Diane Levin hosted this week’s Blawg Review #181 at Mediation Channel — click here to read it. As you would expect from one of Ed.’s Blawg Review Sherpas, the Review is both well-written and exhaustive. Levin’s focus was International Conflict Resolution Day. And when Ed. realized that he had created an international incident by not acknowledging Canadian Thanksgiving, Levin even updated the Review with some Canadian content. By the way, happy Thanksgiving to the Blog’s Canadian friends and readers.
Among other posts, Levin highlighted the October Carnival of Trust, hosted by its founder Charles Green at Trust Matters — click here to read it. Green links to a post at Without Wax about what to do when your trust in someone begins slipping away — click here to read it. The blog, and the post, appear to be focused more on family and friend relationships. But the issue and the proposed resolution translate to the legal realm because trust is paramount in the law just as it is with family and friends — with courts, with opposing counsel, with clients and with colleagues. Without Wax suggests that instead of pulling back when trust is disappearing, you engage that person and the problem. Silence rarely fixes trust. You are far better off facing the issue and trying to fix the problem so that it does not recur, whether it is a misunderstanding or an actual breach of trust.
Finally, Larry Lessig’s enthralling Wall Street Journal op-ed piece about the current state of copyright law and whether it fits with modern life did not make the Review (probably because it was not a blog post), but it is worth a read — click here for Lessig’s op-ed. Or you could skip right to Victoria Pynchon’s excellent analysis at the IP ADR Blog — click here to read Pynchon’s post.
[UPDATE]: Lessig makes clear at his Lessig 2.0 blog that despite the title the WSJ gave his op-ed — A Defense of Piracy — he does not support piracy. Lessig is proposing conforming copyright law to what he sees as the realities of modern living.
Continue Reading Blawg Review #181 — ADR & Canadian Thanksgiving
Victoria Pynchon
Making Joint Defense Agreements Work
Joint defense agreements are an increasingly common part of big patent litigaitons, in the Northern District and across the country. Having been involved in numerous joint defense groups, my colleague Thomas Paternak and I wrote an article that was published in the most recent edition of the ABA’s Litigation magazine about best practices for joint defense groups and dealing with joint defense agreements — click here to for a pdf of the article, with permission from the ABA of course.
Probably the most important tip is one I have discussed before — communication, including live meeetings, is critical to building and maintaining relationships among the joint defense group:
The number of members of the [joint defense group] will have some bearing on how it is organized and managed, but regardless, communication is the key. Weekly, short conference calls once the case is running hot are important, however painful that is, to keep everyone looped in. For important strategy decisions, live meetings are going to be necessary. At the same time, try to put as few communications between co-defendants in writing as possible. Discovery of those communications can and does happen, despite all best legal efforts to prevent it, and you will be particularly embarrassed if you disparage opposing counsel or the judge in venting in an e-mail to your codefendant and that e-mail ends up being produced.
Click here for my previous discussion of the importance of live meetings for building relationships during litigations and click here for Victoria Pynchon’s IP ADR blog post that sparked my comments.
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Continue Reading Making Joint Defense Agreements Work
Blawg Review & the September Carnival of Trust
Blawg Review #175 is up at Jamie Spencer’s Austin DWI Lawyer (another LexBlog site) — click here to read the Review. Fitting with Ed.’s sense of humor, a DWI lawyer was chosen to host the Labor Day Review, instead of a more traditional pick, like a labor lawyer. Of course, there are lots of interesting DWI posts, and a few good IP links. Spencer links to Victoria Pynchon’s post at the IP ADR Blog about the arrest of a blogger who posted new Guns N’ Roses tracks before the group released its new album — click here to read it. In a “teeny tiny” act of civil disobedience, Pynchon posted the entire text of the LA Times story on the arrest. While I will admit to one or two acts of civil disobedience in my day, today you are just getting a link to the Chicago Tribune’s story by Michelle Quinn and Swati Pandey on the arrest and the increasing use of criminal copyright infringement prosecutions — click here.
September’s Carnival of Trust is up at Compensation Force — click here for the Carnival. There are no specific legal or IP posts this month, but lots of great stuff on building and maintaining relationships with trust.
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Continue Reading Blawg Review & the September Carnival of Trust
Blawg Review #173
Last week’s Olympic edition Blawg Review focused on the medals. Building on that, this week I discuss the elements of a world record swim. If you were watching last week, instead of blogging, you saw 20 of them in the Olympic pool; seven by Mr. Phelps.
Practice
Nothing is more critical than preparation. A big part of preparation is tightening your stroke and cutting out unnecessary motion. Reese Morrison, at the Law Department Management blog, discusses blunt suggestions for trimming legal bills.
Endless hours in the pool alone are not enough, you need a good coach. Business development coach Cordell Parvin provides an excellent three part series at his Law Consulting Blog – one, two, and three – on persistence, an important element of any Olympic training program. In an Olympic caliber display of persistence, Drug & Device Law had an exhaustive post discussing and classifying each medical device preemption case since the landmark Supreme Court decision in Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008).
You also need a support network to help you get through all of the pool time. Bruce Allen, at Marketing Catalyst, teaches us how to avoid the cocktail conversation you cannot escape from at a networking event. At Copyblogger, John Morrow explains that content is no longer king in the blogosphere, you need friends. And he teaches you how to get them. At BlawgIT, Brett Trout – who is a fighter, not a swimmer – has an interesting post about how to work together as a community to thwart webjackings (the hijacking of a website). And Mediation Channel’s Diane Levin discusses the social side of blogging, and reading blogs.
Of course, if you do not have time to practice you will never set the record. So, you need a job, or at least some cash. On that note, Harmful Error posts the great news that loan forgiveness programs were expanded this week for legal aid lawyers, state prosecutors and public defenders.
The Suit
The clothes make the man (or the woman). This year the go-to duds were Speedo’s LZR suits. Patent Librarian Michael White tells us that, no surprise, Speedo patented the LZR. IPKat expands on swimming patents, providing a broader view of Olympics-related patents.
Genes
As a guy who swam for a lot of years and practiced hard throughout, I can tell you not everyone has what it takes to set world records. The closest I came was getting beat by an Olympian and world record holder. Of course, you might be less impressed by my loss if you knew that at the time his Olympic medals were four or five decades old, and I was 19. At Idealawg, Stephanie West Allen discusses the traits that make entrepreneurs entrepreneurial.
Mental Focus
One of the big stories on Phelps this week was how he thinks of nothing but not losing during a race. At Litigation & Trial, Maxwell Kennerly tells us that you have to know when you are sweating the details more than your client would want by over emphasizing proof-reading. Of course, even Kennerly agrees that some details matter.
Knowing the Rules
You have to know the rules. Turn wrong or break the rules for your stroke and beating a record by ten seconds will not matter. At the Legal Juice, John Mesirow reports that kids at the Lake County Florida library are allowed to rent R-rated movies because they believe it is an unconstitutional delegation of authority for the Motion Picture Association of America’s guidelines for determining obscenity. I am sure kids from all over that area are flocking to the Lake County library because the rules are on their side, at least for now.
Filewrapper reports on a Federal Circuit decision holding that copyright infringement, and not just breach of contract, when the terms of an open source license governing the copyrighted material are breached. For more on this major decision in the IP world, check out: BLT; Law Pundit; and Patently-O.
Seattle Trademark Lawyer Mike Graham shows the consequences of not following the rules using two Western District of Washington opinions.
Ethan Lieb, guest blogging at Freakonomics, argues that we need to change the rules requiring unanimous juries. And the WSJ Law Blog discusses a judge and a juror who clashed over jury nullification.
The Start
A bad start is hard to recover from, especially when you are chasing the fastest time ever. Evan Schaeffer shows how to open well at trial at the Illinois Trial Practice Weblog, and he links to Trial Theatre’s opening statement quiz.
Turns
Coming off the wall in a turn is the fastest a swimmer goes during a race. So, you need good turns. IntLawGrrls discuss how to turn around the conflict between Georgia and Russia (sorry the turns section was tough).
Legal Literacy discusses Whole Foods’ turned around (or recalled) beef and looks behind the scenes at how it happened and Whole Foods’ impressively quick response.
The Finish
Do you do an extra stroke or do you glide in hard? Always a tough question, but the .01 seconds the decision costs you can mean the race and the record.
At his E.D. Texas Weblog, Michael Smith reports that while the E.D. Texas started out as a rocket docket, particularly for patents, it has now slowed down and let many other districts catch it with a time to trial of 24 – 30 months.
The Law and Magic Blog reminds us that we cannot always win, and that trying to rig the system to guarantee wins – he is talking about the stock market, but it holds true for the pool – is dangerous work.
At the IP ADR Blog, Victoria Pynchon praises several Perkins Coie attorneys who went the distance for their pro bono clients at Gitmo and earned the clients’ respect for providing them an able defense.
** Images provided via a Creative Commons license by A. Dawson or Andre from Flicker. **
Next week’s Blawg Review will be at fellow LexBlog site, the Texas Appellate Law Blog.
Blawg Review has information about next week’s host, and instructions on how to get your blawg posts reviewed in upcoming issues.
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Continue Reading Blawg Review #173
Blawg Review is on the Way
I am hosting Blawg Review — the 173rd edition — next Monday. I talked some smack about writing a great Review, and Victoria Pynchon has set a high bar. So, please send me your best posts by clicking here for Blawg Review’s submission guidelines and using Blawg Review’s submission form. And come back Monday to read the Review.
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Continue Reading Blawg Review is on the Way
Blawg Review #171 — Setting, Then Meeting Expectations
For my rookie Blawg Review, I kept my head down, worked hard and hoped to meet the Review’s high standards set by the reviewers before me. Victoria Pynchon at the IP ADR Blog, took a different route. She guaranteed victory, promising “one of the best [Blawg Review]’s ever.” And she was right. She used a risque theme and a massive number of links to deliver an excellent review — click here to read it. My only complaint, I cannot possibly get through all of her linked posts.
I am hosting the Blawg Review in two weeks, and Pynchon has set the bar high. Make sure to be here in two weeks to watch me clear it.
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Continue Reading Blawg Review #171 — Setting, Then Meeting Expectations
A Call for Face-to-Face Communication in Litigation
Victoria Pynchon posted an article she wrote (not sure where it was published) at her IP ADR Blog — click here for the post and the article. Pynchon argued that the common practice of communicating with opposing counsel largely by email, except during depositions or hearings, tends to increase animosity and conflict of a litigation. In the asocial world of email we tend to write more aggressively and we tend to read more aggression into emails we receive. Pynchon supports these theories with studies, but I suspect most litigators are aware of the email aggression problem from practice.
It is no surprise that increased aggression in a naturally aggressive proceeding has negative consequences. For example, parties that often meet for the first time at a mediation or settlement conference arrive not trusting or respecting each other, making resolution much more difficult. Pynchon suggested a somewhat radical solution to the email problem — live meetings with opposing counsel. She suggested that you routinely have live meetings with opposing counsel throughout the course of a litigation, including perhaps even doing some meetings over a meal. The face-to-face contact would generate the trust and respect needed to resolve issues that always arise during a litigation. I have always advocated live meetings with co-counsel in a multi-party litigation. Email communications (or even conference calls) tend to get out of hand and the parties tend not to pay enough attention to others’ positions. I am going to expand that practice to opposing counsel.
One other thought, that I do not know if Pynchon will agree with. Those who still avoid email and continue using letters as a main communication means are not off the hook. I started practicing when letters, not emails, were how you communicated with opposing counsel. Those letters tended to be far more aggressive than the attorneys were in a live conversation. And I suspect people tended to read extra aggression into the letters they received. I do not know if aggression is stronger in emails than letters, but the same problem exists whether you hit send, hit print or use a pen to write to opposing counsel.
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Continue Reading A Call for Face-to-Face Communication in Litigation
Blawg & Trust Reviews
This week’s Blawg Review is up at More Partner Income, click here to read it. Among other articles, the Blawg Review highlights Victoria Pynchon’s excellent series of posts at her Settle It Now Negotiation Blog, about facing the last days of her father’s life. The posts are moving on a personal level, and Pynchon manages to work in good legal advice as well. Click on the titles to read Pynchon’s Negotiating Life’s End posts: Part One; Part Two; Part Three; Part Four; Part Five; Part Six; and click here for the remainder of the posts.
And June’s Carnival of Trust is now available at Clark Chinge, click here to read it. Chinge does a nice job of helping the Carnival of Trust celebrate its first birthday. Congratulations to the Carnival on the big milestone.
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Continue Reading Blawg & Trust Reviews
May Carnival of Trust
Welcome to the May 2008 Carnival of Trust. For regular Blog readers, this will be a slight departure from the case analysis format you have come to expect. But I promise you the trust-related links will still be valuable reading for IP litigators and IP litigants. And in the spirit of the Carnival, I will now proceed to build your trust in me by following through on that promise.
The Carnival of Trust is a monthly, traveling review of ten of the last month’s best posts related to various aspects of trust in the business world. It is much like the weekly Blawg Reviews that I post links to and have hosted, but those generally contain far more than ten links. My job this month was to pick those ten posts for you and provide an introduction to each post that makes you want to click through and read more.
Do you trust me? Jeremiah Owyang at Web Strategy by Jeremiah says you do not , unless you are related to me. But the real point of Owyang’s post and the studies he cites is that people do not trust an unspecified blogger as much as their family or other unspecified news sources. That is not surprising and even shows good judgment. As Anne Reed at the Deliberations blog points out, choosing blogs is about developing trust. You find a few that you like and trust, trust developed by entering that blogger’s conversation and developing confidence in that person’s posts, and based on your trust in those blogs, you begin to find other quality blogs:
I learned the territory one or two blogs at a time, first coming to like and trust a few blogs (and bloggers) and then following their links and blogrolls to others.
Both the upside and downside of blogs is that you cannot develop an audience, or a community, by simply building an attractive, user-friendly site with good search engine optimization (although if you are going to run a law blog, you should do all of those things. People may come once for flash, but return visitors and respect within the blogging community is generated with strong, consistent content.
Kevin O’Keefe of LexBlog pairs up with his able VP of Client Development Kevin McKeown to advise bloggers and their employers, specifically law bloggers but the post applies more broadly, on how they can build trust with each other by devising a thoughtful corporate blogging policy and by meeting legal ethics standards — click here for the post.
In professional services circles, American Airlines’ serial MD-80 groundings was big news. Mark Bonkiewicz at World Class Trust argues that American Airlines, and airlines generally, have destroyed much of the public trust they built over decades of excellent service. And he contends that they have a long road ahead to regain the trust. But as a frequent flier who spent a lot of time during and around the MD-80 groundings on American Airlines flights, I disagree. In my experience, American largely handled cancelled flights and frustrated passengers well. This suggests that trust is subjective, a premise that squares with my personal experience.
Alex Meierhoefer at Leadership and Talent Development for Smart People asks: Is Trust a matter of Perspective? He looks at the “trust equation” and contends that trust should not be subjective, or at least is not subjective if parties in business deals, and presumably in politics as well, communicate openly. The problem with that is assuming open communication assumes trust. Additionally, sometimes unseen factors enter in to the other party’s decision making causing them to take actions that harm trust because of a lack of information. Perfect information and decent actors would guarantee trust, but absent perfect information trust will always be at least partially subjective.
My engineering background does not let me walk away from an equation without some discussion. And the Carnival of Truth’s own Charlie Green provides an excellent post at his Trust Matters blog discussing a version of the trust equation and providing a self-diagnosis tool which outputs a trust quotient (like an IQ score) on a fifteen point scale. Here is the equation the diagnostic is based upon:
Where C is credibility, R is reliability, I is intimacy and S is Self-Orientation. The diagnostic is interesting and the results may surprise you, they did me. Any tool that helps you take an honest look at yourself is a powerful resource for leaders and managers. The more honestly we can look at ourselves, the better we can care for and lead our teams.
Instead of using an equation, George Ambler at The Practice of Leadership asks What is Your Trust Rating? by looking at Robert Hurley’s ten primary trust factors. I like the equation, but the factors get to the same result. And as leaders, it is critical to evaluate how others perceive our trustworthiness. So, use the equation or the factors, but take the time to do it either way.
On the subject of trust-based leadership, Victoria Pynchon at the Settle It Now, Negotiation Blog has an excellent guide for maintaining your client’s trust during a difficult negotiation: How Can I Convince My Client to Lose More than Predicted and Still Maintain My Own Credibility? The answer is complex and multi-faceted, but it boils down to the fact that you have to get the stakeholders and decision makers face-to-face, get their buy in on resolution as a goal (in addition to winning), explore all avenues of resolution, and you have to let them explore all aspects of the dispute, even those that do not matter. The last point is a difficult one for lawyers. As a lawyer you generally want to remain focused on the settlement inputs — money, confidentiality provisions, sale of existing product if something about the product is being changed, etc. — but from a trust perspective it is important that the stakeholders resolve not just those issues that go into a final agreement, but any problems or concerns they have related to the dispute or the parties to the dispute.
And on a related topic, the Patent Baristas have a great post explaining how biotech companies can get past typical stereotypes, and sometimes realities, of doing deals with university tech transfer offices by, among other things, recognizing the other side’s by treating the other side with respect, and appreciating both their needs and their constraints — in other words, developing their trust.
Ed Moed at Measuring Up looks at the importance and power of building a trusted brand for sales: Build a trusted brand and the possibilities are endless… He was drawn in to a new diner in his local Whole Foods simply by the power the Whole Foods brand holds for him. As someone who grocery shops and then eats breakfast with his son at Whole Foods most Saturday mornings, I can appreciate Moed’s point. If my local Whole Foods opened a restaurant or a diner (we currently make breakfast out of items purchased from the store and eat in a small seating area at the front of the store), I would eat there at my first opportunity. Is your brand strong enough to draw people in that way?
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Continue Reading May Carnival of Trust