As you may recall, a judge threw out the case against Roger Clemens after an argument was made to a jury that raised issues and evidence that had been previously excluded by a court ruling.  It was good to see a court standing firm on its rulings when it could be more expedient to let it go by.  But the conduct of the attorneys was not acceptable so the mistrial was declared.

Now, we are back to the new trial.  A new jury was selected and the trial is about to begin.  The difference is that it doesn’t seem to get the coverage that  the previous trial did.  Maybe its presidential politics or a busy baseball season and playoffs or whatever, but the sports media is not really interested in Roger anymore. 

But the case still  has significance to you. How?

Juries, that is why.  Cases are resolved by jurors and who are they?

In the Clemens re-trial: 

According to an Associated Press report on April 19, 2012: “The judge, prosecutors and defense lawyers settled Thursday on the pool of 36 prospective jurors from which the final 12 jurors and four alternates will be picked on Monday morning.”

The extra 20 are needed because Clemens’ lawyers are allowed to strike 12 candidates and prosecutors eight, without giving any reason.

The eight prospective jurors who made the cut Thursday included an analyst for the Nuclear Regulatory Commission, a Treasury Department official and a librarian at the American Council on Education.

Several potential jurors were dismissed Thursday before the court got to the needed 36. Two who were government employees said they couldn’t be completely impartial in the case. Another was excused after she said she didn’t think it was appropriate for the government to prosecute someone for lying to Congress.

And a woman was dismissed after saying she did research on the case and wrongly asserted that defense attorneys caused last year’s mistrial by showing improper evidence.

In fact, the mistrial was caused when prosecutors played a videotape for the jury that contained a short segment of inadmissible evidence.”

Jury Selection is more art than science  in the end they are strangers to you and your case and they are given the responsibility of deciding your fate.

It is not uncommon to hear a mediator in a mediation session urge the litigants to work things out on their own.  “Do you want your case decided by strangers”

They could do anything.

But when you can’t work things out it is good to know that the evidence must run the gauntlet of a court, lawyers and jurors.

Well the inevitable happened. I had avoided it for months. 

You see I use my grandfathers old law desk. JP Donahue a local criminal trial attorney in the 1930’s and 1940’s who developed a relationship with insurance companies and did insurance defense through the 1950’s and 1960’s and had two sons that grew the business until its peak in 1987 at 10 lawyers and closed in 2001when they retired.

 I continue the practice 125 years this year when by Great Grandfather passed the bar in 1887.

So what happened?

I added a keyboard tray by taking out the front of the drawer so that it is now more ergonomically friendly. 

So the technology has changed but the sturdy blonde oak desk that sat in his office back in the 1920’s and 1930’s and in various offices in downtown Lowell, Massachusetts practicing law lives on in his grandson.

From this desk he called home and had reports on his children from his wife, I do the same.

From this desk he sat in front clients all seeking his coounsel, I do the same.

From this desk he listened to his sons talk about their cases and watch them grow to be successful lawyers.  I am not there yet.

So I hope I am forgiven for this invasion of the top drawer that may have held a letter opener and a few tickets to the Red Sox or even the Boston Braves games. More likely were the tickets he kept for his annual trips with his wife my grandmother to keep the home fires burning bright and happy as she reaiseeed seven children and supported sisters and borthers and inlaws during and after the Depression.

I often wonder if my fathers grades from Dartmouth College made it this far…or maybe a letter he wrote from the South Pacific during the WWII. 

Growing up in a historic mill town while technology comes and changes things a bit you are constantly reminded that bricks and mortar and oak desks last,  people, on the other hand, pass on into distant memories.

Trials in America are dying.

Are people fighting less? Probably not.

But a recent observation as I reviewed some of my business litigation files is that people forget what they are fighting for. Just like a war in a foreign country that starts out for one reason and then a decade later it has become some other reason and those people that started the war are not longer around and people seem to be evaluate the results as they go and decide that this isn’t the best way to spend our time and money and energy and effort.

Enough of a foreign policy crusade but the analogy applies to business litigants.  The solution is always prevention and careful consideration of relationships and sticking to your business practices and systems so that you minimize potential litigation in the future.

The incidents of trials are dying because quite frankly litigants and their lawyers are challenging claims and using proactive procedures under the rules of civil procedure that more aggressively to refine the issues earlier in the case and Judges make rulings that move the parties along in a direction that leads to more settlements.

But what I am talking about is resolve and purpose and a more introspective look at yourself in the fight.

Why are you fighting?

1. Revenge:

Thank God for revenge… I may not be in business. People want to fight for personal reasons that stem from broken relationships — even business relationships — and people  need to feel that the differences be heard by a neutral person — usually a judge or mediator or arbitrator, and decide the case. In short people need to be heard.

2. Principle/Protection:

People want lessons to be learned and feel that they must move on for some greater good such as to stop anyone else being victimized by the evil deeds of the enemy. In this respect they want to protect the public or expose deficiencies and have an impact.

3. Money:

Sometime it is just plain economics.  People run into those con men that repeatedly get away with things in their life we all know them, people who seem to skirt authority or responsibilities over and over again while you play fairly.  And you need to get paid.

4.  None of the Above or Because You/They Can:

Litigation is not a multiple choice question but reviewing a file for someone who is fighting their insurance company about a claim rejected sets up a category of litigation that is solely financed and fought by insurance companies. Some companies have unreasonable settlement policies or overly vigilant adjusters who may even be lawyers that can investigate a file until your blood pressure is at dangerous levels and there is no apparent connection between what is being investigated and the language of the policy. And then you get cancelled.

Regardless of your foe or cause or reason, remembering is an important thing to do as you progress because as time passes your own goals and direction may change and you may take on a new perspective that assists you in either resolving your case or not.

But try to remember at least what you are doing in the fight in the first place.

 So the United States is pulling out of Afghanistan and the New York Times does their analysis of what now needs to happen to make it work.

It’s a good legal business model, as well as a political one. The outline the editors employed included such terms as: Governance, Training, Finance, Talking, Economic Stabilization, and generally various categories that address dealing with your internal an external enemies and neighbors whether friend or foe.

So within every business there is governance and more than likely it is driven by a personality, a founder or owner whose personality masters the universe and dictates certain systems or culture (See On the Night Stand of “Fourth Generation Attorney – Since 1887”). Afghanistan has not government or banking system but you do but even then you need to address how your governance is driving your business through the legal and regulatory minefields for your business. 

What is your plan?

My guess is you really don’t have one. But don’t let that get you down, neither does your competition.  Have you notice that “survival” is the controlled response of businesses after the latest crises and long haul real estate/banking/financial markets recession. We are corralled into the simple conditioned response of survivors: “We are lucky to be alive” or “Life is fragile and considering that we are doing ok” or “At least no one has been thrown in jail!”

These very low standards of excellence may be your culture and it is difficult to forge higher ground when you are merely looking to survive. But while these cautionary approached may be wise they may be fool hearty if we do not replace the culture with a “Go for it” mentality as well.

Training and Finance

Have you looked at your books lately?  I mean the nitty-gritty detail. You have endured in part because you have held on to employees that add value to your business, but some do not. Have you evaluated your employees lately – there is real value in each and how you do it is critical to both cajole and encourage. If you are in an industry where you need to do a lot of training of employees your team is probably pretty darned good.

Execution will need to improve. It is always interesting to write this as we look at baseball franchises building their teams for the season – “How are the Red Sox going to find a fifth starter!”

“Who is playing right field?”

How the hell do we not have a shortstop?” 

Evaluation of technology and employees and filling in with training to keep up with what is coming around the bend is critical to your success.

The Enemy Within

 An old sage once reported to his business after an evaluation was done of their operations.  “We have found the enemy the enemy is us!”  In Afghanistan who ever governs will need to address the Taliban will have to live next to Pakistan. 

 Make peace with your enemies sooner than later, talk to them and purge your enemies within even if it is you!

I’ve got a secret!

Remember secrets, maybe when you were a kid in the school yard, some information that someone had but no one was really sure whether there was anything to it. Yes there were whispers and maybe laughter and furtive glances protecting the secret. 

It was affirmed by the cry: “Don’t tell anybody!”

People have secrets. Companies have secrets.We know this as lawyers and client confidentiality protects those secrets, but what I am talking about is secret information in your workplace. 

Do you know of any secrets?

If you review your employment agreement, you will most likely see sections of it that mention “Nondisclosure” and “Confidentiality.”  Someone explained that certain things were “proprietary” to the company and that it could not be shared.

Keeping a secret is hard work, it was when you were a child– being cajoled or interrogated by people trying to get the secret out of you — and today in business it is just as hard. But what if your secret isn’t a secret at all?

What makes something a secret?  How is something confidential?

It takes an effort by the company to maintain a secret. By and large there is not a lotof attention given to the practices and procedures necessary to maintain your secret.  Many people come to me wising to honor their employment agreement and see such terms as “confidentiality” and “proprietary” and want to abide by it, but in fact the company they worked for did not keep anything a secret. There were no procedures, passwords, security systems or anything that hinted that a customer list or anything else for that matter was a secret.

At the same time we advise companies who have secrets that need assistance in producing the effort to protect their information as secret.

Companies especially smaller ones that may have printed an employment agreement form off the Internet are vulnerable here. Review your company secrets this year as the economy heats up and employees look elsewhere employers may lose some valuable competitive advantages.

Happy New Year!

In the season of Bowl Games and NFL Playoffs, you just cannot underestimate the power of football in the United States.

And put it in Pennsylvania or Texas or Florida or Georgia and you have a super-powerfully influential sport.

For university’s in the football business you just have to understand that graduation rates may fall for athletes, academic standards may be hurt in the  US New and World report annual rankings but the  overall student body will love it. With painted  faces walking around campus with no shirts on  or bikini tops in frozen weather it is an iconic American vision on the college campus today not to mention alumni and television dollars pouring into their … company… uh college.

Those of us that attended schools that don’t have a big football program are envious but like my neighbor up the street who made up for it by adopting Michigan as his preferred college  football program (he flies the Michigan banner on his barn) we survive and pick a team and follow them anyway.

Penn State was one of those teams for many people until yet another sex scandal hit another major Pennsylvania institution ( the Archdiocese of Philadelphia the other) much to former Senator and presidential candidate Rick Santorum’s chagrin.

So the business law point of all this has to be yet another situation where institutions are dwarfed by personalities in them. This is not unusual in a entrepreneurially minded country just as Bill Gates dominated Microsoft and the late Steve Jobs dominated Apple Computer Co., the power of personality in our age transcends some organizations.

So how is this managed? 

When the person, the founder or the iconic football coach messes up so royally that a double standard is used to confront the problem — like let’s ignore it– the institution is fatally wounded. It leads to severe damage whether your PR firm thinks so or not you should investigate it because in all likelihood it is happening in your organization.

Is there someone who is such a royal pain in the ass that people begin to create new systems to deal with them?

Are incompetent people protected?

What of succession planning and delegation of authority to mentor new leaders in a positive way so that an institution does not become so reliant on the image of the iconic [fill in the blank] partner, founder, engineer etc that the entire company sits in wait for change to come but it doesn’t until the New York Times is at your door? 

Whether we believe it or not many companies especially smaller, close corporations and family businesses have the same succession strategy as North Korea!

So try to resolve to avoid the Joe Paterno problem and look towards modern techniques to evaluate the state of your company with key employees.

A little effort now that may be slightly painful is better than the implosion that occurs when you look the other way just ask Joe Paterno!

Herman Cain is running for President of the United States.  Historically not a  politician he must now run the gauntlet  of public scrutiny in a life that was generally lived in the halls of corporate America.

OMG!

So first there was the harassment and the reference to a “settlement” –confidential of course so there are no names and faces attached. This would drive a curious media mad. So they kept digging. They didn’t need to go far.

Another surfaces…and then another. The hand up the skirt and the request for well…lets keep this legal.  Like out of a movie script  (a lousy one at that) he says “Well you want the job don’t you!”

In the end…Four in all.

So while he was in the work place these events were apparently not a problem.  Employers,  Directors either knew of it or not and failed to do anything — The Joe PaternoSyndrome.

This sounds extreme and may not apply to me, Matt! But do you want to bet on it! 

A candid and full assessment of what goes on in your organization is more critical than ever as people will feel empowered by these situations and come forward. 

What about the iconic employee, boss, supervisor that cannot be approached without getting the ax! Enter Joe Paterno a Pennsylvania God at Penn State. He had influence throught the corridors of the legislature in Harrisburgh. And maybe in other sectors as well as the police look for an old police report that seems to have disppeared.

The point, eventually they get it and as an employer this is an easy call. If you are an employer — kiss him/her goodbye. You will do better without him or her. Really.  In  the ever changing world everyone is expendible — unless you married to your boss then that is a different situation all together. 

 But in reality sometimes employers get a bit too caught up in the potential legal ranglings and forget the goals and objectives of their buseinesse and begin to “live the litigation,”  this is a syndrome I typically recognize and discusss with my clients. Life moves on.  The litigation takes time and you have to continue with your life both personally and from a busienss perspective. 

For the employee?

Well it is the most difficult issue you will face and you will endure these situations for years to the detriment of your health, marriage and financial success.

Check in to review the  laws that protect you. You might find a rewarding exit strategy.

NOTE: 

[I guess with all the discussion of employment rates and jobs and the volatility of the stock market and the looming presidential primary season, I Will be focusing on jobs and employment over the next few weeks.  The theme-- it is crazy out there!]

It is kind of amazing what spectators we are. 

We sit on the sidelines and watch million dollar athletes fail in baseball over and over again. We scream at the flat screen in hi-definition.

In the “off season,” we are now into the analysis of business decisions and management techniques of the front office.

Did Francona burn out/lose control.

Was Theo focused? What about some of those high-priced free agents that went bust!

And then John Henry, the Red Sox owner drives into a radio station and demands to be heard to address the inaccurate comments of people who talk on the radio for a living.

How passive have we become! Or is this our idle gossip, our recreational pursuit when not at work. A lifestyle choice while your business suffers the same issues on a much smaller scale.

Maybe it makes us feel better about our jobs and businesses to see that everyone is screwed up.  In light of the exit of Theo Epstein and now the GM meetings coming up it still has left an imprint on the psyche of the community especially as Bill Belichek opens up the revolving doors in his defensive secondary and line with weekly hirings and firings.

In the end you and your company is as good as the people you employ.  And is it pretty easy to say that things are tough but at a recent SBANE meeting I was encouraged by the number of people who place people in jobs for a living and the employer demand for good people.  You can’t find them in some sectors and in most you need to train.

So what are you hiring and why is a strategic decision but how and how you let them go is a legal decision that needs some analysis.

This phenomenon is something I have noticed in numerous interviews, cases and negotiations I have reviewed or participated in recently. The phenomenon is simply this: 

There are two parties involved in a dispute and one abides by the rules and the other side seems oblivious to any rules! 

So, for example, can you imagine how much success you would have arguing or negotiation with a gangster (See Howie Carr’s Hitman), a Medillin Cartel member, or a suicide bomber?

These are extreme examples of a kind of  “rules breaker.” But if on the other side there is the party that steadfastly complies with rules — court orders that require things to happen at a certain date and time, construction issues that require some type of permit, paying your taxes, environmental permits, etc., the rule breaker can win every time in the psychological warfare of negotiation.

How then can your negotiation  have a level playing field?

What not to do:

You decide: “To hell with them, I’m going to break some rules!”

You will find that this backfires. That is  simply because the one thing that people who regularly break the rules are very good at is complaining about how others break the rules! People that do break the rules have no problem hypocritically pointing out  the horror of your indiscretions. (Usually with quite an attitude).

So you are now defending yourself about who is the party that least abides by the rules!

This becomes a diversion that the rule breakers love.

I have represented both by the way. The sorry fact is that rule breaking works…  If you let it!

So here is my Tip:  

Leave the rules out of it and think of your goals and objectives.

Also be reasonable in assessing the downside of violating a rule. It may not be the end of the world, but  could have an negative impact but probably not to the degree that you think.

So often we have someone complying with the rules to their detriment while court delays or actions of parties cause them harm? Often those things are used in the “street fight” portion of your dispute.  The side-show psychology of the contest where people want to gain an upper hand by filing a motion to score a point as if they are playing a video game.  They do this at a large cost — legal fees — and not with an eye on the game plan or their ultimate goals and objectives.

The conscientious addiction to not breaking any rule or fear of bending a rule or even being mistaken about whether a rule applies to you plays perfectly into the hands of people who do not abide by any rules.  So decide what your rules are and make your move consistent with an overall plan and a tough resolve to stomach some serious whining from the rule breaker.