I often thought about myself or my law firm when it came to attending networking events.  After attending my fourth Young Lawyers Seminar last week in Denver, I realized that there is much more to networking and socializing than the obvious benefit of establishing relationships that will one day generate business. 

In the past year or so, I found myself in a position to refer several pharmaceutical defense cases to local counsel around the country: one in Virginia; one in Oregon; others here and there.  I immediately went to the DRI member directory to find DRI members who practice in those jurisdictions.  I also asked my fellow Young Lawyers Committee members who they knew in certain jurisdictions.  I came away with several referrals, and was able to place the matters after clearing conflicts checks.  Simple enough, right?  There’s more.

In Denver this past week, I saw one of the Young Lawyers who was able to accept one of these referrals.  She’s doing a phenomenal job representing our client.  This was my lightbulb moment.  Networking and building referral sources isn’t always about our own book of business; it’s about being part of an organization that fosters skill, experience, and professionalism.  It’s about being part of an organization in which our clients are benefitted by our contacts and friendships.  Our clients reap the rewards by being referred to the best defense attorneys and law firms in the world.  So the next time you approach a networking opportunity, consider all that your clients can benefit by your membership in DRI.  They will thank you.

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According to the February 25, 2014 Report from the National Association of Women Lawyers, its annual survey reveals little change in the  compensation, leadership roles, rainmaking, and equity partnership of women at the nation’s largest 200 firms. See National Association of Women Lawyers 2014 Eighth Annual National Survey on Retention and Promotion of Women in Law Firms (February 2014).  In addition, recent NALP research found that while overall representation of minorities among associates at large firms has more than recovered since sliding in 2010, the representation of African-Americans/Blacks specifically has in contrast declined every year since 2010 — from 4.36% of associates in 2010 to 4.10% in 2013.  See Perspectives on Diversity, NALP Bulletin, June 2014.  Some additional statistics related to African Americans reported in the ABA Journal recently are as follows:

  • Only 3 percent of lawyers in large law firms are African American, and only 1.9 percent of partners are African American;
  • Although the percentage of all minorities increased slightly last year, at 223 reporting law firms the number of African American lawyers fell;
  • Out of 77 Am Law 100 firms that reported minority numbers for equity partnerships, 31 either had no African American equity partners or just one. 
Statistics on the slow progress of women and minorities at law firms highlights the importance of continued diversity efforts, such as the DRI Diversity Seminar and Expo.  

During the upcoming DRI Diversity for Success Seminar, attendees will learn about new diversity initiatives created by a bar association, law firm, and corporation. Attendees will also learn about the training and exposure needed to develop clients. During the Expo, attendees will use the tips they have learned during interviews with corporations, seeking to diversify their outside counsel.

The 2014 DRI Diversity for Success Seminar and Expo will be held June 12-13, 2014 in Chicago, Illinois. Click here for additional information on the Diversity for Success Seminar. DRI members may still register to attend on-site with payment by check or credit card.


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Categories: Diversity | DRI Brand | DRI Committees

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The California budget cuts have led to the elimination of court-sponsored mediation programs in many counties in California.  For example, effective March 11, 2013, the Los Angeles County Superior Court (“LASC”), which is the largest county court in the world, has eliminated the ADR program and all court connected mediation that went along with it (with the exception of certain family law related matters).  

The court-directed free mediation programs were intended to promote efficient resolution of cases with smaller amounts in dispute.  Such cases make up a large percentage of the cases filed in California state courts.  When parties attended a Case Management Conference in California state courts, the judge would often refer willing parties to the court-directed mediation programs that were minimal or no cost to the participants.  The resource of affordable and automated mediation programs led to the efficient resolution of many lawsuits in Los Angeles County.    

Now that the LASC has eliminated the ADR program, it is a common experience for lawsuits in Los Angeles to take longer to resolve.  The reality is that, without the pressure of the deadlines of the court-directed mediation programs, some cases might fade out of the parties’ minds until the parties revive the litigation proceedings, which can sometimes take several months (not to mention the long waiting times for parties to schedule hearings on any motions).  In addition, the elimination of the free court mediation programs leads to much higher litigation costs for the parties as well as for the court.  

There is nothing comparable to the former free court-sponsored mediation program for small claim proceedings in California.  The only alternative to court-directed free mediation programs would be a private mediation proceeding.  However, given the high fees for private mediators, who charge approximately $200 to $1,000 per hour (plus the administrative fees charged by mediation services), private mediations are often not a worthwhile alternative in smaller civil matters, given the low amounts in dispute.

As a consequence, the increased costs, time pressure, and the lack of economically viable alternatives to court-sponsored mediation programs may eventually force clients into making decisions about their small claims cases that have nothing to do with the legal merits, but solely with time and money.  Attorneys representing parties in small claims proceedings are now left with the challenge to reevaluate their case strategy to compensate for the negative impact California budget cuts have on the defense of their clients’ interests.  Inevitably, even more efficient case management deadlines and increased collaboration with opposing counsel are required from attorneys practicing in Los Angeles.  

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DRI Online Communities

Posted on May 22, 2014 02:28 by Admin

On May 21, DRI rolled out the new committee online communities.  The new communities will enhance DRI’s web presence and will allow committee members to connect with each other and share information more easily.  Each community will have a discussion list, which will replace the current list serve, as well as a document library, blog, and calendar.  Committees will also be able to post announcements about their seminars and publications, and promote open positions and volunteer opportunities.  All posts are sent to members as a daily digest from the communities, unless a member changes his or her settings to real-time delivery.   The communities are designed to be the hub for all committee activity. 

There are six substantive law committees serving as the pilot group: Commercial Litigation, Employment and Labor Law, Product Liability, Women in the Law, Workers’ Compensation, and Young Lawyers.  Additional committee communities will go live over the course of the year.

Members can access the communities through the DRI website, www.dri.org  (there is a new link in the top blue navigation bar).  Committee members are automatically members of the respective community and are being notified via email. Members should call (312) 695-6221 if they are having trouble logging in to the site.


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The integration of the federal judiciary is a significant achievement for equality and the law. That is why the recent action by the Senate is worth recognition.  The Senate voted 96-0 unanimously on Wednesday to make Diane Humetewa the first-ever female Native American federal judge. Humetewa, a professor at Arizona State University, has worked in private practice and as an assistant U.S. attorney. She's a member the Hopi Indian Tribe.  She previously worked as a U.S. attorney for Arizona under the George W. Bush administration, as well as an appellate court judge for the Hopi Tribe and as a special counsel and professor at Arizona State University.  

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E-Discovery Can be Criminal

Posted on March 27, 2014 03:05 by David Hynes

On December 18, 2013, Kurt Mix, a former BP engineer was convicted 18 U.S.C. 1512(c)(1); which prohibits individuals from “corruptly… alter[ing], destroy[ing], mutliat[ing] or conceal[ing] a record, document, or other object, or attempt[ing] to do so, with the intent to impair the object’s integrity or available for use in an official proceeding.” 

Mr. Mix had been the first criminal conviction stemming from the Deepwater Horizon oil spill, indicted in May of 2012, two years after the 2010 disaster. While Mr. Mix was employed at BP, he received ten (10) notices from BP that he was required to preserve all of his spill-related records. However, Mr. Mix deleted a string of texts to and from his supervisor, Jonathan Sprague. While the verdict may be overturned due to jury misconduct, the verdict carries with it a potential twenty (20) years in prison and $250,000 fine. His sentencing is set for March 26, 2014. 
While there is little likelihood that your client or company will be under such heavy scrutiny from the US government than BP following the blowout, there are lessons to learn useful to minimizing risks in all litigation with E-Discovery (which is to say, all litigation). 

1- Know the data storage policies—Almost all companies with any amount of data will eventually purge their information. Find out your organization’s deletion timetable, and if there are “sensitive folders” which are retained for longer.  If there is a lawsuit, you need to know how soon the standard purging will take place.

2-Establish (or broaden) a Policy—while many companies have some kind of policy, make sure the policy includes all methods of communication and data storage. Does your organization’s policies include texting? According to recent Pew Research Center’s studies, over 81% of American adults text.  Over 60% of American adults use their cellphone for the internet, is your corporate cellphone policy inclusive of this data?

3-Education is Key—Your employees will not understand this intuitively. While most employees will not emulate Mr. Mix and erase sensitive data after being told numerous times to keep it. The organization must make sure its employees do not inadvertently destroy potentially sensitive information. 

4.-Create Fail-safes—Like data redundancy, make sure multiple people in your organization truly knows the policy, and comprehends the risk of not complying with the policy. Whether you nominate Human Resources to better educate, or IT to facilitate information exchanges, make sure there are multiple people who can help you say “stop, it’s time to save.”

5. On the flip side—Quickly determine if you need to identify and use an e-discovery forensic specialist. It is possible to recover deleted texts, emails, photos, and other ESI. As technology is constantly changing and individuals’ sense of privacy may change, be proactive, and have a procedure of dealing with sensitive information.  

The year has brought some pretty big rulings on what we are seeing with E-Discovery legal decisions.  The impact of E-Discovery will continue to evolve. Following well-written and comprehensive internal protocol will help protect your company against the harsh rulings of document retention pitfalls. 

David Hynes is an associate at the Carter Law Group. His practice areas include insurance defense litigation, environmental and regulatory compliance. Should you have any questions please feel free to contact the Carter La Group LLC, at 504-527-5055. This article does not constitute legal advice, is not applicable to a factual situation and does not establish an attorney-client relationship.

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Mediation – Past is Prologue

Posted on February 28, 2014 03:08 by Joseph A. Kaufman

I. THE HISTORY OF MEDIATION

Contemporary mediation defined by Black’s Law Dictionary as “a method of nonbinding dispute resolution involving a neutral third party who tries to help the disputing parties reach a mutually agreeable solution,” can trace its roots back to ancient civilizations.  As a method of dispute resolution mediation has been used in a variety of cultures for more than 3,000 years. The historical record includes references to the use of mediators in commercial cases in Phoenicia and Babylon, and ancient Greek and Roman civilizations were known to resolve disputes through mediation as well.  

Mediation can be thought of as an innately human activity that civilizes us and keeps the peace.  In a deeper sense, forms of mediation can be found in religions across the globe.  In that religious context, Paul directed the Corinthians to appoint people from their own community for the purpose of resolving disputes rather than submitting disputes to the court for resolution. (I Corinthians 6:1-4). Buddha encouraged adoption of the middle way or middle path as the means to achieve calm, vision, insight and, indeed, enlightenment. Additionally, Native Americans employed their own non-violent dispute resolution techniques long before the arrival of Europeans on the Continent.  Some similar dispute resolution processes can still be observed today in the tribal councils in the Pashtun areas of Afghanistan and Pakistan.  

Recognizing the long historical use of mediation as a means of peacefully resolving disputes is worth remembering the next time you find yourself mediating a case.  The historical roots of mediation are also worth acknowledging as societies continue to embrace new technologies that can potentially change the way contemporary civil disputes are resolved.  

II. MODERN MEDIATION AS WE KNOW IT
Contemporary mediation has its roots in dissatisfaction with the civil litigation process.  In addition to sometimes being less than civil, litigation can be and often is extremely expensive, both to the parties and the state.  Supreme Court Chief Justice Warren Burger remarked upon the problem: “We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated. We have reached the point where our systems of justice—both state and federal—may literally break down before the end of the century.”  Remarks at the American Bar Association Minor Disputes Resolution Conference (May 27, 1977).  “For many [civil] claims, trial by adversarial contest must go the way of ancient trial by battle and blood…”  Warren E. Burger, 70 A.B.A.J. 62, 66 (1984).  In light of the inherent burdens litigation places upon those involved, in 1976 Chief Justice Warren Burger invited Professor Frank E. A. Sander of Harvard Law School to present a paper at the Roscoe Pound Conference of 1976.  This historic gathering of legal scholars and jurists discussed ways to address dissatisfaction with the American legal system and to reform the administration and delivery of justice.

Professor Sander’s paper Perspectives on Justice in the Future urged a widespread adoption of non-litigious forms of dispute resolution, not least of which was mediation.  State legislatures took up the call and became focused on the development of mediation, and law and business schools joined in the research.  In 1979, the CPR (Conflict Prevention and Resolution) Institute was founded, backed by companies and professional firms, and began to explain the idea of mediation.  Getting To Yes by Harvard Law School Professors Roger Fisher and William Ury was published in 1981.  In 1983, Harvard Law School, MIT and Tufts founded the Program on Negotiation.  Two years later came Pepperdine’s Straus Institute for Dispute Resolution.  By the late 1980s, the Association for Conflict Resolution and the ABA Section of Dispute Resolution were established. Mediation rules were then codified and amended throughout the United States.  Consequently, mediation as an integral part of the civil litigation process developed and virtually all litigators are now as familiar with mediations as they are the court room.    

Over the years, lawyers and non-lawyers have found numerous benefits to mediation over trial.  First and foremost for the non-lawyers is the cost.  While mediators and mediation facilities charge fees (in addition to the fees charged by the lawyers for each party), the mediation process is generally much quicker and much less expensive than litigating a case through trial. Perhaps most importantly is the fact that mediations are completely confidential.  This confidentiality allows parties to discuss the true strengths and weaknesses of their respective cases in a truly open and honest manner without the risk of educating the other side.  Another benefit is control.  A party can mediate and control the outcome or go to trial and give control to 12 complete strangers – who can never truly know as much about the case as do the parties – and who certainly do not care about the outcome of the case (at least not to the degree as do the parties).  

III. TECHNOLOGICAL ADVANCES MAY BRING CHANGES TO MEDIATION AS WE KNOW IT
As the development of mediation and other forms of alternative dispute resolution has changed the way cases are litigated and resolved, technological advances may now bring changes to the way we mediate those cases.  Online Dispute Resolution (ODR) is a form of alternative dispute resolution which brings technology to the table to facilitate the resolution of disputes between parties.  Moving the mediations online and with the assistance of software developed specifically for the purpose can potentially change the way mediations are conducted in the future. Processes that were once assisted by the Court or third parties can now be moved online, from the initial filing of a claim, the appointment of a neutral, the sharing of evidence, to real time hearings and the ultimate resolution of a matter.     

ODR has the potential to take the human element out of the process with technologies like automated negotiation and blind bidding.  Parties can submit several offers and if the bids of both parties come within a predetermined range or dollar amount, then the technology automatically settles the dispute in the midpoint of the offers. Using technology to settle the case encourages the parties to reveal their bottom line offers and demands, splitting the difference when the amounts are close.  In addition to letting the technology work for you, ODR mediations can be mediator assisted. As these technologies are embraced and the number of ODR companies offering these services continues to grow, it is possible that mediations of the future will look quite different than mediations of today.  Even so, the end result - the peaceable resolution of disputed claims – will remain the same.   

DRI’s ADR Committee is devoted to addressing issues of interest to ADR professionals, attorneys and their clients. The ADR Committee explores the practical implications of using arbitration, mediation and negotiation as cost effective and time-saving alternatives to litigation, and is a key resource on staying up to date with the latest trends and developments in the field of ADR.  For continued information on ADR, please consider joining the ADR Committee.   

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Settlement negotiations can be tricky and knowing what you can and cannot ethically say can mean the difference between a valid and invalid settlement. According to a 2009 survey by Professor Andrea Schneider, director of the Dispute Resolution Program at Marquette University Law School, a sizable minority of litigation attorneys incorrectly answered that they do not need to correctly respond to a direct question about settlement authority. See Art Hinshaw, Peter Reilly & Andrea Kupfer Schneider, Attorneys and Negotiation Ethics: A Material Misunderstanding, 29 Negotiation Journal 265, 269 (2013).  According to the survey, 38.14% of the ninety-seven (97) participating litigation attorneys incorrectly responded that they did not have to admit the amount of their settlement authority if directly asked. Id. at 269-270. Pursuant to the American Bar Association’s Rules on Professional Responsibility, an attorney’s valuation of a claim and a party’s settlement intentions are enumerated exceptions to what constitutes a material statement in negotiations. Id. at 268. However, the specific limits of authority that a client has given a lawyer to settle a case is considered a material fact. Id. Therefore, an attorney must truthfully respond when directly asked about his or her settlement authority.

The survey also found that 22.9% of the participants incorrectly responded that you do not need to correct an opponent’s misimpression of a material fact based on an erroneous statement. Id. at 275.  According to the RULES OF PROFESSIONAL RESPONSIBILITY, an omission of a material fact can be unethical in certain cases. Id. at 272. Most importantly, the law of fraud for both tort and contract law requires correction of a misimpression. Id. (Citing RESTATEMENT (SECOND) TORTS, §551(2)(e) and comment l 1977; RESTATEMENT (SECOND) CONTRACTS, §161(b) 1981). Although attorneys generally do not have a duty to correct a misunderstanding of the facts by their opposing counsel, they do if it is based on an erroneous statement.

Wondering what other ethical dilemmas you may encounter on the road to resolution? Consider attending the 2014 DRI Women in the Law Seminar, Clients and Counsel: Partnering for Success Seminar, which will be held February 5-7, 2014, at the FireSky resort in Scottsdale, Arizona.  The seminar includes an interactive mediation/negotiation workshop for in-house and outside counsel.  Chrys A. Martin of Davis Wright Tremaine LLP will explore the ethical issues that need to be foremost in the mind for both in-house and outside counsel from the time negotiations begin until the settlement agreement is fully executed. Click here to register today. 

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The Art of Negotiation

Posted on October 8, 2013 03:33 by Sarah E. Lovequist

There have been a number of attempts in the past 15 to 20 years to significantly increase the use of alternative dispute resolution (ADR), particularly mediation, by parties to civil and commercial disputes. Several law schools now offer comprehensive ADR courses, and courts regularly certify mediators to help facilitate expedited case resolution. Likewise, judges presiding over class action or mass tort/MDL litigations regularly schedule mediation proceedings at or before the initial case management conference.

According to BTI's "Litigation Outlook 2014" survey, 60.7 percent of clients expect to see a jump in litigation matters, yet resolution rates are expected to reach nearly 40 percent. These statistics, coupled with findings from AlixPartners' "Litigation and Corporate Compliance Survey," that 84 percent of corporate legal departments are trying several ways to lower legal costs, including resorting to alternative dispute resolution (ADR), indicate that counsel should quickly hone mediation and negotiation skills.
Short of enrolling in a class at one's local law school or signing up for a one hour CLE on the topic, a practicing attorney has several avenues to take to improve her ADR skills. One such avenue is attending the 2014 DRI Women in the Law Seminar to take advantage of the Seminar's Mediation/Negotiation Workshop. This interactive Workshop includes sessions on both ADR and the art of negotiating, and is designed for both in-house and outside counsel. In addition to this groundbreaking Workshop, the Seminar as a whole promises to offer both practical and networking sessions aimed at enhancing the practicing attorney's total being. 

The 2014 Women in the Law Seminar will be held February 5-7, 2014, at the FireSky resort in Scottsdale, Arizona. Register today by visiting here



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It was reported on February 20, 2013, that President Obama appears to have selected federal air regulator, Gina McCarthy, to take over for Lisa Jackson as head of the EPA.  The news indicates that the executive branch intends to build upon the agency’s recently-validated efforts to regulate greenhouse gas (GHG) emissions, in the face of persistently anemic congressional action on the issue.

The likelihood of increased regulatory, as opposed to legislative, involvement is further evidenced by the reactions of various legislators who oppose GHG controls.  For example, Sen. David Vitter (R-La.) was quoted as saying, “[t]he administration should be looking for someone who will end the standard of ignoring congressional requests, undermining transparency and relying on flawed science…Instead, it looks like they may double down on that practice.”  “Obama Expected to Tap McCarthy for EPA, Moniz for DOE,” http://www.law360.com/articles/417045.

In other words, if President Obama is going to make climate change a legacy issue for his second term—which seems to be the case based upon statements made in his inaugural  and State of the Union addresses—he is going to have to revisit his previously-stated aversion to doing so primarily through top-down regulation.  But how is he going to go about doing that?  The issue of climate change was conspicuously absent from the topics discussed during the 2012 presidential campaign, and any increased attention it has received in recent months might deservedly be credited in significant part to Hurricane Sandy.  Nor does it help that the administration has offered up few, if any, real details about its future climate-change-related regulatory agenda (see, e.g., http://www.whitehouse.gov/energy/climate-change).

Until that plan is made public, outside observers must rely on a review of EPA’s past successes and ongoing initiatives in order to predict what the future has in store.  However, it seems clear that an emboldened EPA will likely pursue all or some of the following initiatives with increased vigor and political support in the coming months and years.

·         New Power Plants:  EPA is expected to finalize a rule, originally proposed in 2012, requiring new fossil-fuel-fired power plants to be constructed with carbon capture and sequestration technology.

·         Existing Power Plants:  Finalization of the rule governing CO2 emissions from new power plants will force EPA to address the same issue with respect to existing facilities.  EPA is expected to address this by requiring each state to adopt its own emission standards pursuant to guidelines issued by the federal agency.

·         Refineries:  The terms of a 2010 settlement agreement required EPA to issue a GHG rule for refineries by November 2012.  The agency did not comply with that deadline and expected to act on the issue this year.

·         Oil & Gas Operations:  EPA finalized emission standards for oil and gas operations in 2012.  Several states subsequently filed a notice of intent to sue the agency for its failure to include provisions that directly regulate methane.  EPA has indicated that it will revise the final rule in 2013.

·         Mobil Sources:  EPA has proposed a rule designed to ensure that transportation fuel sold in the United States contains a minimum volume of renewable fuel.

·         Climate Adaptation Plan:  EPA released its draft Climate Adaptation Plan this month, which discusses the impact of climate change on the agency’s ability to fulfill its mission and describes how EPA will factor climate change adaptation into new regulations.  The public comment period runs through April 9th.

DRI’s Climate Change Task Force will continue to monitor developments in this evolving area of the law, and will submit regular blog postings and articles discussing relevant events.

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