Instilling Professionalism and Humor in an Adversarial System

Yesterday, I was the general session speaker for a Litigation Paralegal Conference. I asked participants for one word answers on the positive aspects and negative aspects of the legal profession. A sampling:

Positive aspects of the legal profession
Justice (4 people), help others (2), Electronic discovery (2), equitable, resolve issues, equal, service, interesting, fairness, nothing is the same every day

Negative aspects of the legal profession
Injustice (3 people), chaotic, time, rules, slow, frustrating, too serious, disparity, time sheets, difficult, adversarial, lack of communication, unethical

....................................
Spring Break
On a different note, this is spring break for many public school children. I found a good Op-Ed for us all to read as we think of and thank our teachers who get a well deserved rest:

What I Learned at School

THE tumult over state budgets and collective bargaining rights for public employees has spilled over into resentment toward public school teachers, who are increasingly derided as “glorified baby sitters” whose pay exceeds the value of the work they do.

But how exactly do we measure the value of a teacher?

Continue reading:

http://www.nytimes.com/2011/03/31/opinion/31lee.html?_r=1&ref=education

Wal-Mart Gender Discrimination case - My Comments in 2003

As you may know, the U.S. Supreme Court agreed to hear this case.

At issue is whether the justices should allow certification of the largest class-action employment lawsuit in U.S. history, a long-standing dispute against mega-corporation Wal-Mart Stores Inc. over alleged gender bias in pay and promotions. Arguments in the case are Tuesday morning and ruling can be expected by late June.
http://www.cnn.com/2011/US/03/28/scotus.wal.mart/

My Comments to various media outlets in 2003 and 2004:

USA Today:
"The potential damages are huge," says Perry Binder, a legal studies professor at Georgia State University in Atlanta. "Other businesses will watch this very closely."
http://www.usatoday.com/money/industries/retail/2003-09-24-walmart_x.htm

The Associated Press:

Perry Binder, an assistant professor of legal studies at the Robinson College of Business at Georgia State University in Atlanta, said the judge's ruling will be critical for both sides.

"Any time a class gets certified, there is power in unity. Any time a class-action suit is not certified, then you have to have individual plaintiffs filing individual lawsuits," Binder said.

"This is the biggest leverage point -- which party's got the leverage is the biggest (aspect) of a lawsuit," he said.

The plaintiffs describe several examples of discrimination, including a required meeting for female managers that was held at a strip club. Another meeting allegedly occurred at a Hooters restaurant, which is known for scantily clad female servers.

"The key is whether there is a systematic, across-the-company level of gender discrimination," Binder said. "What the plaintiffs have to prove is that this truly is a (men's) club."...

Binder said the plaintiffs have to come up with "smoking gun documents."

"The key for the plaintiffs is to find documents that link Wal-Mart to nationwide discrimination," Binder said, making it clear he doesn't know whether such documents exist.

Binder said the plaintiffs have to subpoena electronic archives of internal e-mails, computer files, instant messages and the like.

"This is going to be a very costly proposition. This is what litigation is in the 21st century -- searching computer banks for so-called deleted e-mails," Binder said.

http://tinyurl.com/45etgk4

The Atlanta Journal-Constitution:
Published on: 06/23/04
"Prior to [Tuesday's] rulings, Wal-Mart had zero incentive to settle this case," said Perry Binder, legal studies professor at Georgia State University's Robinson College of Business. "However, now the plaintiffs can fight on a unified front and have leverage to force the issue."...

Already the case has generated more than 200 depositions and a million pages of documents. One expert estimated if the case went to trial, damages could soar into the billions of dollars.

"If there was a settlement, it likely could dwarf the settlement in the Home Depot case," Binder said of the 1997 sex discrimination suit in which the Atlanta-based home improvement chain paid $104 million, without admitting wrongdoing, to 25,000 female employees.

AJC News Archives: http://tinyurl.com/4ztzq3q

Professionalism & Humor for Paralegal Professionals

I'm the general session speaker for a Paralegal Conference on March 31 in Atlanta. My session is:
Instilling Professionalism and Humor in an Adversarial System

Below are some quotes I use in this presentation:

Quotes to get you through your hectic day

- Effective communication with your attorney
I really didn’t say everything I said. Yogi Berra

- Dealing with mistakes
So go ahead, fall down. The world looks different from the ground. Oprah Winfrey

- Handling ethical issues
Those are my principles, and if you don’t like them…well, I have others. Groucho Marx

- Getting work done with little fuss - qualities of the well-rounded and grounded employee
If I only had a little humility, I’d be perfect. Ted Turner

- Going to the next level, and what that means to YOU
It isn’t where you came from, it’s where you’re going that counts. Ella Fitzgerald
If you don’t know where you’re going, when you get there you’ll be lost. Yogi Berra

- Being proactive - taking responsibility/ownership for tasks
Life’s under no obligation to give us what we expect. Margaret Mitchell
When you come to the fork in the road, take it. Yogi Berra

- Knowing when to ask questions, and who to ask
Every great mistake has a halfway moment, a split second when it can be recalled and perhaps remedied. Pearl Buck

- Managing deadlines
Due to a lack of interest, tomorrow has been cancelled. Anonymous

- Dealing with conflict and adapting to change in a professional manner
The need for change bulldozed a road down the center of my mind. Maya Angelo
Change is good. You go first. Dilbert

- Teamwork
Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever does. Margaret Mead
Remember, nobody wins unless everybody wins. Bruce Springsteen

Former civil litigator turned professor, Perry Binder, offers paralegals a mirror to reflect on unacceptable behavior witnessed in the practice of law. Participants get to “learn by example,” with Perry’s original and hilarious lessons. The ultimate goal of the session is for paralegals to envision living a rewarding professional life, through civility, humor, humility, and stress reduction. Perry uses examples dealing with law or other professions to draw behavioral parallels evidenced by legal professionals.

McDonald's Spilled Coffee Case Revisited

Yesterday I attended a Georgia lawyers conference (I'm a Florida Bar member) on million dollar verdicts in personal injury cases. In one of the cases, a women got a $1.25 million verdict for getting burned from her wrist to her knuckles by a cappuccino machine at a convenience store. The jury awarded $700,000 for her pain and suffering, and $525,000 for future medical expenses (the case was settled thereafter for a confidential amount)

At first blush, these verdicts sound laughable to the general public. On closer examination though, the media accounts usually leave out the important facts. The plaintiffs showed negligence on the part of the store. (that an employee cleaned the machine but failed to replace an internal part which led to the scalding) In addition, the woman's second degree burns caused nerve damage and excruciating pain which required heavy narcotic medication and necessitated the implantation of electronic stimulators on her spine - all of this a full year after the incident.

That case got me thinking again about the famous McDonalds coffee spill case from 20 years ago. Do you remember the media version or do you know all of the facts? This article helps give the other side of the story:

The Actual Facts about the McDonalds' Coffee Case
http://www.lectlaw.com/files/cur78.htm

Related to the McDonalds case, here's a portion of my upcoming presentation to Insurance professionals from ten countries, entitled:

OVERVIEW OF THE UNITED STATES CIVIL COURT SYSTEM & PRODUCTS LIABILITY LAWS

Questions to think about before our session:

A lawsuit can last anywhere from two to ten years in the United States. (I worked on two cases lasting thirteen years!) How does this compare with court cases in your country?

In some civil cases, a U.S. plaintiff may request punitive damages, pain and suffering, emotional distress, and loss of a spouse’s love and affection. How do these types of damages compare with remedies in your country?

Is the U.S. legal system “out of control,” as many in the insurance defense industry suggest, or does the media only highlight and portray the most outrageous cases in its news reporting?

Today’s “Takeaways”:

- The U.S. legal system is at times inefficient, with lengthy appeals and little control over the Discovery process at the trial level

- Arbitration is a viable alternative to litigation but it is very difficult to appeal an adverse ruling

- What defendants fear the most in the U.S. legal system:

o Punitive damages, pain and suffering awards, juries

- What plaintiffs fear the most in the U.S. legal system:

o Delayed justice, attorney fees, and court costs

- The media shapes public perception of the U.S. and international legal systems

o The McDonald’s coffee spill case and the BP Oil case

o The Amanda Knox case

§ The U.S. and Italy’s court systems and media

I. Beginning the litigation process – you need “standing to sue”

Sample “Causes of Action” – Products Liability Case

A. Negligence - -was the defendant careless?

1. Liability

-Duty of defendant to plaintiff

-Breach of duty (failure to act “reasonably”)

-Proximate Cause

2. Damages

- when can a plaintiff seek Punitive Damages?

Other causes of action

B. Gross Negligence

C. Fraud

D. Emotional distress

F. Loss of consortium

G. Strict Liability - -The manufacturer of a product may be liable to a customer even if it is not "at fault" - in other words, even if the manufacturer acted "reasonably"

H. Breach of Warranties

II. Legal Theories to Sue the manufacturer of a product

1. Failure to warn customers of dangers
2. The particular product the customer bought was defective
3. The overall design of the product is defective
   

Which theory or theories did the plaintiff use in the McDonald’s spilled coffee case?

III. Types of Damages

-economic

-non-economic (pain and suffering)

-loss of consortium

-punitive

Pay Teachers More

Good Op-Ed piece in The NY Times...

A basic educational challenge is not that teachers are raking it in, but that they are underpaid. If we want to compete with other countries, and chip away at poverty across America, then we need to pay teachers more so as to attract better people into the profession.

Until a few decades ago, employment discrimination perversely strengthened our teaching force. Brilliant women became elementary school teachers, because better jobs weren’t open to them. It was profoundly unfair, but the discrimination did benefit America’s children.

These days, brilliant women become surgeons and investment bankers.

Continue reading Pay Teachers More
http://www.nytimes.com/2011/03/13/opinion/13kristof.html?src=ISMR_HP_LO_MST_FB

Now read: 5th Grader Donates Life Savings To Save Teacher Jobs

Alarmed to hear that state budget cuts were forcing teacher layoffs in her area, Arcadia, Calif. 5th grader Jocelyn Lam decided to donate her life's savings to help her school retain teachers.

Patch reports Lam handed over her entire $300 savings to Camino Grove Elementary School teacher Todd Weber. She also included a note expressing her support for her teachers and imploring district officials to use her donation to save jobs.

http://www.huffingtonpost.com/2011/03/12/jocelyn-lam-arcadia-5th-g_n_834800.html

For-Profit Colleges -- Still Partying Like It's 1999

Just posted on The Huffington Post College section:

For-Profit Colleges - Still Partying like it's 1999

I was dreamin' when I wrote this so sue me if I go 2 fast. Prince, 1999

So where are we in the great debate on whether to regulate for-profit colleges?

From an owner of a for-profit college: I'm a businessman out to make a profit. Truly, I don't care about the well-being of the students.

CONTINUE READING AT THE HUFFINGTON POST:
http://www.huffingtonpost.com/perry-binder/forprofit-colleges-still-_b_831771.html



Data from Senator Harkin's Oversight Investigation of Federal Dollars Going to For-Profit Schools
http://harkin.senate.gov/forprofitcolleges.cfm

fyi - University of Phoenix is a subsidiary of The Apollo Group Inc., listed above
http://www.apollogrp.edu/About.aspx


Story Update 8/24/11

Party Ends at For-Profit Schools - Wall Street Journal

For-profit colleges are facing a tough test: getting new students to enroll. New-student enrollments have plunged—in some cases by more than 45%—in recent months, reflecting two factors: Companies have pulled back on aggressive recruiting practices amid criticism over their high student-loan default rates. And many would-be students are questioning the potential pay-off for degrees that can cost considerably more than what's available at local community colleges.

http://online.wsj.com/article/SB10001424053111904279004576524660236401644.html?mod=WSJ_hps_editorsPicks_1

Story Update 8/16/11

Last Monday, the Department of Justice filed a complaint against Education Management Corp. (EDMC), marking the first time the federal government has gotten involved in one of many cases against such for-profit colleges.

The move represents an escalation in a battle against for-profit colleges, which have been targeted because they are funded largely by students with federal loans, who are far more likely to default than students at non-profit colleges and universities.

The complaint against EDMC, which operates schools in 105 locations under the names such as Art Institute, Argosy University, Brown Mackie College and South University, alleges the company paid its recruiters based on how many students they enrolled.

"EDMC has created a 'boiler room' style sales culture and has made recruiting and enrolling new students the sole focus of its compensation system," the government says in its 122-page complaint.

Continue reading:
http://www.msnbc.msn.com/id/44093876/ns/business-school_inc_/t/us-opens-new-front-fight-for-profit-colleges

Classroom Doc Cam wins smackdown over PowerPoint

The best classroom technology for education ever invented is the “document camera,” also known as the doc cam. Better than an overhead projector, you can place any piece of paper on this machine and it appears on the screen for students – funny cartoons, pictures, headlines – this machine is invaluable.

Each of my class sessions has a list of terms that I give to students in a packet. Knowing that many students forget to bring the term sheets, I project that list on the screen throughout the class session, so students can follow along. Students know the exact order we’ll discuss topics because of the sequence of the terms. In addition, the conscientious students know how to prepare for class since I have them look up the terms prior to class.

By the way, I hate PowerPoint. If the lights are out, you’ve lost. If you have too much text, people are trying to read and listen to you. I guess if you just use bullets and a couple of words per frame, it’s as effective as my term sheets. However, with my method, a student receives five to eight pages of terms per Exam Unit, on which they can take notes. To me, even if you load PowerPoint onto Vista for students to download and print, that’s going to be too voluminous for students, not to mention the waste of paper.

A College Semester is like a Hollywood Screenplay

In a way, the structure of a college course is analogous to a Hollywood screenplay. The movie making process is a collaborative one among the director, actors, producers, and editors. However, the process is begun in a vacuum, when writer puts pen to paper. A compelling screenplay focuses on the:
- most important and chaotic moment in the protagonist’s life
- character flaws of the protagonist
- protagonist’s dramatic need to achieve some goal or perform some task
- unbearable barriers or insurmountable obstacles placed in front of our hero
- resolution of the character’s conflict and achievement
- character’s growth as s/he learns from this trying experience

I’m the first to agree that it’s a stretch to say that a college class is the most important and chaotic moment of anyone’s life. But the structure of a class has interesting parallels to the formula for writing a good commercial screenplay.

Similarity between a Screenplay and a College Course
1. Structure. A commercial screenplay has a very defined beginning, middle, and end. Screenwriters usually aim to write a 120 page script (one page of dialogue is equivalent to one minute of screen time, or a two hour movie). Likewise, a college course has a fixed number of weeks each semester.

2. Scenes. Unlike a novel, which has the luxury of providing the reader with rich detailed narrative and exposition, the screenplay’s action must be constant. For example, Thomas Harris’s terrific novel, Silence of the Lambs is 350 pages in length. In contrast, Ted Tally’s
adaptation of the novel to a screenplay needed to cut out many scenes and most of the novel’s detailed description, in order to write a condensed manageable product suitable for the screen. Thus, every scene of a screenplay must have some purpose which drives the story forward, as our hero is forced to confront challenges. Similarly, each class session better have a purpose, providing key information which builds on prior concepts, thus preparing students for a test.

Plot Points.
A screenplay has well defined and well placed plot points. A plot point is a dramatic event in the script which sends the protagonist in a new direction. Similarly, a college course has such plot points, which is set out below.

Syd Field, an acclaimed screenwriting teacher, discusses in his book, Screenplay, where a screenwriter’s plot points should be built into a script. In his book entitled Four Screenplays, Mr. Field analyzes the structure of a handful of screenplays, including Silence of the Lambs.
Below is a simplified version of his screenplay structure model and the placement of plot points. I then use this model to make my analogy of how a college course resembles the structure of a screenplay.

In the movie, Silence of the Lambs, Clarice (Jody Foster), a freshly minted FBI agent is sent off for an assignment which might be way above her head: to speak with the dangerously brilliant psychologist, Dr. Hannibal Lecter (Anthony Hopkins) from his prison cell, seeking clues about a new serial killer, Buffalo Bill. Dr. Lecter, an expert at mind games, is in prison for killing one of his own patients.

Field’s Model & Silence of the Lambs

Act I - The Set Up leading up to Plot Point 1, an event at the end of the act which spins the story in a new direction with conflict
Act II - The Confrontation and The Mid-Point
Act III - Plot Point 2 begins just before the last act, leading to The Resolution
(from Four Screenplays, Introduction xviii)

Plot Point 1: Clarice is trying to find information about Buffalo Bill, a serial killer who likes to cut the skin off the victims’ bodies. Dr. Hannibal Lecter, an expert at profiling such killers, gives her a cryptic false lead, which she tracks down to a storage facility. Instead of finding a clue to where Buffalo Bill is, Clarice instead finds the severed head of one of Lecter’s former patients. She “passes” Lecter’s first test. “School’s out Clarice.”

Mid-Point: Lecter is transferred to a less secure holding facility in Memphis, thus facilitating his escape.

Plot Point 2: Clarice figures out who the serial killer is from one of Dr. Lecter’s clues: “We covet what we see every day.” Discovering that Buffalo Bill must have known the first victim, Clarice sets out to the home of that victim, which then leads her to Buffalo Bill’s home.

Resolution: Clarice finds and confronts Buffalo Bill. Clarice has learned about her character and conviction, and passed her test of courage.
(from Four Screenplays, 155-236)

The Structure of a College Course

Plot Point 1: Exam 1. Up until this point, the students and professor go through a feeling out process. Exam 1 is the student’s first test, the same as Clarice’s first test in the movie. The results of Exam 1 send students in a new direction, and signal that there will be many challenges ahead in the long semester.

Mid-Point: Term Paper or Extra Credit Paper. This is the Mid-Point of my college course. Students may be struggling with confidence after Exam 1. The paper is a test of their attention to detail. If students follow instructions and proofread thoroughly, they can succeed on the project. However, students will face far greater obstacles after this point.

Plot Point 2: Exam 2. This test is worth more towards the final course grade than the other tests, and covers more material than Exam 1. Once students receive this grade, they can determine what grade to shoot for on Exam 3 to achieve their desired course grade. They now have a course of action to resolve the conflict: achieve a good course grade. (and maybe never see that professor again?)

Resolution: Course grade received. Hopefully, students have learned something about the course material and themselves after Exam 3, in this months-long struggle.

And hopefully the structure offered in this article gave you something new to consider when writing a course syllabus. (or inspired you to get an agent)

Four Screenplays by Syd Field on Amazon
Additional Resource: Essentials of Screenwriting by Richard Walter

Reality of a Law Career Presentation

Here's my recent presentation for the GSU Pre-Law Club, and some of the relevant questions to ask yourself before applying to law school...

Reality of a Law Career

- Why law school? My story - Punching my ticket, assessing, and reassessing the life of a litigator

- Does every attorney go to court? (various fields of law)

- How is law school different from the practice of law? Is being a "creative hustler of greater importance than grades and experience?" Interesting quotes from this article:

"Part of the problem is that students enroll in law school without really knowing what they will do," says White. She describes law school as "the great generalists graduate school" because the typical undergraduate has no real sense of what law is. "It is more common for undergraduates to have a popular culture sense about what the law is," she adds.

A dean who wanted enrollees to have an opportunity to reflect on whether to attend law school, "sent accepted applicants who had already paid their full non-refundable deposit a unique letter that generated national attention. In it, she asked, them to reconsider their choice of attending law school. The dean offered them the option to defer their admission for one year to further reflect on their chosen path. Of the 32 students who accepted her offer, only eight enrolled this year.

- Isn’t law school a very flexible degree? (It was for me)

- Does your graduate school decision require a cost benefit analysis? Is Law School a Winning Game or a Losing Game?

- Take Away Lesson #1 – If at all possible, the most important thing for you to do before applying to law school is to get a college internship - to see exactly what lawyers do.

- Take Away Lesson #2 – Start networking now -- In person opportunities (like the GSU Pre-Law Club which brought in an Immigration attorney to speak this week) and Social Media – which social media tool is the one you should focus on to reach attorneys? (LinkedIn)

Follow the Amanda Knox case on my Social Media Law site

Last summer, I taught a Social Media Law course in Northern Italy. In that class, we followed the Amanda Knox case from an open minded international perspective, and how social media tools shaped public opinion, both in the U.S. and abroad.

As you may know, the case is in the appeals stage, which is much different from a U.S. appeal. I will be posting updated articles on the case here:
http://www.perrybinder.com/socialmedialaw.htm

Italy's Court System - The Amanda Knox case started in the Court of Assize (2 Judges and 6 jurors). The presiding Judge must be a member of a Court of Appeals; beside him/her sits a lay judge. Decisions are made by the giudici togati (Judges) and giudici popolari (Jurors) together at a special meeting behind closed doors, named Camera di Consiglio, and the Corte d'Assise is required to publish written explanations of its decisions. The lay Judges are paid for every day of actual exercise of their duty; and, in these instances, are considered public officials. They continue in office for two years. Lay Judges wear a sash in the national colours and are not technically jurors, as the term is understood in Anglo-Saxon jurisprudence. In Italian, Giudice (Judge) refers both to the eight of them together as a collective body and to each of them considered separately as a member of that body. Since lay Judges are not jurors, they cannot be excused, unless there are grounds that would justify an objection to a Judge. Also, they are not sequestered.

Amanda Knox appealed her conviction to the Appeals Court of Assize (2 new judges and 6 new jurors) – Same composition of judges and lay judges as the Corte d'Assise, but the Giudici Togati are senior to the judges of the first court. The Corte d'Assise d'Appello must also publish written explanations of its decisions. This appeal includes a complete review of the evidence – in effect a retrial.