Category: News Feeds

Holiday downtime is approaching as is the new year, so it’s a perfect time to reflect on your progress (or lack thereof) of going paperless.

In this webinar, we will explore paperless office fundamentals such as sharing files with clients in a secure manner, using e-signature, and automating document production.
You’ll develop a plan to turn ideas into action and make sure your firm is on the way to increasing efficiencies and eliminating waste.

Join Larry Port, CEO of Rocket Matter and Adriana Linares, President of LawTech Partners on December 9th at 1 p.m. ET / 10 a.m. PT to prepare your legal office for seamless automation.

Learning Objectives:

• Understand the operational and time waste that can be eliminated by switching to a paperless workflow.
• See an alternative to a “client portal” – a much-requested but inefficient solution to information sharing.
• Come away with an actionable plan for embracing automatic document creation.
• Explore paperless invoicing and electronic payment options.

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The NCAA Division I Council has submitted proposed amendments concerning college athletes’ right to commercially exploit their names, images, and likenesses, which will be voted on in January 2021.

I agree with Florida Representative Chip LaMarca, sponsor of the legislation that will make Florida the first state to independently provide athletes these very important rights, who tweeted, “Sadly, the NCAA failed again & the states must continue to pass #NIL laws until the Feds create a solution. @RepAGonzalez has the leadership and knowledge to get it done.” Representative LaMarca tagged U.S. Representative Anthony Gonzalez, who co-sponsored the Student Athlete Level Playing Field Act, which I believe is the most practical and realistic federal legislation focused on this issue.

What is so bad about the NCAA’s proposal? Here are three significant areas of weakness.

1. It is overbroad and provides schools too much power.

“An institution may prohibit a student-athlete’s involvement in name, image and likeness activities that conflict with existing institutional sponsorship arrangements,” states proposed NCAA Bylaw 12.5.3.1.3. It continues, “An institution, at its discretion, may prohibit a student-athlete’s involvement in name, image, and likeness activities based on other considerations, such as conflict with institutional values, as defined by the institution.”

This is the opposite of creating a free market where athletes are able to enter into endorsement deals and otherwise license their publicity rights to third parties for commercial gain. Instead, this particular provision essentially allows a university to pick and choose when it wishes to subjectively prohibit a player from entering into a deal. “Institutional values” are to be defined by the institution and, without a set of objective values that do not shift on a case-by-case basis, there should be a fear of the values changing whenever it suits the university.

2. It improperly tries to shield athletics departments from losing deals.

The second sentence of the newly proposed NCAA Bylaw 12.5.3.1.2 says, “a student-athlete’s name, image or likeness may not be used by an athletics equipment company or manufacturer to publicize the institution’s athletics program uses its equipment.” This is entirely inequitable.

For instance, a football player at the University of Florida would likely not be permitted to enter into his own economic relationship with Jordan Brand, because the team is already sponsored by the company and a relationship between the player and brand could be construed as one where the brand is publicizing that the school uses the equipment. Meanwhile, nothing prevents Nike, the official sponsor of the National Football League, from entering into separate arrangements with individual players for the promotion of the brand and so that the brand can use those players’ publicity rights. Furthermore, nothing prevents the school from allowing the brand to publicize that the players use the equipment on the field.

This provision seems to be intended to protect universities from losing valuable partnerships based on a theory that the brands will choose to dedicate their resources to individual players as opposed to the entire athletic department. It is a flawed theory and, even if true, improperly denies college athletes from truly being able to exploit their publicity rights.

3. It plays favorites with institutions over athletes.

Proposed NCAA Bylaw 12.5.3.1.2 begins by stating, “A student-athlete shall not engage in name, image and likeness activities involving a commercial product or service that conflicts with NCAA legislation (e.g., sports wagering, banned substances).”

I can accept college athletes being prohibited from affiliating with certain industries, but I cannot comprehend why the NCAA would ban athletes from involvement with those brands while allowing member institutions to earn money from those types of relationships. For instance, why should a college athlete be restricted from entering into a publicity rights arrangement with a sports wagering company when the University of Colorado is earning a minimum of $1.625 million from a five-year deal with sports gambling company PointsBet? Why should a college athlete be told he cannot license his name to a liquor brand when New Mexico State is not prohibited from doing a licensing deal to create a “Pistol Pete” whiskey?

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Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

I, of course, don’t know if Donald Trump has committed any crimes. It’s possible that a jury will tell us the answer to that a couple of years from now.

For now, Trump is not just presumed innocent but is not even charged with any wrongdoing.

But suppose he actually did something for which he could be charged. Should he be prosecuted?

Let’s set aside for a moment the issue of a self-pardon by Trump or a drive-by pardon where Trump resigns on January 19, President-for-a-day Mike Pence pardons Trump, and then Joe Biden takes over at noon on January 20. Those pardons would raise hard constitutional questions, and no one’s ever mistaken me for a constitutional scholar.

Although I won’t discuss it here, please do remember, as many seem to overlook, that pardons have consequences. If a person receives a pardon, that person is no longer at risk of punishment and so loses the privilege against self-incrimination. If Trump were to receive a pardon and then be compelled to testify before, say, a committee of the House of Representatives, Trump would be required to speak. If Trump lied during that testimony, he could be prosecuted for the perjury.

Let’s also set aside other paths that people are talking about: A truth and reconciliation committee to investigate Trump’s conduct while in office, the appointment of an independent counsel to investigate Trump.

I’m a purist. I’m thinking about only two things: First, should Trump be prosecuted for federal crimes that he may have committed while in office?

Many Democrats shout “no.” Impeachment didn’t hurt Trump politically; it may have helped him. Why, Democrats ask, should Democrats do something as counterproductive as prosecuting Trump?

I ask in return: Why do Democrats get a say in this? Neither you nor I should care whether a prosecution helps or hurts a political party. That’s irrelevant; put it out of your mind.

Independent of party politics, should Trump be prosecuted for federal crimes that he may have committed while in office?

On the one hand, no. We should not prosecute former presidents. It sets a terrible precedent. And remember: What goes around comes around.  Trump’s been screaming for four years that Barack Obama committed crimes and should be prosecuted. I’m confident that, if Trump is prosecuted next year, Republicans will be screaming that Biden did something felonious while in office and should be prosecuted in 2025. I’m not sure I care to live in that world.

On the other hand, yes. Why should the president be treated any differently than other citizens? If you or I tried to pull off some felonious crap with the president of the Ukraine, we’d probably go to jail. Why shouldn’t Trump?

This is a close call, but one could reasonably lean toward nonprosecution.  You and I are not the president; the president should not be prosecuted for fear of generally disrupting the political system; there are lots of benefits to being president, and not being prosecuted for federal crimes, if any, committed while in office is just another benefit of the office.

How about prosecuting the president not for policy-related matters but for things he did in his own self-interest?

I’m with you on the policy matters: We should give presidents an extraordinarily wide berth on matters that relate to policy, even if those actions could be in the president’s own partisan interest. Thus: I don’t know exactly what the “torture memos” were in the George W. Bush administration, but they had something to do with how aggressive American interrogators could be in pursuing evidence of possible attacks against the United States.  I’d steer far clear of prosecuting anyone for these things: People thinking in good faith about the appropriate course to protect America are entitled to deference, even if you disagree violently with those people’s conclusions.

Many — maybe most — presidential decisions rest at the intersection of policy and partisanship. Any policy that a presidential candidate campaigned on is partisan when the president later enacts that policy. For example, it may have helped Democrats (or Obama personally) for Obama to have passed Obamacare; that’s government. It may have helped Trump to take assorted action to “build the wall.” That’s the intersection of policy and partisanship; give him deference.

I lean the same way on more personal issues, such as the suggestion that Trump should be prosecuted for having violated in some way the Emoluments Clause or the Hatch Act. Presidents do many things that benefit the president personally; unless we can draw an extraordinarily bright line between office-related conduct and solely personal conduct, we should be wary of prosecutions.

Here’s the harder question: Should Trump be prosecuted for state crimes he may have committed before he took office?

If you think about the politics of this, you’ll give yourself a headache:  Democrats run both the Manhattan District Attorney’s Office and the office of the New York Attorney General. (The Attorney General has been reported thus far to be thinking only about civil liability, although sometimes these things take on a criminal life.)

Line prosecutors in the Manhattan DA’s office always scream, “Politics play no role in what we do!” That’s a pretty good sign that they’re doing political stuff. (Ah, c’mon Cy; I’m just kidding. Can’t you take a joke?)

The politics of this are funny: Perhaps the national Democratic Party, taken as a whole, doesn’t want to prosecute Trump for anything, for fear that a prosecution would energize his base.

New York Democrats may feel differently about this.

And folks in the local prosecutor’s office may feel differently still. Some of those folks may have political ambitions. They may think that massive name-recognition resulting from a prosecution is a good thing for them personally; the rest of the party be damned.

Most presidents won’t have to worry about prosecution for things they did before entering office. If presidents aren’t prosecuted during the four years that they’re in office, the statute of limitations would have run on most claims by the end of the presidential term.

But other than that, on state prosecutions, perhaps we should do an unusual thing: Let state prosecutors pursue wherever the evidence takes them, and then proceed in the way the evidence suggests.

Wouldn’t that be a pleasant change of pace?

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

Outside the Gaston County, North Carolina courthouse, there’s a 35-foot tall statue of a Confederate soldier. Like most Confederate monuments, it wasn’t put up until years after the Civil War, and while latter day defenders of these abominations always run to saying “it’s just history!” the people who erected the monument were pretty explicit about why they did it. At the monument’s dedication, the speaker explained that North Carolina “stood for the integrity of a whole civilization and a white race, and today [in 1912] North Carolina holds in trust for the safety of the nation the purest Anglo-Saxon blood to be found on American shores.”

So, yeah, not so much about “history.”

But a new lawsuit takes aim at the statue and hopes to provide a model for lawyers across North Carolina and, to the extent possible under other state constitutions, across the country.

The lawsuit grew out of a political retreat. Gaston’s County Commissioners had pledged to remove the statue, but abruptly reversed course in August, agreeing to keep it up indefinitely. This prompted three Gaston County organizations focused on promoting equality for their Black members and for African Americans and a multi-racial group of individual plaintiffs to file suit. They’re represented by an array of civil rights specialists, consumer protection attorneys, and a former North Carolina Deputy Attorney General.

Generally, people have either pushed politicians to remove the statues voluntarily or taken direct action and torn them down like a Saddam statue. The lawsuit attempts to forge a middle path that bypasses feckless politicians, while not requiring anyone to take a jackhammer to public property. The North Carolina state constitution contains a number of provisions ranging from general statements of equal protection and anti-racial discrimination to specific provisions against supporting secession. That the county is shelling out upwards of $50,000 to maintain the statue doesn’t hurt the cause either, providing the sort of dollars and cents out for anyone not ready to join modern society and see the monument as a discriminatory attack on its face.

The suit was filed last week so the defendants haven’t had a chance to respond yet. Check out the full complaint on the next page.

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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.

* Judge Judy’s lawsuit against a former broadcast partner about allegedly unpaid profits is heating up. Maybe they can resolve their differences on The People’s Court… [Deadline]

* A lawyer for the first woman to face a federal execution in decades is seeking a delay of the execution because the attorney is battling COVID-19. [Yahoo News]

* It has been recently revealed that one of Jeffrey Epstein’s defense lawyers, who got Epstein a “sweetheart” plea bargain in 2009, previously dated a top prosecutor involved with the deal. [New York Post]

* New Jersey policymakers have moved to name a building at Rutgers University after Ruth Bader Ginsburg, who taught at Rutgers Law between 1963 and 1972. [New Jersey Law Journal]

* A lawyer has been sentenced to four years in prison for allegedly smuggling meth to clients in jail. Going to refrain from making a lazy Breaking Bad or Better Call Saul joke here… [Texarkana Gazette]

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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.

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Olga V. Mack is the CEO of Parley Pro, a next-generation contract management company that has pioneered online negotiation technology. Olga embraces legal innovation and had dedicated her career to improving and shaping the future of law. She is convinced that the legal profession will emerge even stronger, more resilient, and more inclusive than before by embracing technology. Olga is also an award-winning general counsel, operations professional, startup advisor, public speaker, adjunct professor, and entrepreneur. She founded the Women Serve on Boards movement that advocates for women to participate on corporate boards of Fortune 500 companies. She authored Get on Board: Earning Your Ticket to a Corporate Board Seat and Fundamentals of Smart Contract Security. You can follow Olga on Twitter @olgavmack.

As someone fortunate enough to be involved in managing a thriving law firm, my attention gets pulled in many directions, on many cases, and on many management issues. Given all that, trial is, for me, a sheer delight. When I have what might seem like the obligation to devote 12 to 14 (or more) hours a day, for weeks, to trial preparation and the trial itself, the focus is energizing and allows me simply to have a lot of fun.

But a good trial lawyer, so focused, must be careful. It’s easy to become your own echo chamber, or at least one with your trial team. For that reason, lawyers at my firm not assigned to trial matters are often brought in very late in the case to act as mock jurors or judges or arbitrators to help the trial team moot the case. We also use outside mock juries and mock judges and arbitrators to run the story by them. You can’t be so focused on your supposed winning arguments that you allow your advocacy mentality to take over and limit your thinking.

There’s another way, though, whereby, individually, you can ensure that you think about the case the right way: give yourself a mental break from it.

I’m not just talking about the things you should do when on trial to maintain endurance and health, like adequate sleep (when you can), exercise (as much as possible), and some family time (always). I mean giving your intellect a sabbath from the trial. The best way to do that is not by watching an old Arnold Schwarzenegger movie on Netflix (though that’s a phenomenally good way to give your brain a break). It’s by bringing your mind to focus on something else intellectually demanding.

We thankfully have ample work opportunities to do this. Speak with a colleague about her upcoming argument (which is unrelated to your trial case). Review and give thoughts on a colleague’s brief (which is unrelated to your trial case). Have a settlement discussion with an adversary (which, again, is unrelated to your trial case). I’ve found that this kind of intense, intellectual focus on something other than my trial gives my mind space such that, once I do come back to the trial, I think better and have a fresher point of view.

Winning at trial is not easy, nor should it be. And it does not just happen, nor is it only a product of hard work (though working hard remains the most important way to win). Try your cases smart by taking what time you can to not think about the trial and to focus on something else.

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John Balestriere is an entrepreneurial trial lawyer who founded his firm after working as a prosecutor and litigator at a small firm. He is a partner at trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at john.g.balestriere@balestrierefariello.com.

Last month, some Anchorage Capital Group investors were getting a bit annoyed with CEO Kevin Ulrich. They wondered whether the hedge fund had sunk and kept more than $1 billion in MGM Holdings for so long because it allowed Ulrich to serve as MGM’s chairman and thereby enjoy the perks that come with running a Hollywood studio. They wondered if that was why it was taking so long to sell the thing, or find a CEO. They wondered whether it was wise to have so much riding on a single movie release—the next James Bond film, “No Time to Die”—when it was unclear, amidst a global pandemic that has shut so many screens, when and if it would, in fact, ever be released.

The 90-Day Known Expert Series rolls on into WEEK NINE. This week’s episodes include “Grammar Matters” and “Writing with Flow.”

Make sure you take advantage of the show’s Q&A feature. You can ask Mike questions about the latest episode and he’ll answer at the end of the next episode. Just submit your question in the form at the bottom of this post.

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