Law And More

Putting On My Big Girl Panties

What does putting on my big girl panties have to do with law?  Plenty.  Before I found out how efficient and effective it was to use the phrase "my lawyer" in professional conversations, I was such a loser, literally.  Clients wouldn't pony up what they had to pay or if they did it would way late. Or, they would sweet-talk me into re-negotiating a fee, after the work had been done.

Thanks to blogging about legal matters, I have now many "my lawyers."  With them in my life, I finally had to guts to do what artist Mary Phillips instructed me to do on 1 of her famous greeting cards.  The front of the card commands "Put your big girl panties & deal with it."  Inside the message softens a bit with, "Remember I'm always here for you."  The greeting card was sent to me by my college buddy ReBelle Mitchell Tarumoto who used to own a business and was trying to help me be the show-me-the-money entrepreneur I was meant to be.

Well, around 3:45 P.M., usually the time I think about turning on "Oprah" so that I can chart the show's downward spiral for my communications blog, a very minor account calls.  It's always the minor accounts which call instead of doing the whole thing by email.  Probably makes them feel important.  "I have some bad news for you," the man said.  He told me that his organization couldn't use my drafts but they would be generous enough to give me half the fee and use me in the future.  Guess the man figured I would feel pleased.  I explained that it is standard to do 1 draft, and, if needed, a 2nd draft.  I did 3 drafts, which was beyond the call of duty, and did not charge for the number-3.

But we didn't use it. 

I ran the tape: many clients I have had and some I still have didn't use my work.  We had a contract.  They paid, within 30 days of receiving the invoice or when the court told them to.

He went on.  I stopped him.  "My lawyer will contact your company's chief executive officer." The man told me that his legal department would contact my lawyer.  "No," I reiterated, "my lawyer will contact your company's chief executive officer and, no, I do not want future assignments."  The last thing you ever want is 2 lawyers talking to each other.  The fun aka fireworks starts when a non-lawyer in the company is the 1st point of contact. 

The man balked.  Why didn't I want to do work for them in the future?

"I have a lot of work to do. I don't want or need work from your company."

Isn't it something what throws people.  It wasn't the image floating over the phone wires of my lawyer talking to the chief executive officer.  It was that I wasn't hungry for more and more work from his organization.

Of course, he wanted to talk more.  This was probably the most excitement he had had in years.  I tugged on my big girl panties and told him the conversation was over.  Should I call my lawyer or wait for the check in the mail.  The check will be in the mail, he said, for the total original fee. 

You can't beat it: big girl panties and a few lawyers to call mine.  Thank you all attorneys out there who told me you were mine.

Akron Blinks - Featured on Pointoflaw.com

In the lead-paint saga Akron, Ohio blinked and Motley Rice was left cooling its heels.  Walter Olson provides complete coverage today on Pointoflaw.com

Don't Stop Ranting

Okay, we all know that Nancy Grace aka Rant is in the soup.  And even hiring a brandname crisis manager Anna Cordasco is not helping matters.  It could even be possible that CNN will have to feed her to the furies of righteousness and decorum and that's the last of Rant. But there is no reason for the rest of the legal profession to refrain from ranting.

Always remember: we are living now in the era of the common man, the little guy.  And the self-appointed leader of the common man, the little guy is Lou Dobbs who can out-rant anyone.  Lou's ratings are way up and his smirk has become a symbol of the new deal for the little guy. 

So, it would be a downright disservice to your client to not rant about whatever.  Becoming hoarse like Mr. Smith in Washington could become fashionable.

And, no prob if the client isn't the common man.  The client can be reframed as being in some way oppressed by the elites.  Remember how the Dream Team did that for O.J.  That worked even in the era of greed. It will work even better now.   

Harvard Law School is in the process of overhauling its 1st year curriculum.  It could include a 4-week seminar in Rant.

Don't Mess With Hank

Now that Eliot Spitzer will be New York governor and be ruled by the media, he might come to regret messing with Maurice "Hank" Greenberg.  As you may recall, as Spitzer was hurling thunderbolts at financial services, Hank got charged with just about everything.  So far Hank aka PushBack got all the criminal charges dropped and 2 of the 6 civil charges.

There's more.  In THE NEW YORK POST today, Roddy Boyd reports that Hank is now positioning himself to take over the New York Times Inc.  That elite media icon includes, of course, the flagship THE NEW YORK TIMES.  The stock is depressed.  Hank is buying it up.  And he's being cheered on by other disgruntled major shareholders like Morgan Stanley. 

If Hank pulls off getting control of this influential media, we know what will be written about the Spitzer Administration.  That's unfortunate.  Spitzer could use help from media.

Already we can see that born-again Naderite Spitzer has no feel for the complex job of chief executive of the state of New York.  Already he has taken on the ossified powers-that-be in Albany, guns blazing.  Already, there are heads shaking, not in fear but disbelief and amusement.

We all knew that Spitzer would have a rough time in this new job. Hank in control of THE NEW YORK TIMES will make it even rougher. 

Kids Getting Lead Instead of Charcoal

The odds are that along with Santa, the holidays are bringing lead dust.  And don't blame the former lead-paint manufacturers for this one.

Prime-time news is warning parents to wash their and their children's hands after handling the tree lights.  According to the Institute of Agriculture at the University of Tennessee, "holiday lights can also contain lead in the wiring."  This could manifest itself as lead dust throughout the area. 

At the Rhode Island (RI) lead paint trial we heard testimony, such as from Patricia Nolan, M.D., that any level of lead can be harmful to children. Dr. Nolan had been head of the RI Department of Health for 10 years.  If she's right - and many other experts insist she isn't - then shouldn't this be a national emergency?  Of course not.  Just like the lead-paint residue in the nation's housing ain't a national emergency.  For peanuts and some vigilance on the part of landlords, the lead paint could be kept intact.  Intact lead paint doesn't produce dust.  The holiday lights' wiring can and probably will produce lead dust. La vida loca: lead-paint litigation goes on in American states and cities.

In Praise of Rhode Island Ethics Commission

This is the 2nd time that the Rhode Island (RI) Ethics Commission has displayed both integrity and common sense.

The 1st time was last August when it decided not to pursue the complaint against Attorney General Patrick Lynch for accepting campaign contributions from a negotiator in the DuPont lead-paint agreement.  The Commission ruled that while the Attorney General might have committed an error of judgment in accepting the contribution (creating an appearance of impropriety) there was no evidence that the transaction involved any request for or any granting of special treatment.  Fair enough.

This time, the Commission has decided that the Attorney General's former chief of staff Leonard L. Lopes cannot lobby the AG's office for 1 year.  Lopes has taken a position at Providence law firm Pannone, Lopes & Devereaux.  In that job he can lobby other government agencies - federal, state and local - immediately but not the AG's office for 12 months. 

In reporting on this, THE PROVIDENCE JOURNAL's Edward Fitzpatrick said that it was Lopes who presented the RI Ethics Commission with a request for an advisory opinion on how he should comport himself with the AG now that he is no longer an employee of that office.  The Commission also advised Lopes against "making gifts to Lynch."  That includes even small gestures such as paying for a beer for his former boss. 

In addition, Fitzpatrick points out that the 1-year rule about lobbying the AG's office is part of the state Code of Ethics "revolving door" rules.  Those rules now include the stipulation that, as Fitzpatrick indicates, "state employees may not represent themselves or other people before state or municipal agencies that employ them" for 1 year after they leave state employment. Lopes left his state employment on November 17th.

When I live-blogged the August Lynch hearing I noticed from the get-go that the RI Ethics Commission seemed to want to create transparency or openness.  This came through in everything from introducing all its members to handing out a detailed agenda.  When the members deliberated, that was conducted behind closed doors.  But all else was right there.  1 more thing: the chairperson was accessible, even maybe friendly. 

RI, like my home city Jersey City, New Jersey, has taken its hits for alleged corruption.  Well, I haven't seen any evidence of that at its Ethics Commission.

When Your Company Is In Litigation

Wall Street security analysts, shareholders, employees, customers, regulators, and the public are usually at the mercy of the rumor mill and the media when a company is in litigation.  And, according to the recent survey from Fulbright & Jaworski, a lot of companies are or will be in that situation. 

As Stephen Dillard, global chair at Fulbright & Jaworski, points out in his THE WALL STREET JOURNAL opinion-editorial "Litigation Nation," 89 percent of companies interviewed say they've been hit with a lawsuit in 2005 vs. 75 percent the year before. If the company has $1 billion in sales, it could be ensnared in an average of 556 cases.

There's more: increasingly companies are going on the offense and suing or countersuing.  Dillard reports that during 2005-06, more than 70 percent of companies filed a legal complaint and became a plaintiff.  Almost half of those companies filed up to 5 new cases during that time period. 

The most high-profile of those plaintiff suits has been by Sherwin-Williams last month.  And that might be the game-changer in the long-playing lead-paint litigation.  Sherwin-Williams filed a complaint in federal court in Columbus, Ohio against any city in the state that was considering a lead-paint lawsuit, had already filed 1 or might file 1 in the future.  When Sherwin-Williams took similar action in Mississippi, the lead-paint case seemed to go away.  Recently, Akron, OH which had filed a lawsuit against Sherwin-Williams withdrew it. 

Enough background.  If your company is in litigation what should you do?  From my experience covering all phases of litigation - before, during and after - I found that there is a lack of easily available information.  No, that information is not confidential.  Most of it is public.  Many of the documents readers of this blog have requested from me are publicly available. 

For example, they wanted to eyeball the now-infamous jury instructions in the Rhode Island lead paint trial and the motions filed by the 3 defendants last April appealing for a dismissal or new trial. Yes, they are public documents.

But this doesn't only happen when companies are in litigation.  In the murder case of Mary Winkler, which I am covering on my communications blog, readers wanted to know what was also publicly available.  This is my hunch:  most people are so intimidated by legal proceedings that they don't do any digging.  Therefore, the company has to provide that information, at least if it wants to define the situation rather than having the grapevine and media do that.

Here's what I recommend to a company involved in litigation:

• Maintain a list, which is constantly updated, on all the ongoing litigation.  This can be on the website.  Here can also be posted press releases about the litigation. Even more useful is posting diverse media coverage of the litigation, which is also continually brought up to date.

• In high-profile or critical pieces of litigation, make the public documents such as the complaint and motions available.  Again, this can be on a website.  Preferably it should be on the company's own website rather than on the website of the public-relations agency or trade association it might be working with.  The more middlemen the information goes through the more credibility it can lose in the perception of stakeholders, even relatively sophisticated ones.

• Allow a part of the company intranet to be a forum in which employees can anonymously discuss the litigation.  At 1 company the chief executive officer briefed employees once a month and that was it.  Since many of them were shareholders and could lose their jobs if the company went bankrupt, they were hungry for real-time information.  They also wanted to share their perspectives and to read what their colleagues were thinking.

• When the litigation reaches court, the company might invest in hiring an outside blogger to cover the trial, in real time.  The coverage would be from a journalistic, not a public-affairs, perspective.  The relationship to the company would be revealed as a paid but uncensored 1.  Essentially, this was blogger Robert Scoble's former role at Microsoft.  He was paid by Microsoft to tell it as he saw it. Often he praised competitor products and panned those of Microsoft.

• Have the key officers of the company drop in on the trial.  This symbolic presence means a lot to everyone with a stake in the company as well as the media.

• Have key officers define the situation in the media, print and online, by going on the record. Of course, there are things they can't say.  But there are more things they can say, such as the negative impact of litigation on the health of American industry.  Not being in the media is a serious sin of omission.

• Provide on the website daily transcripts of the court proceedings. Usually these can be purchased from an outside vendor.  They wouldn't be the "official" transcript but the constituencies don't need that.

• Have the company's investor relations' department hold periodic conference calls with Wall Street about how they predict the stock will be affected in various scenarios.

• Deal explicitly and in detail with rumors.  Right now there is a rumor that if a company lands on its feet in current litigation, it will be a juicy takeover candidate.  The company should address this on its website. 

Obviously, the long and short of this is that the lack of information feeds fear and rumors.  In my years as a communications consultant, I have never witnessed an information vacuum leading to any good.  Also, those with a stake want their say.  There have to be channels for them to state their points of view and hear or read those of others.  Social or 2-way, vertical media are so popular because people want to be a part of, everything and anything.

Arguing Points Of Law - The Return of Populism

Depending on who you talk to, maybe populism never faded.  But, everyone in the know now knows that populism is back or at least the rhetoric about it is.

From the elite (pardon that awful word) ECONOMIST (November 23, print edition) to the man-in-the-streets CNN.com, there's a tidal wave of populist language, sentiments, and initiatives (and the Dem Congress has even gotten started yet).  And, as the ECONOMIST points out, "The new populists are certainly noisy." 

The causes of this resurgence of populism are obvious: cheap digital technology which gives everyone a voice, Lou Dobbs' high-profile muckraking, the return of the Dems to power, scandals among the elites (read: White Republicans), the combo platter of stagnant wages and rising costs for everything from health care to college tuition and raw fear which is always a destabilizing force (think: French Revolution).

This era of Everyman and Everywoman has major implications for how points of law are argued in the courtroom, in the media, in public hearings and, you bet, Congress.  Attorneys and their clients will be reframing basic legal, economic, political, cultural, religious, and social concepts into concepts and wording reflecting the greater good for the greatest number. 

Incidentally, maybe the Superior Court Judge Michael Silverstein presiding over the Rhode Island (RI) lead paint trial saw this trend already in-play.  That could be why he issued the unusual jury instructions (copy available free from mgenova981@aol.com) last February.  So much of those directives focused not on actual evidence but harm or the likelihood of harm to the community.  You can bet we will be seeing a deconstruction of those instructions from a populist perspective in the law journals.

So, what are the emerging To-Dos.  Here are how I see them.

• Leave the $1000 suits in the closet when appearing before a jury.  That old principle about not dressing better than members of the jury is even more applicable.  However, there's an exception to this rule.  When defending the underdog or a robin-hood cause, elite dress and manners can help.  Think how the O.J. defense comported themselves.  The message the Dream Team transmitted is that the person on trial is a very special human being.

• Use common-man body language, facial expressions, language and procedures.  Attorneys socialized to the decorum of white-shoe law firms could be in trouble.  Instead of having the paralegal press the pickle for slides, attorneys can roll up their sleeves and do that.  Actually, leave the help back in the office. Frank Capra films have the heroes doing the heavy lifting.

• In key statements, such as opening and closing arguments, use popular or common references.  During his closing statement in the RI lead paint II, ARCO lead attorney John Tarantino used a reference to former Harvard president Derek Bok.  I suspect he "got away" with that in working-class Providence because the rest of his presentation of self and legal points was totally Everyman.

• Have a heart.  Few among us in the 21st century haven't suffered.  If Mr. Empathy Bill Clinton were practicing law today, he would win every jury trial.

• Watch "Borat."  Any pretensions will be lifted from you.

Yes, what I'm saying is that the world has become horizontal.  A useful read on this is "The Wealth of Networks: How Social Production Transforms Markets and Freedom." Yochai Benkler wrote it.  He's professor of law at Yale.  According to Benkler, the challenge for us over-educated, over-cerebral kind is "overcoming what we intuitively 'know.'"

Ohio's High-Tech Almosts - A Tale of 2 States

Deja vu.  Yesterday THE PLAIN DEALER reporter Henry Gomez chronicled Northeast Ohio's tale of new misses in become a regional center for high-tech industries. These close calls with lucrative economic development have been going on for 18 years.  And, says Gomez, "some are growing restless." 

Less than 2 weeks ago, THE PROVIDENCE JOURNAL reporter Lynn Arditi chronicled how Rhode Island has also missed out on attracting what's called the Technology Fast 500 Companies.  Arditi cites the recent Deloitte & Touche survey which shows that so far RI has none of those companies.  Massachusetts has 39 of them.  Twice MA turned down invitations to join RI in its infamous litigation against the former lead-paint companies.  RI also has less than half of MA's job growth.

Today was Black Monday in the Buckeye State.   It was the deadline for about 6000 Ford employees to accept or reject Ford's buyout.  The smart money is taking the buyout since Ford's prospects aren't rosy. 

If OH can learn from another state's mistakes it will back off pursuing any litigation against former lead-paint companies including its own corporate citizen Sherwin-Williams.  The risk corporations take very seriously these days is litigation.  In selecting a state to build a business in, the risk of litigation could be the tipping point.  RI has become synonymous with the RI lead-paint follies.

MIA Legal Bloggers

Surprisingly, the Thanksgiving long weekend wasn't dead time in the legal blogosphere. Traffic wasn't as brisk as it is on non-holidays but it didn't fall off a cliff.  That's why MIA legal bloggers were noticed.  For instance, THE WALL STREET JOURNAL law blog was last updated on November 22nd.

As we all know, the blogosphere is in many ways a closed loop.  We legal bloggers feed on each other's blogs for breaking news, analysis, insights and links.  So, you got it, I was annoyed that a lot of my fellow legal bloggers weren't at their posts, at least virtually.  I was informed by 1 legal blogger whose posts continually appeared during the long weekend that there is software to release posts on a timed basis.  He claims that isn't how he did it but he could have done it if he had chosen.  Sounds lawyer-talk to me.

In any event, maybe all bloggers, legal and non-legal, better look into that software.  From non-legal bloggers I have heard that when they were MIA they lost readers who never came back.  And, there's more.  Readers don't want a substitute for us.  They want us.  The substitute also lost plenty of readers who didn't come back.  This makes sense in that blogging is a genre characterized by a distinct voice.

Like it or not, the blogosphere operates like the military.  We have to be at our post.  No excused absences.