day-long seminar on Intellectual Property Litigation and Dispute Resolution, about which more later.

Off to see Spamalot. 

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


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.


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!

Extreme Sports: Family Negotiation Tactics from Mixed Emotions Blog


(left:  author/illustrator Rutu Modan)

I urge you to CLICK HERE IMMEDIATELY for the most extreme and hilarious family "negotiation" (read:  manipulation) tactics ever to flow from a pen (with marvelous illustrations) from a Blog you'll immediately want to add to your Blogroll:  Mixed Emotions by Rutu Modan.

This is a New York Times Blog (don't worry, fellow amateurs, the BigBloggers have to appeal to a much wider audience) which describes its author as follows:

Rutu Modan, an illustrator and comic book creator, is a chosen artist of the Israel Cultural Excellence Foundation. She has done comic strips for the Israeli newpapers Yedioth Acharonot and Ma’ariv and illustrations for The New Yorker, Le Monde, The New York Times and many other publications. Her first graphic novel, Exit Wounds, will be published in June. Ms. Modan, usually based in Tel Aviv, is currently in Sheffield, England.

Mixed Emotions is translated by Jesse Mishori. 

And if you want to off-set this dark whimsey with a little practical know-how from the smartest guys in the room, here's the Harvard Business School Working Knowledge article, Five Steps to Better Family Negotiations.


Geoff Sharp Joins the Mediator's Mile High Club

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

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

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

for remainder of story click here.

Maybe We Should Re-Think That Coverage Decision

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

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

Here's Kevin's report: 

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

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

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

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

Building Your Practice with Geoff Sharp's "Don't Be Average" Chart

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

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

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

Have a great weekend.

Google, YouTube, Viacom and the Future


(left:  mountain sues lake for copyright infringement)

Re: today's New York Times coverage of the $1 billion Viacom lawsuit against Google under the Digital Millennium Copyright Act.

I can't be the first one to ask these questions, but here goes:

  1. why don't the media giants recognize that when I post a scene from A Few Good Men in a blog read primarily by attorneys (a damn good media market) it's free advertising to a new generation of lawyers who were in elementary school when FGM was released in 1992.  This goes in spades for equally good (or better) lawyer movies like The Verdict, screenplay by the brilliant David Mamet with Paul Newman doing some of the best acting in is entire career.  Today's young lawyers were in their bassinets when this one was released in 1982.  And where do they learn about the old movies they may want to see?  From the internet. 
  2. haven't these guys read The Long Tail? (see extended entry for a wikipedia primer on long tail or "niche" marketing).
  3. don't they know that most young people (say, everyone under 30) believe that content should be free.  That by yanking movie clips or sound bites from YouTube they are alienating huge numbers of potential viewers under 30?  
  4. wouldn't Viacom be better off spending $100,000 per month devising a way to use YouTube's media-delivery system to its own benefit rather than paying people that same sum to track down its "pirated" YouTube content and execute it there?    

There's an old saying that "what you resist persists."  The internet, YouTube, google, blogs, mp3 players, ripping, burning and copying are here to stay. 

The means of production (and co-production) is in the hands of the people.

Still, large concentrations of capital remain (and will always remain) in the hands of corporate giants. 

This is not David and Goliath because David just wants to listen to his music, man.  The people who want to "monetize" David's listening (and recording) enjoyment will always find a way to do so.  That's their job.

The people will continue to create and share.  Mix and burn.  Copy and compile.  

Not that I mind Big Media wasting their money trying to stop the tide of progress. 

It's just that I'd rather they use it to make better movies.

For a far more sophisticated viewpoint than my own, take a look at the MIT Convergence Culture Consortium blog on CBS' Use of YouTube for "Cross Platform Distribution" of March Madness, noting: 

Not surprisingly, the blogosphere points to the irony of Viacom's suing YouTube while CBS is finding effective and profitable ways to work with the video sharing site. David A. Utter with WebProNews points out that the first CBS March Madness clip on YouTube prominently displays UPS advertising and indicates the potential for major profit for the network and YouTube as well. Utter says, "Why Viacom misses the potential of YouTube while their former brethren at CBS embrace it would be a question we would like to see Viacom answer if their YouTube/Google lawsuit ever comes to trial."

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Abraham Lincoln's Advice to Young Lawyers

Hat tip to Elliott Wilcox' Winning Trial Advocacy Techniques for hipping us to Abraham Lincoln's Advice to Young Lawyers, including the best advice for success in any field -- "always bear in mind that your own resolution to succeed, is more important than any other one thing."

The most common complaint I hear from young attorneys at all levels is the lack of mentoring available to them.  Since the internet is their domain, I ask those attorneys over thirty-five to pick up this "Advice to Young Lawyers" meme tag and run with it.  

In particular, I ask the following attorney-bloggers to share their best advice with our young readers --Arnie Herz of Legal Sanity, Evan Shaeffer of the Legal Underground, George M. Wallace of Fool in the Forest, Wilson Sonsini's Cathy Kirkman of the Silicon Valley Media Law Blog, and, Diana Skaggs of the Divorce Law Journal.

Thanks folks!  Please pass the baton along to your favorite, most wise, attorney bloggers.

Blogging for Mediators 101 -- How to Get Started


We had a great writing seminar with the brilliant and energetic Lisa Klerman of U.S.C. Law School, SCMA President Jan Frankel Schau of Valley Mediation Services and the tireless Phyllis Pollack, Chair of SCMA's Practice Development Committee, at the Los Angeles County Bar Association last night.

All participants walked out of the seminar with a writing/blogging marketing plan and some of the groups exchanged business cards, agreeing to act as "marketing buddies" to achieve the goals set at last night's session.

The Basics to Set Up Your Blog

Several attendees asked me to provide the links to blogging resources that I mentioned last night so here they are:

Google's Blogger -- where you can set up a blog free in about half an hour no matter how technologically over-50 you are.  There are other resources, like typepad, but I have no experience with them.

For broader instruction, Diane Levin at the On-Line Guide to Mediation and Tammy Lenski at Mediator Tech teach a four part blogging seminar that I attended just last month and which I highly recommend. 

Feedblitz syndicates your blog, i.e., permits you to put an email subscription box in your blog's sidebar and allows your subscribers to choose a direct "feed."  I have no idea how the RSS ("really simple syndication") feed works, but I use it myself and it's easy to set up at Feedblitz.   

I am indebted to Diane Levin for turning me on to MorgueFile, where you can get free images courtesy of a benevolent conspiracy of photographers who offer their stunning photographs free of charge.  Before Diane turned me on the this source, I used (and still use) istockphoto.com where most images cost a dollar.  Flickr also provides free images.

Google Alerts will send you articles and blog posts on any topic you choose.  Just put in a key term like "mediation," "negotiation," "insurance coverage," "family law," "health care industry," "community mediation," "restorative justice," "social psychology," etc. and google will deliver the web results to your email box.  (See also Google Tracking for Client Awareness at Netlaw Blog -- remember, your clients are Just Not That Into You; they are, however, into themselves).

Have I said "God bless google" recently?  God bless google, particularly for constructing a library of every book ever written still in existence today at books.google.com.  The New Yorker article on this dizzyingly audacious endeavor, Google's Moon Shoot, is here.

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Nobody Does it Better: Diane Levin and Blawg Review No. 94

From What About Clients? Blog

If you want to see both exemplary blawging and a great ad for blogging all around, see Diane Levin's "Mediation Channel" Blawg Review #94, collecting last week's best posts. A Boston lawyer and mediator, Diane Levin publishes Online Guide to Mediation. Diane's been a model for me and many others who blog/blawg and, like WAC?, she seeks to reach bloggers, lawyers and business people outside of the often-insular U.S. She's thoughtful, skillful, outspoken and (gulp) fun.

Diane gives new meaning to the words collaboration, reciprocity, generosity, wisdom, wit and top 'o the bell curve smarts.  It's rare to find all these qualities in a single human being.  And did I say she's tireless?

Check it out!!

Talking to Ourselves

Sometimes we mediators get caught in a conversation with ourselves and, in the process, get farther and farther away from what the attorneys who seek our assistance need from us.

Diane Levin has a series of articles on this topic, Bridging the Divide Between Lawyers and Mediators, which is a must read for all of us.  

I'm linking to her series here, as well as to some of the trial attorney and other blogs that think deeply and well about the mediation process and have much to teach us mediators.

Time prevents the full list this morning but I'll supplement this post this afternoon.

What triggered this thinking was Tampa Bay personal injury attorney Bob Carroll's excellent blog at injuryboard.com, The Litigation Process.

Diana Skaggs' Louisville Divorce Law Journal pays more attention to alternate dispute resolution than any practicing attorney blog I'm aware of.  Her insights are spot-on, her knowledge broad and her wisdom, well, wise.  Check it out!

Do not pass go!  Click the link here to the truly brilliant, multi-authored  Trial Lawyer Resource Center Trial Tips from Trial Lawyers Blog.  The blog's self-description is a vast understatement -- something we don't generally expect from trial lawyers:

Trial Tips from Trial Lawyers You've found the blog where a number of the USA's top trial attorneys join together with litigation experts to lend their expertise on topics that matter in your trial practice. Gain insight in case selection, work up, trial strategy, evidence, and post settlement issues. Contributors will reqularly share their real life experiences and knowledge to help you represent injured consumers.  

And it's not just the settlement/mediation tips that will grab your attention.  Trial lawyers put the passion, wit, loss, longing, love and fury back into the dry legalisms of their clients' claims.  Because that's what we mediators do as well, you'll find cruising the Trial Lawyer Resource Center an endless source of inspiration.

Link to Robert Ambrogi's Year End Plea for Civility

Attorney and award winning blogger Robert Ambrogi concludes his own "must read" lawyers-appreciate essay on Civility among litigators as follows: 

Lawyers should take this [civil] approach in cases of every kind. It's not about gamesmanship. It's about helping your clients achieve a fair result that they will be able to live with and work with for the longer term. Among lawyers, the first step towards achieving fair results for your clients is to treat your peers in the same way -- with fairness and civility.

Robert's essay bears reading in its entirety folks.  Then it should be read again with an eye toward  forwarding it to the adversary you've been (uncivilly) battling with during the year. 

Perhaps you can append your own personal note with the link saying something like this -- "let's begin the new year on a more friendly footing."

You might even (gasp!) offer an actual apology for any incivilities on your side of the street during 2006.  

I can hear counsel now, saying, "but they'll use it against me!"  If things have deteriorated to the point where your opponent would use a heartfelt call to greater colleagiality against you, things are seriously out of hand.    

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Lawyers Appreciate Integrity

Julie Fleming Brown of Life at the Bar and Stephanie West Allen of Idealawg are ending the year with a flurry of appreciation in the legal blogosphere. They each sent an e-mail to three bloggers asking them to write a post to their blogs beginning with the words: "Lawyers Appreciate . . .then pass the  baton on to three more bloggers. The countdown will last until the last day of the year." 

My contribution follows, after "tapping" the following bloggers to join in -- Between Lawyers, Workplaces that Work, and Florida Arbitration Law

Thanks Julie and Stephanie for the great idea. 

That said. 

Lawyers appreciate integrity.  

Wikipedia, which lawyers appreciate for its admirable effort to be inclusive, comprehensive, multi-vocal and "true," defines integrity in its popular sense as:

holding true to one's values [or] being one's word; doing what you said you would do (by when)/(how) you said you would do it. Integrity is knowing what is important to you and living your actions accordingly. .  .  Integrity is how you allow others to see you. 

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