Thursday, July 26, 2018

Arbitration And The Increasingly Political Judiciary—Should Employers (And Employees) See Arbitration As The More Neutral Forum?

Originally published by Seyfarth Shaw LLP.

By Nick C. Geannacopulos, Timothy M. Hoppe, and Mark Casciari

Seyfarth Synopsis: The trend-lines describe employment-related litigation in the past 25 years: (1) the emergence of arbitration as a flexible and increasingly legally viable to resolve employment claims; and (2) the dangerous politicization of the judicial selection process in federal and state government. These trends should make arbitration in any state, whether red or blue, an even more attractive dispute-resolution device for employers and employees alike.

No decades-old federal legislation has experienced a legal resurrection like that of the Federal Arbitration Act. Passed in 1925, it now is the legal cornerstone of a quarter century of Supreme Court jurisprudence that permits most employers to require employees to arbitrate employment disputes. In Gilmer v. Interstate/Johnson Lane Corporation, the Supreme Court said that statutory age discrimination claims can be subject to mandatory arbitration agreements. Since then, courts have consistently held that employment claims of various varieties can be forced into arbitration. They have also held that the contracting parties can delegate questions of arbitrability to the arbitrator—in other words, the arbitrator decides whether claims fall under the arbitration agreement. If the arbitration agreement is properly written, this leaves courts with a simple, threshold analysis of determining whether the parties entered into a valid contract to arbitrate their dispute.

At the same time that arbitration has solidified its dispute-resolution status, the judiciary at the state, federal, and administrative level have seen continued politicization. More and more, it seems leaders from both major parties—at the state and federal level—have political litmus tests for judges, emphasizing party affiliation and ideology above other qualities. In California, for example, we recently saw attempts to unseat superior court judges, seemingly for little reason other than the political affiliation of the governor who appointed them. The four incumbents all survived the challenge, but the impact of politics on the California judiciary is a trend that won’t just go away. Other states—both liberal and conservative—have experienced similar efforts to reshape the judiciary to advance political agendas. And in Washington, the politicization of the judicial-selection process seems to be intensifying (including at the administrative level).

All of this is to say that arbitration may not be such a bad alternative for employers and individual employees alike. Unlike the court systems, arbitration agreements allow the parties to agree on the selection of the arbitrator, to arbitrate before a panel of adjudicators (as opposed to a single fact finder), and to provide for an appellate level of arbitration. Arbitration also allows the parties to agree on other efficiencies, such as streamlining the discovery process, allowing for dispositive motions, and ensuring a timely decision. As between the Federal Rules of Civil Procedure and arbitral procedural rules, the latter are leaner and more efficient. And states have put employee-focused safeguards in place. For instance, California requires employers to cover most of the cost of arbitration, and to allow adequate discovery.

To be sure, the plaintiff bar and some legislative bodies will try to curb the scope of mandatory arbitration. If the judicial selection process continues on its politicization path, however, it may be best for both employers and employees simply to “opt out” of our mainstream dispute-resolution system in favor of arbitration.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Arbitration Strategy & Litigation or Alternative Dispute Resolution Teams.

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Career Success and Life Fulfillment: Focus on Big Rocks

Originally published by Cordell Parvin.

I ate lunch and had a coaching session recently with a really sharp associate in a well-known law firm. During our lunch she asked:

What if I really don’t care to become a partner?

She continued that many of the partners in her firm and other firms did not appear to be happy. I immediately thought of Stephen Covey and said:

Maybe those partners aren’t focused on the big rocks.

Having never heard the story, the young associate looked confused. She told me she wanted to have more “work-life balance” in her life.

Are you striving for work-life balance? Put simply, you will never find it and even if you could it would be incredibly boring. I have never sought balance instead I have sought to live my life based on my priorities.

If you want to strive to spend quality time on your priorities, I suggest you read “First Things First” by Stephen Covey, A. Roger Merrill, and Rebecca Merrill. It is filled with many suggestions I know will help you, including planning your life around your roles. I particularly enjoy Dr. Covey’s story about the “big rocks.”

Dr. Covey describes that when he was teaching he pulled out a wide-mouth gallon jar and placed it next to a pile of fist-sized rocks. After filling the jar to the top with rocks, he asked, “Is the jar full?”

The students replied, “Yes.” He then got some gravel from under the table and added it to the jar. He jiggled the jar until the gravel filled the spaces between the rocks. Again, he asked, “Is the jar full?”

This time, the students replied, “Probably not.” Dr. Covey then added sand and asked, “Is the jar full?” By then the students had figured it out and replied “No!”

Finally, Dr. Covey filled the jar to the brim with water and asked his students the point of what he had done. One student replied: “you can always fit more things into your life if you really work at it. “No,” countered Dr. Covey.

“The point is, you have to put the big rocks in first.”

Billable work for clients is clearly a big rock. But, there are many other big rocks that must be put in the jar. Your big rocks likely include being a father/mother, husband/wife, son/daughter, being fit, being active in church/community.

I coached an outstanding lawyer, now 11 years ago. At the beginning of our coaching, we didn’t focus on client development. Instead, we focused on what were the big rocks for her. In our second coaching session she told me hers were:

  1. Family
  2. Her Faith
  3. Her Health and Fitness
  4. Her Work and Client Relationships

From that point on when she was evaluating an opportunity, she considered whether it fell into one or more of her big rocks.

She frequently repeated her version of something Stephen Covey had said:

When you say yes to something that is not a priority, given your limited time, it is the same as saying no to something that is a priority.

If you were asked to list your priorities, what would they be?

P.S. One point I made to the lawyer with whom I ate lunch was simply that it is better to have the opportunity to become a partner and then make a choice than it is to never be considered.

The post Career Success and Life Fulfillment: Focus on Big Rocks appeared first on Cordell Parvin Blog.

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Wednesday, July 25, 2018

How to Recycle Your Best Content to Market Your Law Practice

Originally published by Amy Boardman Hunt.

Many lawyers spend countless hours preparing CLE presentations, writing informative blog posts, giving media interviews, and generally creating informative content of interest to their clients, prospective clients and referral sources. The smartest lawyers find ways to get multiple uses out of those efforts by recycling their content in a variety of other formats. Recycling your […]

The post How to Recycle Your Best Content to Market Your Law Practice appeared first on Muse Communications.

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The Dog Tag podcast talks TLTV

Originally published by Adam Faderewski.

Former State Bar of Texas President Terry Tottenham talked about the importance of the Texas Lawyers for Texas Veterans program during a recent episode of The Dog Tag podcast.

“We’ve reached and serviced more than 28,000 veterans and veteran family members up to now in Texas alone,” said Tottenham. “We have over 9,000 lawyers who’ve contributed their time thus far.”

In 2011, Tottenham and the State Bar of Texas implemented the statewide program that provides pro bono civil legal assistance to veterans and their families who otherwise cannot afford legal services. Texas has the second-highest population of veterans in the nation, and a distressing number of Texas veterans are living in poverty or without homes. TLTV was modeled after a similar program launched by the Houston Bar Association.

Veteran Matt Elledge interviewed Tottenham for the podcast, which is sponsored by the Texas Veterans Land Board. Tottenham said the program’s “Clinic-in-a-Box” contains all the materials someone would need to set up a clinic for veterans. Interested attorneys can also go to texasbar.com/veterans to get information on how to start a veterans clinic. Attorneys looking to volunteer at a clinic can view see a current schedule of clinics here.

The legal services provided by the clinics run the gamut, but Tottenham said the greatest demand for legal services is in the area of family law.

To learn more about TLTV, go to texasbar.com/veterans.

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The Appellate Road Warrior: Essential Skills and Best Practices

Originally published by D. Todd Smith.

This is the fifth and final installment of my series on mobile lawyering for appellate practitioners. To easily access the entire series, click here.

By this point, you should have the equipment and the software to get your work done from the road. This post discusses some special considerations for working efficiently and securely.

Troubleshooting Tech Problems

Practicing from the road requires a certain amount of independence. Working outside the office—away from coworkers who can help you troubleshoot technology problems—requires a greater degree of self-sufficiency and resourcefulness.

Most troubleshooting involves searching for well-known solutions to common problems. As funny as it sounds, this is best accomplished via Google. The better you are at solving common problems by searching Google, the easier it will be to work outside the office using only your tablet or smartphone.

Data Security

Device Encryption

If your mobile device is lost or stolen, your data should be secure enough that a third party cannot gain access to it. Obviously, that means password-protecting all of your devices.

But it also means choosing hard-to-guess passwords. Using complex passwords is often advised (e.g., Xf7<8zf$qjf89), but they’re hard to type. A simpler way to create hard-to-guess passwords is to use a passphrase.

A passphrase is a sequence of words or phrases, with spaces. For example, “Dog Missile Rainbow” is a nonsense phrase that’s easy to type, but hard to guess.

So, a password is step one. The second step is to encrypt your hard drive or device. If you do not encrypt the data on your device, then a hacker could remove the hard drive and plug it into a new device to access the data.

Encryption is easy to set up. If you aren’t sure how, then just research on the internet as discussed above. Type in the name of your device and the word “how to encrypt” and you’ll find helpful articles.

Password Manager

When you sign in to do your banking online, there’s a reason the site won’t let you simply type “12345678” or “password” to access your data. Complex or strong passwords reduce the chances that a hacker will be able to access your online accounts and do something malicious.

The problem with strong passwords is that they are impossible to remember. But writing them on a Post-It note stuck to your computer monitor or keeping them in the notes app on your phone is just looking for trouble.

Password managers help avoid these issues by generating strong passwords and storing them in a secure location. Without the master password—the only one you’ll have to remember—the list is locked down. By entering the master password, you enable the password manager to fill in passwords for you when logging in to certain websites.

Three popular password managers are 1Password, LastPass, and Dashlane. All are free or very affordable and will sync to mobile devices. A password manager is an investment every appellate road warrior should make.

Dual-Factor Authentication

The primary concern with online storage services is security. Anyone with your password can access all of the documents you have stored in your online document service. And if they have access, they can often easily bulk-download those documents.

So, you must ensure that mere possession of your password will not grant a hacker access to those documents. And how do you accomplish that? Use dual-factor authentication. This is security that requires more than a mere password to access an online account. The second factor required is physical possession of your smartphone.

If an important account offers dual-factor authentication, you should enable it. For example, you should set it up on all of your online document storage accounts, your financial services accounts, and your email accounts.

Here’s how dual-factor authentication works in practice. If someone tries to access an online account with dual-factor authentication enabled, and they’re using a device that has never accessed that account before, they won’t be able to get in.

For example, say that a Russian hacker has the password to your Dropbox account and tries to login from a computer in Moscow. Dropbox’s security system will detect that a new computer is accessing your account (red flag #1) from a location that has never been used before (red flag #2).

Any red flag in Dropbox’s system will cause it to send a text message to your phone with a six-digit code. And the system will inform the hacker in Moscow that they need to also enter the six-digit code. Typically, the code will only be valid for about five minutes. And if the hacker tries to guess the code and guesses wrong more than three times, the system will typically lock up your account.

Some people perceive dual-factor authentication as a hassle. And that’s true. But it’s worth the hassle because it prevents someone else from accessing your online accounts even if they have your password.

Internet Connectivity

Being able to connect to the internet reliably and securely is crucial. Fortunately, you have many options. Unfortunately, not all of those options are appropriate or safe.

When traveling, it’s tempting to connect through free wi-fi provided in various places such as hotels, coffee shops, conference rooms, and event spaces. Be wary of connecting to these wi-fi services. They provide the best opportunity for hackers to access your device and your precious data.

To ensure that you are not vulnerable to hackers when using public wi-fi, you should use a virtual private network service. You can quickly research this by typing “VPN services” into Google. Among the top picks are NordVPN, IPVanish, and TunnelBear.

Make sure that the service you want works with your devices. Sometimes using a VPN will slow down your internet speed, so that’s another factor to consider.

VPN services are crucial if you’re traveling in foreign countries, especially ones that are disreputable. The cost of VPN services is reasonable. Expect to pay about $60 per year to use a service that covers all of your devices.

Today, every lawyer should be able to connect to the internet via their smartphone. If your smartphone service provider has an option for sharing that internet connection with an external device (e.g., your laptop), you should enable that option. You may have to pay extra, but it will be worth it.

If you cannot access the internet securely through a VPN, using your smartphone as a personal hotspot will do the trick. You need not use a VPN when you’re accessing through your cellular service, but if you want to be extra secure, you can.

Bluetooth Connectivity

If you want to use wireless headphones with your devices you need to know how to connect them via Bluetooth. You may also want to use a wireless keyboard or similar accessories. If so, you must know how to connect those devices via Bluetooth.

This is pretty easy in most cases. The trickier issue is fixing connectivity problems that sometimes crop up. Usually, the solution is to untether the Bluetooth device and reconnect it. If that doesn’t solve the problem, do some internet research.

Digital Signatures

Being able to sign documents that people send you by email is an important skill in today’s mobile world. What would you do if you had only your smartphone and received an email attachment that required your signature?

That happens a lot. And so you should learn how to sign a document with nothing more than your smartphone. PDF Expert will store an image of your signature for just this situation. Adobe’s Acrobat Reader mobile app is easy to use and free, so try that unless you have a different method that’s more familiar.

Email

Obviously, your smartphone will allow you to receive and send emails. Dealing with attachments, however, can sometimes become challenging.

You should be skilled at downloading attachments and working with them on your phone. And you should then be able to transmit a document that you’ve worked on with your phone to someone.

Mobile devices generally will require you to send an attachment to the app you want to use to work with it. For example, in the digital signature example above, you’d have to send the attachment to PDF Expert or Adobe Acrobat Reader. Then you’d sign the document using your finger or a stylus. Then you’d send the edited document back to your email program as an attachment.

Your email program should be connected to your contacts list so you can easily access the recipient’s email address. But sometimes you don’t have the person in your contacts.

What do you do then?

If you can find the email address somewhere else and copy it, then you can paste it into the email address field. Or, if you have to, you can just type the address in manually, being very careful to get every single letter correct, or else the email will wind up bouncing back without reaching its intended destination.

Synchronization

The online storage services discussed in this article all have apps that allow you to synchronize or share documents to your mobile devices. It’s unrealistic to carry around an entire synchronized set of your digital documents on your mobile phone or tablet. At best you can download a small batch.

But you should strive to have your key data synchronized among all of your devices. So, if you add contact information for someone to the database on your phone it should show up instantly on all your other devices.

And if you make a calendar appointment on your phone, the same thing should happen. This is especially important if you’re working with an assistant who has control of your digital calendar.

Synchronization is complex, and that’s why it’s hardly ever 100% reliable. But it’s usually at least 97% reliable. The problem is we all assume our devices are constantly 100% in sync.

When synchronization stops working, you’re not typically given a warning. Even if you do get a warning, it often goes unnoticed. So, you should be mindful of and vigilant about potential synchronization problems. The best practice is to periodically check whether a new contact record you added on one device is showing up on other devices and how long the sync takes.

Conclusion

The hardware and software available to an appellate road warrior is largely a matter of preference. Getting comfortable with the technology, becoming proficient at using it, and learning how to preserve data security are important first steps.

Upon reaching that threshold, however, the majority of tasks most appellate lawyers must accomplish to serve their clients need not be performed in a traditional office. The right equipment, software, and a secure, high-speed internet connection provide the tools necessary for the job. Because we’re able to interface with courts electronically and in-person client meetings are rare, our location just doesn’t matter.

So, take that long weekend, extended vacation, or sabbatical if your firm allows. See the world and spend time with your family. With the right setup and the proper mindset, work shouldn’t hold you back.

Thanks again to Ernie Svenson for his significant contribution to this series.

Image courtesy of Flickr by Barry Dahl.

The post The Appellate Road Warrior: Essential Skills and Best Practices appeared first on Texas Appellate Law.

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Sights & Sounds at the Bar Exam

Originally published by lawschool academicsupport.

Today is the Bar Exam. Like many other academic support professors, I travel to the bar exam testing site with the graduates to lend logistical support and emotional support. Much like the movie Groundhog Day, where I’m Bill Murray, the…

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Attorney Advertising Rule Changes Among Proposals on ABA’s Agenda

Originally published by Scott Flaherty.

 

As the American Bar Association gears up for its annual meeting in August, it’s set to consider proposed updates to its model ethics rules on lawyer advertising alongside closely watched proposals related to legal education and the bar group’s membership structure.
      

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