Still, when the New York Post crows Judge tosses Michael Douglas' ex-wife's bid for 'Wall Street' money and proclaims Gekko the Great wins again, I'm expecting actual victory, not the following:

Manhattan Supreme Court Judge Matthew Cooper ruled that a New York court was not the proper venue for the suit by Diandra Douglas. He dismissed her complaint on that narrow jurisdictional ground, without ruling on the merits of the case.

 

Diandra, 52, now has the option of re-launching the action in California, or of appealing Cooper's decision.

 

Her lawyer, Nancy Chemtob, said, "We respectfully disagree with the decision, and intend to appeal. Both parties are residents of New York, and the case should be decided here."

This is a litigator's victory, one of those battles won where you're counting on the price exacted by the sheer expense of fighting you.  You're feeling like a King of the Universe.  You will grind them down until they beg to dismiss their own law suit.

But then they appeal the jurisdictional ruling?  Really?  Instead of simply re-filing in California?

Victory like this recalls Robert Duvall's great Apocalypse Now speech ending with the immortal line . . . I love the smell of napalm in the morning . . . it smells like . . . vic'try.

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.

^[12]

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.

 ^[18]

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 Justice.  Charon QC also weighs in on the ABA Legal Rebels project here.

Arbitration

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 named:  Martin 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.

. . . .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!

Absent my NetFlix picks, I'd be wailing 600 channels and there's NOTHING to see!

Now there's KobreGuide with its own law channel here.

The Guide takes its name from its publisher and editor  Ken Kobré whose textbook (right) has been  widest-selling text on photojournalism in the world for nearly thirty years.  

I'd be excited about this new way to find quality moving journalism on the 'net whether or not my good friend journalist-mediator Jerry Lazar wasn't serving as Editorial Director -- a guy with some of the best instincts for quality journalism in the country.  Here's how the Kobre Guide describes itself:

This project is an antidote to comprehensive Web video portals, such as YouTube and MetaCafe... We're focusing instead on handpicked, high-quality documentary-style journalism that is being produced primarily by major media outlets -- and frustratingly difficult for consumers to find...

We're a "curated" site (to use the latest buzzword, now that "edited" seems to have lost favor), which means that we're relying on discerning eyes and ears of people like YOU (and not search engines or web bots) to help alert and point us to the creme de la creme ...

We've already located scores of prizeworthy multimedia gems to showcase at launch, and now we're soliciting input from smart folks like you, who are in a position to know about and share the good stuff out there...

Criteria? ... Think "60 Minutes" TV newsmagazine-style journalism (NOT daily news or event coverage) -- but geared for the Web... Mainly video, but also compelling audio-slideshows, or a hybrid thereof...

In short: True (nonfiction) journalism Web multimedia stories of the highest professional quality...

As Alley reports, David Eun, VP in charge of Google content partnerships told Dow Jones Newswires ``we're going all the way to the Supreme Court.  We're very clear about it.''

In the law biz we call this "posturing," and that "all the way to the Supreme Court" comment we call laughable posturing.  Alley says:

Call us dreamers, but we still think both sides could kiss and make up before this gets to the Supremes. After all, the two sides were negotiating for months before going hostile. And Sumner Redstone's other media company -- CBS -- seems quite happy with YouTube. So while both sides can argue that there are important principles at play here, we're pretty sure they can get resolved with an appropriately sized check. 

Of course it might well not be the size of a check but some other set of commercial exchanges, concessions, or synergies that will eventually settle the thing.  

These are business people for goodness sakes.  And never was a business person born who wants to establish Supreme Court precedent.  Talk about giving away your power and control.  

We welcome comments from more knowledgeable readers!

The Writers' Guild Responds with Predictable Petulance

Now that the DGA has reached a tentative agreement with the AMPTP, the terms of the deal will be carefully analyzed and evaluated by the WGA, the WGA's Negotiating Committee, the WGAW Board of Directors, and the WGAE Council. We will work with the full membership of both Guilds to discuss our strategies for our own negotiations and contract goals and how they may be affected by such a deal.

For over a month, we have been urging the conglomerates to return to the table and bargain in good faith. They have chosen to negotiate with the DGA instead. Now that those negotiations are completed, the AMPTP must return to the process of bargaining with the WGA. We hope that the DGA's tentative agreement will be a step forward in our effort to negotiate an agreement that is in the best interests of all writers.

Director's guild press release below.  Analysis will follow.

LOS ANGELES - The Directors Guild of America (DGA) announced today that it has concluded a tentative agreement on the terms of a new 3-year collective bargaining agreement with the Alliance of Motion Picture and Television Producers (AMPTP).

Highlights of the new agreement include:

• Increases both wages and residual bases for each year of the contract.
• Establishes DGA jurisdiction over programs produced for distribution on the Internet.
• Establishes new residuals formula for paid Internet downloads (electronic sell-through) that essentially doubles the rate currently paid by employers.
• Establishes residual rates for ad-supported streaming and use of clips on the Internet.

“Two words describe this agreement - groundbreaking and substantial,” said Gil Cates, chair of the DGA's Negotiations Committee, in announcing the terms of the new agreement.

“The gains in this contract for directors and their teams are extraordinary – and there are no rollbacks of any kind.”

Formal negotiations between the DGA’s 50-member Negotiations Committee and the AMPTP began Saturday, January 12, and were concluded today. Talks were led by Cates and DGA National Executive Director Jay D. Roth. They were preceded by months of informal discussions and nearly two years of preparation and research by Guild staff and consultants.

“This was a very difficult negotiation that required real give and take on both sides,” said DGA president Michael Apted. “Nonetheless, we managed to produce an agreement that enshrines the two fundamental principles we regard as absolutely crucial to any employment and compensation agreement in this digital age:

First, jurisdiction is essential. Without secure jurisdiction over new-media production—both derivative and original—compensation formulas are meaningless.

Second, the Internet is not free. We must receive fair compensation for the use and reuse of our work on the Internet, whether it was originally created for other media platforms or expressly for online distribution.”

The agreement includes the following gains in New Media:

• Jurisdiction: The new agreement ensures that programming produced for the Internet (both original and derivative) will be directed by DGA members and their teams. The only exceptions are low-budget original shows on which production costs are less than $15,000 per minute, $300,000 per program, or $500,000 per series—whichever is lowest.
• Electronic Sell-Through: EST is the paid download of features and TV programming. The agreement more than doubles the EST residual for television and increases the feature film residual by 80% over the rate currently paid by the employers.
  
  Specifically, the EST residual rates will be

• 70% for television downloads and
• 65% for film downloads, above a certain number of units downloaded. Below that, residuals will be based on formula employers currently pay.
  

Payments for EST will be based on distributor’s gross, which is the amount received by the entity responsible for distributing the film or television program on the Internet. Having distributor’s gross as the residuals basis was a key point in our negotiations.

The companies are now contractually obligated to give us unfettered access to their deals and data. This access is new and unprecedented and creates a transparency that has never existed before. Additionally, if the exhibitor or retailer is part of the producer’s corporate family, we have improved provisions for challenging any suspect transactions.

Ad-Supported Streaming: After an initial 17-day window for free promotional streaming of Internet programs, companies must pay 3% of the residual base (approximately $600 for network prime time 1-hour drama) for 26 weeks of streaming. They can continue to stream for an additional 26-week period by paying an additional 3% -- or a total of $1,200 for one year’s worth of streaming. (During a program's first season, the 17-day window is expanded to 24 days to help build audience.)


Sunset Provision: Allows both sides to revisit new media when agreement expires.

 
“Our fundamental goal in these negotiations was to protect our interests in the present while laying the groundwork for a future whose outlines are not yet clear,” said Cates. “We knew that gaining jurisdiction over new-media production and winning fair compensation for the reuse of our work on the Internet were the key issues for setting a framework for the future, but we also had to secure real gains for our members in today’s world.”

The new tentative agreement includes the following:

• Annual wage increases of 3% for primetime dramatic shows and daytime serials and 3.5% for all other covered programming.
• Outsized increase in director’s compensation on high-budget basic cable for series in the second and subsequent seasons.
• Annual residual increases of 3% for primetime shows and 3.5% for all other covered programming.
• Specific advances that pertain to members of the director’s team. 

Details of the new agreement will be submitted to the Guild's National Board for approval at its regularly scheduled meeting on Saturday, January 26, 2008. The DGA’s current contracts expire on June 30, 2008. 

Thanks to Drug & Device Law for pointing us to the CSPAN video of a recent forum on the VIOXX settlement here.

This American Enterprise Institute forum will not be beneficial to plaintiffs who are searching for advice on whether to accept the settlement themselves. I refer those people back to their attorneys. 

Here's a link to a Yahoo discussion group for Plaintiffs making the decision whether to accept the offer.

For reporters who are following this story at depth, the video includes a sophisticated presentation by Jones Day attorney Mark Herrmann about settlement strategy from Merck's point of view; a provocative presentation by Professor George M. Cohen -- who calls the settlement proposal an illegal antitrust conspiracy -- and a scholarly presentation by Professor Nagareda on the public policy issues raised by the settlement of mass tort claims.  

For attorneys who have been retained to provide their clients with a second opinion, Professor Cohen's presentation will be a useful addition to their own research and independent conclusions.  Attorney Andy Birchfield -- the only forum speaker with first hand knowledge of the negotiations leading to the settlement proposal -- may be of the greatest interest as he walks counsel for Plaintiffs through the structure, purpose and effect of the proposed settlement program.  

Speakers in this forum include:

The incredibly well-spoken Mark Herrmann of Jones Day and the Drug & Device Law Blog. 

Mark modestly fails to mention in his Blog post concerning this video that he is one of the speakers on this panel. 

Herrmann discusses the following questions:

1. did Merck's settlement strategy make sense; and,
2. will this settlement buy Merck peace.

George M. Cohen, University of Virginia Law School Professor who discusses ethical issues pertaining to the "settlement program proposal."  

Professor Cohen not only concludes that attorneys recommending this proposal to their clients are violating professional ethics, but asserts that it constitutes an illegal antitrust "conspiracy" as well. 

Vanderbilt Law School Professor Richard Nagareda, author of the book Mass Torts in a World of Settlement. 

Professor Nagareda discusses the settlement from a dispute resolution public policy standpoint. 

As a contract between Merck on the one hand and the "lawyers who have a large market share" on the other, Professor Nagareda suggests that the settlement proposal is more an artifact of the law flowing from the Supreme Court's AmChem opinion than of any legal "connivance" among the Plaintiffs' attorneys or between them and Merck.

This settlement proposal, he says, is a valuable and creative peace-making transaction for mass claims.   

Andrew Birchfield, an attorney at Beasley Allen and co-lead counsel on the Plaintiffs’ Steering Committee for the federal Vioxx litigation addresses the negotiations themselves and the structure of the settlement.

Andy says that in approaching settlement Merck required global peace -- that there couldn't be a "second round" because Merck had seen how disastrous open-ended liabilities could be for a corporation.

The plaintiffs' attorneys, says Birchfield, negotiated a settlement agreement designed to serve the best interests of each individual client no matter how strong or weak each of their cases might be.

Attorney Ted Frank of the American Enterprise Institute who once represented Merck in the Vioxx litgation. 

Frank talks about the law and economics of the settlement proposal, focusing on the weakest link of Plaintiffs' cases -- causation.

See also the Blog of the Legal Times coverage of this forum here.

When you've got several to hundreds of bargaining partners, there is always a moment where the optimal negotiating move is to cut separate deals with those who are weaker (less well-equipped to continue the battle); stronger (better equipped to take a negotiating loss); more favorably disposed to your position or less fixed in their bargaining posture than other members of the opposition coalition.

No one wants to be the last man standing.

In this town of hyphenates (actor-producer-director) it makes sense for the embattled WGA  to cut separate deals with those whose hyphenated descriptions include the word "writer."  So it is that Forbes.com reports via Reuters in Striking writers union reaches deal with Letterman -- and the New York Times reports in Letterman and Writers Guild Reach Agreement -- that Letterman's "writer-friendly" company gave the writers "what they are asking for [because] they deserve it, and we’re happy to give it to them.”  (quote from NYT)

Forbes.com excerpt below:

Negotiations between the WGA and major studios on a new contract covering 10,500 striking film and TV writers broke down Dec. 7, but the union has been pursuing separate talks with smaller, independent production companies.

The WGA's Hermanson told Reuters that talks between the union and Letterman's company had produced a "full, binding, independent agreement" that includes provisions for paying writers for work distributed over the Internet.

Compensation for Internet content has been the main sticking point in talks aimed at ending the WGA strike, now in its eighth week.

Several other late-night television hosts, including Jay Leno and Conan O'Brien of NBC and Jimmy Kimmel of ABC, are planning to resume broadcasts of new episodes on Jan. 2 without their writers. 

(image links to Amazon.com)

We've talked before (here) about Columbia University Professor Charles Tilly's work on reason giving "Why?" (also see Malcolm Gladwell's article on Tilly's work here)

Reading Tilly is one of those events that forever changes the way we look at the world -- in this case -- why we too often seem to be talking past one another.   

The reason Tilly's book is so important to negotiators should be obvious.  As negotiators, we need to persuade, cajole, influence, seduce, tempt, hustle and sell not only the principled basis for our bargaining position, but also why our interests, needs and desires should make a difference to our negotiation partner.

So it is with the Writers' Guild, still on strike one full month after they exchanged keyboards for picket signs and paychecks for craft services at the front gates of Warners, CBS, Paramount and the like.

Recently, we posted the WGA's YouTube ad for the strike, "Why We Fight:  the Writers' Strike" on both our Negotiation and IP ADR Blogs. 

At 3 minutes and 50 seconds, this video is a textbook example of powerfully persuasive techniques that negotiators, litigators and trial attorneys can all use to "win" the negotiation, the oral argument, or the jury verdict.    

TAKE A LOOK AT THE VIDEO NOW

Why We Fight:  Wrapping it Up in the Flag

The video's title "Why We Fight" is taken from a series of seven documentary films made for the U.S. government by the revered director Frank Capra (It's a Wonderful Life, Mr. Smith Goes to Washington).  Capra's documentaries -- all entitled Why We Fight -- were instrumental in gaining and maintaining the support of a wary American public for our participation in the Second Wold War.  The last "good war." 

Before the viewer presses "play" on this video, its producers have already managed to wrap their short documentary up in the American flag -- carried by Capra -- a Hollywood figure more associated with can-do, hard-working, honest American "manhood" than anyone to walk off a Hollywood movie set since Ronald Reagan first strolled into public life.  

Back to Tilly and the Documentary's "Reason Giving"    

Although the Writers Guild of America is apparently still winning the PR war with the Alliance of Motion Picture and Television Producers, opinion can swifty shift as related businesses begin to feel the ill-effects of an entire industry at stand-still.  This little video should stand them in good stead for quite some time and Tilly can tell us why.

As we've previously discussed, Professor Tilly has created four reason-giving categories -- conventions, stories, codes and technical accounts -- each of which has its own appeal and each of which is more or less persuasive depending up the people we are trying to reach.

Why We Fight uses all of them, to powerful effect.    

Technical Accounts

The video's first minute is laregely a "technical account," i.e., a story informed by specialized knoweldge and authority. 

In this minute, we learn not only how writers are compensated -- by way of residuals when their work is aired -- but also why they are compensated in that fashion (an important point for people unfamiliar with residuals, who I've personally heard ask -- why should writers get paid every time the studio -- which already paid for the script -- airs the movie?  I'm not paid that way!) 

Embedded in this same minute is a Story, one of the most powerful means of reason-giving.  

We all know what a story is.  It is a narrative of human relationships with a beginning, a middle and an end, that generally carries some type of moral or social lesson within.  If you want to know how important stories are to the human animal, check any set of statistics of the amount of time the average American watches television.  Or ask the social scientists, who tell us that our species is more or less defined as meaning-making and story-telling creatures.  (See The Lemur's Tale--Story Telling in Primates and Other Socially Intelligent Animals by Kerstin Dautenhahn, Professor of Artificial Intelligence at the University of Hertfordshire, U.K.)

So What's the Story Here?

The story told in the first minute of this mini-documentary is one every American will know as well as his ABC's.  I Love Lucy.  For the writers, this story is a powerful tale of an historic injustice.

As the video instructs:

Imagine how many times you've seen I Love Lucy on T.V.  That show has run continuously for over fifty years.  Guess how much in residuals the writers have been paid.

NOTHING.

That show has earned hundreds of millions of dollars over the years.  And the writers never received one dime for all those re-runs. 

That's a narrative of injustice profound enough to make a Capuchin Monkey "strike" and throw his "money" (cucumbers) out of the cage.   And its told in three short paragraphs, one of which is a single word. 

Conventions

Conventions are the rules your mother and grade school teachers taught you. Don't be a tattle tale. Share with your sister. Don't whine. Say thank you to the nice man for giving you an extra dollop of ice cream.  Anthropologists call these conventions "folkways." They are the unwritten rules of approrpriate social behavior that we breach at the peril of scorn to ostracism.

The central (and peculiarly American) conventions of the WGA  video? 

• People who make money as a result of your work should pay you a fair share of the money they make on it.   As the video instructs:

[I Love Lucy] has made hundreds of millions of dollars over the years and the writers never received one dime for all those re-runs. 

For every dollar the studio gets paid, we get paid 2 1/2 cents.

• Workers don't deserve to have money served to them on a silver platter -- they have to work for what they get.  The video recounts:

Because the writers fought for it [images of striking workers] we now get paid whenever the studios make money off of our work.

Codes -- "high-level" conventions -- are the formulas that invoke procedural rules and categories. The judge and jury apply codes such as "oral agreements can't transfer real property" to the Plaintiff's story about her landlord's promise to extend her lease for a year.

There's not much law in the writers' video, but there is extensive discussion of the private codes that govern commerce -- contracts.

To tell the writers' story of injustice -- the reason the strike needs public support -- Why We Fight includes a short history of the "private law" the studios and the writers agreed would govern their commercial relationship.

The Story of the Code Goes Like This 

In the '80s, the studio asked us, the writers, to take a cut in our VCR residuals so that the studios could "grow" the home video business.  We complied with our agreement. 

The studios told us they'd give us a greater percentage when the market matured.  That was twenty years ago.  Sales and studio profits have soared.  The studios didn't honor their promise.  

The money shot?

Now the studios want to do the same thing with the internet.

Technical Account

The internet allows the studios to make more money than ever before because they can broadcast "our work" without incurring the costs of manufacturing, shipping, or warehousing.  The studios' expected revenues over the next three years for streaming video on the internet  is $4.6 billion.

Convention and Code

The studios don't want to pay the writers anything at all for the streaming internet video because they claim it's "only promotional."  But that's not the truth.  The studios have projected income in the billions of dollars [presumably on ad revenues] for the next three years.

Once again, the video suggests, the writers keep their promises and the studios break theirs.  This has a post-modern TV "western" movie code theme in it -- the studios are the "white men" who spoke with "forked tongues" -- entering into treaties with the Native Americans and then repeatedly breaking their promises.  

Story 

The video goes on to put human faces on the striking writers.  They are ordinary people, suggests the video, nearly half of whom are unemployed at any given time.  These "residuals" are not a luxury, but a necessity.  Writers need them to support their families, pay their mortgages and purchase health insurance.  

What We Want

By the time the viewer gets to "what we want," the video-makers' uses of symbol, image, convention, code, story and technical account will have anyone but the most cartoonish Simon Legree studio-executive crying out for justice.  Heck, Ari Gold would be in tears.

Justice -- though codified in the law -- is more convention than code.  More fairness than legality. 

Why the video?  To convince the public that the writers' demands are just; to allow the viewer to experience the injustice portrayed, to persuade the viewer that the studios are greedy, dishonest and, simply, wrong.  That what the writers are asking for is in fact the only right thing to do.

And what DO the writers want?  It's simple says the WGA video.

We want the DVD rate to finally go up after twenty years.  This [image] is your $19.99 DVD.  This is what we get.  Our 4 cents.  This is what we want.  4 more cents.  And when our shows get played over the internet, we want to get paid the same rate as if we were on T.V. 

Good luck to the writers.  Without them, there is no story.  No film.  No television.  No DVD.  No streaming video.  They fill the blank page with our own hopes, dreams, fears, desires, failures and successes.  We are moved, inspired or simply entertained.  You just can't help rooting for them.

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!

When we first wrote about the writers' strike and the active picketing just down the street here at Paramount on Santa Monica and CBS on Beverly Boulevard, we asked our friend Jim Stott for comment.

Because Jim's excellent comment was buried in small type in our "comments" section, I give it its due here by bringing it up into a post of its own.  

(for "live" WGA Strike Blogging from the Los Angeles Times, click here)

After noting that his own comments are not "in any way intended to minimize, diminish or otherwise criticize the hard efforts of the writers, producers or federal mediator's efforts to reach agreement in this ongoing dispute," Jim opines as follows:

Often, both parties become "blinded by the sparks" associated with their lack of progress at the bargaining table. In those situations, a psychological phenomenon occurs wherein parties start start to blame the 'other side' through personal attacks; one against the other. As this practice grows, the underlying issues that really need to be discussed are subsumed by the superficial and surface diatribes.

Obviously - to the outsider - settlement can only be reached when the parties focus on the substantive and underlying issues as a mutual and common problem. Often, both sides fail to realize that a problem for one contingent group is ultimately a problem for all contingents. If force, i.e., a work stoppage or lock-out is used as a means for getting the 'other side' to soften their positions, the latent residual feeling caused by such an action is often long-lasting and will materially damage the ongoing relationship between all stakeholders involved.

In practice and theory, writers need work provided by the producers, just as producers need the work-product of the writers. In negotiations, it is this symbiotic internal relationship that is most important. Long after the work stoppage has been resolved, the latent and labile underlying emotional distrust and dissatisfaction will continue; often for years.

The federal mediator assigned to this particular case is exceptionally well qualified. He is a colleague and friend. I have no doubt that his professional services provided in this situation were of the highest quality.

Rarely however, even with the presence of a mediator, negotiations break down and reach impasse. Intractable parties are often the stock-in-trade for federal mediators. It not at all unusual to hear the warring factions self-diagnose their positions as being "miles apart." On rare occasions though, parties are so far apart that their tangential distances and differences, when measured in cost and dollars can be significant.

It would appear that producers and writers are faced with unanticipated outcomes associated with the expotential growth of the broadband internet capacity and online streaming video and audio. On the one hand, producers may see this as a marketing and distribution opportunity, by which they will increase audience participation and marketshare. While at the same time however, writers may see this exploding media as one in which their recognition, compensation and earning potential has been and will be diluted and otherwise diminished.

These complex negotiations are never easy and are often rocky. The challenge to all the stakeholders is to continue the conversation and continue to make progress, albeit ever-so-slowly. Even if their conversations are not face-to-face, but done through an intermediary; they are critically important.

As long as all dialogue has stopped, there virtually is no chance the impasse will self-resolve; thus the stand off will continue indefinitely. This is precisely what happened in the Caterpillar work stoppage which lasted over five years. All communication stopped. Distrust on both sides grew expotentially. Replacement workers were hired. All the while, the union pickets were outside the plant, locked out, while the plant production continued to grow.

While this is an extreme case in labor management relationships, it is my hope that productive conversations, clandestine and off the record or not, continue. This is the only way in which this dispute will resolve without inflicting extensive and long-lasting damage to all stakeholders.

Currently, Jim Stott is a Principal and Senior Consultant with Stott & Associates of Gig Harbor, Washington. Until recently, he was Assistant Director at the Straus Institute for Dispute Resolution, Pepperdine University School of Law.

Prior to joining Straus, Jim spent nearly six years as a Commissioner with the Federal Mediation and Conciliation Service (FMCS) in Los Angeles and Washington, D.C., where he provided collective bargaining mediation and negotiation consultation services to federal agencies, private and public sector employers, and labor unions.

Jim was also instrumental in the design and development of joint labor/management committee problem solving protocols used by Los Angeles Dodgers, Southwest Airlines, Toyota, Kaiser Permanente, Boeing and Walt Disney Studios.

In his professional and academic career, Jim mediated more then 1,500 disputes. The majority of these conflicts were associated with employment, labor/management or collective bargaining issues. Jim has also provided pro-active and pre-emptive conflict management design systems. In his teaching and coaching capacity, he has taught mediation protocols and processes to over 1,500 students in academic settings, court programs, international labor unions as well as management/employer groups including CUE.

Jim holds a Bachelor of Science Degree in Business and Management from University of Redlands, as well as a Masters Degree in Dispute Resolution from Pepperdine University School of Law.

THANKS FOR THE GOOD THOUGHTS JIM!! 

WE MISS YOU DOWN HERE IN SOUTHERN CALIFORNIA!!

This very local news on the Writers' Guild strike is just in from the U.K. -- Writers Block Hollywood as Strike Takes TV Shows Off the Air (excerpt below, and kudos for yet another unknown artist of the terse and witty headline). 

On Sunday, a federal mediator made a last big push to avert the strike. The Writers Guild made one big eleventh-hour concession, dropping its insistence on a doubling of royalties from DVD sales but that was not matched by anything substantial enough from the producers to clinch a deal.

After three months of contract negotiations, which never entirely looked like producing an agreement, both sides are extraordinarily well prepared. The writers have commandeered 300 strike captains on both coasts who will direct pickets and other protests, and have amassed a strike fund of about $12.5m (£7m)which they will farm out in the form of loans to the neediest writers and their families.

In the meantime, you can see Jay Leno and Julia-Louise Dreyfus on the picket line (see TV Squad here on Leno handing out Krispy Kremes to strikers) down the street here in front of the famous Paramount Studio Gate if you click on the L.A. Legal Pad's coverage of the strike which links to a Channel 2 newscast featuring those well-known comedians.

We'd love to hear from any of our readers who have experience negotiating labor disputes. 

 Jim Stott in Gig Harbor, Washington?  We mean you Big Guy! 

(right, the bright and beautiful Miss South Carolina, now at the Wharton School of Business; photo links to the NYT article on the Pageant's broken promises)

Before there's Miss America, there's Miss California, South Carolina, Oklahoma and the remainder of the fifty states.

The problem? 

The local "Miss" pageants -- the stepping stones up the ladder to Miss America -- pretty much all offer scholarships as prize money to winners, many of whom may well not be able to begin or complete their university studies without it.

Apparently, some of the Miss America pageants' lower reaches (franchises) are not honoring their promises to provide these scholarships to the beautiful, dynamic and talented young women who become Miss New Orleans or Los Angeles.  

According to this morning's New York Times article on the issue, at least one young woman was required to file her demand for the promised scholarship money from the Miss Five Boroughs Scholarship Pageant in small claims court.  

The REAL ADR Option

As any attorney (and lots of others know) winning a small claims judgment is often a phyrric victory.  No one tells the regular people who line the walls of the daily small claims calendar-call that it will probably be difficult (if not impossible) to collect their judgment.

If your dispute is sexy however -- and how could Miss Louisiana or Miss Carnegie, PA not be -- the real ADR is the court of public opinion.

After winning her case by default in small claims court in Manhattan against the Miss Five Boroughs franchise, the scholarship winner

took her story to a local television station. She was paid within two days of the broadcast of her account, she said. The organizer of the now-disbanded pageant did not return calls for comment.

“Basically, if I hadn’t gone after them, I wouldn’t have gotten my money,” [winner] Ms. Songhai said. “There is no real checks and balances to make sure the contestants get their money.” She said that competing in Miss Five Boroughs was fun, but added, “They are disorganized and they are bad with money management.”

Scholarship?  How About a Few Used Ball Gowns?

The Times article again:  

Saidah Story won a $1,000 scholarship as Miss Inland Empire 2003 in California, but her mother, Renee Wickman, said the pageant director informed her that there would be no scholarship.

“Instead of the scholarship, she was like, ‘You can take these gowns,’ ” Ms. Wickman said.

The pageant folded after that year. Bob Arnhym, president of the Miss California Pageant, said the Miss Inland Empire director moved to Canada because her mother had fallen ill, but had notified the state she had given Ms. Story “the full value of the scholarship.”

Despite contractual agreements, the state organizations say they have only limited enforcement of local scholarships. .  . 

In theory, state pageants could take local pageants to court, but “that legal battle is prohibitive financially,” Mr. Brown said. “It’s not worth doing that for a scholarship which is $1,000.”

Whenever we hear "too little money to litigate," it pricks up our ADR ears.  Our solution is always a modest one.  If these are franchises of the far better funded Miss America Pageant, how about requiring those franchises to maintain blocked accounts in which to hold the scholarship money to which only the National organization has access?  

Alternatively, the Miss America organization could maintain its own fund -- much like the funds against which insureds can make claims when their carriers go bust -- so that contest winners are guaranteed the small scholarships that they work their hearts out for. 

If disputes develop, mediation clauses followed by inexpensive arbitration procedures, could quickly and efficiently resolve these dispute and allow young women the fruits of their considerable labor.

[Shapiro had earlier been dismissed from the lawsuit and was not, therefore, an individual party to the resolution].

Shapiro's secretary was represented by an old colleague of ours, Patricio T.D. Barrera, now of the law firm Marcin Berrera, LLP.

The case was reported by the National Law Journal's Los Angeles Legal Pad here and by CBS News here.

As CBS News reported:

Lawyers for James and the Christensen law firm appeared before Los Angeles Superior Court Judge John Shepard Wiley Monday, saying both sides agreed to all terms and that the defense will prepare the final document for signatures.

Wiley said he was pleased to hear of the agreement in principle. "To try this case would have been nasty," Wiley said. "Neither side would have had a pleasant experience." The judge said the settlement avoids the uncertainty James and the Christensen law firm would have faced had the case gone to a jury, which was scheduled for trial Sept. 11. He urged the lawyers to put the settlement in final form soon before any last minute disagreements develop.

"Let's get this in the can," Wiley said.

Outside the courtroom, James' lawyer, Patricio T. Barrera, said the terms are confidential and therefore his client, who was present in court, cannot comment.

(left:  author/illustrator Rutu Modan)

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

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

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

Mixed Emotions is translated by Jesse Mishori. 

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

 

In today's NYTimes, Adam Liptak reviews Pearlstine's public charge that Abrams "gave [Time] less good advice than [it] deserved" in responding to subpoenas issued by the Special Prosecutor during his investigation into the disclosure of CIA operative Valerie Plame Wilson's identity.  (For the full article, see Editor’s Charge: His Lawyer Fell Short).

Though not agreeing with Pearlstine's evaluation of Abrams' motives -- that he was "more focused on overturning Norman Pearlstine Branzburg  v. Hayes . . . reject[ing] First Amendment protection for confidential sources, 'than on pragmatic ways in which [Time] might fashion a compromise'  - Liptak concurs with Pearlstine's "broader point" that  

Time, like The Times, seems to have misplayed its hand. While it is impossible to know if the two news organizations and their reporters could have found a way to respond to [congressional subpoenas] short of a constitutional battle royale, it seems pretty clear that they could have tried harder to look for a compromise. . . . Time’s fundamental misstep was its astonishing failure to approach Mr. Rove for permission to cooperate in the investigation."

Zealous Advocates and Negotiation Pros

No matter how complicated a game of football subject to Monday morning quarter-backing might be, it pales in comparison to the immensely complex and sophisticated commercial and legal strategies that must be planned, launched and managed in response to a Congressional subpoena (and yes we have grappled with the monster for our pro bono clients).  

But the purpose of this comment is not to call into question either Mr. Abrams' legal advice or Mr. Liptak's belief that the decision not to approach Mr. Rove for permission to cooperate in the investigation constituted an "astonishing failure."

Rather, we ask ourselves and our readers again whether there ought not be a representational "balance of powers" when the legal, professional, societal, political and commercial stakes are so high.

We lawyers do like to represent ourselves as Jacks of all trades -- negotiating a settlement here; drafting a compelling appellate brief there; cross-examining a witness within an inch of his life today and strategizing a long-term legal and commercial strategy in response to a thermo-nuclear patent infringement action the following week.

But, really.  We're just not all 100% top-of-the-class, flat-out brilliant at everything. 

When a client wants a zealous advocate, willing to burn the enemy's crops for a litigation advantage, he's not likely to also get Mr. International Diplomacy in the bargain.  One General Counsel once told me that her (Fortune 50) Company didn't let the litigators and trial attorneys "in" on the overall plan, particularly settlement strategy, because they wanted them to be combat-ready at all times.

The Interdisciplinary Approach to Bet-the-Company Litigation

Once again we're recommending an interdisciplinary response to litigation, particularly when the enterprise's survival or the survival of its fundamental principles are at stake.

Whether or not you'll want to hire an outside settlement team, you'll definitely need a strategic planning in-house negotiation guru to do that which "one of America's most ferocious defenders of the First Amendment" shouldn't be expected to do.

We will say it again and again.  Litigation is a business negotiation being conducted in the courts.  The litigators need to be focused on the law; the parties' positions; legal strategy; and, most importantly, that which they do supremely well for a living -- WINNING.

Business, however, is not a legal negotiation being conducted in commerce.  It is a multi-faceted enterprise with commercial (as well as societal and political) interests that can be advanced or deterred by the quality of its management.

When you need a negotiator to approach the likes of Carl Rove, you do not ask Floyd Abrams to do it.  You find a lawyer or a political ally who is skilled at working Washington relationships.  No matter how masterful the litigator, s/he is not in charge of the war, only one of its many battles.

CEO's who blame the lawyers on their watch for strategic missteps are missing the point.  Lawyers are commercial foot soldiers -- some skilled at flying B-52's; others at triaging the wounded; and a few, very few, at planning the grand strategy to take a City or withdraw from it with honor.

The lawyer, no matter his credentials, is a member of the team and should be deployed by the CEO as best suits his or her skill, education, experience, talent and drive.

As Sun Tzu instructs in The Art of War,

A sovereign of high character and intelligence must be able to know the right man, should place the responsibility on him, and expect results.

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

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

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

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

(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)