Litigation is not the only option when it comes to reaching a settlement with another party. Litigants can agree to other means such as mediation or arbitration to reach an agreement that’s fair for both sides. Unfortunately, once a complaint goes to trial, a judge or jury will have the final say in terms of damages paid, injunctions, and other rulings.

During a trial, both sides will be able to present evidence, but will not have any negotiating powers. And while an appeal may be filed after a ruling, there is no guarantee the appeal will be granted.

Reasons to Consider Mediation or Arbitration

In addition to being able to negotiate freely with another party, mediation and arbitration cost less than a trial. Depending on the complexities of the case, litigation can last a year or more. For many individuals and businesses, the time spent in building a case can cost money – the cost of legal fees can also cost a lot depending on the type of research and time needed to adequately prepare for a trial.

Another reason why those involved in litigation should consider mediation or arbitration is the amount of time it will take to reach an agreement both parties can be satisfied with. In most cases, it may only take a day or a week to reach an agreement. A courtroom trial can take a month or more depending on the scope of the suit (on top of months of pre-trial preparation). For businesses and individuals that want quick resolution, mediation or arbitration may be the best course of action.

Mediation vs. Arbitration

Though similar in approach, agreements reached through mediation are usually non-binding. This means that either party may reconsider the agreement at a later date and reschedule another session or continue with a trial. Arbitration, on the other hand, is usually binding. This means that both parties are legally responsible for holding up their end of the agreement. If not, then the suit will go to trial and those that did not adhere to the agreement reached may suffer additional penalties.

The Mediation Process

The mediation process is fairly simple. Both parties meet (with or without their attorneys present – this depends on the wishes of both parties) with a professional mediator who has no stake in the outcome of the process. Using a third-party to negotiate an agreement helps ensure fairness for everyone throughout the process.

During the session(s), the mediatorwill ask both sides to describe the issue and potential resolutions. The mediatorwill then guide both parties to reach a ‘middle-ground’ through further negotiations. If no agreement can be reached after a certain amount of time, the mediator will continue to work with the parties or may recommend pursuing the litigation process.

If an agreement is reached, both parties will sign a non-binding or binding contract drawn up by the mediator/arbitrator. Contracts typically include all points reached in agreement, payment deadlines, and other details agreed upon by both parties.

The Arbitration Process

Arbitration is quite similar to going to court. However, arbitration is generally more streamlined and moves faster than traditional litigation. In an arbitration proceeding, the parties agree to have a neutral third party, called an arbitrator, to decide their claims. Arbitrators are usually former judges or established practicing attorneys and are often retained via organizations such as the American Arbitration Association.

Once an arbitrator is selected, both parties present their case to the arbitrator. Usually, there will be written materials, but there may be no oral argument at all. The arbitrator makes a decision based on the pleadings alone in many cases. Arbitration may be binding or non-binding, as the parties may agree in advance. Non-binding arbitration is often used when one or both parties wants to “test” their case and how it may play in a formal courtroom. Binding arbitration is usually employed when the parties can’t agree on a settlement, but can agree to have a third party make a final decision about their dispute.

Most formal courts strongly prefer that any agreements about binding arbitration stand. Accordingly, parties should usually not agree to a binding arbitration arrangement unless they are comfortable with the dispute being fully resolved via the arbitration process.

The Lexero Law Firm

Mediation and arbitration can be rigorous processes that require the ability to carefully negotiate each detail of a lawsuit. It also requires the know-how to “give and take” with other parties involved. If you want to avoid a trial, contact Lexero Law Firm today to learn more about the alternatives to litigation. My firm can help you negotiate the best deal possible to save time and money compared to a lengthy and costly lawsuit.

Recently introduced legislation entitled “The Main Street Fairness Act” seeks to require online retailers to collect sales tax for the benefit of states on most online purchases. Internet Retailer recently examined the bill in some detail. CyberLaw PC attorney Eric Menhart is quoted in the piece, entitled “Online sales tax proposed in Congress.” Eric was asked if the recently proposed legislation, introduced by Rep. Bill Delahunt (D, MA) had a decent chance of success: “You need a decent majority of states as members of the SST,” he says. “Until you have that, it will be very difficult to get enough Congressional attention and support for this legislation.”

Eric is the author Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue. Published in 2007 by the Journal of State Taxation, the article is an in-depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions. Eric also spoke on similar topics at the 2010 Internet Retailer Conference and Exhibition in Chicago, IL.

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Everyone wants great value when they spend money. The same is true when it comes to law firms and legal services.

Occasionally, clients have questions about hourly billing and want to know how to keep their costs as low as possible without sacrificing the quality professional services to which they are accustomed. This short article is intended to answer some of those questions and offers tips to clients to assist in keeping their costs as low as possible. Remember, this memo is intended to be general information. The retainer agreement with your attorney or law firm sets out the particular terms of your legal or business services agreement with your lawyer.

Hourly Billing

Lawyers and staff often bill by the amount of time spent working on your legal or business matters. This is called “hourly billing” or “timed billing.” The tasks for which attorneys and staff will bill on an hourly basis are included in your individual retainer agreement. Generally, attorneys and staff will bill at their prevailing hourly rate for any time that they spend working on your matter. The prevailing hourly rate for your matter is usually contained in your retainer agreement with your lawyer.

Usually, attorneys and staff bill their time in 1/10 of an hour increments which computes to billing in six minute increments. Alternatively, your lawyer may bill his or her time in 1/4 of an hour increments, which computes to 15 minute increments. By billing in such small increments, attorneys are able to keep costs as low as possible for the client, while still using an accurate and readable record keeping system.

Hourly billing is fair to both the attorney and the client because the attorney only bills the client for the actual time assisting the client and the client is not billed for more than the reasonable amount of time spent by the attorney or staff member. Every court and bar association in the United States approves of hourly billing as a fair way to record the value of an attorney or staff person’s services for most matters.

Clients, especially clients that are not used to working with an attorney or law firm, occasionally express concern about hourly billing, especially when the client is used to receiving a tangible object, such as a piece of furniture, a new computer, or a new pair of shoes when spending money.

It is important to remember that attorneys and support staff do provide a great deal of value by virtue of performing work necessary to assist you with your legal or business problem. Attorneys are licensed professionals because they spend substantial time learning about the law, maintaining professional integrity and earning experience that can help you achieve the best possible result for your legal or business matter. While you will occasionally receive tangible goods as a result of your attorney’s work, such as a contract, legal pleading, or memorandum, it is also important to understand that advice provided over the phone, via e-mail or in a client meeting is also valuable use of the attorney’s time.

Because an attorney only has his or her time and expertise to “sell,” the attorney must bill for time spent on a matter, even when it may only be a short period of time spent on the matter. This is because any time spent on your matter could have been spent earning fees helping another client or other valuable use of the attorney’s time.

Attorneys are professionally obligated to accurately report their fees and time spent to the client. Attorneys will only bill you for the reasonable time spent on your matter.

Keeping Client Costs Low

Attorneys are always willing to assist their clients in a diligent and professional manner. However, clients can make changes in their behavior that will help to keep their costs low. Here are some general tips for keeping your hourly billing invoices as low as reasonably possible:

Consolidate Questions: Many clients will call their attorney anytime a question comes up. While most attorneys are more than happy to take your calls as their schedules allow, many “quick questions” via phone, e-mail, or personal visit can lead to higher costs for the client, because the attorney needs to divert her attention from one matter to another. Instead, consider writing down any non-emergency questions and call when you have several questions at once. This will allow the attorney to focus on your matter and likely answer the questions more efficiently than if the questions were asked via several separate phone calls or visits.

Communicate via E-Mail: E-mail has several advantages over phone or letters. First, e-mail is easier for the attorney to file and record, which assists the attorney in efficiently answering your present and future questions. Second, the attorney can be sure to have the answer by the time he or she responds, compared to a phone call where the client may catch the attorney when the client’s file is not immediately available to the attorney. Like telephone calls, try to save multiple questions and put them all into one e-mail, so your attorney can answer all your questions at once.

Respond to Questions and Inquiries in a Timely Manner: Your attorney will likely have questions for you throughout his or her work on your legal matter. Just as your attorneys will do for you, it is important that you respond to any requests as quickly as possible. Forcing a lawyer to make several attempts to get in touch with a client increases costs.

Review Materials from Your Attorney Carefully: Your attorney will typically provide copies of the important documents in your matter, such as your retainer agreement, your invoices, and other important documents such as pleadings or contracts. Reviewing your copies carefully costs you nothing and can often assist you in answering your questions without having to contact your attorney.

Remember that you are always free to contact your attorney, whether you have one question or many, and he or she will respond within a reasonable amount of time.

Conclusion

While costs can be controlled to some extent with the tips above, remember that your attorney’s primary interest and duty is in protecting your legal interests. He or she must take all the procedural steps necessary to fully represent you. Implementing the practices recommended in this article allows a client to reduce the costs within his or her control, but you should always be wary of “going too far” and restricting an attorney’s ability to fully represent your legal interests.

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CyberLaw P.C. attorney Eric Menhart was recently quoted in a Forbes.com article entitled “Web Sales Tax Looms.” The article discusses the potential for additional sales taxes on online transactions, particularly in light of dwindling state budgets.

Menhart is the author of the article “Taxing the Internet: Analyzing the States’ Plan to Derive Online Sales Revenue,” published in 2007 by the Journal of State Taxation, which was an in depth discussion of the legal and political barriers to states’ interest in universally collecting sales taxes on all types of online transactions.

[Read more...]

Not much has happened in the proposed class action lawsuit against
Verizon for it’s disabling of the built-in GPS in the Blackberry 8830.

The parties have primarily been engaging in some preliminary
procedural matters. The biggest issue so far addressed was whether an
arbitration provision in the Customer Agreement could be enforced. The Court
issued an order on May 13, 2008 denying Verizon’s attempt to have the case
submitted to arbitration. Even Verizon admitted that the arbitration clause
would not be enforceable under California
law, but Verizon had to make certain procedural arguments to ensure a
sufficient record if an appeal were filed.

The trial date for the case has been set for September 14,
2009, approximately fifteen months away as of this writing. While still
unlikely to go to trial, the Blackberry 8830 would probably be approaching
technology extinction by the time the suit went to trial and any appeal were
resolved.

CyberLaw will update continue to update this case as further
events transpire.

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Technology Review has a nice tool that allows visitors to
see the remaining presidential candidates’ positions on various technology
issues, including net neutrality, broadband, privacy, stem-cell research,
global warning and biofuels. You can also see some of the applicable
legislation each introduced or handled in their time in the Senate. Overall,
this is a nice resource for “at a glance” analysis of the various candidates’
points of view on emerging technology and some of the resulting political
issues that come along with the various technologies.

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Attorney Eric Menhart recently commented in two articles in
“The Daily Tar Heel,” the newspaper serving the University
of North Carolina at Chapel
Hill community.

The first article, entitled “Facing Scrutiny,” examines information
on social networking sites as it is used to investigate and screen college
students. The second article, entitled “Google Puts Chapel Hill Streets on
View,” examines the privacy implication of Google Maps’ Street View service.

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Working for protection of individual rights, whether for civil
rights, privacy rights or IP rights, requires leadership. The holiday is a good
opportunity to be reminded that Martin Luther King Jr.’s non-violent style of
leadership, which relies on truth, justice, and belief in force of law, is an effective
method of resolving disputes and bringing about change in a variety of arenas.

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Unfortunately, there have been some blog postings and other communications regarding this firm’s application for the use of the mark “CyberLaw” with the United States Patent and Trademark Office. Because many of these communications are lacking in providing complete and accurate information, the firm issues the following statement.

A blog post issued by EFF’s Corynne McSherry criticizes the firm’s application. “Corynne McSherry is Staff Attorney at EFF, specializing in intellectual property and contract issues.” There are important facts and statements deserving of further review that Ms. McSherry fails to disclose. Virtually all the facts that are relevant to this issue are publicly available.

Ms. McSherry claims the firm is “threatening other lawyers with legal action based on this silly ‘mark.’” First, no legal “threats” have ever been made, to anyone. The firm issued one informal notice to one attorney, Michael Grossman, about a potential dilution of the name of the firm’s blog, CyberLawg™. Mr. Grossman thereafter hired Mr. Martin Schwimmer to represent him. After one e-mail communication that included both Mr. Grossman and Mr. Schwimmer, the previously private discussions were publicly disclosed by either Michael Grossman or Martin Schwimmer.

Corynne McSherry then “presumes,” without any factual basis, that this firm has other firms in its “sights.” Unsurprisingly, Ms. McSherry shows no evidence for this comment because there is absolutely no factual ground for such a statement.

Ms. McSherry goes on to state: “an IP lawyer should know that courts (and trademark examiners . . .) don’t look kindly on efforts to abuse trademark law to control everyday language.”

This statement is misleading for a myriad of reasons. First, the suggestion that the application is an “attempt to control everyday language,” is overbroad and inaccurate. As in most trademark applications, the firm’s application is for only one “class” of protection. In this case the class is #45, defined by the USPTO as “services rendered by lawyers to individuals, groups of individuals, organizations and enterprises.” Services that fall outside that class would be wholly unaffected. Ms. McSherry’s concern that “Stanford’s Center for Internet and Society, with its Cyberlaw Clinic” or “Berkman’s Center for Internet and Society” would somehow be affected is simply false. Those academic organizations clearly do not fall within the class of goods for which CyberLaw PC applied for trademark protection.

Finally, Corynne McSherry’s statement that “trademark examiners . . . don’t look kindly” on such applications is easily dispelled with recent history. Not only has the USPTO previously granted rights in the term “CyberLaw,” it has done so as recently as 1996. The mark was granted to Attorney Jonathan Rosenoer of Greenbrae, California in 1996. Mr. Rosenoer let his protection expire in 2000. All such information is publicly available to Ms. McSherry or anyone else at the USPTO web site.

While the firm appreciates free speech, it also believes that speech that ignores relevant facts is not appropriate, particularly when such statements are harmful to professional reputation. The firm stands by its application, which was lawfully filed with the USPTO, seeks to protect only those services that this firm provides, and which seeks protection of a term that the USPTO itself has previously found to be protectable.

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Verizon Wireless has been named in a class action lawsuit
alleging that the wireless giant wrongfully and unfairly deceived purchasers of
BlackBerry model 8830 smartphones. The suit alleges that Verizon intentionally
disabled the devices' free, built-in global positioning systems (GPS) then
offered a proprietary Verizon fee-for-service GPS. You can see a copy of the complaint here.

While there are many that argue that the free market should
decide this issue, the suit has merit. First, the facts do not indicate that
Verizon sufficiently advertised the distinction between the built-in GPS and
the pay-for-service GPS. In addition, the Verizon GPS service was not fully
implemented on the 8830 when the phones were initially available on the Verizon
network. Finally, there have been reports on Internet message boards that
Verizon customer service initially reported the GPS disabling as a “bug” when
the firm had intended to disable the freely provided GPS version all along.

The issue is not whether Verizon has the right to disable
hardware features; they unquestionably do have such rights. The problem is the
fashion in which the features were advertised. If a feature on an open market
piece of hardware is modified to a consumer’s detriment, the modifier must make
the announcement of the modification loud and clear to allow the consumer to
make an informed decision. Verizon did not make such announcements and
consumers received a phone less valuable than that which could have been purchased
on the open market.

The suit will likely resolve when Verizon offers minimal
concessions to its 8830 users, but Verizon could have avoided this type of
publicity by modifying its marketing practices.

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