A Note from the CEO...A Challenge in Anticipation of the Annual Meeting
By: Joel Stern, NAMWOLF
Hello NAMWOLF Friends,
THE CURRENT LEGAL ENVIRONMENT
The legal profession remains one of the least diverse professions in the United States. That pains me and I'm certain it pains most of you. While we have long admired the problem and many of us have taken steps to effectuate positive change, the problems continue to exist with no solution in sight. I entered the legal profession in the early 1980s (yes-I'm that old) because I wanted to be a leader and thought lawyers were leaders. Unfortunately, at least with respect to diversity and inclusion, we have failed.
The National Association of Women Lawyers' latest report indicated that women represent only 22.13% of all law firm partners and the typical female law firm equity partner earns a mere 80% of what her male counterpart earns. The National Association for Law Placement reports the percentage of African-American associates has declined steadily since 2009 when 4.66% of associates were black. In 2016, that number was down to 4.11%. The same report states the percentage of African-American partners has remained relatively flat. The number stood at 1.71% in 2009 and reached 1.78% in 2013 as compared with 1.81% now. I could go on and on with statistics that show the inequities that exist among minorities and women in our profession, but I'd prefer instead to focus on one easy step that in-house counsel can take to positively address this problem.
Minority and women owned law firms provide a more welcoming environment for ex Big-Law attorneys unhappy with the lack of diversity at large law firms. In addition, these law firms give their attorneys opportunities to attract clients frustrated with the legal industry's race and gender problem.
NAMWOLF is all about enhancing diversity and inclusion in our profession by focusing on supplier legal diversity. We are an organization that makes it very easy for in-house counsel to take positive steps by giving in-house the opportunity to see and meet more than 174 minority and women owned law firms up close and personal. Our Annual Meeting is the perfect opportunity to witness first-hand how great these law firms are and to meet with other in-house counsel from Fortune 500 corporations who actively use our law firms across the United States in a myriad of legal practice areas.
My challenge to all of you is quite simple.
I challenge in-house counsel from corporations that want to change the world in which we live, to make the time to attend our Annual Meeting in
New York City
and get to know our organization and the 1
minority and women owned firms that make up this organization.
It's a very low-cost proposition since our meetings are at no cost for in-house and include several CLE sessions, keynote speakers, in-house-only sessions, an expo where our firms are available to meet formally or informally, networking and a little bit of fun. While in-house counsel should continue to focus on making positive change by looking at "big firm" diversity, pipeline diversity and internal-focused diversity, NAMWOLF is the best answer to address legal diversity and inclusion from the supplier diversity perspective, while at the same time procuring excellent legal service from lawyers who understand the complexity of your business and the importance of developing relationships with you and your teams.
See you in New York City!
Business Partner Spotlight:
Midwest Litigation Services
By: Anne Widlak, Nemeth Law PC, Detroit, Michigan
As one of the largest, most technically advanced court reporting providers in the U.S., Midwest Litigation Services has been dedicated to the pursuit of professional excellence in the field of court reporting and trial services since its founding in 1988. Headquartered in St. Louis, Midwest Litigation Services uses its 11 additional offices and over 2,000 world-wide affiliate offices to provide a range of services that covers the entire life cycle of a litigation. From eDiscovery collection, document hosting and review to court reporting, transcription and video services to advanced trial and technology services, Midwest Litigation Services assists its business partners regardless of where their litigation takes them.
Midwest also recognizes the importance that firms place on having a diverse supplier base. Midwest is certified as a Disadvantaged Business Enterprise by the federal government, a Woman-Owned Business Enterprise in the State of Missouri, a Female Business Enterprise by the State of Illinois nationally through the Women's Business Enterprise National Council, and in the city of St. Louis.
Midwest was also a proud sponsor of the 2017 NAMWOLF Business Meeting. Debbie Weaver, President of Midwest Litigation Services, stated: "We are honored to support an organization with such a tremendous mission. MLS looks forward to partnering with NAMWOLF members no matter their need or problem. Our global presence, dedication, and diversity are just a few of the reasons Midwest, and their family of companies, is poised to turn an issue into a win."
Midwest's unique certifications and background make it the ideal partner in meeting all your firm's litigation support needs. The company provides a dedicated account manager to ensure that all needs are met, as well as multi-district litigation support for coordinating deposition locations, service and technology.
Thanks to our loyal customers, Midwest has grown locally, nationally and globally. In response, our family of companies will be getting a new name this fall. More details will be available at the 2017 NAMWOLF Annual Meeting.
Member Firm Spotlight: Johnson, Blumberg & Associates, LLC | Chicago, IL
Johnson, Blumberg & Associates, LLC is a medium-sized law firm with offices in several Midwest states, specializing in commercial and residential real estate default work on the creditor's side, immigration law and regulatory work in the utility industry.
1. When was the firm founded and who are the firm's founders?
The firm was founded in 2003 by Kenneth Johnson and Erik Blumberg.
2. Who are the firm's current leaders and how would you describe the firm's culture and personality?
Besides the partners, the firm's leaders include Andrew Houha, Karla Stepter, Robert Blumberg, Shannon Cummings, and Andrew Kraemer. The firm's culture and personality is inclusive and collaborative. Communication, we find, is very important so that the firm's vision and goals are achieved. We strive to create a friendly work environment where diversity is paramount in all levels of our organizational structure. Our attorneys and support staff work hard to provide the best possible legal services for our clients. At the same time, the management is dedicated to bring opportunities for professional development and work-life balance.
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Admissibility of Settlement Evidence
What Is Protected from Discovery and Admission at Trial?
Beware -- Saying Too Much When Engaging in Pre-Suit Settlement Negotiations
Submitted by the Insurance PAC
By: Pamela W. Carter, Carter Law Group
Many lawyers assume that evidence of settlement offers and negotiations can never be admitted at trial. There is a general belief that placing the legend "Settlement Communication" on correspondence and other documents somehow precludes those documents from ever being seen by a jury. The jurisprudence on the admissibility of settlement-related evidence is not nearly that broad.
Federal Rule of Evidence 408, which governs admissibility of settlement-related evidence, excludes such evidence only in certain circumstances. Moreover, Rule 408 expressly allows the use of settlement-related evidence for a number of reasons. For example, in the Cook case, a settlement agreement was admitted to show that a settling party understood certain reporting requirements contained in the agreement, and hence that the party's later alleged violation of those same requirements was intentional. Cook v. Yellow Freight System, Inc., 132 F.R.D. 548 (E.D. Cal. 1990).
Here are instances where settlement-related evidence was allowed:
a. A defendant removing a case to federal court introduced evidence of its opponent's settlement offers to establish the "amount in controversy." (Click to keep reading)
"Protected Activity" Continues to Broaden Under Sox
Submitted by the Labor & Employment PAC
By: Kirsten M. Grossman and Jennifer Levanchy, Nukk-Freeman & Cerra, PC, Chatham, NJ
Whistleblower claims under the Sarbanes-Oxley Act of 2002, 18 U.S.C. § 1514A ("SOX") are on the rise. Plaintiffs' attorneys are catching on quickly, especially given the trend towards broadening the scope of whistleblower protections under SOX. In light of the recent case law below, corporate employers should tread carefully when it comes to employee complaints about corporate fraud and wrongdoing.
Whistleblower Protections Under SOX
SOX contains protections for employees who "blow the whistle" by reporting suspected violations of corporate fraud and wrongdoing.
Section 806 of SOX, codified in § 1514A(a), prohibits publicly-traded companies from retaliating against employees for "any lawful act done by the employee . . . to provide information, cause information to be provided, or otherwise assist in an investigation regarding any conduct which the employee reasonably believes constitutes" a violation of 18 U.S.C. § 1341 (mail fraud),18 U.S.C. § 1343 (mail, radio or television fraud), 18 U.S.C. § 1344 (bank fraud), 18 U.S.C. § 1348 (securities fraud), "or any rule of regulation of the Securities and Exchange Commission ["SEC"] or any provision of Federal law relating to fraud against shareholders." 18 U.S.C. § 1514A(a). (
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Sexual Orientation: Is It Protected By Title VII?
Submitted by: Labor and Employment PAC
By: Elizabeth Brannen Carter, Esq. and Jordan Jenkins, Esq. of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, Alabama
The Seventh Circuit gave the employment world on jolt when on April 4, 2017, it issued an opinion holding that discrimination based on sexual orientation is a violation of Title VII. See Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th 2017). The Seventh Circuit is the only appellate jurisdiction to find Title VII, which prohibits discrimination on the basis of a person's race, color, religion, sex, or national origin, extends to sexual orientation.
In Hively, the Seventh Circuit considered whether sexual orientation discrimination is discrimination on the basis of sex for the purposes of Title VII. Id. at 344. The majority opinion, acknowledges Congress has never amended Title VII to include the terms "sexual orientation" in its list of prohibited characteristics. Id. at 344. However, the court did not allow that absence to block the conclusion that sexual orientation is a protected characteristic nonetheless. The court states the absence provides no assistance in determining whether sexual orientation discrimination is discrimination on the basis of sex. Id. at 344.
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Are Your Seasonal Employees Exempt From Wage And Hour Laws? Are You Sure?
Submitted by the Labor & Employment PAC
By: Gary D. Finley, Schwartz Hannum PC, Andover, MA
As summer cautiously approaches New England, countless restaurants, golf and swim clubs, and other seasonal establishments are preparing for the summertime rush. In order to meet the demands of the anticipated sun worshippers, these employers will hire an army of summer employees, many of whom will work long hours before they return to school or to seasonal jobs in other parts of the country in the fall. Many seasonal employers take a relaxed approach with respect to compensation and hours for these summer employees. It is not uncommon for workers of such establishments to be paid under the table, paid less than the minimum wage, or paid inappropriately for overtime. Employers should approach compensation of summer employees with a great deal of care.
Some employers may be relying on the so-called "seasonal exemption," having hastily concluded that summer employees are exempt from minimum wage and overtime requirements because of the seasonal nature of their business. As described in detail in this article, however, having a seasonal business is not enough to qualify for the seasonal exemption. There are specific federal and state requirements that must both be satisfied before a summer employee will be considered exempt from wage and hour requirements. Moreover, employers who do not meet these requirements, and who fail to pay minimum wage and/or overtime to summer employees, can be subject to steep penalties including double or triple damages and mandatory attorneys' fees. (Click to keep reading)
Toxic Tort Litigation: Diesel Exhaust Lawsuits Are On The Rise
Submitted by the Products Liability PAC
By: Parada K. Ornelas with Wilson Turner Kosmo LLP, in San Diego, California
Most of us are exposed to gasoline and exhaust every day especially those living in urban areas or near freeways. In an occupational context, those who work on roadways or operate diesel-powered machinery are more likely to be exposed to exhaust than the general population. Today, lawsuits based on occupational exposure to diesel exhaust specifically have become increasingly common as many argue that such exposure can lead to negative health effects.
Diesel Exhaust and Regulations
First, what is diesel exhaust? Diesel-powered engines, such as those in heavy or medium-duty trucks, construction equipment, locomotives, and generators, produce it. Diesel exhaust, a result of complete combustion of diesel leads, primarily consists of nitrogen, as well as carbon dioxide, oxygen, and water vapor. However, "incomplete" combustion of diesel results in a complex mixture of gases and particulates, including unburned hydrocarbons, carbon dioxide, nitrogen oxides, and diesel particulate matter.
The primary concern is that exposure to diesel particulate matter, at sufficient concentrations, may cause respiratory effects, such as reduced lung function, respiratory irritation, and asthma exacerbation. The World Health Organization (WHO) and Environmental Protection Agency (EPA), among others, have linked "traditional" diesel exhaust and cancer. In June 2012, WHO's International Agency for Research on Cancer (IARC) classified diesel exhaust as a Group 1 "known carcinogen." IARC found "sufficient" that diesel engine exhaust is linked to lung cancer, and "limited" evidence for an increased risk of bladder cancer. However, diesel exhaust is not the sole associated potential link to lung cancer-smoking, exposure to radon, exposure to high concentrations of certain hazardous chemicals, and family history of lung cancer are all associated with an increased risk of lung cancer. (Click to keep reading)
But, You Cannot Do That - And Other Oregon Discovery Practices
Submitted by the Products Liability PAC
By: Mary-Anne S. Rayburn, Gordon & Polscer, LLC, Portland, Oregon
You or your client have been sued in Oregon state court. You may know Oregon is beautiful. It has mountains, mighty rivers, wildlife, farmlands, and fabulous wines, brews and nationally known chefs. Oregon is home to the Oregon Ducks, Oregon State Beavers and Nike. You might even visit the state while discovery is conducted. So, to get started, you make plans to serve interrogatories and depose the plaintiff's experts and doctors. Sorry, but you cannot do that; welcome to Oregon, possibly the Last Bastion of Trial by Ambush.
Unlike many states and federal practice, the Oregon Rules of Civil Procedure ("ORCP") do not permit interrogatories. There is no expert discovery either. A party cannot compel production of the expert's identity or work product or take the expert's deposition. Generally, the expert's identity is unknown until that person takes the stand to testify at trial. Often, the first opportunity to review the expert's file is the short recess taken between direct and cross examination. Furthermore, you cannot depose plaintiff's medical providers. This is because the injury allegations in the complaint and plaintiff's deposition testimony concerning his or her medical history and injuries do not waive the patient/physician privilege. Unless the patient voluntarily waives the privilege, the privilege remains until a treating medical provider testifies at trial (either live or via perpetuated deposition testimony) about plaintiff's medical condition. ORS 40.235, [Oregon Evidence Code ("OEC") 504-1], OEC 511, Nielson v. Bryson, 257 Or 179, 183-184 (1970), State Ex rel Grimm v. Ashmanskas, 298 Or 206, 690 P2d 1063 (1984). (
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As Seen on TV: Keys to Trial Victory
Submitted by the Trials PAC
By: Jeana Goosmann, Goosman Law Firm
I definitely got a kick out of watching
growing up. I'll even admit that I drew some inspiration from the young female attorney. As a rule, however, I detest legal shows, and most of my colleagues do as well. Why shouldn't we? The shows conclude what should be an 18-month case in an hour, teaching the public that not only do cases resolve quickly, they always involve an impassioned shouting match and a favorable result. If only. Yet while shows like
might be far-fetched, they do teach some valuable lessons. With these keys to trial victory, you'll win quicker than you can say "Denny Crane".
Pretrial: Do Your Homework
Perry Mason was nothing if not resourceful and hardworking. Your trial mindset should begin from the moment you first meet your client. Every detail leading up to opening statements can be just as important as the trial itself. Good lawyers know their clients inside and out. They know what will make him or her a believable witness; they know whether or not he or she will follow-through. Treat every draft, email, piece of discovery, and deposition like it's going to be used in court. Educate your client on best practices. Eliminate duplicative witnesses and unnecessary documents. Be mindful of your objectives and practice being succinct.
We've heard that the best trial attorneys are great storytellers. Plaintiffs tell stories and defendants destroy them and rebuild. The key to being the better storyteller can be as simple as having read the book-absolute clarity on details of the case will make you outshine your opponent. (Click to keep reading)
Understanding Public Disclosures on FINRA's BrokerCheck
Submitted by the Financial Services Litigation PAC
By: Mauricio Beugelmans, Beugelmans LLP
Providing the public with relevant information about securities professionals and their firms is a central component behind BrokerCheck, a free tool administered by the Financial Industry Regulatory Authority, Inc. ("FINRA"). Over the past several years, FINRA has promoted BrokerCheck through national advertising campaigns and by giving it prime real estate on its website's home page. On FINRA's BrokerCheck, a customer can find important and relevant information on brokers and brokerage firms.
I. Overview of Information Available on BrokerCheck
BrokerCheck's information on brokers and their firms comes from the Central Registration Depository ("CRD"), while information about investment adviser firms and representatives comes from the SEC's Investment Adviser Registration Depository ("IARD"). The CRD and IARD make up the securities industry online registration and licensing databases. Brokers, investment advisers and their firms are required by various rules to disclose to the CRD and IARD certain information, some of which is made public through BrokerCheck.
FINRA maintains and operates the CRD pursuant to FINRA rules and an agreement between FINRA and the North American Securities Administrators Association ("NASSA"), an association whose members include state and other securities regulators in the United States, as well as securities regulators in North America. (Click to keep reading)
5 Tips for Selecting a Theme for the Expo
Submitted by Marketing Best Practices
By: Alicia Smith, Wilson Turner Kosmo LLP
It can be tricky to come up with a vibrant and memorable theme. As with most trade shows, NAMWOLF exhibitors strive to create a booth that stands out among the group and draws attendees' interest. The annual meeting and expo provides firms the opportunity to show off their distinctiveness and incorporate a little bit of fun.
When firms participate in the expo, they dedicate time, effort and money, so it is important to maximize that investment. In order for firms to build a solid thematic concept that will fit its marketing objectives, they need a bit of strategic thought and some pre-planning. Here are some tips for selecting a memorable expo theme:
1. Branding. What is a better representation of your firm than your own branding? Bring banner stands, one-sheeters, business cards, and other marketing materials that incorporate your firm's areas of practice, key slogans, and photos. This way, if clients browse your website after meeting you, your firm is immediately identifiable.
While brainstorming a theme, research any cool nicknames, attractions, or historical events that are within the city of the conference and incorporate them into your theme. If you want to show your hometown pride, incorporate key identifiers of the state, city, or metropolitan area where your firm resides (sports teams, landmarks, etc.). It is an easy way to create a memorable booth.
3. Pop Culture. What's trending in pop culture? Grab the audience's attention by incorporating the funniest memes, craziest videos, or most-popular songs. They won't be able to stay away! Plus, it's a great conversation starter! (Click to keep reading)
Rules for a Great Presentation
Submitted by Marketing Best Practices
By: Peter Darling, Repechage Group, Santa Cruz, California
PowerPoint is a unique medium. Invented less than 30 years ago, it's now a staple of corporate communication - the foundation of countless presentations. It's ubiquitous, but for something that's known by almost everyone everywhere, it's often remarkably poorly used. Anyone who has been forced to sit through a bad PowerPoint presentation knows this all too well. If you want your presentations to be great, here are a few basic rules to keep in mind:
The audience is only going to remember a few things. A common rookie mistake is to attempt to cram far too much information into a relatively brief presentation. No matter how compelling, engaging, or detailed your material may be, there is no way your audience will remember more than a handful of facts. Make sure they're the ones you want them to remember.
You only have about twenty minutes of free attention.
It is critical to keep in mind that your audience's attention is not guaranteed. You must earn and keep it. An audience will put up with a mediocre presentation for a maximum of twenty minutes before they disconnect. Once they disconnect, it is almost impossible to get them back. Make your time count. (
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Influencers, Hashtags and Disclosures: The FTC's Response and Commercial Considerations
Submitted by the Emerging Leaders
By: Farah F. Cook, Patrick Law Group, LLC
The Federal Trade Commission ("FTC"), after reviewing Instagram posts by celebrities, athletes, and social media influencers, recently issued 90 letters reminding these influencers and marketers about the FTC's requirements that marketers clearly and conspicuously disclose their relationships to brands when promoting or endorsing products through social media. In this case, the FTC focused on influencers' posts on Instagram.
These letters and the FTC's attention to this issue should not come as a surprise to the letter recipients, given the 2016 Lord & Taylor action the FTC brought. In 2015, Lord & Taylor developed a multilayered advertising campaign, including a large social media influencer photobomb push on Instagram. Although Lord & Taylor ultimately settled the FTC's charges, Lord & Taylor is now required to ensure that its influencers clearly disclose when they have been compensated in exchange for endorsements. (
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A Letter From the Editors....
Dear NAMWOLF Members -
We hope you enjoy the 2017 Summer NAMWOLF Newsletter which includes tips on preparing for the Expo at NAMWOLF's annual conference this month. We hope you enjoy the issue and please CIRCULATE it to all the members of your firm or organization.
We continue to add new members and firms to our staff. Our hard-working Newsletter staff consists of: Susan D. Koval (Nemeth Law, Detroit, MI), Angela France (Potter & Murdock, P.C., Falls Church, VA), Crystal Vanderputten (The Livingston Law Firm, Walnut Creek, CA), Oscar Lizardi/Pat Lopez/Tim Reckart (all of Rusing Lopez & Lizardi, Tucson, AZ), Amy Kurson (Reyes Kurson, Chicago, IL), Joshua Brown (Lee + Kinder, Denver, CO), Lauren Hunt (Alvarez Arrieta & Diaz-Silveira, Miami, FL), Elizabeth Carter (Hill Hill Carter, Montgomery, AL) and Michele Desoer (Zuber Lawler & Del Duca, Los Angeles, CA, ) and of course, we could not publish without Jane Kalata (NAMWOLF).
Please feel free to share your comments and suggestions.
Angela H. France
Potter & Murdock, P.C. - Falls Church, VA