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Yesterday I posted excerpts from a Los Angeles Daily Journal article about the ethics (and enforceability) of a mediator-client agreement in which the client waives any right he or she might have to pursue the mediator for malpractice.

Before moving into those waters here, let's brainstorm a little about how mediators might fall "below the standard of care" in a profession that so many claim has no standard of care.

1. divulging party confidences made in separate caucus to other parties (both expressly and implicitly by, for instance, "predicting" the other side's likely "bottom line" or future point of impasse);
2. drafting the "deal memo"
   1. without complying with applicable law concerning it's enforcement while suggesting - explicitly or implicitly - that the "deal" reached during the mediation session will be enforceable
   2. without explaining that conditions precedent orally expressed during the mediation will not be enforceable unless included in that deal memo;
3. incorrectly explaining the applicable law about the parties' ability to use statements made during the mediation for purposes other than litigation;
4. while holding one's self out to be an expert in a niche area of the law (particularly if the attorneys present are not) incorrectly stating the applicable law to the parties and their counsel; and,
5. disclosing to third parties mediation confidences to the detriment of one or more of the parties, i.e., voluntarily testifying in Court without party permission about those confidences.

These are simply the potential malpractice mine-fields that immediately come to mind.  If required, I'm certain I could come up with at least a dozen more.  They come quickly to mind because I am not without self-protective instincts while mediating for people with a demonstrated ability to bring suit when sufficiently motivated.  Perhaps more importantly, whatever I do, I want to do honorably. /*

Which brings us to the question whether a prospective waiver of liability is "honorable" or "ethical" or "enforceable."

Honor and Integrity

Because we define what is honorable for ourselves and ourselves only, my answer to the first question is easy to reach.  I would not consider it honorable to attempt to dodge potential liability for negligently doing my job.  Part of my job is to encourage the parties to be accountable for their part in the dispute being litigated and mediated.  I can honorably do no less.  As an officer of the Court for nearly thirty years, I would also consider it dishonorable to intentionally frustrate the litigant's attempt to seek redress in the Court of law to which I am so deeply committed.  Nor would I include an arbitration clause in my agreement to provide professional services. 

Ethics

To believe there are no profession standards of ethical behavior for mediators is to ignore the contribution of the American Bar Association to the field.  In 2005, the ABA adopted Model Standards of Conduct for Mediators.  The ABA states that its standards "are designed to serve as fundamental ethical guidelines for persons mediating in all practice contexts."

They serve three primary goals: to guide the conduct of mediators; to inform the mediating parties; and to promote public confidence in mediation as a process for resolving disputes.

The ABA notes in its comments section to the Standards that

the fact that these Standards have been adopted by the respective sponsoring entities, should alert mediators to the fact that the Standards might be viewed as establishing a standard of care for mediators.

STANDARD I. SELF-DETERMINATION

STANDARD II. IMPARTIALITY

STANDARD III. CONFLICTS OF INTEREST

STANDARD IV. COMPETENCE

STANDARD V. CONFIDENTIALITY

STANDARD VIII. FEES AND OTHER CHARGES

STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE

These standards are discussed in detail at the link above.  The violation of many of these standards would provide a mediator malpractice template to any attorney representing a disgruntled litigant seeking to void a mediated agreement or pursue a third party for damages arising from a deal gone bad.

There is nothing contained in these standards that would expressly make a mediator's prospective waiver of liability unethical. Could the following ABA standards do so? 

Is a mediator who presents a prospective liability waiver to participants engaged in an act of subtle coercion, particularly if the proposed waiver is presented on a take-it-or-leave-it basis at the commencement of the mediation?

A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. .   .   A mediator shall not undermine party self-determination by any party for [any self-serving] reason.

Is a mediator who presents a prospective liability waiver to participants in mediation at the commencement of the proceeding raising a question of impartiality, i.e., if the participant refuses to sign or asks to eliminate the waiver provision, can the mediator be truly impartial as to that party?

A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.

Are mediators who ask parties to sign prospective liability waivers for the first time at the mediation being deceptive in soliciting business?

A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees.

Enforceability will be the topic of my next post on prospective liability waivers.

_________________

*/  For a useful short discussion of a means of uniting morality, ethics and legality into a single theory using "integrity" as the unifying principle, see A New Model of Integrity: An Actionable Pathway to Trust, Productivity and Value. (anyone alive at the time of the controversial est training can make what they like of the fact that the largely discredited Werner Erhard is one of the authors of this article)

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(CPR, right.  Are mediators like fireman as Straus Institute's Peter Robinson suggests?)

Excellent article on mediator liability waivers in a recent Los Angeles Daily Journal Article (excerpted below).  I have much to say about this topic, particularly as to mediators who hold themselves out as possessing expertise in niche areas, such as the resolution of intellectual property disputes.  My observations on this topic in the next post.  For now, a sampling of some of the comments made by local mediators and ADR panel executives below:  

Some Question Mediators' Liability Waivers

by Greg Katz
Daily Journal Staff Writer

LOS ANGELES - Mediators, perhaps more than anybody, know how expensive and time-consuming litigation can be.

So it should come as no surprise that many of them insert professional liability waivers in the forms they use for their mediations, using clauses, like: "The mediator has no liability for any act or omission in connection with the mediation."

While the State Bar prohibits attorneys from putting prospective liability waivers in contracts with their clients, mediators, who are unregulated, face no such restrictions.

Major providers, including JAMS and ADR Services, insert liability waivers in mediation forms posted on their Web sites, as do leading independent practitioners.

Now, some mediators and other participants in the industry are questioning what the waivers say about the ethics of mediation as a field. They warn that, despite the state's strict confidentiality rules that prohibit using anything said or done in mediation in court, it is likely mediators eventually will face lawsuits.

"In both law and medicine, it's unethical in California to seek a prospective waiver of liability from the people for whom you perform services," said Los Angeles mediator Jeff Kichaven, who has long expressed concerns about those waivers and does not use them himself. "If mediators want to have the same kind of respect in society, the way to do it is to try to emphasize their ethical standards."

While not all of the ethical standards imposed on lawyers should be applicable to mediators, Kichaven said, this one should.

"To me, it's a basic willingness to stand behind the quality of your work, which every professional ought to be willing to do," he said. . . . . .

                                   *                 *                   *

Jay Welsh, JAMS' general counsel, said ethical standards should be different for attorneys and mediators because the professions are "totally different."

"We want mediators and arbitrators to remain out of the fray so that they can take people who are contentious, and in litigation and make sure that litigation is focused on each other and no one else," Welsh said. "So that's why it's in our agreements."

                                            *              *            *

Peter Robinson, managing director of the Straus Institute for Dispute Resolution at Pepperdine University School of Law, said he had qualms with the use of liability waivers. He said they may not stand up if challenged in court. But, he added, attorneys don't sue mediators because they look at mediation as a public service profession akin to fire fighting.

"The fire department is a helping profession - whenever they go out, they're heroes. And in a similar way, mediators are there to help people get the case resolved, and I think most of the time they're perceived as a resource or an asset, as compared to a person who's responsible," Robinson said.

Finally, the always colorful Jeff Kichaven noted that:

"When I discuss these matters with other mediators, oftentimes the response I've met is, 'I've been doing this for a long time, and nobody has sued me,'" he said. "That's like a conversation with a hypothetical teenage daughter who says, 'What's the big deal with condoms? So far, I haven't gotten pregnant.'"
 

For full article,

.

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From today's Los Angeles Daily Journal

FORUM COLUMN

For Lawyers, the Pursuit of Happiness Involves a Return to the Basics

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

If you were educated in California's public schools, you read this for the first time in the fifth grade, again in the eighth, one more time in high school civics, and, if you took the sparsely attended jurisprudence course, a final time in law school. Despite this repeated exposure to our nation's most enduring set of principles, I never really understood what the "pursuit of Happiness" meant until my stepson began legal practice earlier this year. He was tired of reading about unhappy lawyers, he said. "Tell me how to be happy practicing law." So back to first principles I went.

We know that the Founders didn't have weekend spa retreats, golfing getaways or new BMWs in mind when they included in the preamble to the Declaration of Independence the right to pursue happiness. So what did these men of the American Enlightenment mean?

They meant eudaimonia, an Aristotelian concept defined not by honor, wealth or power, but by rational activity in accordance with virtue over a complete life. These virtues were those of character - honesty, pride, friendliness and wit - intellect; generosity; and knowledge of those matters that are fundamental and unchanging.

"Happiness, eudaimonia, arises from virtuous activity," I told Adam.

"Uh-huh," he said, with that look young people give even their stepparents. The "I didn't ask for platitudes but was seeking genuine guidance here" look. He didn't have to tell me about burdens of billable hours, the grinding slog of paperwork, the pitched battle of litigation or the often corrosive internal politics that attend the practice of law in every firm. Legal practice could easily consume one's life and often frustrated our attempts to set the gears of justice into motion. It was and always will be enormously stressful. Could it possibly be transformed into something resembling contentment?

The positive answer to this question comes from scientific research about "eustress" or good stress. The term was coined by the neuroimmune biologist Hans Selye in the early 1970s. It refers to the happily adaptive response to what some people call "problems" and others deem "challenges." In response to "challenges" - difficulties or barriers people believe they have the freedom and power to address - the body releases adrenaline and noradrenaline, hormones that heighten our perception, increase our motivation and physical strength and extend our capacity to function intellectually, physically, emotionally and behaviorally.

This "good stress" acts both as a motivator to creative problem-solving and as its biochemical reward. Eustress is the biological example of the Aristotelian concept of value eudaimonia, the pursuit of which our new country guaranteed us.

As the Happy Mind Web site suggests in its post on Eudaimonia and the Pursuit of Happiness: "If we can rediscover the concept of eudaimonia, and adapt it to suit our modern values, perhaps we can find a way to achieve longer-term happiness. A modern concept of eudaimonia, for example, might include the need to take account of the effect of one's actions on the environment, as well as on other people in one's community. It might take the form of political engagement, or artistic creativity, or volunteer work. By focusing on the effect of our actions on those around us and on the world in general, rather than on our own happiness, perhaps we can learn to be eudaimon, and to be happy."

"OK, OK," I could hear Adam saying, "but you're digressing again. You said you were going to talk about happy lawyers, not about Thomas Jefferson and some 1970s feel-good immune-biologist."

If philosophy and social science didn't provide the answers he was looking for, all I had to offer was my own professional experience. So I shared with him the joy I derived from my ability to solve a client's problem through legal research, strategic thinking and effective advocacy and the surprisingly deep satisfaction I felt in procuring a greater degree of justice for my clients than they had ever thought possible.

Despite the cold chill of fear and nausea that accompanied me to the 3rd District Court of Appeal during my first few years of practice in Sacramento, I'll never forget the heady sense of accomplishment that followed formal oral argument before a three-judge panel. I entered the courtroom fearful of passing out at the podium but left feeling just a little bit heroic. Taking and defending my first dozen or so depositions, arbitrating my first dispute and trying my first half-day court case were all rich sources of eustress and eudaimonia. Asking the right questions, obtaining both expected and unanticipated answers and following the trail of evidence to a beneficial conclusion were not easy to learn. But they were all both worthy challenges that provided their own exciting rewards.

The gentler arts of legal practice were also sources of fulfillment. Advising my first few pro bono clients about their legal rights was immensely gratifying. These were people and nonprofit organizations who never expected the justice system to be put to use in their service. Hearing the relief in their voices at the smallest victory was better compensation than any anticipated year-end bonus. The law did not, after all, serve only the rich. It served my people - and those less fortunate than I had been - as well.

At some point, all of us who till the fields of justice realize that our knowledge of the law and ability to wield it on behalf of others is one of life's great and rare privileges. No one, no one, will ever be quite so able to bully us - or anyone we care about - simply by asserting their status or brandishing their economic power again.

If we surrender ourselves to the lessons the practice of law has to teach us, we are given the opportunity to exercise every strength of character and overcome every weakness of resolve with which we have been simultaneously blessed and burdened.

If my stepson and his fellow new attorneys would permit me to be sentimental for just a moment, this is what I'd tell them: Legal practice is not a job. It's not even a career. It's a calling. You will push yourself harder than you can imagine. In the near term, your victories will be more internal than external; more apprenticeship than accomplishment. With the blank screen of professional life to be filled, however, you could not be better positioned to pursue happiness - rational activity in accordance with virtue over a complete life - than you are at this very moment.

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From Likelihood of Confusion -- a must read about the foolish-ness-esses of applying too much knee-jerk law to the business of business.

A reader writes to New York Times Q&A guy Stuart Elliot with a question that’s on a lot minds:  What’s with this “Mastercard card” stuff you hear on the commercials?  There are, evidently, two answers, the second of which was LIKELIHOOD OF CONFUSION®’s guess and the first of which is… well, here, read it for yourself:

“Essentially, many times it’s because we’re driving consumers to use their physical payment card,” says Jon Schwartz, a spokesman for MasterCard Worldwide in Purchase, N.Y., “so we must distinguish between our brand and the MasterCard-branded credit or debit cards that consumers utilize to make purchases.”

You must, eh?  Well, in this humble marketing-and-branding-savvy-law-blogger’s opinion, you’re not.  We can barely follow what you’re talking about, and that’s because what you’re talking about, Jon — can we call you Jon?, thanks — is incoherent. 

You must read it all.  Now.  Here.

Ah.  Sanity.  I feel all restored and reasonable again.  Thanks Ron! (@RonColeman)

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Thanks to @dhowell (she of Bag and Baggage) for alerting us to BetaNews' breaking news that Hasbro has settled with the Scrabulous brothers.  Here's the news release:

"Pursuant to the settlement, RJ Softwares has agreed not to use the term Scrabulous and has made changes to the Lexulous and Wordscraper games (in the US and Canada) to distinguish them from the Scrabble crossword game. Based on these modifications Hasbro has agreed to withdraw the litigation filed against RJ Softwares in federal court in New York in July of this year. As modified, the Wordscraper application will continue to be available on Facebook and Lexulous will be available on the Lexulous.com Web site."

Read the full story (an excellent post) over at BetaNews here.

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Run right over to the Legal Satyricon for as much Bill of Rights savagery as you might have been waiting eight years for as Blawg Review #190 Celebrates Bill of Rights Day.

Our favorite here at the IP ADR Blog is the Seventh Amendment.

SEVENTH AMENDMENT

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

Apparently the RIAA didn’t get the memo on this one. One of its attempted victims in a file sharing lawsuit has had the audacity to demand a trial by jury — a move the RIAA deemed “vexatious.” Wired 27b/6.

All ten are covered in full here!

Blawg Review continues next week, hosted by Ron Coleman at Likelihood of Confusion.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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By Greg Katz

Daily Journal

Staff Writer

LOS ANGELES - The crowded Los Angeles mediation market is about to get a new competitor.

Professional Mediation will open its doors in January. It is the brainchild of Cary Sarnoff, president of Sarnoff Information Technologies, whose main enterprise is Sarnoff Court Reporters.

Among the company's first signees is Jeff Kichaven, who is leaving JAMS for the new provider after two years with the dispute resolution giant. He said that although he has enjoyed his time with JAMS, he had tired of the large company's bureaucracy and was feeling "entrepreneurial."

"The new company will be shared with a very small number of mediators, all very skilled," Kichaven said.

Sarnoff billed Professional Mediation as a high-end dispute resolution boutique. Unlike some large panels, he said, it will have no more than 25 or 30 panelists.

By comparison, JAMS has 262 neutrals nationwide, including 133 in California alone.

"We don't want to be the biggest - we simply want to be the best," Sarnoff said. "I think that we can create an environment where very well-respected and well-thought-of mediators can collaborate together."

Sarnoff said he decided to open a mediation shop after his children, who are lawyers, began using mediators more frequently. The new panel has been in the works for several months, he said.

Professional Mediation will be a subsidiary of Sarnoff Information Technologies, he said. It will operate out of that company's five existing offices in California and Nevada, as well as a forthcoming office in Century City. Its downtown Los Angeles office shares a floor with JAMS.

Besides Kichaven, the panel also will include Los Angeles mediator Deborah Rothman, who said she will continue to work with the other providers she has been with recently.

Independent San Diego-based mediator Scott Markus, who was affiliated with JAMS in the 1990s, and Irvine mediator John McCauley, also said they plan to sign on.

To continue reading, click here.

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We're proud to announce that our friend and colleague, Judicate West hearing officer (mediator and arbitrator) John Leo Wagner, Federal Magistrate (ret.) has been named one of 40 Top California Neutrals by the Los Angeles Daily Journal

Daily Journal Bio from the Top 40 List Below

Affiliation: Judicate West
Rate: $6,600 a day
Location: Los Angeles

Specialty: Mediation and arbitration. Intellectual property, construction defect, environmental, mass torts and securities and consumer class actions
Cases: During the past year, Wagner settled thousands of lawsuits that had been filed over a six-year period by depositors who lost their savings when a noninsured bank collapsed. He also mediated to settlement a high-stakes, multistate electrical power contract between utilities and contractors; facilitated a global settlement involving four lawsuits by dairy farmers over contaminated cattle feed; settled a construction defect case involving a $400 million power plant and 160 contract claims; and helped facilitate a settlement in a Voting Rights Act disenfranchisement case involving two large counties, the governor, Legislature, attorney general, state and county bar associations and the NAACP Legal Defense Fund.

Background: Director, Irell & Manella ADR Center Los Angeles; U.S. magistrate judge, Northern District of Oklahoma; litigation partner, Kornfeld & Franklin, Oklahoma City

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I recently advised a client that his IP dispute with a virtual world was just the type of cutting edge, paradigm busting, sophisticated legal problem that people go to law school to resolve.

Good for litigators.  Bad for client.

I'll return with business advice for resolving legal problems with business savvy but pause here to share with you Drinker Biddle's recent parade of horribles on IP challenges facing virtual worlds and their entrepreneurs.

Generating and Protecting Intellectual Property in Virtual Worlds (.pdf)

By: Gary J. Rinkerman, Philip J. Cardinale & Janet Fries

The rapid growth of online “virtual worlds,” or computer-based interactive electronic environments, such as Second Life® and There.com, has created new opportunities for creating custom, virtual content, and for advertising and selling “real world” and virtual products and services. Along with those opportunities come a number of unique and potentially complex legal issues that arise in establishing and enforcing intellectual property rights – including trademark, trade dress, copyright, rights of publicity and other rights – in the context of “virtual realities.” Conversely, owners of such rights need to be cautious in deciding whether to create their own presence in such virtual worlds, especially if the virtual world’s Terms of Use contain restrictions on how IP rights must be allocated or licensed, or how IP disputes must be resolved. Some companies may elect to create a presence in virtual worlds, but others may be “dragged in” to virtual environments by the need to monitor usage and enforce IP rights, since IP usage in these virtual environments can have significant real-world impacts.

The solution to sophisticated commercial/legal problems arising in virtual worlds requires both IP lawyers and business/negotiation advisors to resolve.

H/t to Professor Michael Scott @CopyrightLaw who is a must-follow for lawyers with IP issues on twitter; find him @InternetLaw @PrivacyLaw and @LawProf as well.  And don't forget to subscribe to his excellent Singularity Law Blog as well.

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Remember those days - largely before you went to law school - when you believed all lawyers with whom you were going to practice would evidence the benefits of a classical education?    I believed.  As did two ex-husbands until they first attended law firm holiday parties.  No mariner ever pulled them away from the hors d'oeuvres table to arrest them with the power of a seafaring tale. 

Alas, we divorced years and years before I could give them Blawg Review #189 as Exhibit A to restore their pre-law belief in the well-educated and sophisticated legal practitioner.  In #189, Colin Samuels restores the image of the legal profession by following the tale of the Ancient Mariner -- he of the "long grey beard and glittering eye" -- who weaves an irresistible narrative for the transfixed wedding guest, a story seared into the memories of those of us who happily squandered our University years studying literature.  ("what are you going to do with a literature degree, honey?")

Audaciously comparing those of us who blog to the mighty Coleridge, Colin Samuels writes:

As writers, many of us have struggled to find our voices online. Do we write as we would speak to friends and colleagues or as we would write for professional publication? Do we censor ourselves or seek controversy? Do we write on non-legal topics or maintain a strictly professional image online? Will our writing be an end in itself or a means to another end? Each new legal blogger has asked these and many other questions of himself or herself, only to find them being asked again and again as his or her blogging continues. As highly-educated professionals, we are often the severest and most persistent critics of our own writing.
 

Like the Mariner, Samuels' most recent Blawg Review (see his previous brilliant efforts based upon Dante's  Hell, Purgatory, and Heaven) so arrested my attention that I didn't even do what I must admit I always do with Blawg Review -- skim down to see whether one of my weekly posts was included (not).

I can only say to you:  Read it.  Now.  And if you're looking to justify your IP time, here are the IP links you will find woven into one of the great narrative poems of English Literature.

Venkat Balasubramani wrote that the government's use of the Computer Fraud and Abuse Act has led to a muddled discussion which confuses two separate issues: "Somehow the discussion has shifted from whether it's appropriate to use Ms. Drew's commission of a tort to support a CFAA conviction to whether the CFAA should cover access in excess of a website's terms of use. Two conceptually distinct issues that people tend to conflate."

The Media Bloggers Association legal blog explained the import of the verdict for bloggers: "There is understandable concern among many online commentators about the implications of the particular legal theories that formed the basis of the convictions, based fundamentally on the violation of various levels of online terms of service that are seldom more than glanced at and clicked through by experienced Internet users. The MBA encourages responsible use of the online resources via its Statement of Principles...."

Shortly after the verdict, Orin Kerr posted a tongue-in-cheek revised Terms of Service for The Volokh Conspiracy blog. These revised terms, which required such user promises as "Your middle name is not 'Ralph'," "You're super nice," and "You have never visited Alaska," were meant to illustrate how easily (and routinely) we can violate the use terms of many sites, resulting in potential criminal liability after the Drew decision. Scott Greenfield commented that "As terms of service go, Orin's are relatively reasonable." Greenfield noted that his blog has only one rule ("No assholes"), but that he has and will apply it arbitrarily and ruthlessly.

Frank Pasquale considered whether Google, which has become a gatekeeper for much of the world's online information, should have the right to censor that information: "Bottom line: someone in government has to have the right to determine "if the search algorithm [has become] biased." Without that basic assurance, black box search engines now are about as big a menace as the black box economy was five years ago. We trust the math wizards at Google now as much as we used to admire the financial innovators at Bear Sterns and Goldman. Only time will tell if our faith in the mathematicians was misplaced yet again." Meanwhile, Google's weak sister, Yahoo!, has apparently thrown in the towel on its internet radio project, ceding the project to CBS. David Oxenford discussed whether the move would affect the decisions recently made by the Copyright Royalty Board, which relied at least in part on arguments about internet radio's economic power which have not been borne out.

Maya Richard suggested four tactics to preemptively protect patent assets from patent trolls: monitoring patent filings for applications related to your portfolio; hedging risk with patent infringement insurance; retaining skilled IP counsel to build a case for major patent assets; and joining an industry protection group. Also writing on a patent-related topic was R. David Donaghue, who noted that despite the Twombly decision, "many district courts are requiring that patent defendants plead affirmative defenses and, in some cases, counterclaims to the higher plausibility standard." He suggests remedies for this uneven application of the Twombly standards.

id you think road kill would be the most unlikely legal topic addressed in this Blawg Review? Hah! Ron Coleman explained that "tackiness is not grounds for refusal to register" a trademark. The owners of the Chippendale's male striptease concern are hoping to register their distinctive collar-and-cuffs costume as a trademark and Coleman pointed out that they've lined-up some considerable legal and expert support for their efforts. John Welch noted that the PTO has already "conceded that the Chippendale 'outfit' is product packaging rather than product shape" and Ryan Gile added that, faced with "400 pages of evidence [presented by Chippendale's, the] PTO had no problem recognizing that the Chippendales trade dress had acquired distinctiveness." Rebecca Tushnet suggested that the claims were limited in the application, but confused rather than clarified matters: "If the fact that the torso wearing the collar and bow tie is unclothed is not part of the mark, then any man in an outfit with cuffs and a bow tie is copying the Chippendale's mark."

Blawg Review sails on next week when Marc Randazza and his Satyriconistas at The Legal Satyricon host.

Blawg Review has information about next week's host and instructions how to get your blawg posts reviewed in upcoming issues.

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Check out the ever-exhaustive Settlement Perspectives blog this week for a walk down the organized aisle of mind-mapping for your mediator.  As in-house counsel John DeGroote explains:

 

A sample Mediation Mind Map, available in .pdf format here.

You’ve been there before. You’ve done your homework to prepare for the mediation, ready to engage over the issues in the case. A trial bag filled with critical notes, important documents, and detailed spreadsheets sits within arm’s reach. But the other side speaks first, and offers something insightful like: “My client’s Widgetmaster doesn’t work; since you made it, you owe us money.” Now it’s your turn.

Sometimes it takes a little more effort to untell a story than to tell it. In most disputes negotiation success depends on a command of the details, and in your next mediation the outcome may hinge on your mediator’s ability to remember those details on the fly. Do you have a way to get them across to your mediator before she meets alone with the other side?

What Is a Mind Map Anyway?

After years of 3-ring binders, graphics and white boards, I have learned that a mind map is often the best way to organize and communicate the complex, critical information you — and your mediator — will need to convey before the case can settle.

Read the full post here!

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Thanks to Robert Holland at Sidley Austin Los Angeles for giving us a few more issues to consider when estimating the settlement value of any case.

THE PRACTICAL IMPACT OF CALIFORNIA’S EQUITY-FIRST RULE ON SETTLEMENT VALUE AND CHOICE OF LITIGATION FORUM by Robert Holland Sidley Austin, LLP with thanks to JD Supra here and in my twitter network @Legal_Alerts

The California Court of Appeal’s recent decision in Hoopes v. Dolan, Case No. A117892 (1st Dist., 4th Div., November 12, 2008), is a reminder that, in a civil action involving a combination of legal claims that are triable by a jury and equitable claims that are triable only by a judge, litigants and their counsel should carefully consider the order in which California state and federal rules require those claims to be tried. Especially where the legal and equitable claims turn on the same facts, those rules are likely to have a uniquely significant impact on: (1) any estimate of the settlement value of the case; and (2) whether state or federal court is the more attractive forum.

Continue reading here.

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