ABA Section of Business Law

Volume 15, Number1 September/October 2005

Meeting Morsels
    By Ray DeLong
 

In the far-off reaches of time (that'd be August, 2005), the ABA had its Annual Meeting in Chicago. The author caught a bunch of the programs sponsored by the Section of Business Law.

Negotiate this!

Sure, once in awhile you'll have to avoid trial and negotiate. You know, assuming your client prefers this route. How 'bout some tips to help you along? These came from "Getting your way: Effective negotiating techniques every lawyer should know," put on by the Section's Young Lawyer Forum as well as the ABA Young Lawyers Division. "You should spend at least as much time preparing as you do negotiating," said Sheila Maloney of the Northwestern University School of Law, in Chicago. Of the panel of three on the program, Daniel Kotin, a partner at Corboy & Demetrius, in Chicago, seemed the toughest: "Normally, I'm not the first one to bring up the concept of settlement. It could show weakness. But if my client is emotionally not able to go the distance, I could bring it up." Kotin continued, "The most important thing in negotiation is your credibility as a lawyer. Make sure you're telling the truth. Don't claim something is your bottom line unless you mean it." Of course, there is another way to go — mediation. "You owe it to your client to do your homework before choosing a mediator," said Hugo Chaviano, a partner at Sanchez & Daniels, in Chicago.

Use, don't 'utilize,' this advice

You think you write better than most of your colleagues in the law. But do you really think it's not wise to use five words when 10 seem better? If so, you need to drop by a writing program or two. Take the one sponsored by the Editorial Board of this magazine. It's the second time the concept has been offered at an ABA meeting and it was even more popular this time around. It was called, "How to write like Hemingway, Esquire: Legal writing for litigators made easy." There were two judges on the panel, one law professor and two regular lawyers. Stuart Shiffman, an associate circuit judge in Springfield, Ill., minced no words: "I would trade 10 good trial lawyers for one good writer." Joe Kimble, of the Thomas Cooley Law School, in Lansing, Mich., was as direct as he thinks lawyer-writers should be: "Some say you need legalese for precision. That is hooey." "Hooey" must be a technical term, eh? "It is not an intellectual challenge to sue simpler terms," Kimble continued. "It's an emotional challenge. The more insecure writers use the longer words." Beyond choice of words, what about choice of cites? "Avoid string cites," said Ekwan Rhow of Los Angeles. "Explain why something applies." He added, "Run your briefs by someone else, preferably not a lawyer." The federal judge on the panel, Phil Brandt, of Seattle, summed it up with, "Be direct." And then he quoted that "great legal scholar," Yogi Berra: "If you don't know where you're going, when you get there, you'll be lost." But wait: What was that "utilize" thing all about? Beverly Ray Burlingame, of Dallas, brought that up. "Lawyers should prefer the short word to the long."

Outside counsel looks inside for business

So here you are, working in a law firm. Once in a while, your outfit puts on just a little pressure for you to get more billable hours. You go hunting for clients at a company's legal department. The program here was, "Keeping your in-house counsel happy: Getting, keeping and expanding the business." It was put on by the Section's Young Lawyer Forum as well as the Committee on Corporate Counsel and the Committee on Diversity. Mari Valenzuela, of Chandler, Ariz., suggested this: "Be willing to eat billable time to learn about what a company needs." She also had a warning: "Being unprofessional burns a relationship. Be professional to a company's staff — to all of their staff." Michael Clarke, an in-house from Franklin Lakes, N.J., presented outside lawyers with this advice: "Offer a free CLE presentation at your firm for in-house counsel on assorted topics — so that the company lawyers can keep your firm in mind for a related legal matter later." Another in-house, Andrea Unterberger, of Wilmington, Del., felt it could come down to how the outside firm keeps in touch with the company's legal department: "You want to err on the side of over-communication. But by e-mail, not phone."

That bankruptcy act

Yes, Congress finally enacted the reform legislation. The program on the subject, "The practical effect of the Bankruptcy Reform Act for business, financial and transactional lawyers," got pretty technical, but a few clear comments merited further play: "The act will probably not go down in history as a model of clarity," said program chair Meredith Jackson, of Los Angeles. Panelist Elizabeth Bohn, of Miami, was kind of pessimistic: "I think we're going to see more cases crash" because there won't be enough time. "It's going to be tougher," she elaborated, "for small business debtors because there will be less time to file what's necessary." And in a spirit of dealing with the hand you're dealt (the new regulations), panelist Harold Kaplan, of Chicago, said: "Maybe the new act is just a recognition that we're a more fraudulent society." Audience chuckles were discernable. The program was sponsored by the Section's Ad Hoc Committee on Business Bankruptcy, the Committee on Banking Law, the Committee on Commercial Financial Services, and the Committee on the Uniform Commercial Code. And speaking of bankruptcy, the subject came up in another program, "The wonderful — and no longer exotic — world of electronic payment obligations," presented by the Section's Committee on Developments in Business Financing. The matter of hacking reared its ugly head: "Maybe there will be a bankruptcy case in the future where 10 college students will be lined up in court to see how secure a payment system is — how soon can they hack into it?" The speaker was panelist Mattias Hallendorff, of Minneapolis.

There's more to life

Yes, you're all set being a lawyer. But is there more to life? Or at least more to a career? One program came up with a few guideposts: "Living the lawyer life: Career enhancement, development and fulfillment," sponsored by the Section's Ad Hoc Committee on Career Forums, as well as the ABA's Career Center. "You need to have a plan where you might go next," said program co-chair Annie Clement, a law professor at Barry University in Dania Beach, Fla. "But be ready to take suggestions from others about some other way to go. What's going to be fun; what's going to be exciting?" Bryant Garth, dean of the Southwestern University School of Law, in Los Angeles: "Make your own time for your career enhancements rather than just grinding away for someone else's benefit." And speaking of someone else's effect on your career choices, keep in mind this comment from a woman member of the audience: "My greatest success in life is if I make enough money to pay for my children's therapy." Tough to top that one.