Author: TSA Press

Carlos Ghosn’s escape from Japan was many things: Daring. Expensive. Enjoying the assistance of a disgraced former Green Beret hostage retriever. But one thing it wasn’t is as hard as it seemed. Initial reports to the contrary, Ghosn was not smuggled out of his luxury Tokyo apartment in a musical instrument case by a “band” of special operatives. He just walked out and headed to the train station.

Mr. Ghosn left his home in central Tokyo by himself around 2:30 p.m. that day, and walked about 900 yards to a hotel, where he met two men, according to NHK and Nikkei, which cited sources in the city prosecutor’s office and the Tokyo police…. The three then went to Tokyo’s Shinagawa railroad station, a major hub, and a little after 4:30 p.m. boarded a Shinkansen, or high-speed bullet train, for Osaka

If you’ve ever wondered why tuition is out of control at American law schools, look no further than New England Law Boston, which is paying outgoing dean John F. O’Brien — already one of the highest paid deans in the country who once boasted a $867K salary (he lowered it 25 percent amid pressure) — a retirement package of at least $5.3 million. It’s just a little thank you from a school that languishes in the infamous “146-192” U.S. News ranking, a band devised to avoid naming any specific school 192nd. O’Brien guided New England Law to the participation trophy of U.S. News rankings and will take home millions for the effort.

New England Law boasts a 42.6 percent employment score and a 30.6 underemployment score per Law School Transparency and a mere 55.7 percent 2018 bar passage rate. That’s a commitment to mediocrity that demands a multimillion dollar price tag! Thankfully, New England Law offers students a non-discounted $282,393 price tag to afford this kind of administration.

At the end of the year, the school will move on to provide unaccountable paydays to former male model, Senator, and current Ambassador Scott Brown. Brown has never run an academic institution before, but who needs experience when you’ve got Brown’s resume! A reminder that Brown’s resume is that he’s been accused of sexual harassment dating back to his time at Fox News and chastised by the State Department for allegedly using his ambassadorial gig to offend Samoa and ogle Peace Corps volunteers so putting him in charge of a school sounds like a smashing idea.

There’s a petition opposing Brown’s appointment for a whole host of reasons if any New England Law folks out there haven’t signed it yet.

What’s going on at New England Law Boston should outrage everyone. Students are paying through the nose for a degree that they can’t pay off to enrich an administration that shows no signs of being able to improve job prospects for students. In fact, the only New England Law grad I can think of to hit the kind of payday required to pay off the sort of debt students are racking up is… Dean O’Brien.

New England Law dean will leave with more than $5 million [Boston Globe]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Zimbabwe’s agriculture sector, hard hit by drought, is facing another significant risk as dam levels recede due to the high temperatures.

The country, which is facing serious food shortages, has had a poor rainfall season and was hoping to turn to irrigated crop to mitigate the impact of the drought.

In his 2020 National Budget, Finance Minister Mthuli Ncube set aside a budget of some Z$500m for irrigation as a way of “climate-proofing our agriculture”.

He also set aside a budget of some Z$250m for dam construction.

According to the Zimbabwe National Water Authority, water levels in the country’s major dams have started receding owing to the prevailing high temperatures as well as the reduction in river flows.

“Continued drawdowns for domestic and irrigation purposes is also a major contributor,” the water authority said.

As at Friday, the national dam level average had dropped to 48.8%, ZINWA tweeted on Friday.

This, analysts said, will have a significant impact on the country’s irrigation efforts.

Experts have said a rise in temperatures associated with climate change also resulted in an increase in insect metabolism and growth rate.

Wendy Madzura, an agronomist with SeedCo, said farmers will have to increase crop scouting to minimise damage from insects.

Post published in: Featured

The collaboration platform Slack appears intent on disrupting the use of email messages. And that’s fine — surely, plenty of people in corporate legal operations could use a little less volume in their inboxes. But, as with most of the new and nontraditional data sources that have been cropping up recently, data in Slack presents significant discovery challenges.

First, while you can set retention and deletion policies to govern Slack data natively, there is no way to apply a defensible legal hold and preserve Slack data in place. This makes balancing the duty to preserve with information governance a real battle. Second, it’s not uncommon for companies to copy all of the data every time they need to preserve it. This creates multiple copies of massive data sets — increasing both risk and discovery costs. Finally, in Slack it’s common to have discussion threads between multiple people who join and leave channels at any time. They also edit and delete posts, and the conversation threads are dynamic, as well as packed with abbreviations, misspellings, slang, emojis, gifs, links, and videos — all of which make it hard to find relevant information, not to mention challenging to view the information in context to discern its meaning.

I had a project a little over a year ago that involved a boatload of Slack data that was part of the potentially relevant discoverable material. The issues in the case revolved around who knew what and when, and lots of “discussion” on relevant topics had been held in the Slack workspace. The organization involved had created so many channels in the Slack workspace that it was difficult to assess what was relevant and what was not. We collected all the data just to be sure and decided to figure it out later.

Parsing through the multitude of Slack channels to identify the responsive messages was time-consuming. A document-centric discovery approach did not serve well because content in Slack is not like the data associated with typical electronic documents. Electronic documents usually have an identifiable beginning and end. Slack requires us to rethink what a document is in order to get to the relevant data.

The problem was that we had enormous strings of Slack messages, and it was in an unfamiliar format. The data was exported from Slack in JavaScript Object Notation (JSON) file format. It’s a file type that stores data and objects and is mostly used for transmitting structured data between web-based applications and file servers. JSON is similar to the XML file format, but it’s more lightweight, less verbose, and consequently, it’s faster to parse JSON data than XML. JSON files can usually be viewed with a web browser or text editor, but again, the data is cumbersome and difficult to read. So, we had a ton of JSON data exported from Slack, and we realized we lacked a workflow for examining this data.

Fortunately, our friends at Hanzo developed Hanzo Hold, a software platform designed from the very experience I faced on my project. Well-known for their web-capture technology, Hanzo launched Hanzo Hold for Slack in mid-2019. The tool enables users to defensibly preserve and collect data in a Slack workspace.

I asked Brad Harris, vice president of product, who recently jumped over to Hanzo from Zapproved, what brought about the development of Hanzo Hold. “It grew out of the experience of users who were looking for a better way to collect and preserve Slack data in a targeted and defensible manner,” he said. As so often happens in e-discovery, Hanzo “had a client who wanted a better approach that would tie in with their matter-centric workflows and we put our engineers to work.”

Hanzo Hold is more than a “hold” tool because it is both a preservation repository and viewer for assessing the value of Slack data early in the process. Hanzo Hold takes a unique approach to preservation, building a skeleton of the entire Slack environment to inform and later guide what is actually collected, reviewed and produced. The needed relevant data is ingested into the Hanzo platform along with the associated metadata, and it is indexed. This enables users to run simple queries on the Slack data to identify and produce the relevant material. And you can them produce the data by custodian, by channel, or even by date range.

Hanzo Hold represents to me what is right about e-discovery. There’s a problem and the solution is built to resolve that problem. I could have used Hanzo Hold on my project; if you’ve got Slack data responsive to discovery demands, I suggest you look into it.

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Mike Quartararo is the President of the Association of Certified E-Discovery Specialists (ACEDS), a professional member association providing training and certification in e-discovery. He is also the author of the 2016 book Project Management in Electronic Discovery and a consultant providing e-discovery, project management and legal technology advisory and training services to law firms and Fortune 500 corporations across the globe. You can reach him via email at mquartararo@aceds.org. Follow him on Twitter @mikequartararo.

The National Review has never been more than a pseudo-intellectual outpost, the sort of outlet that confuses aristocratic affectation with substantive thought. But the standards over there have fallen even from the middling heights of past decades with every article following a paint-by-numbers scheme of “trolling claim-straw argument-misapplied statistic-repeat.” At this point the only value to the magazine is in teaching students how to dissect bad math.

Take the latest article from John Jay emeritus professor Barry Latzer ripping New York’s bail reform law. While even supporters of the law’s aims have identified problems in the existing law, which attempts to mirror New Jersey’s bail system — one that has accompanied lower crime rates — those complaints primarily focus on implementation questions and tensions with other areas of New York law. Latzer, a criminologist and a Fordham trained attorney disagrees with the fundamental premise of the law and has all the bad math to prove it!

While New York law directs arraignment judges to focus on the likelihood of return when ruling on release, it does not provide for an assessment of the risk of nonappearance. This is especially puzzling, as the New York City Criminal Justice Agency (CJA), which screens virtually every arrested person in the city, provides a fairly accurate assessment of the risk of release. Where CJA recommended release only 7 percent of the discharged defendants failed to appear. That’s a 93 percent success rate.

“Focus on the likelihood of return” but not “the risk of nonappearance”? That is “puzzling” since those are functionally the same. But the real mischief comes when he cites the 93 percent CJA success rate. As a statistic, it reveals that CJA does a decent job of preventing bail skipping. What it doesn’t reveal is whether or not CJA does a good job of keeping folks out of jail who would reappear anyway. As it happens, the CJA would actually agree with this assessment and has pushed successful pilot programs more in line with the bail reform law. One CJA-inspired pilot program for ditching cash bail in Queens resulted in an 87 percent return rate. There’s not a great reason to think the 6 percent gap between the pilot program and the city’s overall numbers would shrink if applied to more areas though Latzer doesn’t even try to confront that hurdle since he ignores the Queens program entirely.

Why structure the law this way? Probably to head off public outrage if the most obviously violent felons, VFOs, had to be compulsorily released. But if public safety were the main concern then why not let judges make release decisions on a case-by-case basis, and why not let them take dangerousness into account the way judges do in nearly every other state? On the other hand, if promoting court appearances is the goal then why exempt violent felons from the release edict? The data show (anomalous as it may seem) that violent felons are among the least likely to abscond.

What is the answer to the question nobody asked? The new law is structured this way because the goal is to avoid wasting jail space (and, as the CJA notes, avoiding the stigma that results in “people who are detained [being] far more likely to be convicted and sentenced to incarceration“) on dudes picked up selling pot in the park. The existing bail system was working relatively well for violent crimes. This isn’t even a point anyone would quibble with if Latzer didn’t need an “inflammatory straw claim” to complete his National Review Mad Libs.

In 2018, before the law went into effect, 87 percent of New York City misdemeanor arrestees were released. Presumably, the remaining 13 percent will be ROR’d as the law takes effect. In sheer numbers this will be significant since misdemeanors represent nearly three-quarters of all arraigned cases. Judging by data from recent years, we could see an additional 23,400 misdemeanants released in 2020. And that number is for the Big Apple alone; it doesn’t include the thousands of upstate offenders.

So? The 156,600 “misdemeanants” (and for what it’s worth, that word technically means someone convicted, which these folks wouldn’t be pre-trial) that were released — many on cash bail — weren’t posing a significant threat in one of the safest cities in the country. The relevant statistic when discussing public safety is how many of those detained were not offered cash bail as opposed to those who simply couldn’t afford it. Because if those in the 13 percent were no different than the 87 percent except poorer, then these aren’t really an illuminating numbers.

The statute prohibits judges from demanding bail for nonviolent felony defendants or sending them to jail, even though their crimes may be serious, and even if they have records of numerous failures to show up for their court dates. Going by past figures we are speaking of roughly 12,000 felony arrestees who would have been jailed or released on bail under the old rules.

Note there are no numbers for “their crimes may be serious” or “numerous failures to show up.” These are just assertions thrown in to poison the well before the next misapplied statistic. “Going by past figures we are speaking of roughly 12,000 felony arrestees who would have been jailed or released on bail under the old rules.” But most of these folks would have been released if they had the money. The relevant statistic for public safety would, again, be the number of defendants in this category who were denied bail. Latzer doesn’t provide this figure because it wouldn’t be sufficiently alarming. As for the flight risk concern, his unwillingness to consider empirical data from either the Queens program or New Jersey’s experience undermines the assertion that 12,000 criminals would run rampant without cash bail.

Look, there are good reasons to seek changes to the cash bail reform law, but throwing around these misleading stats doesn’t advance any of them. With lawyers this bad at numbers, maybe it’s a good thing NY isn’t using a complicated bail formula anymore.

New York’s Bad Bail-Reform Law [National Review]
New York’s Upcoming Bail Reform Changes Explained [Brennan Center]

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Recharged and refreshed after a long winter’s break, I’ll admit that my new year kicked off with a bit of a bang.

The questions posed were simple enough: “What are the minimum purchase requirements, and when can we terminate the agreement without penalty?”

The answers were not so simple.

You see, after the junior counsel threw up his hands in unequivocal surrender, I spend hours putting together a masterpiece of a matrix of one of the most complex and sloppily drafted contracts I’ve ever seen. And someone once handed me a contract written on the back of an airsickness bag, so that’s saying something. There are nine amendments that don’t tie out, and it’s like a half-baked remake of Rashomon up in my office. Amendment four might contradict Amendment seven if Amendment two wasn’t inadvertently nullified by Amendment three through overbroad language. Instead of presenting a slew of potential legal conclusions that could potentially be drawn from this poorly concocted word vomit, I should have just written “Who the eff knows?” and been done with it.

But I can’t. Because I’m a sucker for pain.

So instead, I find myself sitting with a team of three business partners leading them through the twists and turns of this contract. Seriously, it’s like episode six of The Mandalorian … and who’s got time for that galactic shaggy dog?

And weirdly, when I finish, the trio is silent. Expectant.

Maybe, I’ve wowed them with my matrix prowess. But probably not. “Guys?” I press.

Sawyer, the millennial ring leader, who is apparently the reason that someone posted an “If you’re going to play video games in the bathroom, turn your volume down, dude” sign in the men’s room, says, “We’re waiting for the gotcha moment, Kay.”

“The gotcha moment?” I ask.

“You know,” he says, with a casual flip of his expertly tousled hair. “When you tell us that you’ve found some sort of technicality, so we don’t have to pay these guys.”

It’s barely a week into this new decade and already my mouth is flapping open in the breeze. So much for my new year’s resolution of channeling my inner Lizzo.

I suppose that Sawyer and crew aren’t entirely to blame. They’re the product of too many TNT marathons of such true-to-life lawyer movies as The Firm and The Pelican Brief and A Few Good Men, where smoking guns abound and in that eleventh hour, the too-good-looking-to-actually-be-an-attorney attorney saves the day in some dramatic fashion that involves rolled up sleeves, well-timed admissions of guilt, and some high-speed car chases.

Looking longingly out the window to where I can see my parked vehicle, I wonder if I can create a diversion, slip past these children, and Dukes of Hazard-style slide across the hood of my car and into the driver’s seat before they notice.

Instead, I do that thing where I try to smile, but end up showing no teeth. I basically look like a constipated Muppet. I really wish I had some neat and tidy resolution for them, particularly because I know that at some point some attorney took an indifferent hatchet to the words. And even though I never met this cold-blooded killer of all things good and orderly, I still feel responsible for his failing somehow.

I sigh. Julia Roberts never would have sighed like this in Erin Brockovich. She’d have jutted her chin out (and maybe some other anatomical parts for good measure) and said something pithy. But this is not a situation that calls for pithy. This is a situation that calls for the unsexy, unvarnished, unattractive truth. “Guys, there is no gotcha moment here. This one’s going to be a commercial resolution, not a legal one.”

I won’t spoil the ending, but unsurprisingly, it did not end the way most lawyer movies end, with someone without a business book being promoted as the youngest partner ever or winning the unwinnable case based on eye-witness testimony pertaining to a Chevy Bel-Air, but rather ends in a chorus of groans and some serious side eye.

Because as we all know, real life practice is nothing like the movies.

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Kay Thrace (not her real name) is a harried in-house counsel at a well-known company that everyone loves to hate. When not scuffing dirt on the sacrosanct line between business and the law, Kay enjoys pub trivia domination and eradicating incorrect usage of the Oxford comma. You can contact her by email at KayThraceATL@gmail.com or follow her on Twitter @KayThrace.

* Michael Avenatti has failed in his bid to have counts in his indictment dismissed. [Nassdaq]

* A suspended Providence attorney has admitted to taking a dead client’s pension for around a dozen years. Seems slightly unethical. [Providence Journal]

* A man charged with murder has elected to act as his own attorney. [The Herald]

* Ikea is reportedly paying $46 million to settle a lawsuit involving a dresser that tipped over and killed a child [CBS News]

* A veteran of the Mueller investigation has decided to join Cooley LLP (the law firm, not the school). [National Law Journal]

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Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.

Displays of dominance are part of the natural order. Just turn on NatGeo or Animal Planet on a random weeknight for proof. In fact, there is nary a species where the cycle of life doesn’t include territorial disputes that are resolved by force — or its threatened use. Whether it be the old lion cast from the pride by a younger challenger, or two moose banging antlers in some Canadian’s driveway, might makes right in the natural world. Especially when it comes to competitive pursuits such as breeding, leadership, or just getting the best piece of meat from a freshly killed carcass. What is true in the animal kingdom finds its parallel in the human sphere as well. In humans, this manifests chiefly in sports and other physical pursuits. But even adversarial proceedings of a more intellectual bent also include jockeying for dominance.

The importance of projecting strength is one that is conveyed to litigators early in their careers. Young litigators are taught the importance of leading briefs and oral presentations with their strongest arguments, while being prepared to deflect the strongest arguments of their opponents. Those at big firms learn to draw strength — and project it — based on the reputation of the firms they are associated with, just as litigators at “elite” boutiques do. High-priced litigators draw succor from their ability to charge high rates, while contingency lawyers proceed with confidence in their ability to assess risk in the name of securing outsized benefits from their willingness to forego short-term billable hours. In short, litigators inherently understand the need to project strength to their opponents — and spend much of their time thinking of ways to do so as effectively as possible.

This is true at every stage of litigation, including when taking the decision whether to initiate a case in the first place. There are times when a client wants to express disapproval of the actions of a rival, but wants to do so in a matter that won’t escalate into an active dispute. Other times, litigators are asked to send “a stronger message,” which in the IP space typically takes the form of a cease-and-desist letter identifying the allegedly infringing conduct and demanding that it stop — with the infringer making some recompense to the IP owner for the past infringement, of course. An even stronger display of dominance is when one side files a complaint, with or without notice to the other side in advance. No matter what course of action is undertaken, clients have two main expectations from their chosen litigation counsel: that the appropriate steps to achieve the client’s objectives will be undertaken at the appropriate times and that the client’s positions will always be communicated from a position of strength. Put another way, no client wants their litigation counsel to project weakness in any respect.

Since even bare-knuckle litigation remains more civilized than actual violence, litigators are constantly thinking of ways to project strength on behalf of their client — to both the adversaries and the adjudicators of their disputes. The arsenal of tools available to do so, however, is pretty limited at the outset of a dispute. At the same time, that is precisely when an effective projection of strength can result in a favorable result that helps both parties avoid the cost and uncertainty of active litigation. It is no surprise that sophisticated litigators and their clients try their hardest to see if a dispute can be resolved on reasonable terms at an early stage, all the while understanding that such a result is often impossible — particularly where one side of the dispute is incapable of, or unwilling to, accurately assess the strength of their legal position. But since almost all cases ultimately settle, it still behooves parties to give early settlement discussions their best efforts, if only to avoid wasting time and resources of both the parties and the judicial system.

As a recent article argues, one of the main roadblocks to early settlement is an information imbalance between the parties. In fact, America’s system of liberal discovery is predicated on helping litigants bridge that information gap before an actual trial or summary adjudication of the dispute takes place. But as the authors argue, it could also be helpful if courts “create procedures facilitating signaling,” as part of encouraging parties to take meaningful steps toward settlement — before expensive discovery takes place. Likewise, the authors suggest that the most effective “litigation signals” — those based on assuming a level of risk depending on the case outcome — are rarely used in litigation practice, because of “antigambling norms, and restrictive ethics rules.” That said, there is still the hope that as lawyers get better at both sending and interpreting strength signaling in litigation, discovery would become less necessary as a means of rectifying information imbalances. For now, however, “parties do not fully realize the benefits of litigation signals,” at least partly because of the entrenched nature of many litigators to position their cases to get to discovery, rather than looking for alternatives. In short, the system is set up to discourage the precise types of strength signaling that could actually result in quicker resolution of disputes.

Ultimately, litigation signaling is something that nearly every litigator does, but perhaps without thinking about how best to do so. Part of the constraint on litigators is a natural unwillingness to try new approaches, or at least experiment with tweaks on existing ones. But, as on the savannah, signals that are both creative and unimpeachable in terms of signaling strength are the ones most likely to result in success. Perhaps with more research into this under-investigated, yet vital, area of practice it will become clearer to all where the opportunities for innovation in communicating effective signals of strength early in cases truly lie. Because as important as it is to always signal strength, clients also depend on their counsel to do so wisely.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

The United Nations warned last week that the southern African nation faced a second successive poor harvest this year because of patchy rains, compounding problems for millions of people already grappling with last year’s drought and the worst economic crisis in a decade.

CBZ said in a notice it wanted to raise 500 million Zimbabwe dollars ($30.6 million) to purchase seeds, fertiliser and chemicals for maize and soybean production.

The bond has a tenor of 270 days and an interest rate of between 15% and 18%.

A second dollar-denominated bond worth $50 million with the same tenor seeks to raise money to import farming chemicals and fertilisers that are not available locally, CBZ said. The bank will pay 9.5% interest.

Maize is the country’s staple crop, while soybeans are used in the production of cooking oil and animal feed.

Under a new government-backed programme to ensure food security, CBZ buys farm products and issues farmers with vouchers to purchase them. The bank will then recoup its money from farmers who surrender part of their harvest. The bonds are guaranteed by the government.

Zimbabwe is nearly halfway through its summer crop season, but the rains have been poor, raising concerns that the government may not meet its growth target of 3.1% this year. Agriculture accounts for 17% of the country’s gross domestic product.

The poor rains will likely prolong 18-hour daily power cuts as dam water levels for the biggest hydro electricity plant remain precariously low.

Up to 8 million people, half Zimbabwe’s population, will require food aid this year after last year’s maize harvest fell by half, according to the United Nations.

Post published in: Agriculture