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Does the internet mean the death of
intellectual property?
By Nevin Shaffer
Ask just about anyone if it is OK to download a copy of a song from the Internet for free. Chances are they will say, “If you can do it, it must be OK!”
Technology has always stressed existing laws. Now the Internet is stressing and stretching intellectual property (IP) laws but, in my opinion, this stress is good for intellectual property! Here’s why.
What other choice do you have but to protect your business? That is unless you are willing to give up all hope - patents, trademarks, | "If you are in business you have Intellectual Property that needs to be protected…" |
copyrights and trade secrets are your best protection against competitors and thieves. In a society of laws, such as United States and mostof the relevantmarkets of the world, laws set the limits of permissible competition and individual behavior. Thus, no matter what technology is developed, the law is still the law and, importantly, ignorance of the law is no excuse! So while it is far from settled and many violations of your legal rights may go unpunished despite your best efforts to protect yourself, a proper IP protection plan for your business is critical for long term existence in today’s market.
What plan, you might ask, is a proper plan? A proper plan starts with an IP asset analysis to identify what kinds of IP you have. Please know that, if you are in business you have intellectual property! You have original works of art and authorship (advertisements, software, songs), you have words, symbols and slogans you use to identify and distinguish you from your competitors (brands), you have things you have learned about making your business a success that your competitors would love to know (pricing policies, marketing strategies, customer lists), and you may even have created useful, new and non-obvious improvements to existing technology (chemical, mechanical, electrical, software devices). Many of the protections for these assets exist to a minimum degree upon creation. Maximum protection for your most important IP assets, however, gives you maximum protection against honest competitors and thieves alike. The type of protection you can get from IP is the right to stop people from copying your ads, using your brands, taking your customer list and making, using or selling your inventions. Thus, once identified and protected, your IP assets can give you the leverage you need to end the inevitable conflicts that arise for successful businesses in this Internet connected world.
So, if you ask me, the answer to the title question is: No! I believe that instead of killing your intellectual property, the Internet has made intellectual property much more important because it may be the only weapon you have to defend your company from the travesties of the Internet itself.
Nevin is a licensed patent attorney and has been practicing Intellectual Property law for 28 years. Contact him at www.nevinshaffer.com.
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Back from Hell
Alabama's Legal Climate in 2008
By Forrest Latta
It has been nearly twenty years since Alabama became the focus of a Forbes Magazine article ("Tort Hell") which led to legislative reforms and political changes on the state's appellate courts. The result was a far different and more improved legal climate today. But as the saying goes, it’s hard to shake a reputation. Memories are long and the impressions of Alabama’s lawsuit frenzy may prove the hardest thing to reform. Alabama's Top 10 solutions to "Jackpot Justice"
1. The US Supreme Court has sharply curtailed punitive damages.
2. Binding arbitration now governs many consumer contracts.
3. Tort reforms enacted by the Legislature restrict many causes of action.
4. Class action lawsuits have been sharply limited and regulated.
5. Many group insurance disputes are no longer allowed in state court.
6. Medical liability cases are now subject to new rules of proof.
7. Consumer fraud cases now face stiffer burdens of proof
8. Alabama’s voters have elected more conservative judges.
9. Mediation has promoted settlement, reducing trials by a quarter.
10. New court rules limit forum shopping for "magic" jurisdictions.
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While it is true Alabama has dropped off the annual list of "Judicial Hellholes" published by the American Tort Reform Association, it remains mired at the bottom of most rankings of state tort systems. For instance a recent U.S. Chamber report ranked Alabama 47th in the nation, above only Mississippi, Louisiana, and West Virginia. Another recent ranking by the National Association of Manufacturers, which published a "U.S. Tort Liability Index," listed Alabama at number 40.
What these lists tell us is that perceptions of Alabama have not caught up with reality and we still have more work to do, including rebuilding our reputation. Despite years of reforms and reversals of big jury verdicts, Alabama still has a black eye from the "tort hell" days.
Few observers would dispute that Alabama has seen unprecedented economic growth in the last 10 years -- paralleling the improvements in its legal climate. There is a lesson here, which has not gone unnoticed by the insurance community either. Commissioner of Insurance Walter Bell recently issued a task force report that concluded “Alabama’s days as Tort Hell could be over.” And the insurance industry has been cautious in stating that while there is no direct correlation between tort reform and insurance premiums (there are many other factors that affect the equation) it certainly helps.
Nonetheless, Alabama's tort reforms are clearly paying off in business growth. We owe our elected leaders and judges – and the voters who chose them – enormous credit for addressing the "tort hell" climate and cleaning it up. For those like me who were among the most vocal critics, we likewise owe it to Alabama to be equally vocal in telling the story of Alabama's journey back from hell and how tort reform works
Success does not mean we can rest upon our laurels, however. There remain issues and courthouses in Alabama that still need attention. And we must not forget that Alabama’s legal system is inherently political (all of our local and appellate judges are elected) so the benefits of tort reform can be wiped away in one election cycle. Indeed, this is one area still needing reform. At least for now Alabama is becoming known more for a conservative court system and improved laws than the excesses which tarnished our reputation. Yet it takes years to repair a reputation, and the task now is to continue the reforms while also reforming perceptions.
Our economic prosperity depends upon business development, which requires insurance, financing and the many other things that depend upon the confidence of business managers in the stability of the law and the character of those who administer it. We must never forget the lesson of tort reform in Alabama -- that our court system is only as good as we make it.
Forrest Latta is a partner in the Mobile, Alabama, office of the law firm Burr & Forman LLP where he practices in the areas of Business and Insurance Law. For over twenty years he has advocated tort reform -- speaking, writing, and arguing cases in courts.
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Implementing Trial Technology
by John F. Kilpatrick, CLVS
The litigator’s role at trial is to convince. However, the rapid pace of technological, demographic and cultural change in American society has significantly affected the methods needed to accomplish that goal. Research shows that media images have resulted in much higher expectations of lawyers and their trial presentations. Jurors expect lawyers to perform as effectively as those portrayed in movies and on television. Lawyers who fall short of those expectations run the risk of creating unfavorable results. Understanding effective jury persuasion techniques using the latest trial presentation technology is a crucial step in maximizing chances of winning at trial.
It is very difficult to keep up with technology in the legal industry because it is constantly changing. The TechnoLawyer daily email announces the launch of a “major legal technology break-through” nearly every day. It’s overwhelming. Most attorneys (and their staffs) don’t have the time or desire to learn new software. But clients, juries and judges expect to see quality presentations that require the use of this technology. Effective multimedia presentations in the courtroom can be easily managed by following some simple principles that are applicable in nearly every business situation.
| "Jurors expect lawyers to perform as effectively as those portrayed in movies and on television." |
The most important thing to remember is that technology will never replace dedicated people who practice law, input data, transcribe records, take photographs, produce videotape or other demonstrative evidence. The technology is but another tool that, when joined together with knowledgeable attorneys & litigation support experts, can be very effective.
Good technology is compatible with the way you work. Successful attorneys should not have to change the way they practice law in order to accommodate new technology. Good technology should enhance the presentation, not distract from it. The best way to ensure compatibility is to test, test and retest before implementing the new technology.
Once your content and visual aids are ready for trial – rehearse, rehearse and rehearse again. Rehearsals are the most effective method to ensure success at trial. “Train the way you fight” is the insistence of every military leader and the best route to victory. With that in mind, it’s important to rehearse with the actual equipment and trial technician you’ll use at trial.
Good technology is useless without great people. Technology will never replace good people - you need both. If implemented correctly by capable technicians, trial presentation technology will improve attorneys’ performance at trial, allowing them to persuade judges & juries with visual presentations that are accurate, interesting and persuasive.
John Kilpatrick is an expert in legal video, forensic photography and trial presentations. He is the President of LEGALimaging, LLC – A Visual Litigations Support Firm. He can be reached at john.kilpatrick@legal-imaging.net
| Expert witness industry trends
By Dawn Corrigan
In recent years, the legal industry has produced several subsidiary industries. Legal document management is one of them; another is the management of expert witnesses. As the complexity of technology, intellectual property, the securities industry, and other key areas of global commerce grow, so does the need for experts in very precise areas of knowledge when litigation arises.
Finding the right expert can be like looking for treasure without a map. Increasingly attorneys at the country's largest firms, known as the AmLaw 100, are turning to expert witness search firms for help finding the right experts for their key intellectual property, anti-trust, securities, and other cases.
“There’s so much involved in finding the perfect expert witness,” says Ted Gorder, Vice President of Fulfillment at one such firm. “Expertise in the subject matter, of course, but there’s also presentation and communication…the whole package matters.”
Working through a search firm offers experts several advantages as well. Marketing costs are offset if the search firm is, in effect, actively pursuing opportunities. Contracting, billing, and collecting are also handled by the search firm. Experienced expert witnesses know these can be some of the more odious tasks associated with consulting work.
| "With the current threat of an economic recession, commercial litigation and, in particular, patent litigation is picking up." |
Though use of expert witnesses in both criminal cases and civil litigation has grown in recent decades, consultants who rely on litigation as a portion of their business have expressed concern about stability during the current economic downtown. The legal industry is sometimes described as "recession proof," but some commentators dispute that description. A January 2008 Client Advisory issued by Hildebrandt International and Citi Private Bank found that all legal practice areas were suffering in the current economy.
Alternately, PricewaterhouseCoopers released their own study, saying, "With the current threat of an economic recession, commercial litigation and, in particular, patent litigation is picking up."
On the whole, most observers agree the outlook for the legal industry is positive. Management consultant Peter Zeughauser suggests that litigation, intellectual property, restructuring and bankruptcy are likely to stay strong even in case of a recession, while mergers, acquisitions, and private equity work are likely to taper.
Ultimately attorneys and experts must ride out the storm together. Utilizing an expert witness search firm to locate, qualify, and engage top-notch (but hard to find) experts is one way to make the process more manageable for both parties. As one search firm says on its website: "Let us do the leg work so the attorneys can focus on the legal work."
Dawn is writer/author and is a member of the marketing team of IMS ExpertServices located in Pensacola, Florida. You can contact her at www.ims-expertservices.com.
| Introduction to E-Discovery
By Douglas A. Greene, CCE, MCSD
What is e-discovery?
Electronic discovery, or "e-discovery", refers to discovery in civil litigation that deals with information in electronic form. What makes e-discovery different from traditional paper discovery is that it deals primarily with Electronically Stored Information, or ESI.
One of the most significant challenges with ESI is finding it, commonly called Identification. First of all, you have to know where to search. Personal computers and network file servers are a first logical starting place, but ESI can exist in numerous other locations. Some of these locations are easier to search than others. For example, it’s much easier to run a search on a folder contained on a file server than it is to search a backup tape that may contain that same folder (along with many other folders). The Federal Rules of Civil Procedure address this issue, which is termed Accessibility.
Under FRCP 26(b)(2), a party only needs to search and produce from “reasonably accessible” sources of ESI. This means that not every possible location of ESI needs to be searched, only those that are determined to be “reasonably accessible.” In practice, this means that personal computers, file server and other online ESI locations must be searched. Generally, near-line (e.g. remote backup) and off-line (e.g. backup tapes) do not need to be searched. However, parties must identify and disclose locations of ESI that are determined to be “not reasonably accessible.” So it’s not sufficient to just exclude these sources; they must be identified and disclosed. It’s also important to bear in mind that a court may order production from any source. So, inaccessibility doesn’t remove the duty to preserve ESI.
| "...inaccessibility doesn’t remove the duty to preserve ESI." |
Determining the scope is another important element of Identification. Scope defines the extent or range of the search. It is usually defined in terms of people (also called custodians), types of ESI (e.g. emails, spreadsheets, web browser history, etc.), and timeframe (i.e. date range). There are other scoping factors, but these are the most common. Sometimes, it makes sense to determine the scope before determining where to search because it may help to discover and/or limit the locations that need to be searched.
There are a number of things to prepare for a lawsuit before a lawsuit is filed. Develop and implement a reasonable records management plan. Every company should have a records management plan that, at a minimum, identifies the retention period and destruction policy for each type (or category) of document the company maintains. The records management plan should also identify all regulatory and compliance (e.g. IRS, SEC, EEOC, etc.) requirements for each type of document. The destruction procedures must be performed routinely, and suspended during a litigation hold, to demonstrate “good faith” and to minimize the risk of spoliation sanctions.
Prepare a Litigation Response Plan. Every company should develop a Litigation Response Plan that defines how the company responds to a lawsuit. It should include the Litigation Hold procedures describe earlier in this article. Without a plan in-place, the company has to create a plan for each lawsuit. That can be an ineffective way to address a lawsuit and will more than likely result in higher legal costs.
The time to prepare for e-discovery is now. Dealing with e-discovery after lawsuit has been filed limits your options, increases your risk, reduces your chances of winning and results in significantly higher legal costs. Why wait?
Doug Greene is an expert in computer forensics and electronic discovery. He is the Vice President of Legal Technology at LEGALimaging, LLC – A Visual Litigations Support Firm. He can be reached at doug.greene@legal-imaging.net
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