August Carnival of Trust is Up

Back by popular acclaim, David Donoghue reprises his Carnival host-ship of last year in this month’s Carnival of Trust

For those who don’t know, the Carnival of Trust is hosted on a rotating basis by excellent bloggers, who themselves select what they consider to be the leading posts of the past month.  The host–not me–selects from submitted posts and those of their own searching; they choose how many, and from what walks of life, the posts represent. The only requirements are that the posts be good, the host be scintillating, and the subject has something to do with trust.

David’s blog–the Chicago IP Litigation Blog–of course brings a legal perspective.  But he hasn’t let that restrain him.  In this month’s Carnival, he has selected some excellent posts ranging from leadership (in the US Patent office) to restoring corporate trust, to Walter Cronkite, to an Amazon response to a crisis.

Rich and varied stuff, the food of good thought.  Many thanks to David. 

Blog-jog on over to David’s site to savor this month’s Carnival of Trust.



Listening for Litigators

Jean is an experienced attorney in California—doing mainly litigation.  She told me how she practices listening while taking depositions.

Jean: The main thing I do is I’m genuinely curious about what the defendant thinks.  I’m just curious.

Me: Don’t you have to find weaknesses in their stories?

Jean: That’s an outcome, not an objective.  I’m not looking for “gotchas” as an end in itself.  If I can understand their full story from their perspective, then I can understand where their case is weak, and where it’s strong.  Then in court I have no danger of taking things out of context—I know their context.

Me: Do people share things with you that are surprising?

Jean: Astonishing.  Sometimes their own counsel will elbow them to say, ‘shut up, that’s enough,’ and they’ll push back ‘no, I want to tell my story.’  People just want to be understood. 

Me: Don’t they know you’re hostile?

Jean: They know. But I think the desire to communicate overcomes that.  And, I suspect, if they feel heard and understood, then perhaps they’ll be more accepting of the court’s outcome—they’ve had their ‘day in court,’ and I play a role in that.

Me: Does this work for you?

Jean: Hugely.  The younger lawyers acknowledge me as being pretty effective.  They want to know how I do it.  I tell them, but they don’t get it.

Me: How’s that?

Jean: I have no secrets; I tell them the trick is to be a good listener, which means being curious about what makes the other person tick.  But they don’t seem to be able to get it.

I think in part it’s because they simply do not know how to listen, at all.  Hence they can’t hear me when I try to explain how to listen.  If you can’t listen, you can’t hear someone explain it.  Maybe they think it can’t be so easy.

Maybe it’s because they can’t get out of the adversarial mode.  Maybe that comes with maturity.  You don’t have to fight all the time to win cases.  Sometimes you just go with the flow, and you end up winning because of it.  They can’t seem to grasp that simple Aikido-like principle, use the energy presented to you to find the right answer.  And if you’re right, you win.  And if you didn’t win, well maybe you were wrong.

I was very taken by Jean’s description.  Isn’t this how the law, and lawyers, should function?  With genuine curiosity about the litigants’ respective positions? 

Is being an advocate necessarily at odds with forming relationships?  I’d like to think not, and that Jean is one of those who seems to understand just how to do it.

Do Lawyers Behave Rationally?

Of course they do. Just ask them.

They—at least those in the US—will also tend to define “rational” as based on linear, deductive thinking. Not unlike the law.

Dispute resolution, from this perspective, is largely a zero sum battle. That “win-win” stuff may work in business, but not when the chips are down in a court of law. Right?

Well, not so fast. Jim Peterson is a lawyer who handled European litigation for one of the global accounting firms; an American in Paris, he has a lot of perspective. And he shared with me this story:

I picked up a valuable lesson early in my expatriate experience in Europe – where the importance of personal contacts and relationship-building can elude the grasp of typically impatient Americans.

When I first arrived in Paris, I inherited a file on a long-standing claim by a French company against my American client. The suit was pending in Germany, where it had been largely dormant for five years, partly because of the ponderous system for large commercial litigation but more because local German counsel felt they were handling an annuity matter that would fund their retirements.

With this lack of urgency, the parties had had only desultory contacts about settlement, and the case management budget steadily hemorrhaged legal fees.

My first task was to contact my opposite in-house number about some trivial interim topic. From a brief telephone call that barely got beyond the “new guy in town” introductions, it was clear that for the time being the two companies had nothing to talk about.

Notwithstanding, as a new resident I triggered a follow-up call, to invite my French adversary to lunch. The explicit condition was that we were not to transact business or mention the litigation.

In summary, a good time was had, over an excellent meal.

More years passed, with no activity other than the ongoing drain of fees, until suddenly the settlement cork was pulled. Led by the Germans, there was real progress but an eventual make-or-break impasse. The local clients and outside counsel had gone as far as they could.

We inside counsel re-convened in France. Drawing on the modest but real stock of personal good will built up over lunch those years before – in truth not much more than the prosaic “How’s the family”– we were able to negotiate successfully and bring the matter to a mutually satisfactory close.

Could it have happened other ways? Perhaps. Had a long-term friendship been established? Clearly not. But I would never underestimate the value of the pay-off, from two hours invested in the sole achievement of a fine French meal and a measure of camaraderie.

Did Jim pursue a “rational” approach? If by “rational” you mean did it make sense, did it achieve outcomes, quickly and inexpensively? Absolutely.  In fact, the "French lunch strategy" beat the crap out of the usual adversarial system.

But if by “rational” you mean according to cognitive rules, case law and the procedures of the court—no way Jose. The traditional “rational” approach would have resulted in, as Jim said, only in an annuity for many lawyers.

Sometimes it makes sense—a ton of sense—to completely avoid the “rational” set of logical processes and systems.

Sometimes it’s rational to just be human. (Not to mention more pleasant). Yes, for lawyers too. Even American ones. In fact, for all service providers. (And it probably even works with California wines).

(Jim used to write a column for the International Herald Tribume. It continues at Re:Balance, where his current post compares Lehman Brothers’ fall with that of Arthur Andersen).

Blawg Review #150: Updated!

This piece from today’s Wall Street Journal Law Blog post by Dan Slater about the 60 Minutes story on legal ethics broke after the Blawg Review went up, but I think it’s important enough that it deserves a place in the review, alongside Howard Bashman’s original post. The commentary makes for relevant and compelling reading.

Welcome to this week’s presentation of Blawg Review, the 150th issue of the blog carnival for everyone interested in law.

I was introduced to blog carnivals by my friend and colleague David Maister, one of the co-authors of The Trusted Advisor book. David hosted Blawg Review #76 and #131 and agreed with me that a “carnival of trust” would be interesting as well and, hopefully, just as popular.

The famously anonymous editor of Blawg Review most graciously offered his experience to me as a mentor during the early development of the Carnival of Trust. I hosted the first two editions here on Trust Matters. My new blog carnival mentor at Blawg Review hosted the third. Since then, the Carnival of Trust has been hosted by David Maister, Steve Cranford, John Crickett, Ford Harding, Michelle Golden, and Duncan Bucknell. So, it’s with a debt of gratitude to lawyers who blog that I’m pleased to be hosting Blawg Review #150 on Trust Matters this week.

All lawyers, whatever their specialties in law, strive to be trusted advisors. In books, articles, and posts on this blog, I’ve written extensively on matters of trust, including topics of special interest to lawyers. I encourage those of you new to my site to explore my resources on building trust.

Disclaimer: this issue of Blawg Review includes subjects of interest to everyone, not only lawyers! While I’m not an attorney, I’ve discovered many interesting and helpful blog posts by lawyers, which I’m pleased to present in this Blawg Review #150. So here we go.

Raymond Ward has an excellent quotation from George Orwell advocating clear language. I might add that speaking and writing clearly and without jargon goes a long way to establish trust.

Sheryl Sisk Schelin posts Seven Days of Inspiration, which reviews non-legal websites that are among her favorites.

Kevin O’Keefe shows us nine ways to find the top legal blog in niches. Tip: it works for niches outside the law just as well.

Marc Randazza considers a proposal for the “Internet Notary” to harness the power of the free market to correct irregularities in the marketplace of ideas.

Jeremy Phillips couldn’t bring himself to write up the latest chapter in the litigation saga concerning the “Budweiser” name, so he solicited a few “buds” to compose Budweiser-themed haikus.

Those who appreciate real haiku will not want to miss this retired antitrust lawyer, David Giacalone, who writes snowjob: lessons from the other big vote.

Jim Chen revisits a previous topic and suggests again that law schools should do more to teach commercial law. Who could argue with that? Find out.

Gordon Smith discussed whether college-bound athletes can sue over rescinded scholarship offers. A good test of commonsense vs. the law, or so it seemed to me.

In the California gay marriage case, Dale Carpenter doubts the court will find for its advocates.

Mike Masnick, Tim Armstrong, and Kevin Donovan all discuss whether the decline of Digital Rights Management diminished the authority of the DMCA.

Eugene Volokh had another strong week with posts concerning the imposition of women-only hours at Harvard’s athletic facilities and a California court’s attack on home-schooling.

Kip Esquire takes the libertarian view on the ruling of the California Court: No Right to Homeschool.

Kevin Underhill nicely captures the comedy and pathos in a dramatic doughnut-related crime in Oregon this week. Some lawyers specialize in droll humor, and I love ‘em. Kevin is one.

Scott Greenfield says Some Alternatives to Sentencing Are Just Plain Bad.

Casey lives on Capitol Hill in Washington, D.C. He is a law student and works in politics; his name has been changed to protect his identity in this case. His story about what it’s like to spend five grim days in the D.C. jail is awful, but other inmates from the DC Jail could tell worse. “Casey” raises some pretty big social issues in a compelling way.

E.L. Lipman mourns the loss of a mentor-in-chief, William F. Buckley, Jr.

Judah Zuger at Changing the Court, a chronicle of how a group of planners and practitioners are attempting to change the Bronx court system’s approach to low-level criminal offending, tells a heartwarming story about youth giving back to youth.

I’ve always loved the Billboard Liberation Front’s unique brand of civil disobedience, but this time they’ve outdone themselves,” writes Kevin Jon Heller. Comments ensue.

Eric Turkewitz reports that Allstate Slammed With RICO Charge Over Sham Medical Exams, and A Doctor, Sued In Insurance Company RICO Suit, Responds To The Charge anonymously in the next post.

Jaya Ramji-Nogales discusses Renting a Womb: Outsourcing’s Next Frontier.

Douglas McNabb reports that the Untied Arab Emirates passed a law against human trafficking.

Peter Black links to a video that explains Twitter to those who don’t get it.

Barry Barnett tells a story of “Settlement Negotiations on Trial”.

Stewart Weltman gives the counter-argument to the leverage-is-good law firm model in a post he titles “News Flash – A Legal Consultant Gets It All Wrong When It Comes To How Lawyers Can Best Serve Their Clients“. Know what? He’s dead right.

Holden Oliver quotes the firm’s name partner, Dan Hull, who advises “Watch your clients’ money like it’s yours.”

Dan Solove considers Facebooks banishment of David Lat and due process. Who owns the right to social rights in privately held social networks?

Deven Desai asks Who Owns Your Emails, Blog Posts, or Facebook Pages? How About You?

William reports on a Night out on the town for Ricky Raccoon.

Ricky Gervais Inspires Copyright Opinion
is discussed at length in an excellent blog post by William Patry, Google’s Senior Copyright Counsel. He quotes a fine judge, who has this description about the putative inclusion of IP within some corporate training materials: “They are aggressively vapid; hundreds of pages filled with generalizations, platitudes, and observations of the obvious.” Yup, that would be pretty right.

John Wallbillich looks under the covers of Legal Directories: Insight or Indulgence? Are Legal Directories the equivalent of the Yellow Pages? Or are they high-touch opportunities or competitive differentiation?

Apparently there is a national movement supporting the rights of students to pack heat on college campuses,” writes Dan Filler.

Howard Bashman reports on a “26-Year Secret Kept Innocent Man In Prison; Lawyers Tell 60 Minutes They Were Legally Bound From Revealing Secret” .

Jim Maule writes with authority about Using Taxation for Non-Tax Purposes. You’ve heard this argument before—but not with this data.

Brenda Cossman considers when government funding becomes censorship.

Duncan Bucknell, who’s hosting the March 2008 Carnival of Trust, has this week’s roundup of IP Think Tank Global Week in Review.

R. David Donoghue at the Chicago IP Litiation Blog, which will host the May editon of the Carnival of Trust, has More on Toy Trains: Should Derivative Works be Registerable Without Permission?

Brett Trout looks at Patent Lawyer Porn.

Non-traditional lawyer Steve Cranford makes the case that “Committees Can Kill Even the Greatest Idea” is one of the Laws of Branding.

Former GC Anita Campbell, discusses Why A Positive Mental Attitude Matters During Recession.

Bruce MacEwen at Adam Smith, Esq. considers the problem of attrition at law firms: is it process or passion?

“So now comes the test. You’re a professional firm, with a variety of practice areas or target industries. Due to turmoil in the markets, business is down (or is forecast to be down) in one or more of our major areas. What do you do?” asks David Maister. You know the answer: now try to defend it.

Thanks to everyone who submitted or recommended posts for Blawg Review #150, especially to Colin Samuels and Diane Levin, who each sent me several recommendations but not their own excellent posts that I’ve cleverly hidden in the links to their names. A special thanks to the selfless editor of Blawg Review, whoever he is, for all the help and guidance with this and the Carnival of Trust.

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