Anne Reed over at Deliberations links to her excellent TRIAL Magazine article, "What Can a Mock Trial Tell You?"
She dispels misconceptions. She demystifies the process. And she highlights the many benefits of mock trying your case.
Blawgletter says check it out.
The Old Stone Fort (1779) in Nacogdoches, Texas.
Starbucks yesterday released The List -- of 600 stores it plans to close by early 2009. Blawgletter drank in the new information this morning. We perked up when we got to page 15, where the Texas listings started. Several Dallas outposts, we learned, will grind to an ignominious halt. Then came the jolt -- our old hometown's sole representative of the Starbucks Nation (yes, the one on North Street, across from Stephen F. Austin State University) made the cut. Yay!
Practice pointer: Drink coffee before going to court. It'll give you an excuse for requesting a break.
You'll see plenty of lawyers here.
The ABA Journal reports that, more than any other group, "legal and accounting workers" enjoy gathering at watering holes for off-hours gregariousness. Within that milieu, 87 percent go to bond, 28 percent to network, and 19 percent to gossip.
That compares to an average for all survey respondents of 82 percent for the bonding, 20 percent for the networking, and 15 percent for the gossiping, according to a press release by CareerBuilder.com, which commissioned the survey. The study also found that only 21 percent of all respondents attend happy hours but 35 percent of legal and accounting workers do.
What can we infer about people who toil at law and accounting firms relative to those in other callings?
Plus they probably like to drink.
Don't trust this guy.
A pair of brain brainiacs, Sam Wang and Sandra Aamodt, today trot out an op-ed on why people believe falsehoods -- or, more specifically, why over time they start buying what they at initially rejected. See "Your Brain Lies to You".
They tell us, for example, that we first store new facts in our hippocampus, a structure deep in our noggins (see photo above). But when we call the information into conscious memory, our brain rewrites it and eventually somehow transfers it to our cerebral cortex. The process divorces the facts from the context in which we learned them:
This phenomenon, known as source amnesia, can . . . lead people to forget whether a statement is true. Even when a lie is presented with a disclaimer, people often later remember it as true.
With time, this misremembering only gets worse. A false statement from a noncredible source that is at first not believed can gain credibility during the months it takes to reprocess memories from short-term hippocampal storage to longer-term cortical storage. As the source is forgotten, the message and its implications gain strength. This could explain why, during the 2004 presidential campaign, it took some weeks for the Swift Boat Veterans for Truth campaign against Senator John Kerry to have an effect on his standing in the polls.
Blawgletter notes that it could also explain why decision-makers (like judges) can go horribly wrong in their conclusions. As source amnesia takes hold, an habitual liar's repetition of lies turns the hippocampal falsehoods into cerebral cortexian truth. And the judges don't even realize it!
Mr. Wang and Ms. Aamodt stress the importance of countering misleading statements without repeating them. Don't simply deny the misinformation; that only re-emphasizes it. And don't just ask for objectivity. The authors cite a Stanford study that shows the "please be fair" strategy doesn't work.
What does? The authors suggest asking people "to imagine their reaction if the evidence had pointed to the opposite conclusion". That has the effect of making them "more open-minded to information that contradicted their beliefs. Apparently, it pays for consumers of controversial news to take a moment and consider that the opposite interpretation may be true."
Golden Bridge's new argument (about validity of a wireless technology patent) has fallen down. My fair lady.
Can you raise on appeal an argument you didn't make in the trial court? Usually not. Golden Bridge Technology, Inc. v. Nokia, Inc., No. 07-1215 (Fed. Cir. May 21, 2008).
What if you have shiny new appellate counsel? Counsel who thought up a bodacious new point that the old lawyers somehow missed? Does that matter?
No. It. Does. Not.
Blawgletter realizes that the losing party in its bitterness may feel a strong tug towards firing the old legal team and bringing in the pros from Dover. We don't blame them. But, as the Golden Bridge case illustrates, switching counsel on appeal will seldom change the outcome. Indeed, if the new lawyer cites her predecessor's mistake as the principal reason for reversal, she may (rightly) feel like a genius. But no court will rescue the client on that ground. And, unlike the old lawyer, the new counsel won't even get Their Honors' sympathy.
So we think clients, in general, ought to put aside their disappointment, unpoint the Finger of Blame, and go upstairs with the counsel who brung 'em.
Today we welcome a guest blawger -- the Senior Vice President & General Counsel of Zix Corporation (NASDAQ:ZIXI), Ronald A. Woessner.
Ron knows a thing or two about data encryption. As Zix's homepage says:
Zix Corporation is the leading provider of services that Connect entities to Protect and Deliver sensitive information. ZixCorp's hosted Email Encryption Service provides an easy and cost-effective way to ensure customer privacy and regulatory compliance for corporate email. Its PocketScript® e-prescribing service reduces costs and improves patient care by automating the prescription process between payors, doctors, and pharmacies.
So let's hear from Ron. Here goes:
Zeroes and ones -- joy!In 1999, the American Bar Association's Standing Committee on Ethics and Professional Responsibility ruled that an attorney may transmit confidential client information via unencrypted email over the Internet without violating the Model Rules of Professional Conduct. The basis for the ABA's decision was that unencrypted email has a reasonable expectation of privacy from a technological and legal standpoint -- similar to the expectation of privacy for mail, phone and facsimile communications.
The basis for the ABA's decision is no longer valid, given what we know today about the inherent privacy and security vulnerabilities of unencrypted email. The ABA should revise its decision.
It is now widely known to information technology professionals that unencrypted email messages are as vulnerable as a postcard to a third party's prying eyes. In recognition of this, the regulations under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") and the Gramm-Leach-Blilely Financial Modernization Act of 1999 ("GLBA") require that email messages containing personal health information and personal financial information be encrypted. Encryption is required because, according to the regulations, unencrypted "email is not a secure method for sending sensitive data."
The HIPAA and GLBA regulations do not require encryption for regular mail, phone and fax communications. Since encryption is required for email messages but not for these other forms of communication, the federal regulators clearly believe that unencrypted email is less secure than regular mail, phone and fax communications.
Recent court decisions illustrate the legal risk to attorneys that use unencrypted email. In Scott v. Beth Israel Medical Center, Inc., the court held that unencrypted email messages sent by a client to his attorney using his employer's computer and via the employer's email system pertaining to the client's legal claim against the employer were not protected from discovery because the client had no reasonable expectation of privacy.
Admittedly, this particular case involved a situation where the attorney-client communications related to a legal claim against the employer whose email system was being used to transmit the email messages. Nevertheless, the rationale of the decision -- that there is no reasonable expectation of privacy in unencrypted email messages transmitted by an employer's computer network -- could be readily extended to any email communication about a personal legal matter that is transmitted or accessed by the client from his or her place of employment during business hours.
Given the foregoing, the ABA should begin requiring the use of encryption for attorney-client communications. Attorneys that do not use encryption for sensitive email communications risk legal malpractice claims. Attorneys that do not use encryption for email communications containing personal information protected by HIPAA or GLBA risk fines and jail time.
Ronald A. Woessner
Google this. Blawgletter gets as-they-happen Google Alerts by email. You might consider it too. Don't cost nothin'.
Our Alerts include items that mention "contingent fee" (or its yokely doppelganger, "contingency fee"). Most reference ads for personal injury lawyers, especially ones handling (still!) "mesothelioma" cases.
A claim of sameness. A more interesting one caught our eye yesterday. The item appeared on David Giacalone's f/k/a blog under the lower-case title obama's tort reform creds? On the way to finding Barack Obama neither fish nor fowl in tort reform terms, the post notes (with emphasis ours) that f/k/a has "written extensively on the topic of the standard contingency fee (charging virtually every personal injury client the same percentage fee regardless of how risky or easy the case might be), which we believe consistently extracts excessive fees from clients." And it refers the reader to "our four-part essay on the ethics and economics of contingency fees."
The "same percentage fee" and "excessive fees" got our attention. Specifically they provoked, how you say, dubiositousness. While we don't practice in the p.i. arena, we do recall that in January we saw a study that attributed the uniformity of contingent fee percentages in personal injury matters to some kind of "sorting" process. Cases sort themselves into a rough order of strength: The strongest cases go to the best lawyers, middling ones attract the not-so-greats, and the weakest end up with the pikers. The clients don't mind paying one-third because a 33.3 percentage assures that each gets the highest quality his or her individual case can attract.
Take a for instance. Say you have a great case -- hard damages of $10 million, a solvent defendant, and good liability facts. A hack lawyer would positively salivate at landing you as a client. He might even discount the usual one-third to keep you from going elsewhere. But will you hire him? Or will you go with the best personal injury trial lawyer in the state? You know -- the courtroom dynamo who doesn't need your case because she has so many other terrific ones to work on?
Commercial angle. We must say that we find the "sorting" conclusion appealing. We also expect that, if accurate, it applies with even greater force in the context of commercial -- business v. business -- litigation.
Why? In the first place, commercial litigants know more. They may not have served as president of the Harvard Law Review, but they do have contacts in the business and legal communities as well as the resources and savvy to evaluate credentials, look at success rates, and judge other signs of competence. So you'd expect businesspeople to do an even better job of finding the best contingent fee lawyer for their cases.
You'd also anticipate that companies and business owners grasp how to turn competition to their advantage. They know to shop their cases to compare offers. They understand that a "standard" contingent fee represents a starting point for negotiation. They or their regular counsel can haggle over terms -- not only the contingent percentage but also who pays expenses, whether expenses come out before computing the fee, and under what circumstances the lawyer can withdraw. Fee terms thus vary widely in commercial contingent fee litigation.
Businesses with money also enjoy more options. Law firms that will work on a contingent fee basis usually will offer also to take cases on an hourly basis, for a periodic flat fee, or under an arrangement that blends hourly with contingent. The business client chooses.
Bottom line. We favor contingent fees because they shift downside risk to the lawyer, better aligning the interests of client and lawyer. Clients appreciate them too. The study concluded, in fact, that clients so like the idea of shedding some of the risk of loss that they'll gladly agree to pay a contingent fee 2.5 times as big as the fees they'd expect to pay to an hourly lawyer. What does that tell you?
Blawgletter argued a few weeks ago to a bench that few practicing lawyers know much about -- the U.S. Judicial Panel on Multidistrict Litigation.
Repeat appearers call it simply "the Panel" or "the MDL Panel". Its website defines its mission thus:
Origin and Purposes
The Judicial Panel on Multidistrict Litigation, known informally as the MDL Panel, was created by an Act of Congress in 1968 – 28 U.S.C. §1407.The job of the Panel is to (1) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings; and (2) select the judge or judges and court assigned to conduct such proceedings.
The purposes of this transfer or “centralization” process are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. Transferred actions not terminated in the transferee district are remanded to their originating transferor districts by the Panel at or before the conclusion of centralized pretrial proceedings.
Historical Summary
Since its inception, the Panel has considered motions for centralization in over 1,900 dockets involving more than 250,000 cases and millions of claims therein. These dockets encompass litigation categories as diverse as airplane crashes; other single accidents, such as train wrecks or hotel fires; mass torts, such as those involving asbestos, drugs and other products liability cases; patent validity and infringement; antitrust price fixing; securities fraud; and employment practices.Membership of the MDL Panel
The MDL Panel consists of seven sitting federal judges, who are appointed to serve on the Panel by the Chief Justice of the United States. The multidistrict litigation statute provides that no two Panel members may be from the same federal judicial circuit.
What makes the job such a good one? We think several things do. First, the Chief Justice appoints Panel members, and partly as a result a slot on the Panel carries a lot of prestige. Second, the Panel's docket includes the biggest, highest-dollar, and sprawlingest cases in the U.S. From its inception in 1968 through September 30, 2007, the Panel had transferred a total of 202,601 cases, 76,842 of which remained pending. Third, the Panel exercises tremendous discretion in choosing whether and where to centralize multidistrict cases for pretrial purposes. Review is rare, and reversal is even rarer. Finally, each lawyer's argument typically lasts no more than two minutes -- every judge's dream.
Here Blawgletter sits on a Super 80 jetliner. The flight crew will soon -- if the FAA doesn't order a new inspection of the wire harnesses in the landing gear well -- close the door and order us passengers to switch off of all electronic devices, including our laptop.
But before that happens we wanted to share our part in an ABA teleconference CLE earlier today. The program, Current Developments in Business Litigation, featured five panelists. The panel members answered questions concerning topics we wrote about in a Section of Litigation and Thomson West treatise, Business and Commercial Litigation in Federal Court.
What follows approximates the questions to Blawgletter and our answers. A more accurate transcript will go up on the ABA website in a day or so.
How does streamlining and expediting a case help lawyers and their clients?
Lots of ways, but primarily by focusing us as lawyers on the things we’re experts at.
Let me illustrate what I mean.
Imagine that instead of a litigator you’re a heart surgeon. What kind of incisions do you make? Precise ones in exactly the right spot. Do you hurry? No. Do you stall for time? You do not. What do you care about? The patient and improving -- possibly saving -- her life.
Now imagine you’re the patient. Maybe you have a mild condition that just barely warrants cracking your chest open. Maybe you need an octuple bypass. In either case, do you want to complicate and delay your operation and recovery time? Or do you prefer to streamline and expedite those things?
Trial lawyers are no less experts than heart surgeons. Our expertise is in solving intractable problems through the civil justice system rather than the healthcare system, in courtrooms instead of operating rooms.
Streamlining and expediting the process means focusing on the important stuff. The key testimony and the key documents. That provides greater value and – not incidentally – makes lawyers more successful. Clients suffer less pain, pay only for work that aims to advance the ball, and get to a fair outcome sooner.
Why do some lawyers and clients oppose streamlining litigation?
For the same reason that the Speedy Trial Act is seldom invoked in criminal cases.
People oppose streamlining because they don’t believe a swift, fair outcome favors them.
Suppose you have a weak claim or an iffy defense. Or the client wants to use litigation as a weapon against a competitor. Or the lawyer thinks that a reputation for earth-scorching will earn him more business. An expeditious and just result probably doesn't favor you or further your collateral goals.
What to do? If you have the resources, a war of attrition may look like your best option. So you slow roll the process. You concentrate on inflicting pain and expense on your opponent. You try to wear the other side down and force it to make mistakes. You hope for a slow and unfair result.
Which technique, more than all the others, best helps streamlining and expediting litigation?
It’s simple: Getting along with opposing counsel.
I don’t mean you need to become friends and go to antique shows together. I don’t mean you should reveal your strategy or fight any less hard for your client.
But I do mean you make a big mistake if you provoke and antagonize opposing counsel. A deposition that should last two hours takes seven. Scheduling a hearing becomes a two-week project. You communicate only by letter, if at all. Every dispute turns into a battle of wills.
How do you avoid that? First of all, you communicate personally. Not by letter, not only by email. You also cooperate and accommodate. You don’t show anger. You don’t threaten or attack opposing counsel personally. You always tell the truth – and that sometimes means admitting mistakes.
Trying to get along always works even when it doesn’t -- by which I mean even if opposing counsel doesn’t reciprocate. Staying calm and reasonable drives them nuts. Plus it builds your credibility with the judge.
Does streamlining and expediting produce better and more just results -- or only quicker and less expensive ones?
Yes. They do both.
Since I started practicing in 1985, we’ve moved away from the messiness of getting cases ready for trial and trying them and towards demanding perfection, as if we could attain it.
That famous French trial lawyer Voltaire said “the perfect is the enemy of the good.” He was right. We ought not insist on an unattainable goal when “good” and even “excellent” are within our grasp.
We are heart surgeons, not line workers in a rendering plant.
Last week, the Institute for Legal Reform -- an arm of the U.S. Chamber of Commerce -- released results of a survey it commissioned on voters' attitudes towards arbitration. It summarized the findings thus:
Blawgletter already suspected that people fear going to court and that they worry about getting fair treatment there. But we didn't imagine that their anxiety would prompt them to prefer arbitration to litigation, much less by such a huge margin -- 82 percent to 15 percent.
And yet the outcome makes total sense. Surveyors asked respondents to pick between "arbitration, which does not require going to court" and "litigation, which does require a lawsuit and going to court." Who, aside from a trial lawyer, wants to go to court? What individual, other than Bill Gates or Warren Buffett, thinks he or she can outspend and outgun a company in a lawsuit? Doesn't a process that "does not require going to court" sound oh so much nicer and less likely to bankrupt you?
We have more trouble accounting for the strong opposition -- 71 percent -- to letting "some officials in Congress" remove arbitration clauses from contracts for goods and services. But then we reflected that people probably (a) distrust Congress (especially "some officials" there) and (b) feel weak and vulnerable when imagining a hypothetical fight with, say, the cable or telephone company. They think an arbitration clause will protect them from all the bad stuff they've heard about the court system.
The last bit of the survey confirms our inferences. Respondents' biggest worry -- 64 percent called it "the worst thing that could happen" -- is that "consumers who may not be able to afford the cost of a trial would never be represented in a dispute". They also feared that eliminating arbitration agreements would cause price increases, force consumers to choose between paying for a trial or dropping their complaints, benefit lawyers, and increase the number of lawsuits.
The survey strikes us as fair and informative -- as far as it goes. But it doesn't go far enough. We'd like answers to, for example, these questions:
We don't expect the ILR will commission our survey any time soon. We doubt they'd like the answers.
