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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....

She Mediates

ADR Services, Inc.

She Negotiates

She Negotiates

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

Mediators and Industry Knowledge, Game Theory and Understanding Conflict

Check out the range of opinions among litigators' clients on this still-hot topic in mediation circles over at the Business Conflict Blog (quickly becoming one of the most indispensable commercial mediation blogs on the web):  Should Mediators Be Expert in the Field of the Dispute?  Excerpt below.

Patrick Deane of Nestlé is senior counsel to the largest food company in the world, and the disputes he runs into involve distributors, retailers, suppliers and consumers in every part of the globe.  His ideal mediator combines logic and intuition; a concern for detail; and the knack of an epatheic listener.  He noted that commercial disputes — even financial ones — are seldom dry, but instead involve personalities, risk of loss of face, and other human attributes just as much as more personal claims do.  The question of subject-matter expertise was of little importance to Deane, compared to these essential qualities in a mediator who must be expert in a process that, at heart, is aimed at cost effectiveness.  “A lack of industry expertise has never caused a failure of the mediation process.

I must admit that when Tim Hughes (@vaconstruction) -- he of the Virginia Real Estate, Land Use and Construction Law blog and an avid ADR watcher -- tipped me off to this post, I read the question as asking whether mediators should be experts in the "field" of conflict - rather than in the industry in which the disputants are involved.

Here's my opinion (as if you didn't already know).  As Colin Powell says, the most important knowledge to have in international negotiations is the other guy's decision cycle.  I imagine the great predictor, the political scientist and Hoover Institute Fellow  Bruce Bueno de Mesquitas would say something along the same lines (see TED lecture below).  See also the NYT piece, Can Game Theory Predict When Iran Will Get the Bomb?

What is the "other guy's" decision cycle?  It is comprised of every interest he must satisfy and every person he is accountable to for the foreseeable (and probable unintended) consequences of that decision.  Personal injury attorneys turned mediators are well acquainted with the decision cycles of both Plaintiff and Defense counsel as well as with the interests, needs, and desires of injured Plaintiffs, on the one hand, and insurance adjusters and their supervisors on the other.  Employment attorneys turned mediators are also deeply knowledgeable about the decision cycles of counsel on both sides of the table (one usually specializing in employees and the other in employers) as well as with the interests, needs and desires of terminated, demoted, or harassed employees on the one hand and of employers - both large and small - who often feel as if the Plaintiff is little better than a highway robber.  Judges turned mediators are better acquainted than anyone else of the decision cycles of juries -- a jury verdict being the alternative to a negotiated resolution.

(Chart from Cultivating Piece)

You knew I'd come to my own "specialty" knowledge.  Some of it is industry specific -- insurance and  financial institutions, for instance, and the garment, manufacturing, health care, commercial real estate, construction, and technology industries.  Though my experience in these fields adds some value to my commercial mediation practice, what I'm most skilled at is knowing the decision cycles of commercial litigators and their business clients.  I understand, for instance, the clients' reporting relationships; the metrics against which their performance and that of their corporate superiors are measured; the impact of SEC reporting requirements in "bet the company" litigation; and, the effect settlements in nine or ten figures might have on upcoming plans for mergers or acquisitions. 

I can read a financial statement. 

At a minimum, I can ask the questions necessary to obtain the knowledge required to ascertain the interests that must be satisfied by both parties to transform the litigation into an opportunity to make a business deal.  And I know how to make the commercial clients happy with their attorneys' final resolution of the business problem burdened with the justice issue that brought the case into court in the first instance.

I am also schooled in the "field" of conflict resolution.  I understand at depth the cognitive biases --  universal tendencies in the way we think -- that inhibit rational decision making.  I know how conflict escalates and, more importantly, how it can be deescalated.  I understand the role emotion plays in decision making (particularly the emotion most common among business litigation clients - anger);  the gentle (and not so gentle) art of persuasion and, perhaps most importantly, the optimal negotiation strategies and tactics for the business problem at hand.

And, I know in the knuckles of my spine what keeps commercial litigators awake at night, worrying about the next strategic, tactical, legal or extra-legal move to make; how to explain to the client that the case has suddenly gone south; and, how to deliver that bad news to the client in a way he or she can hear it and successfully report it to the GC, the CEO, the Board of Directors or e ven the shareholders. 

I know this sounds like a lot of boastful self-promotion (it is).  Please don't take my word for it.  Anyone charged with finding, retaining and hiring a mediator to assist the parties in resolving a piece of hard-fought, sophisticated, complex commercial litigation would do well to check with his or her peers on any mediator's boastful self-appraisals.

This is what I recall of mediator-hunting, however.  I'd send out a list to my colleagues.  I'd invariably get back opinions that were all over the board.  He/she is great with clients but usually ends up splitting the baby in half.  He/she talks too much and listens too little.  He/she marginalized the client and made me look bad.  He/she charges $15,000 per day and is one of the go-to mediators for this type of case but I was unimpressed, as was the client.  This guy/gal can settle anything.  Brilliant.  Magical.  

So what's a beleaguered litigator to do?  Ask people you respect both inside and outside your law firm.  Ask how the mediator handles the "process dimensions" of the mediation.  Does he/she simply carry numbers and rationales back and forth between separate caucus rooms.  Can she give bad news to both sides.  Can he go beyond positional, zero-sum bargaining and into interest-based negotiated resolutions?  Is the client happy with the result and with the process?  After you've done this basic research, call the mediator yourself and ask him/her about the way in which she/he might handle the mediation of the particular matter you need to have resolved.   You should not only have the best information possible in making your choice, you should get a fair amount of terrific free advice and external brain-storming along the way.

I really just meant to cite the Business Conflict Blog and get back to revising The ABC's of Conflict Resolution - my second draft due on October 30.

So what's my answer to the question whether the mediator should have industry knowledge?  That answer lies, as most legal problems do, in the gray zone.  Industry knowledge helps.  But every commercial litigator knows that we can learn any industry if we have a basic understanding of how commercial enterprises work.  That's what I know -- commercial litigation -- and it is the reason I don't mediate personal injury or employment disputes with anyone below the rank of senior executive.  I don't know the right questions to ask and I don't know -- at depth -- the parties' or counsel's decision cycles. 

I can learn, but if you called me for a personal injury or employment mediator, I wouldn't recommend myself - I'd recommend someone like Janet Fields or Nikki Tolt at Judicate West (personal injury) or Deborah Rothman, Jay McCauley or Lisa Klerman at their own mediation shops (employment). 

For commercial mediation, I'd recommend the usual suspects (including, of course, myself) and Jeff Kichaven, Eric Green, Jay and Deborah, Ralph Williams (at ADR Services, Inc.), George Calkins and Jerry Kurland at JAMS (complex construction litigation); Les Weinstein (IP, particularly as an arbitrator); Mike Young (Judicate West and Alston + Bird); and, John Leo Wagner (Judicate West). 

I know I've left a lot of fine mediators out of this list but these are the ones who immediately spring to mind because I either have personal experience as a client or co-mediator or I have it on the authority of my husband, Stephen N. Goldberg, formerly at Heller and now at Dickstein Shapiro (author of the Catastrophic Insurance Coverage blog).

Enough!  Off to the real brains at hand -- Bruce Bueno de Mesquita at TED.

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.


The Five Most Effective Ways to Break Negotiation Impasse

I begin a series today on what I believe are the five most effective ways to break impasse.  This morning's impasse-breaker will aid business people negotiating the settlement of a commercial dispute the most because it requires the generation of hitherto unseen business advantages to sweeten the pot.

Transform the dispute into an opportunity to make a business deal

Google’s CEO Eric Schmidt famously said that “litigation is just a business negotiation being conducted in the Courts.” If you look at litigated disputes in that light, the settlement option landscape immediately broadens. There are only certain remedies available in court or arbitration and those remedies may not be exactly what the parties are looking for.

If we remember that money is simply the means to obtain something else the parties desire – better distribution networks; insurance against future calamity; the security of knowing one’s intellectual property has not fallen in a competitor’s hands; health care; a college fund; even the acknowledgement that we have heard and understand our opponent’s point of view – we can add value to our negotiations before attempting to distribute it in a way that seems fair and just under the circumstances.

Often more important than finding commonalities between bargaining partners is locating those items that the parties value differently. A dollar may just be a dollar, but one company’s inventory, trade secrets or present pool of talent will seldom be worth the same in our competitor’s hands as it is in ours. In some cases our assets may be more valuable to another than they are to us, in which case we can choose the higher value as the central rationale for our proposal, remembering that where value is uncertain, the first party to put a price tag on it will “anchor” the bargaining range in his favor throughout the course of the negotiation.

Therefore, a savvy negotiator searches for both common and divergent interests in an attempt to put as many different options on the bargaining table as possible. Generating such options can melt impasse over hard “bottom line” dollar and legal position conflicts and transform a distributive negotiation session ("what I lose, you win and what you lose I win") into a business opportunity that will leave both parties better off than they could have imagined.

For similar advice to those who believe themselves to be bargaining from a position of weakness, click here.

Negotiation Training Now!!

Don't Skimp on Negotiation Skills in the Downturn

I've scaled my MCLE way back this year, including any continuing education that requires travel unless, of course, it's something I'm speaking at to continue growing my business.  Some MCLE courses, however, stay on my radar -- particularly those that don't require me to leave the office and that teach me skills to help me thrive in hard times.  This IP settlement webinar is one of those continuing education courses I'd attend unless I thought I was already the best settlement attorney I could be.  So seriously consider joining me and Chicago-IP lawyer extraordinaire R. David Donoghue of Holland + Knight for Hard Times? Learn How to Negotiate the Best IP Litigation Resolution

ADR in IP Litigation from ALI-ABA

Wednesday February 18, 2009 from 1:00-2:00 pm EST

Why Attend?

In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.

What You Will Learn

This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:

How to choose between litigation and ADR.

  • The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
  • The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
  • The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
  • The Ten Mediation/Settlement Conference Traps for the Unwary.

Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.

Trial Skills, Deposition Skills and IP Negotiation Skills Programs

Here are my upcoming speaking and teaching engagements in November and January!

I'm baaacccckkkkkkkkkkkkkkkkkkkk!!!!!!!!!!

Judicate West Neutral and IP ADR Mediator and Blogger Victoria Pynchon.

Coach/Instructor, National Institute of Trial Advocacy: Building Trial Skills
Location: Loyola Law School Los Angeles
City: Los Angeles, CA
Dates: 1/2/2009 - 1/8/2009
Director: Williams, Gary C.

This is a week-long intensive program for new and/or experienced attorneys who need to learn/brush up on their basic trial skills.  If you can take the time, your entire practice will benefit from the experience.

BrightTALK Intellectual Property Summit here! on November 11, 2008 Webcast Free

Negotiating a Settlement in IP Litigation

   12:00 pm
   Presenting Victoria Pynchon, Judicate West, CPR, Settle It Now, IP ADR Blog

And coming soon!  Deposition Skills Training (NITA techniques) at Solo Practice University!!


Faculty @ SPU

Hope, Safety and Innovation

The first thing we mediators are taught (after digesting the imperative to "be conscious") is that people in conflict need to be in an atmosphere of hope and safety to be able to:  (1)  recognize the point of view of another; (2) be accountable for his/her own "part" in the dispute; and, (3) generate creative solutions to bust past impasse.

This is the reason one of the post categories over at the IP ADR Blog is "Innovate, Don't Litigate," which is the dispute resolution mantra of Sun Microsystems CEO Jonathan Schwartz.

That said,  I am happy to link my readers to The Financial Crisis' Silver Lining over at Harvard Business Publications.

Perhaps the good times are in fact dead. And certainly someone thinking of forming the umpteenth "Web 2.0-widget-to-grab-audience-and-find-advertisers" ought to pause to think whether they really have some kind of defined competitive advantage that can translate into a sustainable business.

But real customers continue to face real problems. And as always, innovators who figure out different ways to solve those problems--and make money doing so--will have opportunities to create new growth businesses. In fact, the creative destruction unleashed by a crisis always opens up opportunities for innovation.

As a simple example, consider a New York based startup called On Deck Capital, Inc. As described in Monday's Wall Street Journal, the company loans money to small businesses. Instead of relying on individual loan officers to pour over episodic financial information and make decisions, the company has an algorithmic approach that uses software to analyze a company's day-to-day activities in a non-obtrusive way to assess credit worthiness. Its loans feature higher interest rates than loans from most banks, but lower than alternative sources.

The company launched in May, and has already distributed $10 million in loans. It has suffered very few defaults. The current credit crisis and hesitancy of many banks to loan to even the best-run small businesses creates substantial opportunity for On Deck to extend its model.

Llssez le bon temps roulez!

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!

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!

Can You Say What You're Writing to Opposing Counsel Face-to-Face? Would you Want to?

Thanks to David R. Donoghue at the Chicago IP Litigation Blog for picking up my recent Daily Journal article on the Dangers of Email in Litigation and running with it in A Call for Face-to-Face Communication in Litigation.  As David comments:

It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem -- live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others' positions. I am going to expand that practice to opposing counsel.

One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.

Looking for help with your communication skills?  Though directed at teachers, here is a list of Six Ways to Improve Non-Verbal Communication Skills that will assist lawyers and their clients in resolving conflict face-to-face. 


The Writers Explain the Strike in Three Minutes and Fifty Seconds

Thanks to the National Law Journal's Los Angeles Legal Pad for posting this short video "Why We Strike."

A post explaining the reason the reasons given here feel pretty darn persuasive next.

And, by the way, we're really happy to see theL.A. Legal Pad becoming much more substantive a legal news source than it originally was. 

We're pretty certain we have Jason Siegel to thank for this improvement in content and thank him we do!

We're looking forward to watching it grow!

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. 

Lawyers and Coaches and Patriots, Oh My!

See internet attorney Eric J. Sinrod's exhaustive legal analysis of the "rights, obligations and remedies" highlighted by the recent New England Patriot Video Spying Scandal here.

As Eric notes, I, at least have been "living on a desert island" since I was blissfully unaware of "the recent controversy involving the New England Patriots after a team official was caught videotaping opposing team defensive signals." 

Though Mr. Thrifty and I both routinely toss out the sports page, what interests us is the strictly legal question addressed by Eric, i.e., whether the fine levied on the Patriots is "just" or "correct" as a matter of law.  (leave it to the Wall Street Journal Law Blog to nail the most important question -- whether the fine is tax deductible, but I digress).  

The penalties?

The National Football League fined Coach Bill Belichick $500,000 while the Patriots were ordered to pay $250,000. The league also ruled that the Patriots must forfeit a first-round draft choice next year if the team reaches the playoffs (which is highly likely) or second- and third-round selections if it fails to make the playoffs.

This is where attorneys and the rest of the thinking world part company.  Ask any fifth-grader whether "peeking" at your opponent's game hand is cheating or not.  

So What Does the Law Have to Do with Justice or "Fairness?"  Not, unfortunately enough.  This is also where many attorneys lose touch with their clients, particularly their commercial clients who are operating largely based upon social rules and conventions rather than upon legalisms.

I have alot more to say about this, but not enough time to say it.  I'm therefore leaving you a couple of links about thedifferences between law and justice and the reasons why we all too often talk past one another, particularly when attorneys and their clients lose touch.  See Why -- an Anatomy of Explanations here.  

More later.

Aribitration Rises in Los Angeles Because of Mediation


Left, international commercial arbitrator, Eric Van Ginkel.

Right, AAA patent / commercial arbitrator, Les Weinstein.




The Los Angeles Legal Pad has been talking to our friend Michael Powell over at the AAA about the sixteen percent increase in the arbitrations in the greater Los Angeles area last year.

When asked "why the jump," Powell explained:  

The only thing we can put our fingers on is the increase in mediation.  We think all the attention put on ADR in California has made a difference in companies that are drafting contracts and including arbitration clauses.

The increase, Powell was reported as saying, was especially prevalent in the entertainment and health care industries.  

The Present and Future Tense: More Electronic Settlement Software

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


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


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

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

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

So, I say -- bring Artificial Intelligence on!

Arbitrating IP Disputes: An Interview with IP Lawyer Jay Gordon Taylor

I recently had the distinct pleasure of interviewing IP litigator and mediator Jay Gordon Taylor about the arbitration and mediation of intellectual property disputes, the first part of which follows Jay's short bio below.

Mr. Taylor is a partner with the Indianapolis, Indiana law firm of Ice Miller.  His primary practice area is intellectual property law with a focus on patent, trademark, copyright, and trade secret litigation and mediation.

He also concentrates in business aspects of intellectual property law such as acquisition, sale and licensing of intellectual property assets, and computer hardware and software sale and licensing. 

Part I:  Arbitration of Intellectual Property Disputes 

MS. PYNCHON: Do you find that IP cases benefit from arbitration or is arbitration becoming so burdened with discovery, motion practice and the like that it’s little better than litigation?

MR. TAYLOR: I have never been a big fan of arbitration except in the case of international disputes. In my experience, arbitration has been only slightly less costly and time consuming. The absence of a right to appeal if the result is erroneous would caution me against arbitrating a patent infringement dispute again.

I once had a client who faced a potential $450 million infringement exposure after an arbitrator reached a very dubious interpretation of a license clause. Because the arbitral award was binding, there was no way to challenge the opinion. Luckily, we ultimately won by proving a combination of non-infringement and invalidity. That, however, came after years of litigation and tremendous cost, most of which could probably have been avoided if there had been an appellate process after the arbitral decision.

MS PYNCHON:   Do you believe the parties would likely have agreed to an appeal by one or more arbitrators before the arbitration commenced? 

MR. TAYLOR: No, the license clause which had been negotiated years before required binding arbitration. The parties were locked into that clause. 

MS. PYNCHON:  Would arbitration be more attractive to you today if your opponent would agree to arbitral "appellate" review?

MR. TAYLOR:  No.  I do not think arbitration with an appeal is appreciably more appealing (quicker, less disruptive and less costly) than litigation in federal court.

MS. PYNCHON: Would you arbitrate any patent infringement cases today?

MR. TAYLOR: I think arbitration can be beneficial in international disputes. Most foreign companies distrust the US court system and are accustomed to resolving disputes without litigation. There is the additional problem of enforcing a judgment against a foreign entity. If the foreign entity has no US presence or assets, the judgment can only be enforced only by initiating an action in the courts of the country where the entity is located. Courts of most industrial countries will enforce an arbitration decision without question whereas they might not enforce a foreign court decision.

In tomorrow's post, we'll continue our interview with Jay Taylor about the mediation of IP disputes.

Mediation Confidentiality Trumps Malpractice . . . Barely

by Michael D. Young, whose recently posted Mediation Gone Wild Document Repository Web Pages you absolutely MUST SEE!

Once again, the trial courts are trying to mess up mediation confidentiality by judicially creating (legislating?) exceptions to the confidentiality statutes. When faced with a public policy that competes with California's strong public policy favoring mediation confidentiality, the trial courts too often seem to tip the balance the wrong way by inventing unwritten exceptions to the law. Luckily, in the recently-penned decision in Wimsatt v. Superior Court (Kausch) (Cal. App. No. B196903), the appellate court fixed things up...although it was clearly not happy about it.

Wimsatt involves a legal malpractice action against a prominent plaintiff's personal injury firm. In the trial court, the former client and malpractice plaintiff claimed that the law firm "breached its fiduciary duty by significantly lowering [the client's] settlement demand without his knowledge or consent." The client claimed he first learned of this fact from the confidential mediation brief that was provided to the mediator. You can see the public policy conflict already, can't you?

In the malpractice action, the client reasonably enough wants to obtain and introduce the smoking gun mediation brief, the one on which his entire case rests. However, as California practitioners should know by now, there is a slight problem with the plaintiff's wish: Evidence Code Sections 1115 et seq., and in particular Section 1119. California is serious, and rightfully so, about protecting the very cornerstone of mediation -- confidentiality. Under Section 1119, no mediation communications, including mediation briefs, are admissible in court. This has been reaffirmed time and time again by the Supreme Court (go reread Foxgate and Rojas if you don't believe me).

So what happened in the Wimsatt case? According to the opinion, in the underlying personal injury lawsuit, the client's lawyer made a comment to the personal injury defense counsel that it might be more appropriate to discuss settlement in the $1.5 million range rather than the $3.5 million range they had been discussing before. Because of this comment, claimed the client, he was forced to settle his personal injury case at mediation for an amount that was much less than the case was worth. Despite agreeing to the mediated settlement, the client brought a malpractice claim against his attorneys claiming he could have done better if only....

Continue Reading

Alas, There is No Magic Wand: Arbitration and its Discontents

From Law.com's In House Counsel page comes Beth Bar's New York Law Journal article Some Attorneys Questinong the Advantages of Arbitration.

The chart above represents results from a survey conducted by the  International Instititue for Conflict Prevention and Resolution ("CPR")  earlier this year.   

Aside from arbitral inefficiencies caused by lawyers doing what lawyers do (discovery and pre-trial motion practice) we suspect that a lot of the dissatisfaction comes not from arbitration as a method to resolve disputes, but from ill-advised pre-dispute boiler-plate arbitration provisions that prevent those who are handling the dispute from altering the way in which it is resolved.

We favor post-dispute arbitration agreements in which the parties can resolve the problems created by the skeletel provisions found in most contracts.  Post-dispute arbitration contracts can:

  • provide for the type and extent of discovery and pre-trial practice necessary for the type of dispute that has arisen under the parties' agreement -- a dispute the contract's drafters may well have been unable to predict;
  • provide for the composition of the arbitration panel best suited for the dispute, a single arbitrator with specialty industry knowledge, for example, or a three-arbitrator panel with two party and one neutral arbitrator, or any other combination or permutation that the parties' needs and creativity can give rise to;
  • provide for an appellate process if the parties are afraid of a "runaway" arbitrator who provides neither rationale decision-making authority nor decisions tempered by the realities with which the parties must deal;
  • place limitations on -- or expand -- available remedies, including all equitable relief otherwise available in a court of law; and,
  • just about any other provision the parties' needs makes sensible and efficient.

Here's the good thing about both mediation and arbitration.  If the parties can sit down together and craft the best way to resolve their dispute (and a mediator might help with this process) they can make the law fit their needs rather than trying to put the square peg of their conflict into the round hole of local, state, national or international procedures.

And if you could use a contract drafting tune-up, do check out AdamsDrafting.  I'd say it's the best, but I believe it's the only web site devoted to clarity in the drafting of contracts.  Had Ken Adams existed a generation before I went to law school, I could likely have done something better with at least 5 years of my life when I was litigating this burning insurance coverage question -- does sudden mean quick or only unexpected -- upon which hundreds of millions if not billions of dollars of coverage for environmental clean-up rested.    

Finally, we've seen a great draft of Eric Van Ginkel's article on this topic for intellectual property disputes that will appear soon in the IP ADR Blog.  Keep a lookout for it.  

Pick the forum to fit the fuss.

When Attorneys Become the Common Enemy

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The Enemy of My Enemy is My Friend

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

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

               THE ATTORNEYS . . . . . .

a topic upon which there was complete agreement.

The attorneys had been

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

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

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

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

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

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

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

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

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


The Greatest Thing Since Sliced Bread?

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

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

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

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

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

Don't Crush that Cross-License: Negotiate a Business Deal

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

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

Exploring Different but Compatible Interests

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

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

But First, a Little Reactive Devaluation*

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

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

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

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


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

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Don't Cut that Patent in Half: Negotiate a Business Deal

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

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

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

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

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


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

MARKETING MOMENT:  Hiring a mediator 

fluent in the language of party interests and knowledgeable about the industry in which the parties are working will greatly assist everyone in crafting a business solution to a legal problem. 

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Don't Cut That Baby in Half!! Negotiate a Business Deal

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

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

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

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

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

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

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

Find the Deciders and Draw a Deal Diagram

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

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

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Counterfeit Handbags and Mediator Ethics


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

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

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

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

But that’s the Carrie Bradshaw question.

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

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

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

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

So, what’s a neutral mediator to do?

For the tentative resolution, click here.


Collaboration Creates Better Science


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

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

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

Key concepts include:

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

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

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

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

A timely post for solving the problems of WORLD 3.0. 

Empathy, Evolution, Mediation and Global Warming

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Check it out.

New Patent Law: Fed Circuit Lowers DJ Jurisdiciton

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

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

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

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

Stemming the Tide of Counterfeit Goods

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

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

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

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

For remainder of article, click here.

Live by Suit; Die by Suit: DMCA Notices Violate the DMCA?


(left:  old tech)

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

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

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

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

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

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

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

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

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

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



                                (right:  new tech)

Viacom, Google/YouTube and the Law of Unintended Consequences

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Looking for an exhaustive analysis of the historical and technological context in which Viacom brings its billion dollar lawsuit against Google/YouTube?   

Plagarism Today, the blog of a graphic designer and amateur legal analyst, provides history, background and suggested reading along with the following conclusion


It’s important to note that this dispute isn’t just about clips from South Park and The Daily Show, it’s an element of a much larger struggle, one to determine the future direction of our culture.

History has shown us that the entities that control what information or art is viewed, be it the church, printing guilds, the government, copyright holders or search engines, control our culture.

Since the new is always built upon the old, at least to some degree, those who control the present have a heavy hand in determining tomorrow’s direction. Though the public at large has the final say, the “invisible hand’ of our cultural capitalism is guided by a very visible and observable force.

That is why this lawsuit will likely be a turning point in many regards. Perhaps even more so than the MGM v. Grokster ruling, this lawsuit could easily shape the legal climate for the Web for many years to come and, with that, the future of art, science and technology.

This case is bigger than either side likely realizes it is and that is what worries me. Both sides are protecting their interests, but one has to wonder if they have an eye on the larger picture.

If they don’t, no matter who wins, it could be catastrophic.

We’ve already seen what happens when two sides move forward into a court of law with only their personal agenda in mind, let us hope we are not subjected to that again.

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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Google Books Redux

This comment on my last post about Google's Moon Shot (from Search, Marketing and Musings) is more interesting than the post itself, so I include it in full here.  The lessons here are so numerous and the paradigm shift so profound, that every commercial litigator, transactional lawyer and business person should be closely attending to the way Google is re-writing not only the internet, but intellectual property and the practical application of the law (and litigation) as tools to achieve commercial ends.  

Have I quoted google on litigation before?  I will again.  Litigation is simply a business negotiation being conducted in the courts. 

Alan Rimm-Kaufman - February 12, 2007 08:39 AM Thanks for the link! Whereas much of Google's dominance is based on habit (eg one could envision an upstart capturing hearts and keyboards away from G by better technology or marketing, similar to what G did to Y and AV over the last 8 years), some parts of Google's power rests on more permanent legal & technical structures -- fiber & bandwidth contracts, patents, IP settlements, etc. That's why I think the G books possible settlement described in the New Yorker piece could be really important -- we might look back on this in a few years and note the settlement (if and when it occurs) was a real fundamental lock-in 'brick' in the Google foundation... Cheers!

Settlement as Barrier to Entry Angle

Check out Search Marketing and Musings' post on the GoogleBooks Settlement-as-Barrier-to-Entry-Angle and other thoughtful reflections on the excellent recent New Yorker article on "Google's Moon Shot," i.e., google's project to create a database of all books ever printed that are still in existence.

The paradigms they are a'changin' . . .

It's not your father's copyright law anymore . . . .

To get some sense of the upcoming legal battle and commercial strategizing, see the Online Wall Street Journal article in late '05 on Harper Collins' plans to digitize its own books here and Stanford Professor Larry Lessig's deeper legal thoughts here.

We love google.  We can't help ourselves.  We're temporarily trusting that it will "do no evil" just because we can't wait to see what they do next.

We have no idea what in the world is depicted in the image accompanying this post.  We just liked the way it looked with Google's Moon Shot.


Litigation is So Twentieth Century


Weren't we just talking the other day about finessing impasse by transforming litigation into a business deal? I guess we were just a little bit behind the times because it appears that no one even bothers filing a lawsuit anymore -- they go directly to the negotiation that would settle it.

Hmmmm.  You might consider taking the negotiation class I've been providing gratis to lawyers who want to improve their negotiation skills so they can enter the 21st century and make, say, something north of $1 billion on a sale of their start up -- YouTube -- to another company -- GOOGLE -- that was itself a start up only eight years ago (is that possible? and I thought "to google" had been a verb for much, much longer. I grow old . . . . )

The referenced AP story is about the way YouTube emptied its potential liability dumpster before selling itself to a very high bidder.  Whether or not the posting of much YouTube content is "fair use" or not, both companies hedged their bets by causing YouTube to buy the rights to materials it has already posted and that it has been accused of infringing.  Right or wrong, the sound business decision was to strike a deal with CBS and two major music labels to, as the AP story put it, "befriend content providers and avoid copyright infringement lawsuits." 

As AP reported.

The separate agreements with CBS, Vivendi's Universal Music Group and Sony BMG Music Entertainment c[a]me less than a month after YouTube reached a deal with Warner Music Group Corp. Hours after announcing the agreements, Google Inc. announced it would acquire the video site for $1.65 billion.

YouTube and CBS will share revenue from advertising sponsorships of CBS Videos, CBS said.

CBS will also test new YouTube technology that will help the network find copyrighted content on YouTube and remove it. CBS will also be allowed to leave that content on the site, and share revenue from advertising that appears next to the copyrighted video.

Separately, Vivendi's Universal Music Group said Monday it agreed to give YouTube viewers access to thousands of music videos. The company said it and its artists will be compensated not just for the official videos, but also for user-generated content that incorporates Universal's music.

Sony BMG Music Entertainment, a joint venture between Sony Corp. and
Bertelsmann AG, also said Monday it will make video content available on YouTube -- and will also let YouTube users include some catalog songs in their own amateur video uploads.

Sony BMG said it will share advertising revenue with YouTube for all music videos that incorporate audio or video works from the Sony BMG library.

"YouTube is committed to balancing the needs of the fan community with those of copyright holders," said Chad Hurley, chief executive of San Mateo, Calif.-based YouTube.



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