July 03, 2009
More Crossroads: Boomers ask "Who is John Mayer?"
Would prefer a good video/audio of 1968 live version but this--with lame but short introduction--will have to do for this former U.S. national anthem:
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The late-2008 Recession: A Crossroads for Corporate Law?
I'm staying at the crossroads, believe I'm sinking down.
If you can navigate through all the painstaking diplomacy without pulling a hamstring, do visit ALM's Legal Blog Watch and read "Are the BigLaw Layoffs a Good Thing?", and the related links. It was inspired by a provocative and courageous Dan Slater column July 1 at NYT's Deal Book. Note: In writing the op-ed piece, Slater, of course, used his real name. Most of the twenty-five commenters--presumably Cuban dissidents, battered housewives and former Tony Soprano crew in the Witness Protection Program--did not.
"I went down to the crossroads, fell down on my knees. Asked the Lord above, have mercy now, save poor Bob if you please." Robert Leroy Johnson (1911-1938) used his real name when writing and performing.
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July 02, 2009
Clients: "Liking" them helps--and may even be critical.
I'm no Stephen Covey. I suspect that burning inside each employee is an overwhelming ambition to Get Home, Eat Twinkies and Watch Wrestling.
Life's short. Work is important.
If your work is not mainly fun, find a new gig. Work at that.
Many, if not most, lawyers, I am convinced, simply don't even like what they do for a living. They went to college, law school, got married, had kids, some hard knocks. And then watched in slow-motion horror while their choices in life hardened around them. Education, and professional schools, are supposed to set you free--not land you in an upper-middle class prison of dashed hopes and failed plans.
Happiness, right? That was the main idea.
My problem with all that? What business is it of mine that lots of lawyers are miserable? Answer: If you want to have a half-assed life, fine. I've come close to that myself--and fought and muddled my way out more than once. But please don't hurt your clients. And please don't repel people from entering and staying in the profession who might make fine lawyers except for the bad example set with your defeat, angst and misery because you don't like your career.
And all that disenchantment translates into settling for second-rate work, and "mailing it in"--at best. That's the worst of it. I see it every working day, especially at other law firms. You just don't love what do, folks.
You don't even like it.
Look, I am no Stephen Covey. I am less wise, less nice and, unlike Covey, strongly suspect that smoldering inside each employee, even well-educated and highly-paid ones, is an overwhelming ambition to get home, eat Twinkies and watch wrestling. But liking your work, in all but the rarest cases, makes your work better.
The quality of your work is, I think, perfectly--almost mathematically--commensurate with your attitude and your degree of contentment at work. You don't like work. So you do mediocre work. You dumb down hard things. Not even bad work--just barely adequate work. (Your clients actually pay you for that?) It makes me want to secretly send you an application for employment at Starbucks. It makes me angry.
If you're a professional, you need to like what you do. Period.
So maybe "liking" your clients helps? Yes--I think it does. See Rule One from our infuriating-but-accurate 12 Rules. I am not the only one who's noticed. In November 2008, I had the honor and pleasure of finally meeting lawyer-consultant Tom Kane, as well as his talented son, a new lawyer, on their turf on Florida's brilliant Gulf Coast. See at Tom's Legal Marketing Blog this one: "Enjoy Your Practice and Your Clients". Excerpt:
The solution: spend your marketing and business development efforts and resources seeking the legal work and clients you do enjoy. Don't waste your marketing time or dollars on the rest.
Thomas E. Kane can help you get your "fun" thing on.
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Racehorse Haynes: Back to Basics--and the Fun.
Say you sue me because you say my dog bit you.
Well now this is my defense:
My dog doesn't bite.
And second, in the alternative, my dog was tied up that night.
And third, I don't believe you really got bit.
And fourth, I don't have a dog.--Richard "Racehorse" Haynes, Houston, Texas (1927- ).
Trial Lawyer. Athlete. War Hero. Persuader. Actor. Planner. Tireless Worker. Lots of enemies, lots of friends. He turned 82 this year. Kinky Friedman called him “one of the most successful and most colorful silver-tongued devils to grace Texas since God made trial lawyers.” He's still at it.
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July 01, 2009
Performance Reviews based on CS standards.
At your shop, talk about real client service every single day--as if it were a substantive area of law practice. Make it a running conversation. And if you are serious about building and keeping a "client service culture", you need to underscore it at every performance review.
It's an idea that is here to stay--in this, or any other economy. See "Performance Reviews Based On Client Service Criteria?" Are you serious about all that "client service" stuff on your website?
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Overheard in Los Angeles
Life is short, opera is long, and Wagner is longer.
--Plácido Domingo, Spanish tenor, L.A. Opera general director.
German tenor Johannes Sembach (1881-1944) as Lohengrin.
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Senator Franken: Good enough, smart enough, tough enough.
The Minnesota Supreme Court unanimously gives Franken the nod over Norm Coleman. Al Franken got out there and worked his wazoo off for that Senate seat. Congrats, Renaissance man--and welcome to arguably the world's most elite club. Los Angeles Times: "Goshdarnit Al Franken's a Senator". But is putting him on the Senate Judiciary Committee a good thing?
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P.L. 111-22: A Hurdle for Purchasers of Foreclosed Homes.
A bona fide tenant renting a home will be entitled to a 90-day notice before being evicted by the new owner upon foreclosure of the home. On May 19, Congress passed a Senate version of the Protecting Tenants at Foreclosure Act of 2009 (also known as the Helping Families Save Their Homes Act of 2009). It was signed by President Obama and took effect the following day, May 20.
The 90-day notice is a minimum requirement; a tenant with additional protections already in place (e.g., "Section 8" tenants) won't lose those existing protections. The Act defines bona fide in such a way as to prevent the prior owner from abusing the requirement by mischaracterizing himself as a tenant.
The notice is relatively simple to execute. And as the Washington Post suggested last week, it may not be slowing down the resale process. Still, it is a hard and fast required step. The Obama administration's summary of the legislation as passed is here. It includes a sunset provision that terminates its requirements on December 31, 2012.
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June 30, 2009
Professionalism, Actually.
Let’s say you’re a blues guitarist with a broken ring finger on your fretboard hand. What do you do? If you’re Albert King, you put a splint on it, and you get out there and play.
It's about "the customers"--and not just about being polite and courtly to other attorneys. Visit Ray Ward's Minor Wisdom.
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Genevieve: Who are your Huns?
I know it, I see it. The Huns will not come.
In 451, Sainte Genevieve (422-512) saved Parisians from the Huns, the legend goes. People had started to flee Paris in anticipation of the invasion led by Attila--but stopped when she told them she had a vision that the Huns would not enter Paris. She became the city's patron saint. In 1928, a grateful Paris erected a statue to her on the Pont de la Tournelle, a bridge now about 400 years old. Genevieve is facing east, the direction from which the Huns approached.
She is also said to have converted Clovis, king of the pagan Franks, to Christianity--but she hasn't quite worked that magic on me. I still visit her anyway. If you walk in a southwesterly direction--from, say, the Place des Vosges on the Right Bank--to get to the Left Bank, you can use that bridge (Pont de la Tournelle). If you do, you can walk right under Genevieve, with Notre Dame and Ile Saint Louis on your right.
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Speeding the progress to useful lawyer.
Here's one thought-out solution to the "low value-added" problem associated with starting lawyers. Over the last 18 months, other writers and commentators, in bits here, and pieces there, may have suggested what LOR co-founder Paul Lippe says here--but certainly not as well or as comprehensively. See at the June 22 AmLaw Daily Lippe's article, "Welcome to the Future: Time for Law School 4.0".
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Charon QC: Bearing gifts, as always--so take this with you to Nantucket.
Law School for Cretins? WAC? happens to know that he is traveling; we aren't at liberty to say where. While his "anonymity" may have all along been in great jeopardy, if not totally blown, that secret will remain with us. As always, the man's been busy--but has left us plenty of summer reading while he's away. See "Beware of Greeks causing rifts… and other thoughts…"
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Bosphorus Law
See this one by Phil Hodgen at Hodgen Law Group PC, an international tax boutique.
"New" by Ottoman Empire standards, the Sultan Ahmed Mosque in Istanbul was built in the early 1600s. It's one of several mosques in Europe and the Near East known as "Blue Mosque" due to the blue interior tiling.
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Storytelling: Briefs, Juries, Life.
Don't tell me the moon is shining; show me the glint of light on broken glass.
--Anton Chekhov (1860-1904)
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June 29, 2009
Revisited: Anonymity and the Internet's "No-Spine" Problem.
Below is a June 8 WAC? post entitled "The Internet's Spine Problem: 'Big Mouths. No Names'". But indulge us with this introduction. Please don't kid yourself. "Anonymity abuse" is not just about lawyers. With some important exceptions--e.g., you are writing about civil liberties from Cuba, Iran or mainland China, you're a battered housewife, you're in the witness protection program and hiding from contract killers--anonymity on the World Wide Web is unbecoming, unpersuasive, wimpy and, frankly, classless.
Anonymity does not "work" for legal blogging/commenting--or any other serious discussion in Western civilization. The Net is growing up. It's time for people who use it to do the same. "Hiding" behind bogus names, cowardice, and non-accountability are not clever, awesome, slick or cool. Just sad and lame.
Our advice, until we arrive at a new etiquette or regime on this issue? Block, ignore and discourage nameless commenters. Actively diss and make fun of them. They aren't worth it; even they think that.
Anonymity rarely merits your time, thoughts and efforts.
The Internet's Spine Problem: "Big Mouths. No Names".
Mr. Chicken: He comments, and blogs, but doesn't use his real name. Some day he'll become a person, who'll put his real name behind his public thoughts. In the meantime, ignore him.
The marketplace of ideas is not well served by "no-name" writers and thinkers. And if you think about it, anonymous commenters have chosen to be in a lower caste. In a society where by law, or cultural folkways, we are not permitted to discriminate, here's your chance to break the rules for solid reasons. And do some good, too.
Exclude them. Insist on real names--or just block the comment. Exceptions to the requirement of identifying one's self in the blogosphere should be extremely rare.
The Problem: Nameless Bloggers and Commenters. "Hi, I'm Nothing. And No One. Here's what I really think? Very valuable. My opinions are very strong. Want to hear them?" No, sir, I really don't. Who with any character or intelligence would? So why do so many frequent and regular commenters--to this blog and others, in both North America and Europe, legal and non-legal--lack the courage and self-respect to use their real names?
And why do so many bloggers themselves put up with it? For example, see the very fine and enduring Above the Law. There, and at this blog (far less traffic, far fewer comments), the best comments seem to be by actual people who give their actual names. But there are too few of them.
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Ease-of-Use for Services: Will we ever get there?
Services, not products, are the whole ball game these days. Goods are incidental. Services, and solutions to hard problems, are the direction global markets now march, in good and bad times. Why not "ease-of-use" concepts instead of the tired lip service you devote to "client service"? Why not rate your employees on how well they make your services easy for clients and customers to use?
"Client Service". In our view, that huge gap between the promise and the reality has rendered the term nearly meaningless. Even for those who deeply care about the crusade of delivering "it", this simple idea generates much loathing and guilt. It's a mantra we repeat to ourselves, to our employees, and to our customers. We believe that if we say "it" enough, "it" will come. With the best intentions, service providers really do institute--but rarely work at and enforce--regime after regime of Client Service.
The reason: CS is much harder than it looks. You weave your skills into a buyer's "experience" of them, and deliver them together as One Thing. CS is a hard-acquired habit. It never was easy. Never supposed to be easy. So...
What if the services sector, now King, competed for clients and customers on the basis of "Ease-of-Use"? Develop and apply ease-of-use concepts for products and goods to pure services? Our clients' services? Our services? Law. Accounting. Consulting. Advertising. Newer and non-traditional services, too. Anything where a service (something valuable but "invisible") or product-service mix is part of what you pay for.
In other words, ease-of-use for services.
Services are pretty much Everything these days--and the direction global markets now march, in good and bad times.
Consider for a moment just products. In 2006, The Folgers Coffee Company was awarded an Ease-of-Use Commendation by the Arthritis Foundation for its AromaSeal™ Canister. If you're a Folgers® drinker, you notice that Folgers® added an easy-to-peel tin freshness seal (no need for a can-opener), a new "snap-tight" lid and even a grip on its plastic red can.
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Brains on purpose. Change on purpose.
And mediocrity as a choice. People will sigh and tell you "well, people just don't change." Well, they are wrong--and that entire notion is a design for (1) failure, (2) mediocrity, (3) settling and (4) otherwise failing to grow.
All of my life I have seen people change. And change in extraordinary ways. They choose it.
The catch: you must do it yourself. The wonder: you are always doing it anyway. So make it work for you.
Stephanie West Allen floored me in a conference call two months ago when she reminded the group and me that science has us changing our brains on an ongoing basis, whether we like it, or are aware of it, or not. She has two sites: Brains on Purpose and Idealawg. These are both must reads, even for people with limited time.
Any Tom Edisons or Ben Franklins in the house? Another reason to read West Allen is that she is one of the few lawyer-consultants who had steadfastly refused to align herself with the "work-life balance" movement*, now in its death throes amongst those with a modicum of self-respect and ambition. In that regard, see West Allen's enduring article, "Hot Worms and Workaholics: Let the Workers Be!", and this later piece "Hot, Cool and Cold Worms: A Contrarian Look at Work-life Balance and So-called 'Workaholism'".
Even ill-fated Oedipus knew that there are a lot of things you can change. Above: "Oedipus At Colonus", 1798, Fulchran-Jean Harriet (1776-1805), Cleveland Museum of Art.
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June 28, 2009
Down but never out in the Andes.
Many more people have died for their drink and their dope than have died for their religion or their country.
--Aldous Huxley, 1958
Cocaine is patient--and always ready for a comeback. The Economist, a bit jacked up on the subject of drugs lately, has much to say this week about fallen cocaine production in "Mixed Signals Among the Coca Bushes".
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How to Live.
Paris is many things but for 2000 years it has been a symbol of taking risks. In Art and in Life. It's not too late. Many of you don't need to live where ever you are living for every remaining moment of the rest of your life. Take a chance. Get in the game. Burning daylight here.
Ex-New Yorker Richard Nahem lives in Marais district and blogs here. You don't. He was just up north in Lille. You weren't.
Richard Nahem of I Prefer Paris. Twice congratulations, sir.
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June 27, 2009
Charleston
The Dialect. First, what about the accent you hear there? That regal way of speech? You're in South Carolina, of course--but the speech you hear is barely "Southern". Most likely, experts say, it's a blend: of Gullah spoken by African Americans, and of English spoken by Europeans, over 300 years ago. Linguists love it, and you still hear it in the streets, especially "South of Broad".
The Dance. It was popularized by a song and its accompanying footwork, "The Charleston," by James P. Johnson in the Broadway musical "Runnin' Wild" in 1923. Like the unique Charleston dialect, the Dance goes way back, too. It's been traced to descendants of slaves who lived on islands off the coast of Charleston and in the city itself. Thought to have been first performed locally around 1903.
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6 Place Paul Painlevé, 5th arrondissement
Hôtel de Cluny, Left Bank
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Buenos Aires
Mystery Person, Spring 2002
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Got Marketing? Really?
Marketing is different from--and critical to--"making a sale". Like television and radio, the world wide web has mostly "bad", or mediocre, sites and advice on the subject. Lots of digital snake oil salesmen, new age know-it-alls, and semi-employed "experts" who've never heard a shot fired in anger. But the Internet still has a few stars, early adventurers, and doers that do make it worth swimming through the trash while the Net gets its sea legs.
If you are serious about internet marketing, see Chris Abraham's The Marketing Conversation. We know Chris, and his partner Mark Harrison, well. We have profited from our relationship on a nearly daily basis since February 2004. They "get", and making a living, using the Internet to influence in creative, ethical and successful ways. See Abraham & Harrison, based in Berlin, Germany and Washington, D.C.
Twenty-two employees in five countries, and all working hard. Did they ask us for this post? Answer: No. We rarely promote anyone, especially if we are asked. But we do love quality.
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Writing Well: Sources.
The effects of a vigorous genius working upon large materials.
--Samuel Johnson, commenting on the life work of John Dryden (1631-1700), English poet, critic and playwright.
From The Indian Emperour
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June 26, 2009
Cimetière de Montmartre
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Using litigation: Put out fires--permanently. Do it before you respond to the complaint.
The opportunities are endless--for both GCs and outside counsel--and you see them in every dispute filed.
WAC?'s former co-writer Holden Oliver wrote a piece in late 2006 I love called "The Art of 'Subsequent Remedial' Advice".
The point: if you are outside counsel, or even inside counsel, and "do" litigation, you are presented with all manner of improvements and changes a good client can and should make to its operations right away.
Like now.
Now, before the next order is received, before the next shipment is made, before the next employee termination, before the next disposal of that residual waste from day-to-day operations. But how many of us--outside counsel, and maybe even some GCs in litigation management and oversight--don't say or do anything, or simply put it off, because we think it's not part of our "litigation" job?
Or we think it's a problem we'll mention to the polite transactional and tax lawyers down the hall--the ones the client has used to plan and grow for decades--when and if we get around to it? But we never do take action on it. It becomes a well-meaning "things-to-do" note made in the excitement of the beginning of a fight.
(The famous Black & Decker Auto Wrench)
Litigation often hands you the chance to add long-term value immediately--and solve an operations problem before you finish the barest outline of the Answer or Rule 12 Motion.
Examples: Lame or muddy contract language inherited from a predecessor. Confusing or poorly drafted choice of law or ADR provisions, which always seem to get litigated preliminarily in an expensive opening sideshow that delays focus on the merits. Or waste storage or handling methods which "comply"--but just barely--and makes a state or federal agency or private citizen look a little too hard and long at your client's facility next Spring.
My favorite after terms and conditions in contract language is always this: Bad HR practices, or the repeated "un-classy" firing--a termination which is legal but brutal and inartful and will get you sued. You win handily--but fees to obtain summary judgment exceed $100,000. How handy is that? At what price glory?
Long-term, you're not hired--as outside counsel or a GC--to have a good defense, or a "good case". You are hired to have: (1) no future issue, (2) no investigation (3), no dispute and/or (2) no lawsuit.
The opportunities are endless--for both GCs and outside counsel--and you see them in every dispute filed.
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June 25, 2009
Lawyers as leaders: Legal writing should use "people" words.
Doesn't changing legal writing to just clear and simple writing come down to leadership? Maybe I should start setting a better example. Why not buck the traditions 100%--whether it's writing to courts, to clients or to other lawyers--and never use those expressions again? Ever.
See Writing For Clients--Just Say It.
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Argentina: She raises the dead, makes a blind man see.
A Yankee can only say "dang". In the City of Borges live the most heavenly people on the planet. And especially las porteñas. Charm and looks do matter. Forgive all sins which originate here.
Recoleta (photo: E. Schaeffer)
Gabriela Sabatini
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June 24, 2009
Inspiration: Getting it.
I was simmering, simmering, simmering. Emerson brought me to a boil.
--Walt Whitman (1819-1892)
Writer Jack London thought you could not wait for it. You needed, he thought, to go out and hunt inspiration with a club. Walt Whitman, however, was luckier. He was a relatively young man when Ralph Waldo Emerson was thinking and writing. Emerson set off the young printer and hack writer, hurling him into an exuberant and celebratory realm, where no one had ever been.
Wild Walt, circa 1860, by Matthew Brady
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Ellen Bry: Stamford Connecticut girl makes good (again).
Some girls just love to work. Our friend Ellen Bry, a nighttime drama television mainstay (St. Elsewhere, Dexter, Boston Legal, Monk, The Closer) for decades, and known in the LA-NYC underground as WAC?'s in-house photographer, has the lead role as Ester Hobbes, a Chicago socialite who suddenly loses everything, in The Lost & Found Family, a new Sony Pictures release. In the film, we meet a strong and spiritual woman who is surprised to learn that she has inherited just one thing from her dead businessman husband: a run-down old house in Georgia, and the turbulent foster family living in it.
Taken from the story Mrs. Hobbes' House, The Lost & Found Family is a poignant, uplifting, instructive and remarkably powerful family film set in the American South. It was filmed in Jackson, Georgia, a town between Atlanta and Macon, with a population of about 4000, in Butts County.
It is a movie for people who go to church, sing, say "golly", watch lots of TV, eat a lot, and are afraid of virtually everyone and everything all the time. It is therefore bound to be a cult classic, comforting to millions residing in the vast grayness and troubled reverie that is American Fly-Over Country.
Just joshing you.
Early in 2008, I saw a rough cut of The Lost and Found Family--then still entitled Mrs. Hobbes' House--before Sony acquired it. I recognized the people portrayed. Many Americans, including my own family, have roots that reach deeply into, say, southwestern Virginia, east Tennessee, and southern Missouri (where I've visited family my entire life), going back well over two centuries.
Later generations are still there: always hard-working and proud, sometimes devout, seldom well-to-do, and worlds away from the country club life Ester Hobbes led when her husband was alive. They often struggle to make the best life they can.
You need not be Southern, rural or devoted to any form of organized religion to be moved by Ester Hobbes' story. This film will touch every viewer with simple but forgotten verities that bind us to one another.
There are artful, and moving, performances by Ellen and her younger cast members, who include teen heartthrob Lucas Till (Walk The Line, Hannah Montana: The Movie), and Jessica Luza, a film and television actress (The Sullivan Sisters, Boston Legal) and MTV fashion host. Ellen's other movie credits include Mission Impossible 3, Deep Impact, and Bye, Bye Love.
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U. S. Copyright Office: Getting the bugs out of a $52 million "process".
"Who sold you that [expletive] and why did you buy it?" Ironically, over at the Library of Congress, a new $52 million electronic technology designed "to speed things up" has resulted in delays at the U.S. Copyright Office in processing paper copyright applications. Instead of the customary 5-month processing time, paper applications (which still account for roughly half of all submissions) may take up to one year to process. The Washington Post noted last month that applicants are reportedly waiting up to 18 months for their paper applications to be processed. Meanwhile, the Copyright Office says it's getting an "upgrade".
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June 23, 2009
Hello. City Desk? Get me rewrite, doll. This is Juror No. 8.
And stop the presses. Here's something you don't see every day--but then you wonder why more jurors aren't taken to task for texting, tweeting, phoning, blogging and otherwise messaging. Milwaukee's Anne Reed at Deliberations has this one from March we almost missed, and there's nothing stale about it: "The Fourth Circuit And The Juror Who Called The Press". And see U.S. v. Basham, the Fourth Circuit's March 30 opinion reviewing claims of errors in the grisly 2004 murder trial of a defendant sentenced to death.
It starts out when a producer from a Greenville, South Carolina television station contacted the district court judge right after the verdict came; he told the judge that during deliberations a juror had called to inquire why the station was not reporting on the trial, and to offer a few observations on the proceeding. No big deal, maybe, right? But then, as Anne Reed notes:
When the phone records came out, there was even more. "Wilson [the jury foreperson] made a six-minute call to WSPA, two one-minute calls and a four-minute call to WHNS Asheville, a two-minute call to WYFF in Greenville, a two-minute call to the Greenville News, and a one-minute call to the Spartanburg Herald. These latter two calls to newspapers had not been reported by Wilson during her initial testimony."
And more: "seventy-one calls between her and two other jurors from September through October 2004," including calls on days of critical testimony.
Read Anne's post to learn the Fourth Circuit's take on the foreperson's misconduct, and whether a new trial was warranted.
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It hovers, takes hostages, and moves on to the next town.
"I see defeated people. They're everywhere. They walk around like everyone else. They don't even know they're defeated." It's a choice--in your life and in your work. You always know if you are "there". You just don't know how you got there. You started compromising on things you once embraced as essential. Redford sent us this short Seth Godin post called "On the Road to Mediocrity" about "settling along the way". Avoiding mediocrity? Keeping the monster at bay? WAC? is no Seth Godin. But our take is that great habits learned early on difficult work is step one. Step two is vigilance. The fine thing about posts like Godin's? If it bothers you, you needed to read it.
"I see people who keep mailing it in." (Buena Vista Pictures)
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24/7: It's not too much to ask.
1. Law is a service business.
2. Lawyers are not royalty.
3. It's a privilege to practice law (and to work, too).
Get used to all three. Get inspired. Or get a job selling shoes.
But please quit mailing it in. Clients deserve better. See "Rule 9: Be There For Clients--24/7" in our annoying-but-true 12 Rules.
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The National Journal: Team Obama
The "people who run things" in the new administration are carefully collected for you in this interesting and useful article cataloguing what looks like a talented, credentialed and hard-working Team Obama. See by James Barnes and the National Journal staff "Obama's Team: The Face Of Diversity". It's marred only by a trumpeted and somewhat lame observation that less than half of the senior posts are filled by white men. Can we get past that, please?
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June 22, 2009
Antitrust: Catching up with ICANN.
A complaint alleging antitrust violations against Verisign--the corporation with exclusive contracts with the Internet Corporation for Assigned Names and Numbers (ICANN) to maintain .com and .net domain name registries--states a valid claim.
In Coalition for ICANN Transparency, Inc. v. VeriSign, Inc., No. 07-16151 (June 5, 2009), the Ninth Circuit reversed and remanded the decision of the U.S. District Court for the Northern District of California with respect to one of the contracts. It held that the claims concerning the ".net contract" were correctly dismissed due to the competitive bidding process that preceded its execution; however, it held the ".com contract" to be much more suspect in the absence of such bidding--and so those claims were valid.
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"I blame the jetlag..."
I'll take two: A 1920s Guignol puppet theatre which folds up like a suitcase (Tara Bradford photo).
Jetlag. Is it harmless? I have friends who travel all over the world for a living. They loathe and battle it. You forget things. You insult store clerks while trying to be friendly. It also makes you buy weird things.
Monday. Ah, devil jetlag. I have had some lately.
I get it going East, mainly. Three hours difference in time zones is enough. To Europe. Within North America. It doesn't matter. But you can't let it screw up your work--so you don't. You become a tourist on the first day there. You see obscure religious art. You meet women named Zoe and Tasha. You buy stuff.
"Jetlag" is a disturbance of one's circadian rhythms. It makes you hear, think, say, do and even see odd things. You forget things. You insult store clerks while trying to be friendly (i.e., asking Paris bakers if the bread is really fresh--which I have done). Or you are irritable. To some, you just seem "out of it". Your wife thinks you are acting strangely. So does your girlfriend.
Jetlag first attracted the attention of science in the "behavior" of plants. In 1729, French astronomer Jean Jacques Ortous de Mairan studied heliotrope plants to determine if the opening and closing of the leaves was simply a response to the sun:
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June 21, 2009
Thank-you notes: If you mean it, handwrite it.
Breaking the thank-you note rules can harm you. People will say mean things about your dog, your wife, your girlfriend, or about all three. Worse, they trash you. You might get snubbed in the Hamptons, at Aldeburgh, or at Pointe Aux Barques this summer.
If, say, you went to Brown, snide people will remind you and your friends that Brown used to be the safety school for the Ivies. If you went to Duke, they'll say Princeton had too much honor and class to accept Buck Duke's filthy tobacco money and re-name Princeton "Duke".
If Princeton, well, they'll say you were always kind of light in the Cole Haans anyway, and were once seen frolicking at an "alternative lifestyle" disco in the city dressed in full leather biker garb, so what can you expect?
Inspiration, 1769, Jean-Honoré Fragonard
In case your Mother or governess never told you, you're from the Boonies, or you were stoned all five years at Andover, let us remind you to never thank anyone for something truly important--a meeting, referral or a dinner--with anything but a prompt handwritten thank-you note.
No valid excuses exist for not doing it. Many, many business people and some lawyers with taste (i.e., wears socks to meetings or court) think that no written thank-you note means no class--as harsh and low-tech as that may sound. Typed is okay--but handwritten is better. Even if you are not convinced that thank-you notes are noticed and appreciated (they are), pretend that WAC? knows more than you (we do), and do it anyway (thank us later).
Good stationery. We suggest Crane's on the lower end, or something better, like stationery from Tiffany's, or a Tiffany-style knock-off, on the higher end. A "studio card", maybe. Just make it plain. Simple. Initials on it at most. If you get personalized stuff, have a return envelope address to a home or business--but without the business mentioned. Dude, it's personal. Leave Acme Law Firm off it.
If you get mentioned or "linked-to" on the Internet? However, "electronic thank-yous" by e-mails to express thanks for links, comments or mentions in posts or articles on the Internet--i.e., three different people link to your blog every day, you are working full time for clients, busy firing looter-style staff and associates, and writing op-ed pieces entitled "Summer 2009: The Mood of the Midwest"--are totally okay.
Short, sweet, and press "send".
Blogging about you or your ideas is, of course, very nice--but it's not like they bought you dinner, or invited you up to Newport for the weekend. Besides, you'll always miss a few kudos thrown at you in the digital ether.
But what if you are trashed in the ether? A "reverse" thank-you? Sure, you may be insulted, purposely mis-paraphrased, misinterpreted, or just inadvertently misquoted. It happens. Remember, some bloggers and pseudo-journalists are (1) angry, (2) disorganized, or (3) essentially unemployed. And there are often good reasons for all three. Three approaches:
First, ignore them. Who cares? You are busy.
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June 20, 2009
Heros: Annabeth Gish.
Along with Ellen Bry and Parker Posey, add Ms. Gish to the WAC/WAP? Pantheon. It's hard to find it all in one human.
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Heros: Parker Posey
They're picking up prisoners and putting 'em in a pen.
And all she wants to do is dance.-D. Kortchmar/WB Music Corp. ASCAP (1984)
Rent "Party Girl" (1995) and watch her dance in the last scene. Parker Posey is way beyond hip. She is her own world and authentic. Not unlike Neal Cassady, François Villon, Raoul Duke or the tragically misunderstood, and now martyr-like, GeekLawyer. If you have to look them up, don't bother--you will never get it.
In late 2007, I met her in the Newark Airport on the way to London. I remember nothing about my life before that day. She's the rare American woman with Southern roots who won't make you gag the minute she starts talking. Slight accent, always subtle. Not just funny. Her natural quirk and smarts almost hide how gorgeous she is.
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Chantilly Lace
At Richard Nahem's I Prefer Paris, see "Meredith Mullins: Chantilly Night".
Photo: Meredith Mullins
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June 19, 2009
Ile St Louis
Art, literature and the humanities aren't just for the rich, the elite or the intellectual. They are the best part of all of us; they can inform, stir and improve every moment.
--Holden Oliver
See "Ernest, the French aren't like you and me."
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Jammie Thomas file-sharing case: Virgin Records et al. win again.
So justice really is hard--even harsh. We've followed and written about this one for over two years: Virgin Records America, Inc. v. Thomas, 06-1497, D. Minn. 2006. Yesterday, the same result--and we think the right one--was obtained in the re-trial of the case against a sympathetic defendant. Jammie Thomas is single mother of modest means who was sued for downloading music in violation of copyright laws. Music industry plaintiffs focused on only twenty-four out of hundreds of likely infringements by Thomas.
Seven record companies claimed against her, alleging willful infringement, and exposing Thomas, then about 30, to big penalties. U.S. District Judge Michael Davis presided over the first trial in 2007; he ordered a new trial after deciding he had erred in jury instructions. We hope to write more later about the dispute--and what it means for hundreds just like it. In the meantime, there's no shortage of news coverage. See Associated Press:
Jury Rules against Minnesota Woman in Download Case
MINNEAPOLIS (AP)--A replay of the nation’s only file-sharing case to go to trial has ended with the same result, finding a Minnesota woman to have violated music copyrights and ordering her to pay hefty damages to the recording industry.
A federal jury ruled Thursday that Jammie Thomas-Rasset willfully violated the copyrights on 24 songs, and awarded recording companies $1.92 million, or $80,000 per song.
Thomas-Rasset's second trial actually turned out worse for her. When a different federal jury heard her case in 2007, it hit Thomas-Rasset with a $222,000 judgment. [more]
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Financial regulation in America: A British view.
See an opinion piece entitled "Better broth, still too many cooks" in this week's The Economist. It is a critique of the Obama administration's plans (and new white paper) for U.S. financial reform. The article hits a high note in the beginning: a portrait of a vast, clumsy, and myopic animal that is our current system of financial regulation:
There is both too much of it and too little. Multiple federal agencies oversee the financial system: five for banks alone, and one each for securities, derivatives and the government-sponsored mortgage agencies. They share these duties with at least 50 state banking regulators and other state and federal consumer-protection agencies.
Yet all these regulators failed to anticipate and prevent the worst financial crisis since the Depression, because risk-taking flourished in the cracks between them. Toxic subprime mortgages were peddled by lenders with little federal oversight and shoved into off-balance-sheet vehicles. The greatest leverage accumulated in firms that avoided the capital requirements of banks.
TriStar Pictures, Inc.
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June 18, 2009
Marketing. Working.
Small, powerful ads. See "Rule Six: When You Work, You Are Marketing". Every moment your law firm "works for a client"--it sends the client something, it sends an e-mail, it talks with the client, it does virtually anything for or about that client that the client knows about or should know about--the firm transmits a small but powerful ad. The client notices then and there. From our annoying-but-correct 12 Rules.
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Make Mine Moxie
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Habits
What we hope ever to do with ease, we must learn first to do with diligence.
--Samuel Johnson (1709-1784)
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Quit wasting depositions: Informal discovery, simple investigations.
Why use deposition time to learn things you can learn from phone calls, neighborhood libraries and Google?
--DC trial lawyer Ernie from Glen Burnie, speaking with paralegals and associates, circa last month.
Save time, save money, get better results. You get the idea. Twenty years ago, James McElhaney, a gifted lawyer, writer and teacher of trial tactics, and the ABA Litigation Section, first published McElhaney's Trial Notebook, now in its fourth edition. Discovery, McElhaney noted, is a good way to learn what a witness will say, or to bind a party or witness to a particular version of the facts.
However, formal discovery, he went on, "is a very inefficient way to get information." There are lots of investigation ideas in McElhaney's book, but they all involve simple curiosity and do-it-yourself "trolling" for information the trial lawyer gets first-hand on his or her own. Next time a new case begins, resist rushing into written discovery and depositions.
Step back from the discovery routine--you'll get into that bubble soon enough--and learn a few things on your own.
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June 17, 2009
Patten on UK redundancies.
Whenever two good people argue over principles, they are both right.
--Marie von Ebner-Eschenbach, Austrian novelist (1830-1917)
Or "terminations", or firings, to Yanks. To mediate, or not to mediate? asks London's capable Justin Patten, in his Human Law Mediation Ezine for June. I met Justin, a solicitor and ADR consultant, in early 2007 near the Marble Arch. We have followed him and kept in touch ever since. A few days before meeting Justin, we had mentioned him, and a few other notable Brit lawyer-writers in "UK Bloggers: The Good, the Erudite and the UnHoly."
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June 16, 2009
"Mexico: Working With The Mañana Culture"
By Fernando E. Rivadeneyra, Puebla, Mexico
Editor's Note: Fernando Rivadeneyra is a talented and highly-regarded business lawyer who works literally all over the world. In fact, Fernando and his firm were "international" back in those days when international "wasn't cool" or trendy; he's been a pioneer in working in global legal and business markets.
And he is also a colleague, and a close friend. My partner Julie McGuire and I have met with Fernando and other members of his firm, Rivadeneyra, Treviño & de Campo, countless times over the past twelve years in Europe, Latin America, and the United States. We have worked together on client projects. Like our firm, Rivadeneyra, Treviño is an active member of the International Business Law Consortium, a working alliance of law and accounting firms based in Salzburg, Austria.
A founding partner of Rivadeneyra, Treviño, Fernando works in mergers and acquisitions, corporate structuring, foreign investments, and private international law. He is a member of the International Bar Association, the Mexican-American Law Institute, and its Export Support Group, and is Vice-President of the United States-Mexico Chamber of Commerce--Puebla Chapter. Jodie Paula Cohen, head of Client Relations at Rivadeneyra, Treviño & de Campo assisted in the preparation of this article.
Mexico: Working With The Mañana Culture
Be well informed and work with the right partners.
There are myriad differences between Mexican business culture and legal practice and those in the rest of the world. Nevertheless, by being well-informed and working with the right partners, it is entirely feasible for foreign companies to carry out fruitful business endeavors in this country.
The biggest cultural obstacle for many foreign investors in Mexico can be described in one word: “mañana.” Processes will likely be slower and appear more drawn-out than in your home country. It is important to accept this difference and not become impatient. There are many savvy business-people and lawyers in Mexico, and your business affairs will be dealt with (eventually) to a high standard.
If your investment in Mexico includes spending time there, be aware that certain parts of Mexico are less safe than your home country; and eating food from street-stalls is asking for trouble. Your Mexican business partners will be able to inform you of the many safe places to visit and the high-quality restaurants in which to eat.
Mexico City
Work With The Right Lawyers
There is no central source of information to help you choose a lawyer in Mexico. Many of our clients have found us through word-of-mouth recommendations, which can be a very reliable way to initiate contact with a new law firm. Similarly, lawyers from your home country who have carried out work in Mexico will likely have contacts here and will be able to make trustworthy recommendations.
Clients have also found us through the organizations in which we participate, such as the IBLC or IBA, or through the Martindale Hubbell directory. By approaching the members of respected international groups, clients can be assured that they are contacting reputable and highly-respected firms.
Unless your Spanish is fluent, make sure that your lawyers have a thorough working knowledge of your language (many Mexican lawyers speak English, and some also speak other languages). This will make your work eminently easier, especially when discussing the nitty-gritty of legal processes or contracts.
In Mexico, your lawyers need to maintain good relationships with government officials. A direct line to such officials will enable them to speed up legal processes on your behalf.
Carrying Out Projects In Mexico
The golden rule when doing business in Mexico is to get good, solid contracts and comprehensive legal assurances that your projects will be completed on time. Don’t leave anything to chance.
Health and safety standards have tended to be lower in Mexico than in many other countries. This situation is improving thanks to new environmental laws, and standards are now equal to those in many developed countries.
Do’s And Don’ts
* Do become familiar with the relevant laws and rules before you start. A good lawyer and a good accountant will be able to inform you about these.
* Do be patient. Time frames won’t be the same as in your home country, and deadlines may not be adhered to as closely.
* Do explain in detail what you want and expect so that you, your law firm and your local partners are reading from the same page from day one.
* Do respect the Mexican “way”. If you become frustrated, remember that a smile and a friendly gesture will always get you the best results when dealing with Mexicans.
* Do enlist the help of locals. As in many countries, locals sometimes receive preferential treatment over foreigners. For this reason, it can be worthwhile engaging local lawyers to carry out certain business tasks for you.
* Don’t get involved in corrupt practices; this will only spiral into bigger problems. If you are asked for a bribe, consult with a good law firm which will be able to advise you on how to deal with the situation.
* Don’t flaunt your wealth, either in business negotiations or in public.
* Don’t use risky legal or fiscal strategies. To safeguard your operations, it is best to stay well within the limits of the law.
Old Mexico City
Note: A version of this article originally appeared in December 2008 in The Complete Lawyer.
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Writing Well: Inspiration
You can't wait for inspiration. You have to go after it with a club.
--Jack London (1876-1916)
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Employers: What are your employees doing for you this week?
Get off your knees. Stand up. Come out of the woods swinging and angry--like a bad-ass preacher of the Church of the Final Thunder.
We got some Value for you right here. If you are "training them" (support staff, paralegals, associates) properly, and giving them meaningful things to do, good for you. Make them part of your client work, and get them to "think like" (a) a client which wants problems solved and (b) you--the owner, shareholder or partner.
And on Item (b), are they treating you like a client? What are employees doing for you this week? How are they adding value?
Do they advance things--or hold you back? Are they buying into the ethos of great substantive work, and 24/7-availability client service--like it's a crusade, a religion, and a way of life? After all, you are only asking for the minimum there.
Practicing law correctly is hard. Learning it is hard. Client service is hard. And job is a privilege--not a right.
Expect something great from employees.
"Training"? To be sure, it is likely a myth. Good associates and other support people train themselves, jump into the fray with energy and resolve, and learn by doing.
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Notes from the Breadline (Part V)
We got busy and we missed it. This is Part V of Above The Law's "Notes from the Breadline" by "Roxanna St. Thomas". It's about her adventures, and all manner of newly-discovered emotions, after losing her job at a law firm some months ago in NYC. For a lawyer, she writes pretty well--especially about all those different colors of angry out there. Below are excerpts from her weary yet simmering interview last week with a solo, zombie-like little man from a David Lynch set:
One day, I get an e-mail from a solo practitioner who has seen my resume online and wants me to come in for an interview.... When I arrive at his office, which is in one of the old, ornate buildings near Grand Central, my spirits are buoyed by the momentary sense that I am part of the bustle of commerce. A gilded chandelier in the lobby hangs over polished marble floors, and when I get out of the elevator upstairs my footsteps are cushioned by thick, red carpet. It feels anachronistic, but vaguely comforting.
But when I arrive at the suite I have written down, a door opens on a shared office space that is distinctly less grand. In fact, it reminds me of the war room I recently occupied, and I half-expect Mr. Potato Head to pop out from behind a plant, trailing a string of sausages. I try to ignore the sinking feeling that creeps through me as I sit in the reception area, waiting.
When the lawyer, a thin, cadaverous man who looks as though he escaped from the wax museum, comes out to fetch me, I quickly determine that I probably could toss him through the window, even without superhuman strength. He extends a limp hand and introduces himself as Asa, a name I have always associated with donkeys.
Once I am seated across from his desk, he tells me that he is looking for one associate to assist him in his solo practice. He takes out my resume and begins to pore over it. Silence descends. Minutes tick by. He tells me that he handles a lot of regulatory matters for shipping companies. Have I ever worked on such matters?
No, I answer, not specifically. How about admiralty? No again.
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June 15, 2009
Sensitive Irish Litigation Moment: O'Connell the Barrister.
In a set of lectures John L. Stoddard published in 1901, he said of him:
He was a typical Irishman of the best stock--wily, witty, eloquent, emotional and magnetic. His arrival in town was often an occasion for public rejoicing. His clever repartees were passed from lip to lip, until the island shook with laughter.
In court, he sometimes kept the spectators, jury, judge and even the prisoner, alternating between tears and roars of merriment. Celtic to the core, his subtle mind knew every trick peculiar to the Irish character, and he divined instinctively the shrewdest subterfuges of a shifty witness.
Daniel O'Connell (1775-1847), the "Liberator of Ireland", led a movement that forced the British to pass the Catholic Emancipation Act of 1829, allowing Catholics to become members of the British House of Commons. By training O'Connell was a consummate trial lawyer, and by nature a bit of an actor.
And a lawyer who stepped up.
Source: March 30, 2009 HO post.
Posted by Holden Oliver.