Lawyer and Neutral David Allgeyer on Arbitrating Patent Disputes

In Search of Lower Cost Resolution: Using Arbitration to Resolve Patent Disputes

By David A. Allgeyer

Patents and other forms of intellectual property are extremely important to most businesses. Companies have come to realize that their intellectual property often represents their most important asset. Having adequate intellectual property protection can be crucial to startup companies attempting to find the financing they need. In contrast, a developed intellectual property portfolio is often the key to maintaining a favorable competitive position for established business enterprises. In addition, licensing IP to others can provide much needed income flow, while licensing from others is often the most efficient way for a company to enhance its product or service offerings.

Read on here and check out Allgeyer's LinkedIn question & answer thread on this topic here.

How to Respond to Cease and Desist Orders from Trademark Owners

(left, the T-shirt at issue)

We talk a lot about the resolution of IP litigation here, but not a lot about IP conflict prevention.  I've long said that the best insurance against liability is good relationships.  The New York Times Magazine today (in its terrific "Consumed" column by writer Rob Walker - author of Buying In) demonstrates the way in which responsible and respectful action following a trademark infringement claim can lead to a happy collaborative resolution.

In Boxers, Not Briefs, Walker tells the story of journalist and entrepreneur Chris Isenberg's No Mas brand T-shirts -- T-shirts of the type that

visually remix intellectual property that belongs to somebody else - tweaking or parodying recognizable logos and the like . . . [which often] draw cease-and-desist letters from trademark owners.

CKX, Inc., "the company that . . . oversees the rights to commercial uses" of Mohammed Ali's name and likeness, sent Isenberg an e-mail of the type with which we lawyers are familiar, one that Walker describes as usually ending unhappily "with the small-brand creator stymied, the rights owner accused of bullying or both."

This story, however, had a happy ending because everyone - not just the big company so often accused of bullying - but Isenberg too - acted honorably.  Walker explains:

[Isenberg's] response was unusual:  Not only would he pull the shirts off the shelves; he would also give an accounting of what he already sold over the years and offer a retroactive royalty payment.

The response of CKX was equally admirable - its CEO noting that Isenberg "seemed like an honorable guy" and that his product was high quality.  The upshot?

The Cassius Clay shirt returns to Bloomingdale's, the No Mas site and other venues, in the new officially sanctioned version, this month.

Note CKX's caution that it is "not in the habit of going into business with license violators."  Why the exception?  I think Walker's readers can connect the dots themselves.  For readers of the IP ADR Blog, the lesson goes a little deeper. 

Conflict, you'll recall, is a neutral state of affairs existing in a world of scarce resources.  Conflict does not erupt into a dispute until someone suffers an injury that appears to be someone else's fault, i.e., the injured party names a perpetrator, blames him for losses suffered, and makes a claim for redress. Here, CKX, which describes itself has having a "vibrant policing organization," named No Mas as an infringer of its rights, "blamed" it for the losses typically suffered when trademarks are infringed and claimed a right to redress.

This, of course, is how all disputes and all lawsuits begin.  No surprises here.  What makes the CKX-No Mas story one worth telling is the surprising choice Isenberg made when the dispute erupted.

The parties to a dispute have three major paths to resolution:  yielding or avoiding; contending (ingratiation and gamesmanship; threats, promises and arguments; and coercive commitments or violence); or, problem solving.  Litigation, of course, is all contending and contending is worrisome, expensive, lengthy, and uncertain.  Though businesses choose contending and legal action when the fish is too small to fry  (we don't do business with license violators) or the opposition intractable, the best businesses choose problem solving whenever they have a reputable and wiling bargaining partner.

Below, the short course on the way conflict erupts into disputes (actionable or not) and the pro's and con's of available responses.

 

WIPO Mediation Case Studies

From the files of the World Intellectual Property Organization

Set out below are examples of mediations conducted under the WIPO Rules. The Center also makes available a summary overview of its caseloadThese examples have been prepared while respecting the confidentiality of WIPO proceedings.

M1. A WIPO Patent Mediation

A technology consulting company holding patents on three continents disclosed a patented invention to a major manufacturer in the context of a consulting contract. The contract neither transferred nor licensed any rights to the manufacturer. When the manufacturer started selling products which the consulting company alleged included the patented invention, the consulting company threatened to file patent infringement court proceedings in all jurisdictions in which the consulting company was holding patents.

The parties started negotiating a patent license with the help of external experts but failed to agree on the royalty as the multimillion dollar damages sought by the consulting company significantly exceeded the amount the manufacturer was willing to offer.

Continue reading here.

 

Successful Fed Circuit Mandatory Mediation Program Takes a Patent Dip in First Half of '09

by

Robert Rose

of Sheldon Mak Rose & Anderson

 

 In 2005, following the lead of the other United States Courts of Appeals, the Federal Circuit initiated a pro bono Appellate Mediation Program.  James Amend is the Chief Circuit Mediator, and the program is administered by Wendy Dean, the Circuit Mediation Officer.  An overview of the program is published at “Let's Make a Deal: Negotiating Resolution of Intellectual Property Disputes Through Mandatory Mediation at the Federal Circuit,” 6 J. Marshall Rev. Intell. Prop. L. 365 (2007).  There are 15 outside volunteer mediators on the panel, who are not in active practice before the Federal Circuit.

 Since the panel mediators may still be associated with a law firm, however, the Mediation Guidelines require recusal on any case involving a party which the law firm has represented on appeal in the last five years.  Mediators must disclose all potential conflicts, including “issues” conflicts.

 The Mediation Guidelines require that at the initial mediation session a party representative with actual settlement authority also attend. This does not simply mean sending a person allowed to accept or offer a minimum or maximum dollar amount.  Rather, the party representative has to be a person “who can make independent decisions and has the knowledge necessary to generate and consider creative solutions.” This requirement may be modified or waived by the mediator only if the circuit mediation officers concur and circumstances dictate.

The Federal Circuit posts both quarterly and annual statistics for the program, reported by patent versus non-patent cases.  From 2007 to 2008, the overall success rate, measured as the percentage of cases settled that were selected for mediation, rose from 42% to 52%.  Patent cases make up most of cases in the program, with 84% of the cases in 2007, and 78% in 2008.  The patent case settlement rate rose from 44% in 2007 to 51% in 2008.

For the first half of 2009, however, the overall success rate has dropped back to 42% overall, and patent case settlements have dropped to 31%.  Second quarter 2009 patent results look especially dismal at 21%.  (Chief Circuit Mediator Amend has identified eight impediments to settlement of patent cases on appeal, which the IP ADR Blog lists here.)  Nevertheless, the program’s overall success still compares favorably with other circuits, which report between a 35% and 45% settlement rate.

 

 

Beat the Recession with Negotiation Training Now!

Thinking Outside the Box to Deliver Greater Client Satisfaction During Hard Economic Times

Live Telephone Seminar

ADR in IP Litigation from ALI-ABA

Wednesday February 18, 2009 from 1:00-2:00 pm EST

Why Attend?

In a difficult economy, intellectual property protection and assertion is more important than ever. The combined stressors of a poor fiscal climate and shrinking legal budgets place a significant strain on any business dependent upon IP assets. as companies face difficult economic decisions, it is increasingly difficult to fit the expense and extended uncertainty of copyright, patent and trademark litigation into a forward looking business plan. This one-hour seminar explores the use of alternative dispute resolution as a means of protecting intellectual property and business activity, while minimizing the expense and devotion of time related to traditional IP litigation.

What You Will Learn

This program examines how to move an IP dispute toward alternative dispute resolution; best practices for controlling the expense and length of the process; and best practices for successful alternative dispute resolution. Whether you are an experienced IP practitioner or simply one grappling with IP issues in your general commercial practice, knowing how to offer your clients a wide array of ADR options might make the difference between a practice that survives and one that thrives. The seminar will cover the following topics:

How to choose between litigation and ADR.

  • The most successful strategies for guiding your dispute into the best ADR forum at the most productive time.
  • The five basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations.
  • The five ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions.
  • The Ten Mediation/Settlement Conference Traps for the Unwary.

Invest just 60 minutes at your home or office to learn about alternative dispute resolution in the IP field from this duo of experts. This audio program comes to you live on Wednesday, February 18, 2009, 1:00-2:00 pm EST, via your phone or your computer. Materials corresponding to the course may be downloaded or viewed online.

Planning Chair

R. David Donoghue, Esquire, Holland & Knight LLP, Chicago, IL

Faculty

Victoria Pynchon, Esquire, Settle It Now Dispute Resolution Services, Beverly Hills, CA


Reward or Punish? Nice IP Litigators Finish First

Apparently I was in a coma in March of this year when "the press went crazy for Martin A. Nowak’s study on the value of punishment."  As Scientific American recently reminded us

A Harvard University mathematician and biologist, Nowak had signed up some 100 students to play a computer game in which they used dimes to punish and reward one another. The popular belief was that costly punishment would promote cooperation between two equals, but Nowak and his colleagues proved the theory wrong. Instead they found that punishment often triggers a spiral of retaliation, making it detrimental and destructive rather than beneficial. Far from gaining, people who punish tend to escalate conflict, worsen their fortunes and eventually lose out. “Nice guys finish first,” headlines cheered.

See Using Math to Explain How Life on Earth Began here.

What does this have to to with IP ADR?  Plenty!

When negotiating the settlement of an IP dispute, framing your proposals as rewards rather than threatening further punitive litigation strategies and tactics will  make the other guy far more likely to engage in collaborative problem solving and your client far more likely to praise your extraordinary litigation skills.

Special note to mediators and settlement judges:  this should put the last nail in the coffin of the "litigation is risky and expensive" settlement strategy.

It's Time for a LegalTED When IBM Wants a Patent on No Patents

Why LegalTED?  Because we're using 18th Century dispute resolution technology to solve 21st Century conflicts.  Because we're all scratching our heads over items like the one below from SlashDot  -- IBM Wants a Patent on Finding Areas Lacking Patents posting them, and then going on with our business days as if there weren't anything we could do about it -- waiting for Congress, for instance, to solve a problem that rests in our own hands.

"It sounds like a goof — especially coming from a company that pledged to raise the bar on patent quality — but the USPTO last week disclosed that IBM is seeking a patent for Methodologies and Analytics Tools for Identifying White Space Opportunities in a Given Industry, which Big Blue explains allows one 'to maximize the value of its IP by investigating and identifying areas of relevant patent 'white space' in an industry, where white space is a term generally used to designate one or more technical fields in which little or no IP may exist,' and filling those voids with the creation of additional IP."

I'm back from the State Bar Convention, in Monterey, no less, and not a single lawyer I spoke to had ever even heard of the TED Conference (except my good friend Lilys McCoy for whom I imagine I've now irrevocably disqualified myself as her mediator). 

And this just in from How Appealing, a link to the New York Times article on copyrighting the law, except below and link to the NYT article, Who Owns the Law? Arguments May Ensue

IN a time when scientists are trying to patent the very genetic code that creates life, it may not be too surprising to learn that a variety of organizations — from trade groups and legal publishers to the government itself — claim copyright to the basic code that governs our society.

Carl Malamud runs PublicResource.org, which provides the text of statutes, court decisions and construction codes at no charge.

Well, it is still a bit of a head-scratcher. Let me try to explain.

To be clear, it has been established by the United States Supreme Court (no less) that the law and judicial decisions cannot be copyrighted. They are in the public domain and can be used and reused in any way possible, even resold.

Yet, in the real world, judicial decisions and laws and regulations can be exceedingly hard to find without paying for them, either in book form or online. And that doesn’t even include quasi-official material like the numeric codes doctors are required to use when filing for Medicaid or Medicare payments or the fire safety codes that builders are required to follow.

“The law is pretty clear that laws and judicial opinions and regulations are not protected by copyright laws,” said Pamela Samuelson, a professor at Boalt Hall School of Law at the University of California, Berkeley. “That isn’t to say that people aren’t going to try.”

And this (copyrighting tatoos) from AvvoBlog today (another NYT article here).

 

So what do I mean when I say LegalTED? 

This is the kind of thinking I'm talking about -- Howard Rheingold on Collaboration.

So the first question (other than who will be on the Steering Committee besides the few passionate advocates of transformation I've already spoken to) is this:  WHAT IS THE QUESTION?

 

 

Los Angeles Judges and Attorneys!! Engage Local High School Students in Conversation about the Tensions Between Liberty and Security to Commemorate 9/11

Dialogues on Freedom - Volunteers needed! 

Commenorate 9/11 by engaging high students in a discussion about the tensions between liberty and security in the wake of the attacks on the World Trade Center.  These kids -- 15 through 18 -- were 8 to 11 years old a the time of the attacks.  It has defined the world they live in.  Help them see it from a different viewpoint. 

I have participated in this program for several years now and it has become one of the highlights of my year.  You can render this important public service with a half-day of training and a half-day in our local public schools.  Below, the description of the program by LACBA.

In response to the September 11 terrorist attacks, Justice Anthony Kennedy created a program where participating lawyers and judges lead discussions in public high schools, discussing the concepts of freedom, law and justice. The dialogues are not lectures. They are focused talks which challenge students to think and talk about their own perspectives and experiences regarding freedom and the state of our nation’s security.

Since its inception in 2002, this annual program, sponsored by the Los Angeles County Bar Association and the Los Angeles Superior Court in cooperation with the Los Angeles Unified School District, has become a day of remembrance and tribute, and an opportunity for lawyers and judges to impact high school students in our community.

Today’s students need input and guidance from legal professionals. Not only are these future decision-makers in need of guided discussions regarding the importance of the events since 2001, but they also need first-hand exposure to the legal profession. The Diversity Pipeline Summit held by LACBA in June 2007, revealed the enormous amount of young people interested in law and legal careers. Therefore, now, more than ever, Dialogues on Freedom is one of the best ways for students to be exposed to future careers in the law.

Please join LACBA's Dialogues on Freedom to help lead a discussion at a Los Angeles-area high school on September 11, 2008. Volunteer teams of lawyers and judges will conduct 50-minute sessions on September 11 at various Los Angeles County High Schools. Last year, teams received assignments at the following schools: Belmont, Chatsworth, Dorsey, Eagle Rock, Fremont, Hollywood, Jefferson, Lincoln, Manual Arts, Monroe, North Hollywood, Roosevelt, University, Venice and Wilson High Schools.

Trainings for judges and lawyers who wish to participate in this year’s dialogues will take place on Thursday, September 4, 5:30-6:30 p.m. at Stanley Mosk Courthouse, 111 N. Hill St., Room 222, in downtown Los Angeles or alternatively on Saturday, September 6, 10:00-11:00 a.m. at Venice High School, 13000 Venice Blvd.

If you are interested in participating as a volunteer in the Dialogues on Freedom program, please sign-up online or e-mail the following information—your name, firm/office name, firm/office address, office phone, e-mail address, and the number of 50-minute class sessions for which you can stay at a school (AM or PM)—to freedom@lacba.org as soon s possible.

Those who expect to reap the blessings of freedom, must, like men, undergo the fatigue of supporting it. ~Thomas Paine

They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. ~Benjamin Franklin, Historical Review of Pennsylvania, 1759  

I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations. ~James Madison, speech, Virginia Convention, 1788

Liberty means responsibility. That is why most men dread it. ~George Bernard Shaw, Man and Superman, "Maxims: Liberty and Equality," 1905



 



Are Too Many Patents as Bad for the Economy as Too Few?

In his recent New Yorker article, The Permission Problem, financial reporter James Surowiecki reviews Columbia law professor Michael Heller's new book, “The Gridlock Economy.”

TGE decries the development of an "anti-commons" in a business climate possessed by the demon of possession.  As Surowiecki explains:

Property rights (including patents) are essential to economic growth, providing incentives to innovate and invest. But property rights need to be limited to be effective. The more we divide common resources like science and culture into small, fenced-off lots, Heller shows, the more difficult we make it for people to do business and to build something new. Innovation, investment, and growth end up being stifled. 

. . .  The effects of overuse are generally unmistakable—you can’t miss the empty nets of fishing boats working overfished oceans, or the scrub that covers an overgrazed field.
But the effects of underuse created by too much ownership are often invisible. They’re mainly things that don’t happen: inventions that don’t get made, useful drugs that never get to market.

In theory, one should be able to break a gridlock by striking a deal that would leave all sides better off. Sometimes that happens. Just the other week, for instance, Nokia and Qualcomm settled a three-year-long patent battle, which could accelerate the spread of third-generation cell-phone technology here and in Europe. . .  

One reason deals founder is that there are simply too many interested parties. If, in order to create a new drug, you have to strike bargains with thirty or forty other companies, it’s easy to decide that the price is too high. But often things go awry because owners won’t make a deal at a reasonable price. . . .

Why are deals with so many potential patent holders difficult to impossible?  Surowiecki explains:

Recent experimental work by the psychologist Sven Vanneste and the legal scholar Ben Depoorter [demonstrate that] [w]hen something you own is necessary to the success of a venture, even if its contribution is small, you’ll tend to ask for an amount close to the full value of the venture. And since everyone in your position also thinks he deserves a huge sum, the venture quickly becomes unviable.

So the next time we start handing out new ownership rights—whether via patents or copyright or privatization schemes—we’d better try to weigh all the good things that won’t happen as a result. Otherwise, we won’t know what we’ve been missing. 

For the full article, click here (emphasis added).  For further coverage on Heller's book, check out Tim Wu's review at Slate and the WSJ Law Blog's coverage here

 

Blawg Review #171

If intellectual property had a theme song it would have to be "Like a Virgin." 

Why?

Because IP is all about "the very first time," the "aha" moment, the creative spark that gives rise to previously undreamed imaginings.The restrictions of "how we've always done things" fall away and the numbing repetition of days become vibrant.   The rest, of course, is work.  Trial and error.  Success.  Failure. Rearranging the disaligned.  Completion.  

Then the suits arrive. That's us, the lawyers.

In honor of the moment of creation at the root of every intellectual property dispute, this week's Blawg Review No. 171 gives you the great virgins of history

 

To kick off the "virgin" IP ADR Blawg Review, we're linking you to Kate Monro's brilliant  and (in)famous blog The Virginity Project and giving you a tantilizing excerpt:

Touched for the very first time...
It’s all about virginity loss. Or is it? 

 . . . . I love listening to the episodes in people’s lives that are imprinted into our psyches like hot wax into a seal. The moment itself could be as dull as dishwater but it doesn’t matter because the beauty is in the detail and the connective tissue of emotions that frame this unique story.

‘You never fall in love like you do when you’re eighteen. Shot though the heart. I’ll have that again, any day of the week.’ Russell, lost virginity aged 17

Virginity loss is the backdrop to a thousand visceral teenage moments…

‘For me, the first hands-down-the-pants experience was far more significant. That was earth shattering. I mean, there is a hole there. How bizarre is that?’ Tim, lost virginity aged 16

Virginity loss is the swing door between child and adulthood. A door that we all want to push…even if we’re unsure of what we may find on the other side….

‘It was a pivotal moment, not only because I lost my virginity but also because it was a first taste of freedom, of what life could be like out in the big wide world and it was totally thrilling’. Heidi, lost virginity aged 15 

When I asked Kate if she could address the Blawg Review's readers, she graciously and immediately accepted my invitation as follows:    

Bad hair, the contents of a vicar’s cassock and toxic contamination coverage litigation. These are just a few of the subjects turned back and forth between Ms Pynchon and myself this last week. A very good email correspondent she is too. Not only that, but she’s a blogger with heart. I know, tell you something you don’t know…..

O.K.  I will. I’ve spent the past two years travelling Britain and collecting virginity loss stories from an amazing cross section of people. The oldest was 101, the youngest was 17. Yes, it’s been quite the journey. Next up, I plan to come to America and do just the same. If you are game, I would love to hear from you. Anonymity guaranteed, I promise.

Either way, I hope you enjoy stepping onto virgin territory with the lady of the law…

(and while we're speaking with a British accent, take a look at Kate's other law blog friend's new blog category, Irritation to which I can only say this == the exchange rate).

Finally!!  Blawg Review 171 as "told" by Famous Virigins from Wilkiality, the Truthiness Encyclopedia.

Wikiality claims that the The Virgin Mary was "a Republican . . . against abortion, stem cell research, gay marriage and women in the workplace."   We believe she's ecummenical and inter-religious.  Whatever her American political party, in her honor, we give you the best law and religion posts of the week, including the Florida Employment and Immigration Law Blog's announcement that the EEOC has issued new guidelines on religious discrimination and the suggestion by Thoughts in a Haystack that Religious Intolerance is Good for You.  The Legal Theory Blog takes religion head on in its post on negotiating meaning with Islam while MacLeans.CA Blog (So Much Bigger than Ezra) frets about the globalization of anti-blasphemy laws (whose first target could easily be this Blawg Review).   We don't know what the Virgin Mother would think about  Shari-ah and Mediation but you can catch Geoff Sharp riding the far edges of possibility on that topic at Mediator blah blah . . . .   We do believe the Virgin Mary does not like divorce.  But if you really Agree on Everything, you  not only don't need a mediator, we wonder why you're asking for a divorce.  Finally, though Marc Randazza has a pledge of allegiance he could get behind, we're placing no bets on Mary agreeing with him.

Ken ("I am Not Gay") Mehlman is the former Chairman of the Republican National Committee.  Wikiality annointed him the "world's oldest virgin" "[a]s the result of his religious piousness and his not being married."  Pretty flimsy evidence but it gives us an excuse to cover sex and sexuality in an IP ADR Blog.  It doesn't look like the Indiana Law Blog is having any sex whatsoever, pulling out that old "I have a headache" chestnut and blaming it on Conflicting Gay Marriage Laws.  A Florida Court has required one of its state's high schools to permit a Gay-straight alliance on campus ( School Law Blog); the Sexual Orientation and the Law Blog sees the light at the end of the Don't Ask, Don't Tell tunnel; and, the Australian Gay and Lesbian Law Blog reports on legislation that would permit children of gay and lesbian parents to be treated as -- what else? -- their children for purposes of the Family Law Act.  Speaking of bi-sexuality, check out Bob Ambrogi's post at Legal Blog Watch about a bi-"sexual attorney predator" who stalked men and women as well as once trying to convince an employee to "go to the hotel room of a highly paid expert witness who was faring poorly in a deposition [with] instructions . . . to "take care" of him in order to improve his mood."   Finally, we all just say "no" to accusing a Judge of pedophilia while attempting to prove your legal point, noting the the four month contempt sentence covered over at QuizLaw

Jesus, far and away the world's most famous virgin, has been imagined as lusting in his heart (cf. the Jimmy Carter Playboy interview), having a wife and family (D.H. Lawrence, The Man Who Died) and, you got it, being gay.  For this last sacrilege, check out the Pink Triangle's post Gutless Grovelers Have Bowed to Religion Again.   WWJD?  Because he hung with an odd assortment of tax collectors, prostitutes, lepers, and the undead (cf. Lazarus) we assume he'd agree with Eugene Volokh that the usual "best interests" analysis would fall short in custody decisions for parents with unusual or nontraditional friends and associates. Volokh's thoughts on the issue as well as those of his readers here.  Finally, Sarah Lawsky considers the outcome of "Mamma Mia!" -- a "division" of a daughter by three putative fathers -- in light of the seminal Summers v. Tice decision concerning injury and probability.  Hint:  it's not any of the members of the troika formerly known as the Blessed Trinity.   

Ralph Nader, consumer advocate and democratic presidential spoiler has not, according to Wikiality, ever even dated, let alone gone 'all the way.' Because Nader is famous with law students for having said that legal scholarship is "mental gymnastics in an iron cage," we dedicate his virginity to legal practice.  We think Ralph would like Dan Hull's post at What About Clients? commenting on Gerry Spence's post that "Law Education is a Fraud" (followed by a spirited debate between Dan and yours truly on the subject -- are we really all crashing bores?). See also f/k/a's Law Blogging and the Cult of Gerry Spence.  For tips on social networking, check out Kevin O'Keefe's LexBlog post and for a more theoretical legal practice post, see Ken Adams' thoughts on whether  Law Firm Contract Drafting Services are a Commodity?  If it really is all about the client, ask your local GC what s/he really wants.  We regularly check in on the  Wired GC who last week posted on Virtual Law Partners.  Big firm practice is always in the news because we're naturally competitive and want to catch a peek of the Masters of the Universe in their underwear.  In Laid Off By Cadwalader?  My Shingle asks Why Not Go Solo by Choice?  The Cadwalader lay-offs give Jordan Furlong at Law 21 the opportunity to give us the year's best post on retaining and training associates, caring for clients and benefiting the law firm while you're at it in Associates and the bad table.  For the small fry among us, Susan Carter Liebel's Build a Solo Practice recommends ways to avoid our personal Brain Drain while The Greatest American Lawyer challenges lawyers to offer Money Back Guarantees!  Holden Oliver advises us to take care of our clients by keeping them informed.  Finally, Madeleine Begun Kane offers an Ode To Judge Ronald Leighton, quoted in full below.    

Attorneys are often verbose,
Penning legal complaints grandiose,
Writing hundreds pages
And setting off rages
From those who find wordiness gross.

But Judge Leighton showed major restraint
When he ruled on an endless complaint.
In a limerick poem
He said, redo this tome
Cuz in 8(a) compliance it ain’t!
  

Joan of Arc.  Virgin.  Martyr. Warrior.  We dedicate the week's consumer rights post to a woman who dressed like a man to protect her virginity and died at the stake for saving her country. Before rushing to legal or Ecclesiastical authorities -- both of which are historically and notoriously unreliable (right Joan?) -- take simple steps to protect your own welfare by subscribing to Michael Webster's Bizop News, which this week warns us about our inclination to follow our first instinctsDrug and Device Law links us to Pharma-Free Doctors for Journalists where you can presumably find that rare physician who is untainted by free drug samples.  From the other side of the consumer/provider aisle we hear from Overlawyered (Drunk Driving for Profit) that an insurance company was sandbagged to the tune of $5.8 million in compensatory and and $10.5 million in punitive damages.  We think that's karmic or at least levelling the playing field.  Meanwhile, the Public Citizen Law and Policy Consumer Blog alerts us to the FDA's decision to finally begin regulating tobacco, which does not remind us of virginity, but of cigarettes, particularly the best ones memorialized by former U.S. Poet Laureate Billy Collins in The Best Cigarette.  (and if you don't like Billy Collins, the IP ADR Bloggers will sentence you to a term of emotional labor at Gerry Spence's Trial Lawyer Camp).    

We devote disability law to The Elephant Man -- who suffered from neurofibromatosis -- and who presumably died a virgin. No, Pain, Depression and Anxiety is not the name of a law firm, but a post on obtaining social security benefits from the Maryland Injury and Disability Law Blog.  Disability Law 2.0 - Tan * Rested and Ready covers the new California appellate decision on aisle space while the New York Disability Law Blog cheers the SSA Commissioner's exhortation that "eliminating the backlog of Social Security Disability claims is a moral imperative."  Randy Chapman's Ability Law Blog gives advice to parents about how to find "related services" for their school-age children. Though not a disability, age itself tends to create the type of obstacles the disabled face.  To prove the truism that its best not to let your children become writers, I offer a conversation with my mother when she was in her early 80's.   

After exchanging the usual telephone pleasantries, mom began to stutter and giggle in a way I'd never heard before.  Finally, she got her question out past the hilarity -- "honey, do you think I need to worry about safe sex?"  Go mom!  But let's talk about what kind of sex is really unsafe for the Greatest Generation -- intimacies that end in the looting of trust assets as described by Estate of Denial in "Dear Candidate." (cf. That's not the sound of one hand clapping . . . . )  Think you'll find sexual safety among the widows in nursing homes?  Think again and read Sex Offenders Living in U.S. Nursing Homes from the Nursing Home Abuse and Neglect blog.   

Emily Dickinson is famous for being a true American virgin.  But as this week's New Yorker reminds us, the "theory that Dickinson was a lesbian shares a Dewey-decimal classification with a raft of other case studies -- Emily the sufferer, performer, healer, seducer, victim, hysteric, dog lover, mystic, feminist paradigm, vestal daughter, consumptive, agoraphobic."  (cf. Vagabond).  Emily's presence here gives us the opportunity to report on law and the arts.  The Art Law Blog discovers yet another Pollack find in It's Not About the Money (cf. Who the $#%$ is Jackson Pollack).  Over at Empowering Thoughts for Dancers there's a short song of praise for Volunteer Lawyers for the Arts and at Stephanie West Allen's Brains on Purpose, there's a post on legal practice and the art of Improvisation.  Why did Emily avoid the great mass of humanity?  Maybe she didn't know what The Divorce Coach knows -- people who blame others for everything can be managed.  See  "It's All Your Fault! (12 Tips for Managing People Who Blame Others for Everything)." .  Speaking of American women poets ( a rose is a rose is a rose is a rose) at least one California lawyer muses on whether a contract is a contract is a contract.  Finally, Counterfeit Chic asks an IP-Art cross-over question -- is it more subversive to create countercultural clothing or to undercut its now-iconic status by flooding the market with fakes? In legal terms, a trademark is a trademark -- but the ingenuous invocation of law to protect Seditionaries is a ironic twist.

Diogenes of Sinope  spent so much time wandering around in search of an honest man that he apparently never got laid.  Michele at the University of Oregon Student Law Blog believes she's found the honest, or at least the greenest law school in the nation while Will Li (2L) at the Situationist has a few caustic words for BigLaw's Summer Camp Sleep Over Programs.  Three years of answering Socratic questions followed by a three day bar exam.  Yup, it's over.  To renew the feeling of relief that once was, read Peanut Butter Burrito's -- Done.  I read a lot of law student blogs for this Blawg Review and can only report that most of them don't seem much interested in the law.  Not true, however, of Nuts and Boalts.  I really enjoyed reading Don't You Ever Get Tired of Being Wrong?  (re Committee on the Judiciary v. Miers). Law students don't always breathe a sigh of relief when the bar exam is over but we think Ouch at Think Like a Woman, Act Like a Man can relax -- it's the people who don't know they missed the hearsay question who are in danger of failing.  Its not only law students who are looking for a few good lawyers -- David Lat is kicking out the jams by letting Ann Althouse, Tom Goldstein, and Dahlia Lithwick choose his new co-blogger by juding six candidates in an "American Idol"-style competition  See update here. Finally, next year's bar examinees should check out May it Please the Court's post on Handwriting.  
 
Virgin Immanuel Kant -- the orignal moral reasoning guy -- prompts us to bring you Moral Grammar and Intuitive Jurisprudence from the Neuroethics & Law Blog; and, to remind everyone that mustangs do not need birth control from this week's Animal Ethics.  Finally, we think Kant might have been intrigued by Why We are Too Rational to Stop Polluting from Amateur Economists.

Isaac Newton.  The Straight Dope thinks the virginity of this octogenerian scientist and mathematician is less surprising that the fact that the math gene somehow keeps perpetuating itself.   We consecrate Newton's virginity to this week's best IP and IT posts.  William ("I am virginal") Patry is asking questions about the government's engagement in copyright infringement  but it is  Patry's final blog post that we celebrate as a true virginal moment.  Pause here.  

My late mother, aleha ha-shalom, told me repeatedly that I had a religious obligation to learn every day, and I have honored her memory by doing exactly that. Learning also involves changing how you think about things; it doesn't only mean reinforcing the existing views you already have. In this respect, Second Circuit Judge Pierre Leval once said that the best way to know you have a mind is to change it, and I have tried to live by that wisdom too. There are positions I have taken in the past I no longer hold, and some that I continue to hold. I have tried to be honest with myself: if you are not genuinely honest with yourself, you can't learn, and if you worry about what others think of you, you will be living their version of your life and not yours.

Other IP bloggers have, of course, reflected on Patry's Final Blog Words here and here

Back in the worldly word, Patently O -- which promiscuously shares itself with millions of readers every year -- turns its pen over to David McGowan who discusses why we should not interpret the recent Quanta decision too broadly.  Lou Michels suggests we be the masters of our own domains, using the the recent San Francisco IT fiasco as a cautionary tale -- don't let a single person have control of all the keys to your kingdom.

  

If you're reading this on your iPhone, you've moved from cigarettes to PDA's.  Congratulations.  Brett Trout at BlawgIT suggests that you might soon be watching television from that device in your post-coital bliss.  Protection, protection, protection.  In a software license, boilerplate integration and non-reliance terms might not insulate a firm from claims based upon its salesfolks' "over"promises.   What's this?  Blog content licensing might be dying for lack of buyers?  People buy blog content?  I can hear my mother asking "why buy the cow . . . . "

The IP Dispute of the Week, of course, is Hasbro's suit against Rajat and Jayant Agarwalla for their Facebook hit Scrabulous.  Scrabble itself was invented during the Depression by Alfred Mosher Butts, an out-of-work architect.  How did he do it?  As the New York Times explained in its review of Steve Fastis book, Word Freak (Zo. Qi. Doh. Hoo. Qursh) Scrabble's inventor assumed that the game would work best if the game letters  "appear[ed] in the same frequency as in the language itself."  So he

counted letters in The New York Times, The New York Herald Tribune and The Saturday Evening Post to calculate letter frequencies for various word lengths. Playing the game with his wife, Nina, and experimenting as he went along, Butts carefully worked out the size of the playing grid (225 squares, or 15 by 15), the number of tiles (100), point values for the letters, the placement of double- and triple-score squares, the distribution of vowels and consonants, and so on.

In response to the Hasbro lawsuit Ron Coleman at Likelihood of Confusion asks "How Many Points is Infringement?" -- one of those rare legal questions that actually has an answer rather than 20 more questions.     

If Player 1 opens with "fringe" (double word) for 24 points; Player 2 follows by slapping an "i" on the triple word score followed by an "n" for "infringe" and 33 points; and, Player 1 responds with "ment" for 19 points, the combined score for "infringement" is 75 points. Our readers can do the math and moves on "trademark" and copyright."  On the matter of greater moment --  Will the ax fall on Scrabulous -- Jonathan Zittrain at The Future of the Internet answers his own question in the affirmative based on the name alone, opining that by calling it "rainbows and buttercups” instead of “Scrabulous” there’d be little claim of brand confusion but noting the "residual claim that the Scrabulous game board infringes the copyright held in the Scrabble game board."  More on Scrabulous and its replacement with Word Scraper at the Video Game Law Blog here. (Mr. Thrifty's and my first game of Word Scraper here!) 

Has anyone recently said God bless the best IP aggregator in the universe -- the IP Think Tank's Global Week in Review?  This week IPTT points to the following posts on the Hasbro Scrabble debacle -- (Spicy IP), (Techdirt), (The Trademark Blog), (Out-Law), (Law360).  While we're talking IP aggregation, check out Patent Baristas' regular Friday IP Round-up.  All around aggregators include Anne Reed's (Deliberations) reading list and Kevin O'Keefe's LexMonitor.

Both Geoff Sharp and I picked up 8 impediments to settling patent cases on appeal (a desire for "justice" is not an impediment but a means to settlement).  While we're taking an ADR angle, Virtually Blind's post Second Life Lawsuit Avoided; Law is Cool's Love, Actionable; and,    Slashdot's recommend reading of the week (The Pragmatic CSO) are all well worth a look.  

Slashdot also reminds us that IP prevention is worth a pound of IP litigation with the post WB Took Pains to "Delay" Pirating of the Dark Knight as follows: 

"a new studio tactic [is] not to prevent piracy, but to delay it . . . Warner Bros. executives said [they] prevent[ed] camcorded copies of the reported $180-million [Dark Knight] film from reaching Internet file-sharing sites for about 38 hours. Although that doesn't sound like much progress, it was enough time to keep bootleg DVDs off the streets as the film racked up a record-breaking $158.4 million on opening weekend. .  . The success of an anti-piracy campaign is measured in the number of hours it buys before the digital dam breaks.'"

The Law and Magic Law Blog announces the dismissal of the defamation lawsuit against Magic Mag on the ground that its a protected opinion while Ernie the Attorney has a way to make your iPhone magic here.

Meanwhile, the Legal Talk Network gathers together bloggers and co-hosts, J. Craig Williams and Bob Ambrogi to welcome Attorney Kevin A. Thompson from the firm Davis McGrath LLC, and Lauren Gelman, Executive Director of Stanford Law School's Center for Internet and Society to discuss Viacom's suit against Google's YouTube for the violation of its copyrights in a $1 billion lawsuit.

Because I used to type patent applications for Uniroyal (IBM Selectric - 5 carbon copies) I get a sweet whiff of nostalgia from Wiki Patents -- like this one -- Flexible Row Redundancy System 7404113 -- a row redundancy system is provided for replacing faulty wordlines of a memory array having a plurality of banks. The row redundancy system includes a remote fuse bay storing at least one faulty address corresponding to a faulty wordline of the memory array . . . .  Another available data base for the engineering-attorney crowd is the subject of  Securing Innovations post IBM Technical Disclosures' Prior Art Data BaseConcurring Opinions covers IP in the News this weekPeter Zura's 271 Patent Blog considers a patent that was a "Colossal Waste of Time" and  IP Kat curls up with Small and Sole.  

J. Edgar (I am not a perv) Hoover is yet another iconic American virgin (cf. Don DeLillo's masterpiece Underworld and the front page that inspired it). In honor of crime fighting, we bring you Religion Clause's post on the RICO action just filed agains the Church of Scientology and Tom (I'll sue if you say I'm gay) Cruise.  Serving the needy prison population might get more economical according to a post over at Amateur Economists -- How Telemedicine Can Actually Work.  What better way to celebrate a Virgin Blawg Review than posting a link to Courtroom Casanova  where Mr. Big(Crime) "hits on" the prosecutor.  Closer to home the L.A. Police Deparment has captured 43,000 counterfeit sunglasses -- you weren't expecting snow shoes -- with a street value of $8.5 million (Blogging ShadesMy Authentics.com Counterfeiting News).   After a Portland, Oregon policeman was convicted in traffic court following a citizen's complaint that he used a no parking zone to grab take-out, Scott Greenfield proclaimed a "Cop Love Sunday"; Seth Freilich was somewhat less charitable.  Should misinformation about people's conviction records be placed online?  Check out Concurring Opinion's post The Problems of More Accessible Criminal Conviction Information.  For  more IP Crime news, see Copyright Law and Information Blog's post E-Bay Sofware Pirate Sentenced to 48 Months in Prison.

Lewis Carroll  "Some writers . . . who have fallen short of accepting Dodgson as a paedophile, have tended to concur that he had a passion for small female children and next to no interest in the adult world."  Wikipedia.  'But I don't want to go among mad people,' said Alice. 'Oh, you can't help that,' said the cat. 'We're all mad here."  Alice's Adventures in Wonderland  These two quotes are as good a lead-in as any to the law of Hollywood.  While you're in a fanciful state of mind, check out the Digital Media Law blog's analysis of the current state of the SAG negotiations.  And remember, Sharon Stone left Los Angeles for San Francisco because the daily Hollywood beauty contest at Bristol Farms was "too much competition."  (cf. Last Action Hero)  So it's no surprise that here in botoxed fantasy-land, its not just your enthnicity, but the tone of your skin that can get you booted off camera -- The Entertainment and Media Law Blog.  

Mother Teresa   Hooray!!  There is a Pro Bono Legal Blog.  This week, PB blogger Aaron Hurst is thinking about using google alerts to identify people or communities in need.  See Pro Bono Junkie's Blog post Customer Service is One Blog Away.   Some of the most important pro bono work being done today is off-shore at Guantánamo.  Check out the Show and Tell Trial   over at the American Constitution Society Blog.  Elsewhere, the Attig Law Firm, PLLC rightly touts its own horn for its success in its pro bono efforts to assist a U.S. Veteran in securing disability benefits.  

The Virgin Queen Elizabeth I   Elizabeth is acknowledged by historians as a charismatic performer and a dogged survivor, in an age when government was ramshackle and limited and when monarchs in neighbouring countries faced internal problems that jeopardised their thrones. What did Elizabeth do right?  Neutralize, negotiate and resolve conflict by "uniting the body natural with the body politic" as she proclaimed at 25 years of age when she ascended to the throne:  

And as I am but one body naturally considered, though by His permission a body politic to govern, so shall I desire you all...to be assistant to me, that I with my ruling and you with your service may make a good account to Almighty God and leave some comfort to our posterity on earth. I mean to direct all my actions by good advice and counsel.

In honor of Elizabeth, I give you posts from my own ADR blog posse this week.  First, we honor the newest member, Nancy Hudgins of Civil Negotiation and Mediation who has proven her bargaining cajones by negotiating the price of a bottle of "Old Raj, a distinctive gin . . . distilled with saffron [that has] a slightly orange-ish color and a different subtle but piquant taste."  WWED -- What Would Elizabeth do?  I think she'd negotiate with terrorists but not without first consulting Andrea Schneider at the ADR Prof Blog.  If you read any Blawg Review post this week, let it be Diane Levin's  Mediation Channel post All Gardeners are Optimists:  What Squirrels Reminded Me about Conflict Resolution.  Poetry.  (cf. the summer issue of the r.kv.r.y. quarterly literary journal).  Gini Nelson offers us wisdom on the Myers Briggs Indicator that will tell you everything you need to know about your "type" other than your sexual preferences.  (cf. her ABA article on the same topic here).  Are you a Virtual Virgin?  Then run right over to Mediation Mensch's post on "Getting Virtual."    Though Stephanie West Allen hails from the Renaissance rather then the Elizebethean era, anyone worried about the well-being of their parents should check out her Idealawg post Mediation Can Work in Many Elder Care Situations.  We hope Justin Patten won't mind our making him an honorary ADR British Queen by linking to Human Law's post from last week:  As we head into recession and a wave of redundancies does the Human Resources profession have some flair and imagination?  We do have an American ADR "Queen"  -- Chris Annunziata -- who will hopefully forgive me for giving him honorary ADR Queen status.  Our academic readers could benefit themselves and our "on the ground" professionals by reading this week's CKA post Why Nobody Really Reads Law Review Notes here.  My high school French is bad, but it looks like French mediator Dominique Lopez-Eyechenie is reporting that mediators have been deployed to the Metro to referee disputes there -- is that right Dominique?  Finally, the Health Care Neutral (our last honorary male ADR Queen) talks about immunity and couldn't we all use just a little of that?

Below:  Madonna and Friends -- Like a Virgin for your listening pleasure while reading this week's Blawg Review. 

Next week, the Blawg Review will be hosted by the Ohio Employer's Law Blog which we expect will be far more respectful of BR's readers' political, religious and sexual sensitivities than this one was.  Thanks for letting us play.  And a very, very, very good night!

Thanks to the following law blogs sending link love our way:

Legal Blog Watch

Patent Baristas

Patently O

Pharmaceutical News and Resources

Likelihood of Confusion

Idealawg

Thanks to CKA Mediation and Arbitration Blog for the honorary NoDoz Award (here's the ADR Executive Summary of #171, Chris)

 

 

Chicago IP Litigation Blog

Above the Law

What About Clients?

The Mediation Channel

f/k/a

Quiz Law

Law is Cool

LexBlog

Amateur Economists

Build a Solo Practice

a fool in the forest (with special thanks for brightwhiteandsparklinglyvirginal)

Engaging Conflicts

mediator blah blah . . .

The Bizop News

And Google News no less . . .

(Blush) many thanks to Infamy or Praise for suggesting #171 "is a strong contender for Blawg Review of the Year."

The New York Personal Injury Law Blog (Linkworthy) which apparently thinks the title is more interesting than the post itself.  

That's Not the Sound of One Hand Clapping . . . .

. . . it's the smell of rubber hitting the road.

(right:  the scientific representation of rubber hitting the road -- I thought our attorney-engineer readers would appreciate this one -- image from the University of Hamburg)

I have a confession to make.  I am poised to become embroiled in a dispute about money and I've hired a litigator to explain to me my rights and possibly to pursue my remedies.

This is one of those moments when you have to decide whether you believe your own B.S. or not.  One of those times when you follow your own advice or fall victim to the almost irresistible pull of the way you've always done things.

Let me recount a conversation I had after my first year of mediation practice with a seasoned  mediator of commercial cases.  This is the conversation that marks my true transition from litigator to conflict resolution specialist.  The subject at hand was whether I would co-mediate a will contest with a mediator I'll call Joe.

Joe:  The family doesn't want to hire a lawyer.  Neither side has a lawyer.  They just want to mediate. 

Vickie:  But I know absolutely nothing about wills, trusts and estates.  The parties need to talk to a lawyer first to learn their rights and remedies.

Joe:  You still don't get it, do you?

Vickie:  What?

Joe:  It's not about rights and remedies, it's about interests.  

Vickie:  But how can they evaluate their interests without knowing their rights and remedies?

Joe:  Because they're not interested in what the law says -- they want to do what they believe is right for them as a family under the circumstances.

It took a while for this conversation to sink in.  I immediately re-visited one of the more painful periods of my life when I divorced my first husband in 1983.  I refused legal advice from my attorney colleagues because, I said, I was going to handle it myself ("a fool for a client").  Why?  Because community property laws didn't govern our relationship.  (gasps from colleagues)

I didn't need legal representation, I explained, because my husband of 7 years and I had long ago agreed that he would use his funds to put himself through graduate school and I would use my funds to put myself through law school.  We'd keep our finances separate until some time in the future when we decided to "marry" our financial affairs.  We never did and I wanted to keep my end of the bargain whether the law required me to do so or not (nope, no pre-nup). 

And that's what we did.  We had interests in looking ourselves in the mirror in the morning -- in honoring our wholly personal and idiosyncratic obligations to one another.  We had interests in having a resentment-free future relationship, no matter what form it took -- friends, distant acquaintances or even estranged former spouses.  We had interests in making peace with one another because we had mutual friends and we didn't want to divide them up between us like so much material property.  

I walked out of that marriage with nothing but my self respect and his last name, under which I'd gotten my law degree and become known in the legal community.  He got the house because he could afford to pay the mortgage and his mother had given us --not him -- the down payment.  Though I'd contributed to the house payments, he'd kept detailed records of monies he'd loaned me during law school and what I owed him was pretty much what my share of the value of the house was.  And though his mother had given the money to "us" and not "him," I knew she'd done so because she believed the marriage would last.  It wasn't her intent to give the money to "me."  And I loved her. She loved me.  I didn't want to burn that bridge. 

So, I rented furniture and moved to a one-bedroom apartment in a low-income community in South Sacramento.  I was poor again, for a time.  And emotionally bereft.  But I hadn't added a legal dispute to my troubles.  I felt as clean as I could in severing a relationship that had contributed so much to the emotional strength I needed to prepare for, commence and finish law school at the top of my class.  I couldn't have done it without my husband.  He contributed the love, the emotional stability and the undeviating belief in my potential that were necessary to my success in law school and in the first couple of years of my legal practice.

Those are interests.

I know, I know.  You're saying -- but those are personal interests and you're writing a blog about commercial interests between corporate entities and they have no feelings.

No.?  Taken your own emotional temperature lately?  Or that of your clients?  Stick around.  You're in the conflict resolution business no matter how sophisticated it is legally or complex it is financially.  And conflict only happens between people.  

If the insights from the social psychology of conflict could help you manage your clients, your staff and your case load more effectively and efficiently; if you were in better control of the escalation and de-escalation of conflict in your practice; if you were happier when you went to the firm or to court or to a deposition or to a settlement conference or to trial than you are now, would you want to learn something about a body of knowledge that could help you do that? 

I think you would.  I have been paying attention to these matters as my central occupation for four years now and the rubber is about to hit the road.  

You're in the right place.  Keep coming back.

More on the Absence of a Harry Potter Settlement

I've always said that the biggest lie in any business is "I don't take it personally."

It seems that some personal-offense-taking may be one of the reasons the lawsuit between billionaire J.K. Rowling and Fan-Lexicon-Site-Builder Steve Vander Ark has not settled (covered by our own Mike Young here and here). 

See Tim Yu's Talk of the Town piece Fan Feud in this week's New Yorker for the slight that may account for taking this spat to the bitter end.  Excerpt and link to full column below.

Last summer, at a “Harry Potter” convention in Toronto, a fan named Steve Vander Ark made a similar mistake when he dared to compare himself to Joanne (J. K.) Rowling. “It is amazing where we have taken ‘Harry Potter,’ ” he said to a crowd of dedicated “Potter” fans. Many readers dislike the epilogue in the final book; Vander Ark urged them to disregard it entirely, and even invented his own spell to do so (“expelliepilogus”). “Jo’s quit, she’s done,” he told the audience. “We’re taking over now.”

Comparing yourself to a living god can be risky, and Vander Ark has suffered cruel fates, in court and in the world of “Potter” fandom . . .

Continue reading here.

The Chicago IP Litigation Blog Includes Settle It Now in the Carnival of Trust

R. David Donoghue over at the Chicago IP Litigation Blog is hosting a "Carnival" of Blogs that is new to me -- The Carnival of Trust.  

As David explains:

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.

We're pleased that our sister blog -- Settle It Now -- is included in the category Trust in Leadership and Management along with Charles H. Green's Trust MattersGeorge Ambler's Practice of Leadership;  and Stephen Albainy-Jenei's Patent Baristas  (if they gave awards for blog template design, PB would win in my book every day of the week).  In this crowd I feel like Zelig!

Here's David's generous mention of the Settle It Now Negotiation Blog and my recent post on convincing your clients to give up more than you (their attorney) predicted while still maintaining your credibility.

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 let me just add here -- though I'll sound like a broken record to my regular readers -- that business people seek out lawyers because they believe themselves to be victims of injustice. (see my short-short video on this topic here)

Though I, as a mediator, am always seeking business solutions to legal problems, the client's injustice problem must be addressed to maintain your credibility (and retain your client's trust.).  Every great mediator I know will address this issue with your client unbidden.  If you're using less than great mediators --  raise the issue yourself -- all competent mediators should be prepared to address the issues foremost on your client's mind right including -- Will I lose?  How much more is this going to cost me? and Am I Being Extorted or Low-Balled?

Thanks for the mention, David!  We're happy to see Settle It Now mentioned by an IP Blog as influential as yours.  Every IP dispute involves the same issues as every other commercial dispute, requiring the parties to go beyond their legal positions; explore all of both parties' commercial interests; create value from potential business synergies; claim as much of that value as possible; craft business solutions to legal problems; and, frankly address the injustice issues that led your client to seek you out in the first place. 

They'll be yours for life.

Oregon A.G. RIAA Bully-Buster

Here's the thing about bullying.  When you do it in public, champions will arrive on the scene to do battle.  According to the recent ABA article Oregon ‘Ground Zero’ in RIAA Battle Against File-Sharing,

in filings this week, Attorney General Hardy Myers' office said the Recording Industry Association of America's litigation tactics may violate his state's data-mining laws . . . [and] called for an investigation of the recording industry's tactics.

In response to the RIAA's muted characterization of the AG's attempts to protect its citizens as  "misguided," New York lawyer, Ray Beckerman (The Recording Industry vs. the People) . . . says that the "the Oregon AG's move to question the RIAA's tactics is long overdue."

 "The RIAA has been bringing fake copyright infringement lawsuits, the sole purpose of which is to get the names and addresses of John Does. . . . The strategy is then to drop the case and pressure individuals to settle, he added.

For those who missed our first post on this issue here, we once again provide an explanation of bullying from the social scientists.  

Bullying, they tell us, is the repeated and deliberate abuse of power by one person or group over another person or group.

The social context in which bullies flourish?  Relatively stable social groups with a clear hierarchy and low supervision.

Why?  Because hierarchy – a system that ranks people one above the other -- makes low-status individuals visible, easy to get at and less likely to receive protection by their peers. 

When you bully a State's citizens in full view of that State's arm of justice, however, you can't expect that you -- the sixth grade bully -- can continue to shake down the third graders for their lunch money.

Kudos to the State of Oregon for riding to the rescue!

For college students targeted by the RIAA -- and those who might be -- attorney Beckerman provides his practical and legal advice here.

On November 13, You Too Can Learn the Techniques that Settled Verizon v. Vonage

NEVER LEAVE VALUE ON THE BARGAINING TABLE AGAIN!

Head's up!!  Vonage and Verizon settled their patent dispute using only two settlement techniques well-known to your transactional colleagues but rarely used by litigators.  There are dozens more like this, many of which you may be familiar with but few of which you ever attempt to use.

Let some masterful settlement judges (Complex Court Assistant Supervising Judge Victoria Chaney and full-time Settlement Judge Alexander Williams, III) and highly respected mediators and arbitrators teach you how to use these techniques to get a settlement that's nearly as good as actually winning the case.

We've also added a negotiation and mediation ETHICS section to the course so that those of you who need those credits by year-end can get them.

If you read this blog, you are officially a "friend or colleague of the speakers" and are entitled to a 20% discount on our day-long Winning Settlement Techniques Seminar.  In addition to Judges Chaney and Williams; former Federal Magistrate John Leo Wagner, Patent Arbitrator and Mediator Les Weinstein, and Arbitrator and Law School Professor Jay McCauley will bring you the techniques necessary to settle and make your clients very very happy at one and the same time.  

Your blog-reader coupon code is S3SETL. Enter in the coupon code when you register on-line and receive 20% off the registration price.

Register here now.

The fomal course description below:

Settlement Techniques that Give You the Winning Edge

Novice and seasoned litigators will learn to maximize the value of their litigation positions by learning winning settlement techniques from a panel of seasoned ADR experts.

Experienced mediators and Judges teach the latest settlement techniques, such as distributive (splitting the settlement “pie”) and integrative or interest-based (expanding the settlement “pie”) bargaining. Topics also include the dynamics of conflict resolution, settlement best practices, negotiating techniques, settling complex and patent litigation cases, and international disputes. Don’t miss this chance to hear from those who truly know -- how you can best maximize your client’s settlement opportunities and outcomes.

What You Will Learn if You Attend This Seminar

The ten social psychological insights that will minimize your own self- defeating negotiation behavior and maximize your opponents’ bargaining weaknesses (preview here)

The ten basic rules of “distributive” or “fixed sum” bargaining that will give you the “edge” in all future settlement negotiations

The ten ways to “expand the fixed sum pie” by exploring and exploiting the client interests underlying your own and your opponents’ legal positions

The ten ways to get your case settled to your clients’ best advantage at Mandatory Settlement Conferences for both routine and “bet the company” cases

The Top Ten Errors Made by Parties When Attempting to Settle Disputes that their Contracts Require Them to Arbitrate

The Ten Rules of Cross-cultural negotiation in International Arbitration

The Ten Laws Critical to the Enforcement of Mediated Settlement Agreements

The Ten Mediation/Settlement Conference Traps for the Unwary (preview here)

Instructors

Hon. Victoria Chaney--Assistant Supervising Judge, Complex Litigation, Los Angeles Superior Court

Hon. John Leo Wagner--ADR Neutral/Hearing Officer, Judicate West

Hon. Alexander Williams, III – Judge, Los Angeles Superior Court, presiding over the full-time Settlement Court

Les J. Weinstein--AAA Arbitrator and Mediator, Patent and Antitrust Attorney

Jay McCauley--Hearing Officer, Dispute Resolution Provider, Judicate West

Victoria Pynchon--Complex Commercial Mediator, Settle it Now


November 13, 2007 - Los Angeles

Check-in: 8:30 - 9:00 a.m.

Seminar: 9:00 a.m. - 4:30 p.m. (Lunch on your own)

Wilshire Grand Hotel

930 Wilshire Blvd.

Los Angeles , CA



Pincus Communications certifies that this seminar has been approved for 6.0 MCLE credits and ethics credits will be given.

"B" is for BATNA: At the End of the Day, It's All About a Jury Trial

 

(above, art imitating the truth -- Billy Flynn: Would you please tell the audience... err... the jury what happened? -- Razzle Dazzle from Chicago)

Why are we back to the "B's" and more particularly, why are we back to BATNA?

Because I've been mediating more "pure money" cases lately and recalling for my litigants the central fact of settlement life.

IF YOU'RE NEGOTIATING THE SETTLEMENT OF A LAWSUIT, YOUR "BETTER ALTERNATIVE TO A NEGOTIATED AGREEMENT IS A JURY VERDICT."  PERIOD.  END OF STORY.

This is why we're so happy to have found a new legal blog called Deliberations, which is all about the psychology of jurors; what they like; who they'll hate; what their predilictions and pre-dispositions are and how you and your clients might be able to influence them to decide the case in your favor.

As the Jury Research people teach us (here, by the way are two of the best jury consultants in Southern California, if not the nation, Chris St. Hilaire of M4 Strategies and Tom Bernthal of Jury Insight -- see the recent $15 million verdict largely credited to Bernthal's efforts) the jury is not comprised of your law school class, your university friends or even your high school classmates.   

Who is it composed of and how do they think?  That's the problem.  You and I -- no matter how down to earth we believe ourselves to be -- have NO IDEA. 

This week, however, Deliberations helps us out by telling us just how many jurors will likely be struggling with alcoholism and drug addiction in their families when we voir dire them and by pointing us to this great NPR (must read) quiz on the American Jury System.

The author of Deliberations, Anne Reed, a trial lawyer and jury consultant at Reinhard, Boerner & Deuren in Milwaukee, recently suggested to me that trial lawyers, jury consultants and mediators "might have something in common."  

Oh yes.  YOU -- trial lawyer, jury consultant, jury -- are the other side of my equation.

YOU ARE MY DISPUTANTS' BATNA.

"B" is for Bully: Jean Valjean at the Music Store

The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Anatole France, The Red Lily, 1894, chapter 7 

 AP Minneapolis from the Los Angeles Times

A woman facing a $222,000 music-sharing verdict asked a judge Monday to overturn it.

Jurors in a case that six record companies brought against Jammie Thomas found that she violated the companies' copyrights by offering 24 songs over the Kazaa file-sharing network. They ordered Thomas, a mother of two who makes $36,000 a year, to pay the companies $222,000.

In a motion filed Monday, Thomas' attorney, Brian Toder, did not argue that she hadn't violated the copyrights. Instead, he said that because the songs could have been purchased online for about $24, the $222,000 verdict was disproportionate and amounted to punitive damages. 

for remainder of article, click here.

Jury Instructions

Copyright law allows damages of $750 to $150,000 per song.

What the Jury Awarded 

$9,250.00 per song.

The Music Companies' Actual Damages

The songs could have been purchased online for about $24.00.  Without itemizing, defense counsel pegged the record companies' actual damages at "less than $151.20 in all."

Who Else the Major Record Companies are Pursuing

According to the Times, the Recording Industry Association of America has sued 26,000 of its individual consumers for damages.  In September, it also sent "a new wave of 403 pre-litigation settlement letters to 22 universities nationwide" on behalf of the "major record companies."  See RIAA News Release here.

Why the Jury Likely Made the Thomas Award So High

If you've been following this story, you don't have to do much guess work to believe the jury was likely punishing the defendant for lying to them on the witness stand.  Although the defendant denied file-sharing on direct examination, documents produced at trial pretty well demonstrated that she was not telling the truth. 

This always pisses the jury off.

What the Jury Didn't Know

Even Primates Won't Tolerate Econimic Inequities on this Scale

Finally, though I've resisted seeing it for more than 25 years, the Les Misérables "power to the people" song . . . .

Little people know
When little people fight
We may look easy pickings
But we've got some bite

So never kick a dog
Because he's just a pup
We'll fight like twenty armies
And we won't give up
So you'd better run for cover
When the pup grows up!


Our New Website IPADR.COM Goes Live!!

Are Your Negotiation Skills Equal to Your Trial Skills? We'll Help You Make Sure You're as Winning a Negotiator as You are a Litigator

Deal Yourself a Winning Hand

November 13

Los Angeles

 

 (photo:  Four Aces by Ian Grainger)

 Novice and seasoned litigators will learn to maximize the value of their litigation positions by learning winning settlement techniques from a panel of seasoned ADR experts.

Experienced mediators and Judges teach the latest settlement techniques, such as distributive (splitting the settlement “pie”) and integrative or interest-based (expanding the settlement “pie”) bargaining.

Topics also include the dynamics of conflict resolution, settlement best practices, negotiating techniques, settling complex and patent litigation cases, and international disputes. Don’t miss this chance to hear from those who truly know -- how you can best maximize your client’s settlement opportunities and outcomes.

Speakers

Complex Court Assistant Supervising Judge Victoria Chaney

Full-time Settlement Court Judge and Adjunct Professor (Straus Institute) Alexander Williams, III

The Hon. John Leo Wagner, Federal Magistrate (Ret.) (Judicate West Panelist)

Judicate West Neutral and Adjunct Professor (Straus Institute) Jay McCauley

AAA Arbitrator, Mediator and Patent Attorney Les J. Weinstein

Judicate West Mediator and Adjunct Professor (Straus Institute) Victoria Pynchon

For more of what you'll learn, click here.

Flyer and Order Form Here

Fees Individual: $349 per person

Group: $324 per person for 2 or more from the same company pre-registering at the same time.

Government employee/Non-Profit* Rate: $299

Students: $199 (current students only)

Possessed by Possession: Patenting Legal Strategies

(right, "Denny Crane!!")

I expect to see stuff like this on Boston Legal, not on the ABA Law Journal.  And how in the world did I miss this anyway -- from BLAWG's May 15 '07 post

The ABA Law Journal recently published an article about patenting legal strategies. The article, by Steve Seidenberg, was published in the May edition and it titled Crisis Pending: Can a Patent on Legal Strategy Prevent a Client From Taking Your Advice? The Courts May Soon Decide.

Based on what the article reports (which is well worth the read, by the way), not only are tax strategies already being patented, but there are innumerable rumors regarding lawyers seeking patents on real estate and corporate law strategies.

Since issuing its first patent for a tax strategy in 2003, the Patent and Trademark Office has issued at least 52 patents covering specific tax strategies. Another 84 published applications for tax strategy patents are pending. But more than just tax strategies could be involved.

Because parties applying for patents may keep their applications secret if they certify to the PTO that they are not seeking similar patents overseas, the legal grapevine is buzzing with rumors that legal strategy patents are pending in other practice areas, like real estate and corporate law.

They're kidding, right?  This was an April Fool's article in May?

More on the drive for possession in our on-going series on the social psychology of conflict tomorrow.

Quote of the Day from U.C. Irvine

“Every relationship has bumps.”  U.C. Irvine Chancellor Michael V. Drake reported yesterday by  Adam Liptak in his New York Times "Sidebar" column Furor Ends in Deanship for Liberal Scholar. 

For our thoughts on potential sources of the "several areas of miscommunication and misunderstanding" that gave rise to the "furor," see our post on the issue here.

Drake's and Chemerinsky's Joint Statement announcing that Chemerinsky accepted U.S. Irvine's offer of its new law school's deanship here.  

 

The U.C. Irvine Mess, Forecasting Ethicality and Negotiating an IP Settlement

(photo, left, Duke University Constitutional Law Professor Erwin Chemerinsky)

(courtesy of the Wall Street Journal Law Blog, we Interrupt this Post to Bring You the Breaking News that Chemerinsky has Accepted Irvine's New Offer).  

If you've been following the news about the U.C. Irvine Law School Brouhaha this week, you'll know what it feels like to hear a story out-of-sequence, over time and from different sources the same way arbitrators, mediators and juries do.  

I heard the astonishing news that U.C.I. had hired, then fired, one of the most highly respected Constitutional Law professors in the country -- for the expression of his political opinions in the Los Angeles Times -- over coffee and orange juice.  I didn't read the story; my husband just casually mentioned it from behind his newspaper. 

His summary was pretty much like that of the Orange County Register's:  

U.C. Law Dean Hired, Fired:   

UC Irvine officials hired and then promptly fired the founding dean for their fledgling law school, because he was "too controversial," according to Erwin Chemerinsky, the Duke University law professor who had already signed a contract to take the job.

Next thing I heard was that U. C. Irvine Chancellor Michael V. Drake -- the guy who fired Chemerinsky -- denied that politics had anything to do with his decision, stating that he had: 

made the very difficult decision that Professor Chemerinsky was not the right fit for the dean’s position at UC Irvine. I informed him on Sept. 11 that we were rescinding our offer and continuing the recruitment process. /**

The Story Plays Out

Chemerinsky says Drake found him "too controversial" and Drake says "I made a management decision -- not an ideological or political one -- to rescind the job offer." 

Though I still hadn't read the full story anywhere, I concluded that Drake must be  . . . well . . . dissembling.  The temporal connection between the appearance of a Chemerinsky Op-Ed piece on the death penalty -- and his nearly simultaneous termination made the connection between ideology and firing appear incontrovertible. 

When I finally had the time to read an L.A. Times article on the controversy, I was surprised to hear that Dean Edley of U.C. Berkeley's Boalt Hall School of Law, said Drake consulted him before withdrawing the offer.  I was even more surprised to hear that he didn't think Drake's decision was based on the content of Chemerinsky's public opinion, but rather upon the fact that Chemerinsky opined at all.  Most surprising was Edley's opinion that asking Law School Deans to stop writing politically polarizing op-ed pieces was normal and reasonable.    

Such is the power of expert opinion.  This made me re-think my position. 

"Judged too soon," I said, reading my husband the news article that evening.  

But there was more to come.   

By the time I'd heard that Chemerinsky here and Drake here had each published his own editorial in the Times, the Times was reporting that UCI [Was] Working on a Deal to Re-hire Chemerinsky

That was no suprise.  But this was.  Despite Drake's denial that he'd been "pressured" to terminate Chemerinsky by un-identified "conservatives," the Times learned that U.C.I. had received:  

criticism of Chemerinsky . . . [shortly before] Drake rescinded the job offer from . . .  California Chief Justice Ronald M. George, who criticized Chemerinsky's grasp of death penalty appeals [as well as] a group of prominent Orange County Republicans and Los Angeles County Supervisor Mike Antonovich [who] wanted to derail the appointment. 

Drake's colleagues are scratching their heads ("it's not like him") and UCI is doing some serious damage-control while Chemerinsky punts ("I'm not really thinking about it.").    

I should've checked the Wall Street Journal Law Blog first (the model of concise legal reporting) which I just now see reports Anthonvoich saying that "making Chemerinsky the head of UC Irvine’s new law school 'would be like appointing al-Qaida in charge of homeland security.'"  This is just embarassing for Antonovich and one wonders who would want to teach at a new law school in such an environment.  

Still, with feelings running into thermoneuclear  hyperbole, you can imagine the pressures Drake must have been feeling.

We're Deep Into the Social Psychology of Conflict Here

Early yesterday, I was pretty much believing Drake's explanation.  Chemerinsky acknowledged the pre-employment discussion they'd had about a Dean needing to focus on less controversial issues.  I assumed Drake knew Chemerinsky's appointment might be unpopular in Orange County. That's why Drake tried to ensure that Chemerinsky understood he'd have to tone down his public advocacy of liberal causes. 

Drake thought Chemerinsky got it, but he didn't. 

The same day the offer went out, Chemerinsky's op-ed piece appeared in the Los Angeles Times, raising just the type of problem that Drake had imagined might arise.  

Oh %$^#@!!!

If Drake's not now in a state of fear (which interferes with cognitive function) I'll eat my old Con Law textbook.  He must have felt the need to make a decision fast (which also interferes with reasoned and ethical decision-making -- time pressure).  If he rescinded the contract before the Regents approved it, he wouldn't have to "fire" Chemerinsky.  He could just withdraw the offer.  

I'm assuming that Drake wasn't feeling very good about having to "fire" Chemerinsky in response to pressure.  I'm also assuming he was irritated to be dealing with this problem after his little chat with Chemerinsky about op-ed pieces.   It may well have been against his own principles to be rescinding the offer.  

He doesn't want to tell Chemerinsky that he's changed his mind because of the op-ed piece. It just feels wrong.  So he does what anyone in a bind under time and outside pressure might do.  He blames somebody else, some unidentified "conservatives."  Chemerinsky won't think badly of Drake for that.  He'll understand. 

But That's Not What Happened

In the absence of information, people make stuff up.  And that's precisely what I had done.  

Drake had been pressured by conservatives and he'd folded like a lawn chair.  He'd told Chemerinsky the truth, not simply provided an excuse or shifted the blame.  But when the news cameras were rolling and the reporters were biting pencils hovering over news pads, Drake blinked.  The reporters would want to know who had pressured him and that would be messy.  So Drake said he hadn't been pressured.  It was a management decision.

Here's the Social Psychology of Conflict -- FINALLY!!

I was just talking about Bazerman et al.'s new working paper Why We Aren’t as Ethical as We Think We Are: A Temporal Explanation earlier this week.  Bazerman and his colleagues report that we believe we'll be more ethical in the future than we really will be and that we rearrange our recollection of past events to recall that we acted more ethically than we actually did.    

No one is immune from "errors" in prediction -- "forecasting errors" -- and we are most likely to make them in the heat and stress of conflict.  As Bazerman, et al. report, in controlled negotiation experiments,

individuals who imagined facing a very competitive opponent predicted they would be much more competitive and more likely to stand firm than those who imagined facing a less competitive opponent . . . [When confronted with a competitive negotiator, however]  participants gave in and agreed to worse outcomes than they predicted they would.

The findings are not much different for "mis-remembering" the past.  As Bazerman, et al. explain:

There is substantial evidence that people selectively remember past events in a manner that supports their preferred self-image. It is widely assumed that memory for affectively potent information about oneself is highly selective (i.e., distorted) . . . 

While convenient for our self-esteem (and even our happiness), the selective memory mechanism represents a barrier to an accurate understanding of our ethical selves and thus impedes our ability to strive for higher levels of ethics in our everyday lives.

But what does this have to do with the U.C. Irvine mess or negotiation for that matter?

A lot. After all, the U.C. Irvine "mess" is really just a negotiation gone extremely bad, as too many negotiations do, resulting in the disruption of plans, strained or severed business relationships and, too often, litigation.  At U.C. Irvine, it means plans to open the school in 2008 have been stalled.

Bazerman again:

Effective decision-making requires accurate planning and reflection on one’s decision  . . .  The contextual inconsistencies that exist in the prediction, action, and evaluation phases, however, circumvent these critical feedback loops.

Here are a few suggested solutions to making as reasonable and ethical a decision when under pressure as we hope to make when in a state of rest, any one of which might have helped Drake do the right thing -- or at least the most prudent one -- in this instance.  

  • Recognize our multiple selves

[T]o make more ethical decisions, people first need to recognize their own susceptibility to unconscious biases. This entails recognizing that our behavioral forecasts are incorrect, that our recollections of our past behavior are subject to cognitive distortions, and that the roles of the want and should selves are misaligned.

  • During action, increase the influence of the should self

No matter what we do during the prediction phase, the "should" self needs to be able to flourish during the action phase if we are to improve our ethical behavior. This entails increasing the power of the should self during this phase while controlling that of the want self.

[A]n effective way to overcome an immediate temptation (i.e., eating a tasty pretzel) is to refocus one’s attention from the concrete qualities of the temptation (how yummy and tasty the pretzel is) to its abstract qualities (thinking of the pretzel as if it were a picture of a pretzel).

  • Increase the prominence of the should choice by changing the temporal distance between the decision and its consequences

[I]mplementing long-term ethical action might require acceptance that we cannot get agreement if we try to implement decisions now (e.g., in Congress), but that our chances will go up if we accept a delay in implementation. . . . . [I]t is far easier [for example] to get employees to start saving for retirement if you ask them to agree now to implement the decision later than if you seek an immediate take-home-pay reduction now. .

  • Ensur[e] that the ethical infrastructure promotes ethical versus unethical decisions, reducing uncertainty surrounding the decision, and addressing the euphemisms that disguise the ethical implications of the decision should also allow the should self to be a more dominant force during the action phase.
  • During action, decrease the influence of the want self

In an ethical dilemma, when people understand that their want selves will drive their decisions, they may be able to use self-control strategies directed at that self . . . Part of this strategy may involve pre-commitment devices. Rather than focusing on the should
self, these devices seek to suppress the rearing of the want self.   

We'll apply these principles to IP Disputes in our next post on the Social Psychology of Conflict.

_____________________

**/  Any first year law students reading this post will find the reason why this is not a breach of contract in Drake's short statement.  The offer, though accepted, was "contingent" upon approval by the Board of Regents.  The offer was withdrawn before that contingency occurred.  

Contentious Litigation Tactics Can Hurt You: the Social Psychology of Conflict

 (photo left BOOH by Mohammed)

 When we say "contenious tactics can hurt you" we don't mean the kind of "hurt" imposed by Courts when they ever so reluctantly and after years of bad faith litigation behavior impose monetary sanctions on the parties &/or their attorneys.

No, we mean hurt, as in Patently O's recent observation that the Federal Circuit (here) justified the lower court's 29.2% royalty rate as damages based in part on the parties "contentious history."  See Damages:  Contentious History Between Parties Justifies High Royalty RateOUCH!!

ELEMENTARY BUILDING BLOCKS:  WHY WE'RE SO CONTENTIOUS 

As promised, we're going to lay a little social psychology of conflict on you for the next several weeks to help you understand not only how and why we use contentious tactics in litigation, but also how to strategically escalate or de-escalate litigation's contentious nature.      

First, a definition.  Conflict occurs when the parties believe their needs or desires cannot be achieved simultaneously.  (see Law Professor Richard Reuben's great power-point presenation on this topic here). Conflict emerges into a "dispute" when one (or more) of the parties suffer an "injurious event."  (See Conflict Map here).

Remember that active verb "believe."  The perception that the parties cannot simultaneously achieve their needs or desires ain't necessarily so. 

Whenever one person sues another for patent infringement, s/he alleges that the defendant is interfering with her ability to achieve her needs (income) or desires (wealth) based upon what she perceives to be hers.  The defendant, more or less predictably, responds by contending that the plaintiff is interfering with his ability to achieve his needs and desires based upon what he believes to be his. 

One of the ways to resolve the resulting conflict is to use a contentious tactic, which is what litigation is.  For the defendant the "perceived injurious event" that triggers the dispute is the litigation itself.  For the Plaintiff it was something else -- something that often becomes so lost in time to the litigators that only the Plaintiff continues to carry the "injury" with him.

CONTENTIOUS TACTICS for resolving conflict include Ingratiation and Gamesmanship; Shaming, Threats, Promises & Arguments, and,Coercive Commitments or Violence. 

The goal of all these tactics is to induce your opponent to yield to your clients' desires.   

Active litigation is, of course, both a coercive commitment -- "I will pursue you and this lawsuit until . . . trial .. . appeal . . . re-trial (etc.)" and a form of economic violence (imposing legal fees, lost time from productive business activities, potential loss of reputation in the business community or decreased value of actively traded securities, etc. upon your opponent).

So back to the question why litigation is always so contentious. 

IT'S CONTENTIOUS BECAUSE ITS A CONTENTIOUS TACTIC TO BEGIN WITH AND CAN ONLY BE PURSUED CONTENTIOUSLY.  It need not, however, be pursued in such a way that it will inflame your opponent.  Any litigation (as opposed to settlement) strategy or tactic, however, will invariably escalate conflict. 

How and why you might wish to de-escalate the conflict between the parties to litigation for your clients' strategic or tactical advantage tomorrow.

On the Internet, Nobody Knows You're a Dog: Negotiating the Settlement of Your IP Dispute

HOW IT STARTS

"They cheated me," said the C.E.O. of a Fortune 500 company. 

"They stole my invention [or process, design, employees, product, market, or, customers]."

"They copied, knocked off, lied, misled, withheld, and, denied."

This is how the litigation begins.  You can recite it in your sleep because you drafted the complaint, the counter-claim, and, the interrogatories.  You prepared the examination, the cross-examination, and the jury instructions.

HOW IT ESCALATES

With each passing day, their wrongful, outrageous behavior and the injustice done to your client grows. 

Why? 

Because they prove their essential bad character and malicious intent with each litigation thrust and parry.  Your conduct is righteous, avenging, and, pure, while theirs only confirms their bad faith.  They destroy documents, alter evidence, mislead the Judge, and file pleadings at 5 p.m. the day before three-day weekends.

HOW IT COMES INTO THE JUDGE'S SETTLEMENT CHAMBER OR THE MEDIATION CONFERENCE ROOM

Although no one "takes it personally," by the time you bring your clients to a settlement conference or mediation, they cannot bear the sight of one another. 

I have not only been instructed that joint caucuses will not be tolerated, I've been asked to assure that the parties will not lay eyes on one another because the other side's very corporeal existence might so inflame the disputants that the negotiation session will melt down before it has had the chance to begin.

If you are a litigator with at least five or six years of experience representing clients in hotly contested intellectual property litigation of any stripe, you know that I am not exaggerating.

I want you to keep this litigation posture and emotional climate in mind for the next few weeks because all of my posts are going to be based it.

WITH A LITTLE HELP FROM OUR FRIENDS -- ENSURING THE BEST POSSIBLE NEGOTIATION   

In the coming weeks, we will be discussing some concepts in the social psychology of conflict that will help you de-esclate the conflict, which will, in turn, help everyone brainstorm and negotiate a deal as effectively and efficiently as possible.  

Toward that end, we'll talk about cognitive biases, with a little help from our friend Michael Webster, whose Psychology of Compliance and Due Diligence Law Blog was just last week named one of the ten best legal blogs on the internet. 

We'll also rely upon Harvard Business School's Working Knowledge, an invaluable, free resource that will improve every commercial litigator's ability to "cut to the chase" of the business interests that lie at the heart of every great settlement. 

Today's post, for instance, in fact the entire series of posts, was inspired by the HBS Working Knowledge Newsletter article -- Why We Aren't as Ethical as We Think - A Temporal Explanation by Max Bazerman (author of the great new negotiation text Negotiation Genuis) and his colleagues Ann E. Tenbrunsel, Kristina A. Diekmann, and Kimberly A. Wade-Benzoni. 

Other on-line resources we'll be using to explore this topic include:

Beyond Intractability (this link, for instance, is to our friend Ken Cloke's article on Mediators without Borders, which describes several great techniques for de-escalating conflict). 

The Freakonomics Blog, covering, among other things, marketing strategy that often overlaps with negotiation strategy, see e.g. Should Apple Burn its Economics Textbooks here and monetizing the value of spending more time with a loved one here

Brains on Purpose, our friend Stephanie West Allen's Neuroscience and Conflict Resolution Blog, see e.g. this recent article -- Conflict, Is it All In Your Head?, which appears, along with another cool dozen-plus conflict resolution blogs at Mediate.com's "Featured Blogs" page and Geoff Sharp's 40 Sites in 40 Minutes  including Gini Nelson's Engaging Conflicts on such topics as The Ethics of Compromise here and Diane Levin's Online Guide to Mediation on such topics as Is Your Negotiating Style Leaving Value on the Table? here.

Roger Dooley's brilliant Neuromarketing Blog, see e.g. our Negotiation Blog post on Small Talk and the Value of Joint Sessions here.

The Legal Theory Blog, see e.g. Negotiation and Time Perspective.

The Trial Lawyer Resource Center, whenever we need reminding that trial may well be the better alternative to a negotiated resolution, and to avail ourselves of the settlement insights posted there such as Listening During Settlement Negotiations

Malcolm Gladwell's Blog (the Tipping Point and Blink), see, e.g., this post on why journalists failed to detect the Enron debacle.  

The texts on which we usually rely will also be cited to assist you, including 

Professor Leigh Thompson's introductory-intermediate guide to negotiation, The Mind and Heart of the Negotiator (2d ed) -- the first chapter is online here.

Lax & Sebenius' essential 3D Negotiation -- excerpt online here.

Bazerman and Malhotra's newest compilation of negotiation advice, with which to earn your own post-graduate negotiation degree, Negotiation Genius.

The American Bar Association's massive compendium of negotiation strategic and tactical advice, The Negotiator's Fieldbook (online chapters include Analyzing Risk by Jeffrey Senger)

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