Understand Your Rights. Solve Your Legal Problems
Dr Ghafele, can you please tell us what an IP valuation is and how it can change the scope of a business?
An IP valuation helps to better understand the business dynamics around IP. An IP Valuation is core to any legal, business or financial decision. Patents, copyrights, trademarks, trade secrets and, more broadly, software and data rights offer a firm the opportunity to generate income. An IP Valuation allows us to make such a relationship visible.
Can you tell me a bit more about the use of an IP valuation in legal disputes?
OxFirst’s IP valuations help determine damages or licensing rates. Litigation, arbitration and mediation are a very central use case for an IP valuation. OxFirst’s IP valuations have been used several times in legal disputes and have helped the parties involved in the case come to grips with the economic worth of the IP. I offered training to the German Judiciary in IP Valuation and have provided support to judges to understand this important part of a case. Many cases do not centre around infringement, but around the economic impact of the infringement. Such questions are core to the work OxFirst does.
Can you share the method and steps you take to finalise an IP valuation?
An OxFirst IP valuation consists of an initial due diligence, which is then followed by a strategic assessment of the various opportunities provided by the IP to maximise profits. OxFirst makes use of various recognised valuation approaches that give insights on the economic worth of the IP. In legal disputes, one can look at issues such as unjustified enrichment or lost profits, for example. One may also discuss how the IP relates to business success and failures or how it affects cash flow.
How can the results you end up with change and impact a legal case you are instructed on?
In a legal dispute, it can help determine a damage award or an adequate licensing rate. It can also assist with IP sales or licensing negotiation.
An IP valuation is, however, also central to a firm’s business strategy. It can allow a company to understand what IP to hold on tightly to and what to license out or in. It is only through an adequate economic analysis that the many business options associated with IP become visible.
Just to give you an example, we recently completed an IP valuation for a high tech venture. With the help of the OxFirst IP valuation, the firm was in a position to launch a new licensing programme. The OxFirst IP valuation was essential for the launch of this new venture.
At another instance, the OxFirst IP valuation helped assess the economic risks associated with IP in an M&A transaction. The economic analysis of the IP helped understand any potential anti-competitive market situation the merger could trigger and also helped the parties come to grips with the acquisition price.
Finally, what impact can an IP valuation have on the economy and businesses?
OxFirst’s IP valuations have a proven track record of success. OxFirst has acted in Supreme Court Cases to help determine the economic impact of IP. The IP valuation was instrumental to finding a royalty rate and determine the economic effects of legal remedies. Because OxFirst is an economic consultancy, it can offer critical insights on IP, which are not available when looking at IP through a legal lens.
OxFirst’s IP valuations have helped companies of various sizes and stages in their lives maximise revenues while being in a position to control costs. At the same time, they have allowed IPR managers to make educated strategy choices.
All of these advantages are immensely valuable in the age of COVID-19, where we need to ensure every Pound is spent wisely.
Dr Roya Ghafele
Managing Director of OxFirst Ltd
www.oxfirst.com | info@oxfirst.com
OxFirst. Oxford Science Park
John Eccles House, Robert Robinson Avenue
Oxford, OX44GP, UK
Dr Ghafele has been the Director of OxFirst, an award-winning law and economics consultancy, since 2011. In addition, she has held a Lectureship (Assistant Professor) in International Political Economy with Oxford University and was also a tenured Lecturer (Assistant Professor) in Law with Edinburgh University. Prior to that, she had post-doctoral assignments at Harvard and U.C. Berkeley. From 2002-2007 she worked as an Economist with the World Intellectual Property Organization (WIPO) and the OECD. She started her career with McKinsey in corporate finance. Her PhD was awarded the Theodor Koerner Research Prize by the President of the Republic of Austria. Dr Ghafele was trained at Johns Hopkins University, School of Advanced International Studies, the Sorbonne and Vienna University. During the course of her studies, she was fully funded by the Austrian Government because her academic merits were continuously of outstanding quality. She is native in German and fluent in English, French and Italian.
Specialities: IP valuation, Damage Calculations, Competition Law & Economics, FRAND, Royalty Rate Determination, Economic Assessment of Legal Contexts
Robin is an E&Y alumnus and has worked on forensic and valuation work for over 30 years. He answers below some questions regarding his role and how it can, at times, make a significant difference to the conduct of a case.
FAQ on In-House Forensic Accounting Answered
Below, Robin Cooke answers questions about his role and how valuations assist law firms undergoing divorce cases.
Do you work exclusively for one law firm?
No, much of the time I have had assignments with more than one law firm. There are times when a firm is engaged in a particularly large or complex case, where they need a more temporary in-house type of arrangement.
What distinguishes the type of forensic support you provide?
Firstly, I have spent significant time in commerce as Director and/or Company Secretary so have direct knowledge of many industries. Business valuations are an important part of what I do. The difficulty with business valuation is there can often be very few valid comparators, thus leaving you to naturally fall back on the broad experience of Merger & Acquisition assignments. This presents a problem for experts that have largely learned valuation from textbooks, rather than direct experience of negotiating deals.
In what way can an in-house arrangement be more beneficial?
The working arrangement is often at the law firm’s premises or an electronic equivalent (online), as this seems to assist solicitors and barristers in gaining a wider understanding of valuations and businesses, which helps them later on in other similar cases. Many of the solicitors and barristers I have worked with in-house have progressed to the very highest levels, based on rankings in Legal 500, Chambers and City Wealth list; this tends to suggest wider benefits beyond individual cases. There have been times when I have had less than 15 minutes on a case but made a radical difference to the approach. That is very difficult to do other than as an in-house forensic.
What work falls within the in-house forensic accountant brief?
The brief can sometimes be quite wide, especially where industry-specific knowledge applies but can include some or most of the following:
* Initial thoughts on business values
* Indicating businesses more lifestyle than valuable
* Highlighting total income sources
* Industry-specific guidance on downturns
* Questionnaires, especially industry-specific
* Tracing hidden assets
* Confirming valuations as appropriate
* Indicating liabilities that are overstated
* Suggestions for appropriate SJE valuers
* Explaining industry-specific valuation issues
* Form E drafting and review
* Certain pension issues
What are your thoughts on how COVID-19 and the recession will impact on divorce settlements?
Not surprisingly, one is getting some exaggerated claims, suggesting businesses are suffering much more than they really are. Furloughing and other schemes have helped considerably in some industries, so things are not always as bleak as initially thought.
I tend to draw on my experience doing viability assessments for all major clearing banks and many other financial institutions. In that role, one was always alert to directors painting a rosier picture than justified, perhaps feeling that would secure bank support more easily. So, one almost reverses the techniques used in earlier recessions, to look for those exaggerating the actual decline. I do, however, have some concerns for those really struggling and firefighting, thus failing to put across how bad things really are. One can draw up rather obvious lists of those industries that are suffering badly, such as airlines, much of retail, hospitality and tourism. Yet, even in those industries, one may find niche players that are at least managing.
What are the stranger industries and valuations you have worked on?
I suppose valuing Ballet Choreography rights was one of the stranger ones that I did, which even involved a visit to the Royal Opera house. The accountant valuing for the other side, like me, had never encountered this segment before and I doubt has ever done so since. I also seem to have come across a number of well-known heavy metal rock bands in different situations. Before my youngest son went to University, we were Season Ticket holders at a premiership club. Over the years we had collected photos and autographs from many leading players and managers, who later featured on divorce cases I worked on.
About Robin:
Family Law Forensic.co.uk
07973 420460
Director or Senior Manager experience in industries
Agricultural supplies Architectural products Automotive components
Builder Merchant Construction Conservatories
Cruise industry Care Homes Defence suppliers
Food manufacture Financial Services Healthcare (Overseas)
Healthcare (NHS) Hotels Home Improvements
Lifeboats Leisure Legal services
Management consulting Offshore engineering Plastics
Paper Property Recruitment
Software Sewer operation Storage Tank
Structural steel Tourism Venture capital
Windows Waste Disposal
Industry coverage is particularly wide from favouring work in conglomerates and over the course of some 25+ years includes the industries shown, roughly 40% of industries listed below still apply today or in the last decade or so, including those through subsidiaries etc:
Jurisdictions Robin has worked in:
England and Wales, Scotland, Channel Isles, Isle of Man. From his experience as a director, he has been involved in litigation in China and Switzerland.
M&A experience:
Robin has been the Acquisitions Director for two acquisitive groups, one a PLC and the other being one of the UK's larger private enterprises. Then at two other organisations, he was a Merger Broker, bringing sellers and buyers together. He has also worked on a number of flotations. This experience is invaluable when working on cases as an in-house forensic accountant.
Benjamin Franklin stated that there were two absolute certainties in life: death and taxes. Actually, there is, in fact, a third absolute certainty and that is change. No matter what happens, life and its conditions will change. Nowhere is this more obvious than the accelerating rate of advances in science, and particularly in the field of medicine where the breadth and depth of knowledge are estimated to be doubling every nine months to a year. Against this background, it is impossible for any layperson to have a full understanding of the nature of medical evidence in complex medicolegal cases and Courts are becoming even more reliant on expert testimony to help guide their decision making.
Medicine is an art which requires to be heavily grounded in science. Therefore, the validity and reliability of expert medical testimony must be grounded on facts, and opinions deduced from logical reasoning, based on the knowledge, beliefs and experience of the expert.
In personal injury cases such as road traffic accidents, liability is usually a matter of fact.
Along the path from an incident to a court decision, there are multiple portals through which, advertently or inadvertently, the truth can become distorted. Unfortunately, facts, interpretation of those facts and opinions are all open to at least inadvertent misinterpretation and, at worst, intentional abuse.
In personal injury cases such as road traffic accidents, liability is usually a matter of fact. The causative relationship between the incident, the client’s complaints and the likely “but for” prognosis, is the field of the medical expert. It is a very different story in cases of alleged medical malpractice, where the interpretation of factual evidence as to liability and causation may not be so obvious and relies almost entirely on the opinion of a medical expert. This is why initial screening by an appropriate expert is so essential in determining whether a case is likely or unlikely to succeed, before the claimant and also the legal adviser, become financially, and emotionally, invested in the outcome.
Personal injury fraud is estimated to cost the British insurance industry more than one billion pounds a year according to the Association of British Insurers. While the popular press generally lays this at the door of the claimant, the role of an albeit small percentage of medical and legal professionals also has to be called into question in relation to their complicity with these matters. Both medical experts and lawyers are in business, both are paid for their services, and in any business relationship, there will always be the potential for a conflict of interest.
Personal injury fraud is estimated to cost the British insurance industry more than one billion pounds a year according to the Association of British Insurers.
Lawyers would argue that, as advocates for their clients, their job is to obtain as much recompense as possible and they will tactically do their best to achieve that aim. Generally, however, they have a vested interest as the more the client receives in compensation, the higher the costs which may be awarded to the lawyer. ‘Winning’ cases may result in further business, either from the same client or by enhancing the lawyer’s reputation through direct or indirect advertising in the media, social media or by word of mouth.
Moral and ethical challenges will always surface in a small minority of cases which, unfortunately, reflects and impacts on everyone else involved.
Similarly, there has been a long history of lawyers operating selection bias and picking from the so-called “beauty parade” of medical experts who have a history of providing the most favourable reports, that is those with the worst prognoses. Some medical experts have been challenged about changing the content of reports after discussion with lawyers. To be clear, if this is on the basis of new evidence, it is reasonable to do so, providing there is transparency. However, in a number of recent high-profile cases, such change has been made at the request of lawyers in an attempt to present the client’s evidence more favourably than would otherwise be warranted.
The Jackson reforms were, at least in part, an attempt to deal with such issues. Moral and ethical challenges will always surface in a small minority of cases which, unfortunately, reflects and impacts on everyone else involved. While categorically asserting that intentional dishonesty occurs only in a small minority of clients, their medical advisers and legal advisers, the following will also look at the common sources of disinformation to which medical experts and those instructing them need to be aware of, and which can both jeopardise their credibility and contaminate the legal process.
Clients’ Role in a Medico-legal Case
Any case is heavily dependent on the credibility and reliability of the client and the trustworthiness of their statements throughout the process. These must be consistent in terms of their recall and be corroborated by objective independent sources, such as police and ambulance evidence at the scene, contemporaneous medical records as well as any expert technical or engineering reports. They should also be consistent with statements from other witnesses, although these are more subjective.
Obviously with any incident, there is liable to be an emotional response, which will be influenced by the client’s inherent psychological makeup.
A client’s version of events should remain consistent in their oral or written communications and should include full disclosure of all pertinent information about their past medical or claims history. Clinical progress over the long term should match clinical expectation, unless any significant deviation can be reasonably explained.
Obviously with any incident, there is liable to be an emotional response, which will be influenced by the client’s inherent psychological makeup. Some tend to minimise issues while others have a more catastrophic mindset, which makes them prone to exaggeration. This is natural for them and is in contradistinction to malingering, which implies a conscious intention to fabricate or feign physical and psychological symptoms for external gain. There is a distinction, therefore, between a tendency to exaggeration and fundamental dishonesty which is a deliberate attempt to fabricate or hide the truth. In fundamental dishonesty, it is the facts that are blatantly distorted, rather than the client’s interpretation of how they are feeling. This is why client credibility is so important when set against objective evidence to substantiate a claim. Vague and changing evidence is a hallmark of a dishonest claim, as is evidence of downplaying symptoms from previous claims. Other “red flags” are late submission of a claim, an unwillingness to go to Court or pushing for an early settlement, which may be a sign of underlying financial issues.
The brief provided to their medical expert may be restricted, and pertinent information such as previous medical records may be withheld, unless they have been specifically asked for.
The Lawyers’ Role: The Impact of Dishonesty
As lawyers are expected to act in the best interests of their clients, this virtually automatically introduces a bias to proceedings, particularly as success breeds success in reputational and business terms, increasing the potential for further instructions. While most legal advisers are clear about the boundaries of good practice, some appear motivated to win at almost any cost, which can result in at least reckless, if not dishonest, preparation and presentation of evidence. Others may employ dubious tactics such as a tendency to bluff the opposition, right up to the doors of the Court, in the hope they will cave in and settle. The brief provided to their medical expert may be restricted, and pertinent information such as previous medical records may be withheld, unless they have been specifically asked for. There also may be undue attempts to coach or persuade an expert as to what might be removed from or amended in their report.
Medical Experts: What Should They Be Doing?
Many difficulties have been reported in relation to the quality of reports and appearances in Court by medical expert witnesses, who do not appear to appreciate the duties placed upon them under CPR Part 35 to act as an officer of the Court.
Over the last few decades, greater professionalism has been required from those acting as medical experts, not just in their knowledge of medical practice but also of the legal process itself. The need for objective unbiased opinion is one of the reasons a doctor who has treated the client is unlikely to be seen as a truly independent expert.
Many difficulties have been reported in relation to the quality of reports and appearances in Court by medical expert witnesses, who do not appear to appreciate the duties placed upon them under CPR Part 35 to act as an officer of the Court. Sometimes this is due to lack of experience or lack of preparation. Particular challenges arise when medical experts behave as if they are an advocate for their instructing party. This gives rise to concern about the potential for incentive-based fees and either the promise of further business or the possible threat of termination of a business relationship, all of which are entirely inappropriate.
Medical experts sometimes get caught out by accepting what the client states as fact at face value, and not checking the veracity of any statement against contemporaneous medical records.
Specialists in a particular field will naturally have a bias towards their own clinical practice. Unfortunately, this bias can lead to selective quoting of research papers which support one point of view without mentioning acceptable alternative approaches. Another common challenge is specialists who judge what was an acceptable standard of care at a point of time in the past, by current literature and standards. In providing expert opinion on a legal case, the doctor must be willing to consider all the reasonable range of opinions as regards to management or prognosis and to provide an intelligent and logical analysis as to why, in their opinion, one should be preferred over the other. Even within those preferences, they should be able to guide the Court as to whether the procedure followed and the aftercare was reasonable, in the context of the presenting circumstances.
Medical experts sometimes get caught out by accepting what the client states as fact at face value, and not checking the veracity of any statement against contemporaneous medical records. They also need to clearly distinguish between the established facts in a particular case and their opinion. In medical negligence cases, potential breaches of the duty of care and causation are likely to be matters of opinion in litigation, rather than matters of fact, and experts should not be pushed into reaching their conclusions based on inaccurate or incomplete information.
WHAT MAKES A GOOD MEDICAL EXPERT WITNESS? – NINE PRINCIPLES FOR PRACTICE
So, how are these potential problems with medico-legal testimony to be countered? The following are the nine core requirements for a credible medical expert. This is a checklist for all lawyers instructing a medical expert and an aide-memoire for doctors undertaking this role.
Expert witnesses require a specific set of skills.
Conclusion
The role of the expert witness continues to evolve and, just as issues are becoming more complex, so are the duties of the expert to the Court, requiring perhaps a greater element of control within the Court system. This has been exemplified by the loss of immunity from the prosecution for doctors should their evidence fall below reasonable standards. It is important medical experts do not become emotionally attached to reports and do not try to defend the indefensible. They need to stay neutral, explain a range of opinions and options as appropriate and in particular, be aware of the potential for selective bias in the evidence they present. Not to do so, risks public censure, if not civil or even criminal action, which has wide-ranging implications in terms of their personal, professional, and financial wellbeing. From the lawyer’s perspective, Courts are impressed by credible, impartial and articulate medical experts.
J.W. Rodney Peyton OBE
BSc(Hons) MSc(Educ) MD FRCS(Eng, Ed, Glasg & I) FRCP(Lond) PGDL
Tel: +44(0)28 8772 4177
Fax: +44(0)28 8772 7134
For more information contact rpeyton@rpeyton.com and for a range of articles on medico-legal issues visit www.rpeyton.com
Mr J.W. Rodney Peyton OBE is internationally highly regarded as an accomplished consultant trauma surgeon, author and trainer with a longstanding commitment to surgical education, and a proven track record of pro-activity in developing and implementing both clinical and training initiatives.
He has been involved in medico-legal reporting and court appearances as an expert witness since 1983, and is a founding member of the Expert Witness Institute. He has an expanding role in providing an independent expert opinion in cases of potential medical negligence.
He shares with us the questions the company and its advisers should be asking themselves, in order to make the best decision for the long-term.
Valuations in the restructuring market
We are currently working on planning projects involving group reorganisations and ensuring that assets are only ever moved at fair value. This is to protect the Directors in their personal capacity and prevent future challenges by creditors. We find that care needs to be taken around the potential tax consequences: do these moves create capital gains tax exposure; how robust are transfer pricing schemes; could someone argue this was a deemed distribution?
We are currently working with one firm on a project where we are required to value certain guarantees provided by an entity – exactly the sort of liability that could be missed from a simple reading of a balance sheet, but fundamentally changes the company value. So a very holistic and broad set of experience and skills are needed to identify the valuation issues, let alone perform the work with a COVID-19 and Brexit backdrop.
We anticipate that the restructuring market will open up properly in the late summer and we expect to be busy with value break analysis i.e. where in the stack of senior or mezzanine debt, or bonds does the value sit and therefore, who bears the brunt of the new money. We also expect to be providing or challenging valuation opinions for pre packs and anticipate litigation – we recently finished working with one set of lawyers on matters connected with the Comet administration and expect more of this type.
When valuations go very wrong, they fail to answer the simple question of “but who will fund this over the short term?” and “who will buy this?”
Valuation methods
The basic valuation methods do not change - including multiples and discounted cash flow - but the ability to apply them sufficiently and reflect the risks in the business and the environment, are substantially different and changes depending on the circumstances. Specifically, it often becomes impossible to apply an EBITDA multiple to the current or forecast profits because they are depressed and not representative (one hopes) of the business in the long term.
When valuations go very wrong, they fail to answer the simple question of “but who will fund this over the short term?” and “who will buy this?” The tax basis of value has always assumed a hypothetical buyer – but in the real world, this does not exist. We worked on Peacock’s administration – now the discounted cash flow valuation would have told you the business was worth X pounds, but when credit insurers lost confidence and pulled, it lost all cash liquidity and collapsed overnight. And there was no buyer for the main business – it was simply not compelling enough.
So the key to any valuation in a restructuring environment is to understand what is going on in the company by trying to answer the following: why have sales or margins collapsed; what is the route back to profitability; how will this be funded; how long does this take and, what is the end game?
How do we determine the probabilities? Well, we have to look at the underlying economic forecasts on the global and local economies, but then overlay the competitiveness and compelling nature of the business we are valuing with a strong lens on the competition and what they are doing.
You also have to sceptically and forensically challenge the forecasts and think about what attributes management and the company have to be success in delivering the turnaround. By this, I mean brands, patents, quality management, a loyal customer base, a pipeline of forward orders, a highly skilled workforce, etc.
We are currently looking at a retailer; the business plan makes certain assumptions about when lockdown ends, and when normal trading resumes. But the plan also has to consider: (i) if its far east supply chain is able to cope, (ii) what the broader UK recession will mean for discretionary consumer spending, (iii) how the shift to online and away from bricks and mortar will continue and where will it settle (iv) how working from home will change demand for formal clothing.
Now no one has a better crystal ball than anyone else and so we often advocate scenario planning where we look at the three/four most likely outturns for the business, taking the risk through ascribing a probability to each scenario. We can run discounted cash flows on each scenario and then probability weight.
How do we determine the probabilities? Well, we have to look at the underlying economic forecasts on the global and local economies, but then overlay the competitiveness and compelling nature of the business we are valuing with a strong lens on the competition and what they are doing. We look at similar companies and their results and the ratings applied to their equity and debt. It requires some common sense. It would seem reasonable that if you entered this period of uncertainty as a market leader, your prospects of survival and thriving on the other side will be greater than a me-too brand. We have to look at management’s experience and understand the strength of their relationship with funders. I worked with RBS Bank many years ago as a junior and was quizzed at length about the quality of management. It’s a very practical reality that it is one thing to have a business plan; it’s another to have the skills to deliver it.
One of the challenges in the restructuring environment is the speed at which the company’s own information tends to change, and usually for the worst.
Of course, there can be reasons to be optimistic – there will be many businesses helped in the long term by COVID-19, as it will take out the low margin businesses and reduce oversupply. Not everyone will have been negatively impacted. We saw this years ago in the UK power market when TXU went into administration and increased the prices for all its competitors.
Changing data
One of the challenges in the restructuring environment is the speed at which the company’s own information tends to change, and usually for the worst. In my experience, management have tried to convince themselves they are ok, and tend to be overly optimistic. When my restructuring colleagues and I revisit the underlying assumptions in the plans they usually need downward adjustments. Then, new trading data comes in and they have revised again (usually downward). The final stage is when management realise that if they need to re-negotiate their own equity positions, that it is in their best interest to now produce overly negative forecasts!
This can be disorientating for a valuer – constantly shifting data – but the key to this is that the valuation is really anchored in what is the new normal in three to five years’ time. What is the business worth then, on a multiple’s bases – and how much will it cost to get there and at what risk. Actually, the valuation impact of short-term fluctuations in the forecast for the next 12 months is probably not as material as you might think. Unless, of course, it informs you of the likely long-term customer retention or margin – i.e. that look ahead to the ‘new normal’.
Finally, as cash is king, how will it fund through the period of uncertainty?
Conclusion
You can’t value a business in a restructuring environment unless you understand it commercially – it sounds very much like a statement of the obvious, but too many desktop valuations might take a sector discount rate or multiple and just apply it to a forecast.
You have to know – why it is facing difficulty, what is the route map out, how will the future world be different (more people working remotely, more online retail, lower job security and discretionary spend), and think about it from the angle of competitors, customers, suppliers, employees. Then, you can start to properly appraise the risk and hence, the value.
Finally, as cash is king, how will it fund through the period of uncertainty? If there is no funding, then it potentially ceases to be a going concern and break up value may be all that is left.
Steve Taylor
M: + 44 7799350262
College House, 17 King Edward Road London HA4 7AE
Steve is the Founding Partner at St James and an experienced restructuring professional and a member of R3 – he worked on the Icelandic Banks, split Northern Rock into Good Bank/Bad Bank, worked on the administration of Cyprus Airways and has recently been part of the team restructuring IKKS and Anya Hindmarch ahead of sale to the Marandi family.
Our aim at St James was to become the first choice for lawyers for valuation advice. I led the valuation practice at EY for many years, but conflicts were making it increasingly difficult to work on cases. I also wanted to deliver more insightful advice in a way that simply does not sit well in the Big 4. This is a trend that is going to continue - senior Big 4 partners moving to boutiques -, because the value proposition to clients is so compelling; clients receive all the partner experience delivered with their sleeves rolled up, without clients paying for the back office.
Our model has proven very successful and the client base covers the restructuring, family, commercial litigation and private client lawyers across all tiers, which shows just how much demand there is for an alternative provider of specialist valuation services.
What are the differences between collaborative divorce and mediation?
Both methods have independent and neutral choreographers in the mediator or coach, but mediation is focused on an outcome and collaboration is focused on a solution. Mediation does not need to have lawyers present, but collaboration must. In mediation, clients and their lawyers are positional, and the lawyers do most of the talking. In a collaboration, clients shape the discussion and do most of the talking. This allows non-legal issues to be addressed and makes collaborative divorce a more holistic process. Clients appreciate the control and sense of respect it gives them and requires them to show their former partner. Mediation is often a truncated version of arguments and facts you would put forward in court. Collaboration explores needs and concerns much more. A mediation can occur when a case has already started, but a collaboration cannot. Both lawyers in a collaboration must be specially trained. Mediation usually has a long lead time with preparation and homework done in advance for a short and sharp intervention by the guiding mediator. Collaboration has the neutral coach or both lawyers as guides when there is no coach. Homework and fact gathering is often done as the meetings unfold.
How long does a collaborative divorce take? Does this differ to mediation?
One is not shorter than the other. Collaborative divorce can take on average, five meetings, but they can be over a period of weeks or many months. It depends on how complex the issues are, how emotionally ready the clients are at times and what homework needs to be done such as real estate valuations and tax calculations. There is often a long lead-in time to gather the facts, historical documents and to prepare a written summary of the case for the mediator. The actual mediation may only take half a day to two days, whereas a collaborative divorce can consist of several two and a half to three hour meetings.
A desire to keep out of court is enough for mediation, but it is not enough for collaboration.
What are the disadvantages of mediation?
Mediation can require a lot of time and money and emotional investment that is often wasted if no agreement is reached. If your client reveals their walk away point in an earnest offer and mediation fails, they have then given their opponent an advantage in the court case by revealing their bottom line.
What are the disadvantages of collaborative practice?
A desire to keep out of court is enough for mediation, but it is not enough for collaboration. Collaboration requires clients to be open to exploring solutions, difficult conversations and a willingness to accommodate their former partner’s interests, needs and concerns and not just voice their own. For divorcing couples, collaboration works best for those who can communicate fairly well and have a reason to continue, such as if they have to co-parent for years to come. The collaborative approach is perfect for negotiating pre-nuptial agreements.
Divorce can become heated whether a case is in court, mediation or collaboration.
What do you find works best for clients when divorce is becoming heated?
Divorce can become heated whether a case is in court, mediation or collaboration. The last two require clients to rise above resentment and recriminations. That is very difficult. I am reminded of the quote: “When you avoid conflict to make peace with other people, you start a war within.” by Cheryl Richardson, Coach. Collaborative divorce is the best method to manage this war, because the coach is usually a therapist, social scientist or psychologist trained to monitor the emotions of the clients. The coach manages the process and manages the lawyers too, when they revert to adversarial and positional or egoic thinking.
Rachel Slat
Slat Family Lawyers
slatfamilylaw.com.au
Level 21, 133 Castlereagh Street, Sydney NSW 2000
Rachel is a lawyer in Sydney Australia specialising in in family law for over 25 years. Her mediation training was at Harvard and it was in Sydney in 2008 when she did her first collaborative practice training, with further training in Washington, San Francisco and Las Vegas through the International Academy of Collaborative Professionals.
Rachel is the President of Collaborative Professionals NSW Inc., the not for profit group of collaborative experts in her state. CPNSW Inc. have over 130 members including lawyers, mediators, financial planners and accountants. Rachel sees that collaboration has been a practical and successful antidote to the expense and delays of an overworked family court system in recent years.
The coronavirus pandemic has sent shockwaves around the world, leading to a public health emergency and plunged the global economy into a sharp downturn.
COVID-19 has had a direct and negative effect on the sports industry and has led to a suspension of the sporting calendar, with professional leagues everywhere suspending their activities to limit the spread of the virus. Even the Summer Olympics, typically one the world’s most-watched sporting broadcasts, has been pushed back a year.
After decades of fast economic growth, not many would have thought the sports industry could be shaken to its core by a health emergency. The essence of the sports industry is to provide a show for mass viewers and spectators around the world. In these uncertain times, such popular gatherings are no longer possible which is thus affecting the sports industry to an extent that remains unknown.
It is of the utmost importance for the participants of the sports industry to sail through this storm without losing the right cape.
The need for qualified strategic, legal and financial advice is consequently stronger than ever in the sports industry and so we speak to Rodrigue Sperisen about how the issues the sports industry face are unique.
Some would say that the sports industry is like any other industry.
What are the main requirements the actors of the sports industry should look for when undergoing a new deal or contract?
Some would say that the sports industry is like any other industry. That is partially true, but no one should underestimate the particularities of the sports industry. It is a highly emotional and passionate business. It is also governed by very specific rules and goes by a close-end circuit. The business is not open to disruptive competition like any other trade since it is organised by federations, associations and leagues around the world.
Even the wealthiest and most powerful company or individual in the world would not be able to set up a team and win the football champions’ league, for example. A football team must be a member of a national association, which must be a member of the continental association which thus is a member of the FIFA. Then, the such team would have to play into the country’s top league and then qualify for the UEFA Champion’s league before even planning to win it. Such a process would take years before being materially possible.
The sports industry is organised as an ecosystem gathering the sportspersons, the clubs, the federations, the agents and the sponsors/investors that have all a common objective and interest in bringing their sport and their name the biggest value and audience.
The employment aspect deals with every type of litigation related to the wage, breach of contract, transfers and with questions of social legislation which differs from one country to another.
The common interest and objective is to give value and growth to one sport, then to a team and then to an individual.
You will, therefore, end up finding conflicting personal interests between the actors of the sports industry. When it comes to undergoing a new deal or contract, there is a balance to be found between the common interests of the actors of the sports industry and the individual interest.
The main focus will be on the image rights, the economic substance of the contract and the specific rules applying to sports, which are governed by private federations and whose disputes are arbitrated by specialised courts.
What kind of legal issues are most likely to arise for sportspersons?
The ones that come to mind are: naming rights/endorsements, employment laws and tax issues.
The contract and image rights deal with the protection and the exploitation of distinctive marks of important figures in the sports industry (image, brands) and the exploitation of rights regarding events and competitions (ticket sales, hospitality, broadcasting rights contracts and other related rights).
The employment aspect deals with every type of litigation related to the wage, breach of contract, transfers and with questions of social legislation which differs from one country to another.
Athletes usually have a short professional career and need to make the best of it financially. They are looking for professionals to help them optimise and secure their revenues (such as the creation of an image consulting company, aggregation of professional activities) and save them from poor investments and violating tax laws.
Employment law in sports is highly regulated by specific rules.
What challenges arise with corporate sponsorships and naming rights? What should companies/sportspeople look out for here?
It is of the utmost importance for both the clubs/federations and the sportspeople to only associate their names with brands/sponsors and respectively the sportsperson(s) that would fit their message and image.
That is the key issue.
The sponsors need to find their “Federer”, the reliable, safe and consensual profile.
Sportspeople need to find the sponsor/brand that will help them cultivate their image, make them become a brand and get international acknowledgement.
What about employment law? What unique requirements does sports law have in this area?
Employment law in sports is highly regulated by specific rules. The competition is also particular as sports’ leagues are monopolies. And most employment disputes are settled by sports’ leagues/federations and/or by specific courts, in particular the Court of Arbitration for Sport in Lausanne, Switzerland.
How do you ensure you get the best deal for both parties – the employer and the employee?
Lawyers cannot play both sides. We are always on one side but, of course, we keep changing sides.
The employer and the employee have the common interest of making their sport and their team as successful as possible. Both of them will benefit from greater cover, popularity and economic growth.
But they also have conflicting interests. It is always a negotiation regarding the team budget, the allocation of resources, the duration of the contract, the image rights, etc.
We have been witnessing over the last years a growing gap between the top athletes and the support athletes receive. There is more money going in to the sports industry, but much of the growth is monopolised by the top athletes.
As an adviser, it is of the utmost importance to help and assist the athlete in shaping their personality, developing their skills and making the right decisions to give them the chance to join the top tier of their sport.
When it comes to clubs, our duty is to help them find the best allocation of the financial resources, the long-term sports strategy and the development of a powerful brand.
Rodrigue Sperisen
PB Montaigne Avocats SA
118, rue du Rhône
1204 Geneva
phone +41 22 577 66 00
Our clients at PB Montaigne Law Firm are sportspersons, sports clubs, agents and local and international companies willing to invest or provide sponsorships to sports entities and individuals. The clients are mostly active in ice hockey (NHL & Swiss league), football and tennis.
They ask for our professional advice regarding any issues related to the protection and exploitation of their naming rights/brands, the employment negotiations and disputes and for financial and tax advice.
The players involved in the sports industry appreciate our long time experience and knowledge of the particularities and specific rules of their trade and our capacity to take care of their issue in Europe (through our main office in Geneva and our affiliated office in Monaco) and in the USA.
Switzerland is the seat of most international sports federations (including the UEFA, the FIFA and the IIHF) and the International Court of Sports Arbitration (CAS-TAS), while Monaco is the home of most of the top tennis players and also of the top football agents.
Most of the legal needs of our clients are related to sports arbitration, contractual advisory and disputes and regulatory developments.
I have been personally active in the Sports industry for more than 15 years, offering legal and strategic advice to many participants involved in the sports industry and also investing and managing a player’s agency company in Switzerland.
Police brutality and whether or not officers abuse their power is often debated and it is ever prevalent now, so we speak with Chris Eskew and Raeanna Spahn on how Section 1983 helps protects citizens against police misconduct and what can change to ensure such misconduct does not take place.
Section 1983 helps protect an individual’s rights in cases where police officers act in an unlawful manner. What is Section 1983?
42 U.S.C. § 1983, commonly referred to as “Section 1983” provides a cause of action and remedy for deprivations of constitutional rights, commonly involving encounters between police officer and civilians. The litigant must prove that the police officer acted under the colour of state law and caused an injury to a constitutionally protected right.
Depending on the circumstances, citizens can bring these kinds of claims against both individual police officers and against the corresponding municipal entity, such as the municipal City or municipal Sheriff.
From your experience, what are the most common reasons for section 1983 claims against police officers?
Most common Section 1983 claims against law enforcement officers include:
Depending on the circumstances, citizens can bring these kinds of claims against both individual police officers and against the corresponding municipal entity, such as the municipal City or municipal Sheriff. When the municipal entity employer is sued, the claim is often commonly referred to as a “Monell Claim” deriving its name from the Supreme Court’s decision in Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978), exposing municipalities to liability for Section 1983 constitutional violations. Monell claims reject liability based on respondeat superior, and instead, must demonstrate a municipal policy, practice, or custom for entity liability under Section 1983. Id.
An attorney can also help with any applicable mandatory state tort notices, which often have strict notice and timeframe requirements.
If someone suspects a law enforcement officer or police department has violated their rights, what action can be taken?
Section 1983 cases are extremely complex and nuanced. Accordingly, the first step should be to contact an experienced civil rights attorney. They can conduct an investigation and determine whether there is a viable Section 1983 claim. If appropriate, an attorney can file a 1983 claim to hold the officer and/or the municipal entity accountable. The attorney can also determine whether additional causes of action exist, such as a state tort claim or a State Constitutional claim, to accompany the Section 1983 claim. An attorney can also help with any applicable mandatory state tort notices, which often have strict notice and timeframe requirements.
If there is no basis to assert that the officer was acting under colour of law for purposes of Section 1983, there may be other bases for a lawsuit.
How do you decipher if it is misconduct or not?
Misconduct is a bit of a subjective term. An officer’s actions or conduct can feel wrong without necessarily being illegal. When we investigate a 1983 claim, we carefully examine and analyze the specific facts of the case while being mindful of case law and binding precedent to determine whether a constitutional right was violated.
We also evaluate and consider whether the officer was acting under “colour of law”. We look at things like whether the officer was wearing a uniform, whether they were on duty, whether they identified themselves as an officer or whether they are attempting to enforce a law. If there is no basis to assert that the officer was acting under colour of law for purposes of Section 1983, there may be other bases for a lawsuit.
Police brutality is a hot topic for the U.S. How can individuals ensure that police officers adhere to training and rules?
We need more accountability for officers and police departments. There are multiple ways to accomplish policing reform, such as legislative, administrative, and/or legal action. As to the legal system, a victim of police brutality can file and pursue an action against the individual officer who violated their constitutional right(s). Since the municipal entity and/or the municipal insurer may provide indemnification if a judgment is entered against an individual officer, an action against an individual officer could indirectly promote reforms within the officer’s police department. The police brutality victim could also bring a Monell claim against the municipal entity employer, such as the city, however, it is a challenging claim based upon the “policy, practice, or custom” requirement for municipal liability. If Monell was revisited and allowed municipal liability under the doctrine of respondeant superior in Section 1983 cases, it could it hold more police departments accountable for actions of their officers and potentially help promote broader reforms within police departments.
New case law favourable to civilian litigants could potentially spark and encourage broad police reforms and change.
It is also important to be mindful of the doctrine of qualified immunity, which may shield officers from liability. Qualified immunity protects a state official from liability for damages under Section 1983 when his or her conduct did not violate “clearly established” statutory or constitutional rights. Accordingly, as to qualified immunity, it is important to carefully review, analyze and consider prior case law precedent involving similar officer conduct which existed at the time of the alleged unlawful conduct in question.
Regardless, filing and litigating viable 1983 cases may bring attention to the failings of officers and police departments and hold them accountable for any unlawful actions. If Section 1983 cases are vigorously prosecuted, thoroughly researched and briefed by counsel, the outcome of the case and any corresponding appeal could potentially create new binding precedent which affects the outcomes of future cases. New case law favourable to civilian litigants could potentially spark and encourage broad police reforms and change.
It is important for litigants to keep in mind that Section 1983 suits are civil actions and are separate from any criminal action against an officer.
What outcomes do clients seek when they approach you on police misconduct? How achievable are such outcomes, i.e., what happens when someone sues an officer under section 1983?
Many litigants want to see the officer to be held accountable for their actions and want police reform. Essentially, they want to make sure that any unlawful conduct does not occur again so that someone else does not experience what they experienced.
It is important for litigants to keep in mind that Section 1983 suits are civil actions and are separate from any criminal action against an officer. As a civil action, the remedy for a Section 1983 constitutional violation is mostly monetary damages. Accordingly, a 1983 claim provides financial compensation for successful litigants and holds an officer financially accountable for the damages caused by their unlawful conduct. In addition to compensatory damages, the litigant could demand punitive damages as well. Section 1983 claims won’t send an officer to jail and their municipal employer will decide any employment consequences for the offending officer. However, holding police officers and police department financially accountable could indirectly promote police reform and change. It is important to be cognizant that other methods, such as broad sweeping legislation, can create direct and immediate reform and remedies for police misconduct.
Chris Eskew
chris@eskewlaw.com
Eskew Law
1 N Meridian St #600
Indianapolis, IN 46204
(317) 974-0177
Chris Eskew is a talented criminal defence litigator who was born and raised in Indianapolis, Indiana. His passion for Indiana, his dedication to his clients, and his courtroom acumen set him apart from other Indianapolis criminal defence attorneys. He believes in a unique approach to client representation that focuses on the client’s goals. At an initial consultation, he sits down with prospective clients, discusses their situation, explains the law and how criminal cases work, and then works with the clients to determine what their goals and priorities really are. Armed with that information, Chris Eskew then crafts a defence strategy tailored to the clients’ unique situations and interests.
I reworded this question because section 1983 does not contain its own "laws" that an officer can "breach." It provides a mechanism for suing when police officers (or other government officials) violate other federal laws or the constitution.
I modified this question too. Section 1983 allows for civil suits to recover damages for violations. No one is "prosecuted" or "found guilty" because it's not a criminal statute. And as with the other question, they aren't "breaching" the statute. They are breaching other laws; the statute just gives them a remedy to sue for those breaches.
With the digital era constantly evolving and thus posing new challenges for businesses and the legal sector alike, William shares with us how technology and the internet have impacted copyright law.
New technologies provide new tools for creative expression and new vehicles for sharing those works[1]. But sometimes they also disrupt existing copyright regimes. How so?
New technologies always disrupt the existing copyright regime. Prior to the printing press, society didn’t have to give much thought to the legal ramifications related to the widespread copying of books or manuscripts. Before the invention of the camera or the phonograph, we had no occasion to consider how to protect against the copying of a “photograph” or a “record.” VCRs gave Hollywood studios a headache for a while, and, later, Napster did the same to record labels.
Now here’s the thing: Congress should take a new look at the DMCA in 2020, but we should accept (and plan for) the eventuality we will need to do so again in 2025.
This potential tension will always exist. The simple reality is this: technology advances very quickly, sometimes exponentially. The law does not. It evolves slowly, after great consideration, lumbering along over a period of decades. I often joke that by the time some of the most important questions of our day are finally settled, it won’t matter because society will have moved on to the next big thing. As a result, we may always find ourselves trying to fit the proverbial square peg in a round hole.
The Internet, and the quantity of legal issues it presents, is a good example. Years ago, when the Internet was more-or-less still in its infancy and well before the ubiquity of sites like YouTube, Facebook, and TikTok, Congress attempted to pass a new copyright law for the modern age by passing the Digital Millennium Copyright Act of 1998 (“DMCA”). But it took no time at all before critics started saying it was outdated and broken. In fact, since 2016, there has been a significant amount of pressure on Congress to reconsider various provisions of the DMCA.
Now here’s the thing: Congress should take a new look at the DMCA in 2020, but we should accept (and plan for) the eventuality we will need to do so again in 2025. Technology is moving very fast, and we shouldn’t assume that revisiting concepts of copyright law every 20 or 30 years will be sufficient.
Technology and internet connectivity have radically changed the production of cultural material; how has this impacted copyright law?
I don’t think there’s enough space in this article for me to discuss the wide-ranging impact!
Honestly, the amount of content that is out there in the world is staggering. And, as we increase internet connectivity and bring more communities online, it will only increase.
As I alluded to previously, advances in technology can increase the type of protectable works. The first U.S. copyright law (passed in 1790) protected books, maps, and charts, but that was it. By 1909, copyright protection was expanded to also cover musical compositions, lectures and sermons, periodicals, works of art, drawings of a scientific or technical nature, photographs, and pictorial illustrations. Today, copyright protection also extends to computer software and architecture.
Internet connectivity increases the volume of publicly available protectable works. Fifty years ago, you might have gathered around a projector at your neighbour’s house to watch a home movie about their most recent vacation—and that would have been enough to satiate your desire for home movies for the next six months. Now, on any given day, we might watch dozens of YouTube videos filmed on a GoPro by “professional vacationers” who travel the world and then use YouTube to monetise their videos and finance their trips. That’s just one website on which people watch about 5 billion videos every single day. At last count, there were about 1.8 billion websites, and the number grows every second.
But here’s another thing: we’re not just seeing an increase in “amateur” material. We are starting to see a huge increase in professionally created content as well. A couple of decades ago, there was a perception that only the major Hollywood movie studios could produce a high-quality motion picture. Today, we have dozens of studios cranking out tons of content. Digital platforms like HBO, Netflix, Hulu, and Amazon, once focused primarily if not exclusively on distribution, are now just as likely to invest in content creation.
Honestly, the amount of content that is out there in the world is staggering. And, as we increase internet connectivity and bring more communities online, it will only increase.
Is it more challenging for companies to copyright their work in the digital age?
The mechanics of protecting a particular work haven’t changed dramatically so, in that respect, the answer is “no”. In terms of sheer volume, though, the answer may very well be “yes”.
Irrespective of how hard it is or isn’t to obtain a copyright registration in 2020, copyright protection and enforcement is certainly much tougher. Copyright holders constantly complain about having to play “Whack-A-Mole” with internet websites. That is to say, they frequently encounter the following scenario: their copyrighted work shows up on a website, so they act to take it down. No sooner has that happened than the same work shows up on another website. So they act again…and so it goes.
But we don’t have the same exposure or interaction to the underlying principles of intellectual property laws.
Unfortunately, I’m not sure there’s an easy solution for that particular problem. By and large, people have a very good understanding of what I refer to as “basic” legal principles—you can’t go around hitting other people, you can’t take stuff that doesn’t belong to you, you can’t build your house on someone else’s property, etc. I think this understanding is a function of at least two things. First, some of these principles—like not hitting others—are so fundamental to the social contract that we teach these principles to our children from an early age, and we continue to reinforce them as they get older. In addition, with respect to some of these situations, it’s easy for us to see the harm or damage we might cause the other person, i.e., if I go around hitting other people, the other person will feel pain.
But we don’t have the same exposure or interaction to the underlying principles of intellectual property laws. When our kindergartener tries to copy a picture from a colouring book, we encourage their freehand drawing—we don’t chastise them for “copying.” As another example, we teach our kids to play musical instruments by having them learn to play already existing, copyrighted works. In addition, it is conceptually harder to understand the harm in infringing someone’s “intellectual” property. After all, if I see a picture of a beautiful sunset on the internet and then post that picture on my website so that others can also enjoy it, what’s the harm in that? Indeed, if I have a very popular website, one could argue I am doing the photographer a favour—giving that picture more exposure it would have otherwise received and increasing that person’s notoriety.
That’s a long-winded way of saying we live in a world that doesn’t have a full appreciation for what is “right” and what is “wrong” when it comes to IP law, and I have no reason to believe that’s going to change. The youngest among us spend the most time online. Why would they have any better understanding of IP than, say, someone who is an adult with business experience?
With the speed of culture accelerated by digital technology, do you think it is imperative that protection periods be shortened? What impact would this have?
So, shortening the protection period to something like 14 years, which is a number I have seen, could represent a huge blow to a U.S. citizen.
At the risk of sounding like a lawyer, this is a complex, multi-faceted issue. Unfortunately, even if we concluded it was a good idea, it’s not as easy as saying “let’s have a shorter protection period.” There are international treaties and conventions which provide for a certain minimum protection period, and the U.S. is a signatory to those. So, first, we would have to pull out from these agreements.
Assuming we were okay with that kind of international move, we would then have to determine whether shortening the protection period would be a net positive or a net negative. Some argue shortening the protection period is a net positive because it will lead to society having easier access to a greater catalogue of creative works. Others would point out that shortening the protection period might put U.S. creators at a disadvantage vis-à-vis international creators who would continue to benefit from longer protection periods. By and large, most countries provide a protection period for the life of the creator plus 50 or 70 years. So, shortening the protection period to something like 14 years, which is a number I have seen, could represent a huge blow to a U.S. citizen.
That’s not to say we shouldn’t be having this conversation on a global scale. The time periods we are talking about can be very long. For example, if you have a 30-year-old who lives to be 80, we are going to protect his work for 120 years (50 years during his life and another 70 on top of that). When you compare that to the protection period for a patent (20 years), it might lead you to wonder why copyrights are protected for so long. This disparity would seem to suggest we value useful inventions more than creative works. We think microprocessors are so useful we want them available to the public relatively quickly. A unique sonnet? We can wait 120 years for that.
Has the digital era impacted IP litigation we see today?
Of course, that leads one to wonder whether we need to reconceptualise how courts handle IP litigation.
Undoubtedly. We are creating intellectual property at rates heretofore unforeseen. It only stands to reason we are going to protect that IP at significantly higher rates. I recently saw a study indicating that corporate spending on IP litigation has doubled in the last 15 years and, to be honest, I was surprised litigation costs had only doubled in that time period. I don’t see any reason why that spend will decrease any time soon. We already have a lot of IP litigation in the U.S., but it’s really starting to take off in other countries. Companies may find themselves fighting on multiple fronts, foreign and domestic, all the time.
Of course, that leads one to wonder whether we need to reconceptualise how courts handle IP litigation. For example, every day I see dozens of copyright lawsuits filed across the country by photographers claiming one or more of their photos was inappropriately used on the defendant’s website. Because the Copyright Act provides for exclusive federal jurisdiction, all of these suits are filed in a federal court. But is it really a good idea to clog the dockets of our already overworked federal judiciary with hundreds of these cases? Perhaps it would be better to create a centralised “copyright court” with judges well-versed in copyright law where all such disputes would be filed. In addition, we could send copyright appeals to the Federal Circuit. That would free up district and appellate court dockets across the country. Fifty years ago, an idea like that might face real resistance from people arguing it was too costly to litigate in a forum they couldn’t drive to, but, in 2020, I don’t think that argument is particularly persuasive. With electronic filings, video conferences, and airplanes, people could probably litigate in a “far away” forum just as easily as they could in their backyard.
My advice is the same to all lawyers (whether IP or otherwise). In all of your interactions and in every form of communication, whether oral or written, formal or informal, eschew obfuscation, espouse elucidation.
Donald Trump is expected to order a review of a federal law known as Section 230, which protects internet companies like Facebook, Twitter and Alphabet’s Google from being responsible for the material posted by users[2]. How feasible is this, in your opinion?
I suspect Congress and several federal agencies will be taking a hard look at Section 230 and Section 230 compliance this year. The irony is that criticism for Section 230 may be one of the few remaining bipartisan issues. Trump recently issued his Executive Order as a result of Twitter labelling two of his tweets as “potentially misleading”, but Nancy Pelosi hinted at removing Section 230’s protections back in April 2019. And Joe Biden is on record saying Section 230 should be revoked “immediately”.
The 2020 reaction to Section 230 is not surprising. When the law was originally passed, there was a real concern that holding internet platforms liable for the statements of third parties would cripple them at a time when the internet was still in its nascent stages. But, now we have a more mature internet, and Congress is starting to wonder whether it swung the pendulum too far in the other direction-i.e., whether it afforded these platforms too much protection. If Congress concludes the answer is “yes” (though there are arguments the answer is still “no”), I would suspect they would amend the relevant language as opposed to repealing it altogether. I think we all prefer the pendulum sit in the middle, at rest, rather than vacillating widely between two extremes every twenty years.
William Delgado
I graduated from the University of Oklahoma with a degree in electrical engineering in 1999, but, having interned at a tech company throughout college, I had significant reservations about a career in engineering. After a period of introspection, I decided to go to law school in New York City. I was extremely fortunate to have hit the employment market at the perfect time as law school students with engineering degrees were a sought-after commodity at the time. After three fantastic years of law school, I moved out West to Los Angeles to become an IP litigator.
After a brief but extremely rewarding stint in Big Law and then a much longer but equally rewarding stint at a Big Law spinoff, in May 2019, I became one of three founding partners of DTO Law, a full-service boutique with offices in Los Angeles, San Francisco, and Louisville (KY). In terms of rewarding experiences, though, this last stop takes the cake. I could not be prouder of the team we have assembled at DTO. I am fortunate to be surrounded by amazingly talented colleagues who regularly achieve outstanding results for a wide variety of clients—from start-ups to those who regularly appear in the Fortune 500.
At this point in my career as a litigator, I have dabbled in just about every area of law. At present, though, my practice primarily focuses on intellectual property and class action defence.
[1] https://blogs.loc.gov/copyright/2017/05/copyright-law-and-new-technologies-a-long-and-complex-relationship/
[2] https://www.reuters.com/article/us-twitter-trump-executive-order-explain/explainer-whats-in-the-law-protecting-internet-companies-and-can-trump-change-it-idUSKBN23434V
When working on personal injury cases involving brain injury, what are the client’s main concern?
Brain injuries can range in seriousness: from a mild concussion to a traumatic brain injury. For some clients and their families, life may never be the same after suffering a brain injury. Clients come to us at a distressing moment in their lives. They are often fearful, full of uncertainty about what the future will hold and have questions about how the legal process works. We are often asked, ‘what’s involved in starting a lawsuit?’, ‘how will my brain injury affect daily life?’, ‘will I be able to work again?’, and ‘how will a brain injury affect me and my family as I age?’. Our goal is to ensure our clients have access to the best rehabilitation team, make ourselves readily available to answer any questions they have, and obtain for them the best possible compensation. Ultimately, we aim to remove any barriers to ensure they can focus on their recovery.
How often do victims return to work? What challenges do they face here, i.e., what if their workplace cannot meet their new requirements?
The effects of a brain injury can bring changes to many aspects of life, including employment. Regardless of whether the accident caused a mild or severe traumatic brain injury, some clients discover that they are no longer able to do the job that they once did, or they can no longer do their job safely. Adaptations in the workplace may be required to accommodate needs and some clients may need to find a new job.
In serious brain injury cases, clients may not be able to return to their pre-accident employment for an extended period of time, and even then, not at full capacity. Some are never able to work full time, others have to train for a different job, and in severe cases, some never return to work.
When returning to work after a brain injury – even a “mild” traumatic brain injury such as a concussion can pose challenges. Attention-span, memory, fatigue and headaches can all affect our client’s ability to return to work. For this reason, sometimes a gradual return to work is necessary (e.g., working half days at first or shorter hours). We often engage the services of an occupational therapist to help clients develop cognitive strategies for performing job duties, they can also make recommendations for adapting workstations.
In catastrophic injury cases, our lawyers can help sort out coverage and funding issues with other agencies or insurers, such as employment insurance, Canada Pension Plan disability, private extended health care insurers or private disability carriers, unions and their collective agreement provisions, human resource managers, and others.
How can a lawyer secure the best treatment in such cases? Do you need a lawyer for this?
The rehabilitation team for those with serious brain injuries may include physiotherapists, kinesiologists, occupational therapists, psychologists or neuropsychologists, speech/language therapists, case managers, and vocational consultants. Whilst it is not necessary to hire a lawyer to put together a rehabilitation team, lawyers do have networks to some of the best, most respected medical practitioners and are able to secure appointments.
How long do you have to file an ICBC claim?
In British Columbia, you have two years from the date of the accident to start the litigation process. However, at Simpson, Thomas & Associates we encourage lawyers to file the Notice of Civil Claim well before the limitation date, often within the first six months.
How long do such cases last? What happens if symptoms worsen over time, but the claim/case is already closed? What are the options here?
The duration of a case varies case-by-case. We advise our clients to focus on treatment and recovery, follow the advice given by their rehabilitation team, and only consider settling once we have an idea of their expected level of recovery. We obtain expert opinions and assessments, including the cost of future care, loss of past and future income and life expectancy reports to inform our settlement negotiations.
In British Columbia, there are two parts of legal recourse available for brain-injured victims following a motor vehicle accident. A Tort claim and a Part 7 Accident Benefits claim. Once a case is closed and the litigation process in the Tort action has concluded, you cannot reopen and there is no further legal recourse.
Under the existing legislation, there is up to $300,000 available from the Insurance Corporation of British Columbia (ICBC) under Part 7 to meet accident victims rehabilitation needs. After the Tort claim has settled, the Part 7 portion of the claim is left open to the claimant. If symptoms worsen over time, the claimant can request funding from ICBC for additional treatment. If the claim is denied by ICBC then legal action can be taken. Any legal action under Part 7 must be started either two years from the date of the accident, or two years from the date of the last payment made, whichever is longer.
Direct Dial: 604 697 3999
Simpson, Thomas & Associates
1301-808 Nelson Street
Vancouver, BC V6z 2H2
www.simpsonthomas.com
Simpson, Thomas & Associates (formerly Simpson & Company) have been advocating for accident victims for 50 years. Central to the firm’s ethos is a team of caring, compassionate and community-focussed individuals. As managing partner of Simpson, Thomas & Associates, Stephen Yung strives to ensure that his clients have the medical support they need, including access to the best rehabilitation professionals, and the compensation they deserve. Stephen’s experience spans all levels of court in British Columbia including the Court of Appeal. He has considerable experience dealing with catastrophic losses, including brain injury. The firm has a long history of advocating for the victims of the brain injured and in raising awareness on the prevention of brain injury. Bernie Simpson, C.M., one of the founding partners of Simpson, Thomas and Associates, was instrumental in enacting the B.C. Bike Helmet Legislation when he was a Member of the Legislative Assembly (MLA) in the 1990s.
Speaking to Jamil Soucar, we explore what happens when politics or opposing personalities cause problems down the construction line.
What “undisclosed causes” can cause issues during construction projects?
The undisclosed causes for conflicts on construction projects have to do with human nature. Construction project teams involve a wide variety of people, who never met before, including but not limited to architects, owners, construction managers, inspectors, community members, city officials, general contractors, subcontractors and other related parties. Sometimes, conflicts on sites arise because of personality conflicts between the parties or egos. No one admits that these are the real causes but instead, they look through the contract documents to find clauses that may give their personal position a contractual justification if interpreted a certain way. Before you know it, the contract clauses become weapons and not simply terms and conditions. That is why I call them the “undisclosed factors”. These conflicts may escalate to litigation.
I’ve seen conflicts that could have been resolved in a few minutes, escalate into litigation because the parties mixed personal considerations with the problem.
How do these causes differ to more common problems, such as poor construction plans?
When the conflicts are about the technical issues like a bad design, site conditions, errors and omissions, and when these conflicts are treated professionally away from touching people’s egos or getting them mixed up in personality conflicts, the solutions and discussions become purely technical and will have a better chance of being resolved without escalation. After all the parties involved are professionals and are knowledgeable regarding these technical topics, each from his/her role on the job. So, try to keep these conflicts without triggering any personal conflict.
How do these differences make it harder for parties to work through a dispute?
I’ve seen conflicts that could have been resolved in a few minutes, escalate into litigation because the parties mixed personal considerations with the problem. For example: an inspector who had a previous conflict with a subcontractor on a past project giving the same subcontractor a very hard time on the current project. This can escalate the tension on the job where the parties use the contract clauses to make things harder on the job. That can lead to delays, financial losses and other problems. I’ve worked on a project where the general contractor was terminated and after two years of litigation, the result was getting the same contractor back to finish the job. It turned out that the problems were caused by a difficult inspector.
What I used to tell my construction management students is that their job is going to be 20% construction knowledge and 80% people skills.
How do ‘politics’ cause an issue here?
If the project is public works like public schools or cities, then politics can be an integral part of the project. For example, promises made to the community by the elected official regarding completion dates, or a certain product that the community became sensitive about, or even the colour of the exterior paint, or it could be a tree that is important and the play yard designs have to accommodate to save that particular tree. I’ve been through all of these scenarios and it adds tension to the daily progression of what otherwise would have been a normal running project. The construction manager must be aware of these elements.
What is an effective way of managing many different people and personalities during a project? How can this prevent a dispute?
What I used to tell my construction management students is that their job is going to be 20% construction knowledge and 80% people skills. The construction manager is the focal point of communication and the main liaison among the various people involved. The effective way of managing this aspect is to ask and learn from day one about the people involved, the various goals and agenda and any hot political matters.
Last but not least: be honest and fair. That is the best way to prevent dispute.
Second, I strongly recommend a partnering day before the project starts where the players can meet each other and break the ice before getting into the daily issues of the project. Get to know each other as people and not solely as ‘the architect’ or ‘the inspector’ etc.
As the construction manager, try to understand the liabilities and goals of each of the players and do your best to help them win. Ease up their tension by not placing them in difficult situations. The construction manager has to navigate through this maze while focussing on the main goal which is the successful completion of the project. That can be easily said but I can tell you it is very difficult to do in some cases. If the players are willing partners, it will happen. Sometimes, no matter how much I try to project this positive dynamic, someone insists on having conflicts which force me to react tough and dive into the clash. My last piece of advice is to try to resolve conflicts as they arise. Don’t let it fester for a long time and don’t let the egos kick in. Last but not least: be honest and fair. That is the best way to prevent dispute.
Jamil Soucar
Arc & Line, LLC
310-801-2941
My name is Jamil Soucar. I’ve been in the construction industry since 1983. I hold a Bachelor degree in Civil Engineering and certificate in Construction Management and have a Construction Management consulting Business in Los Angeles, California where we consult to general contractors, owners, architects, and provide expert witness service to construction attorneys. Throughout my career, I’ve held a wide variety of construction positions working in various roles, from digging dirt in a crawl space to a Senior Project Manager overseeing over 560 projects from inception to closeout. I’ve spoken in several seminars, offered training programs to many construction professionals, taught Construction Management and Scheduling in a local college. In performing so many different roles including, superintendent, project manager for contractors, construction manager consulting to owners, civil engineering design, drafting surveys and more, gave me a well-rounded perspective about the various players involved in projects. Understanding other people’s perspectives of the job helped me become a better construction manager. I enjoy the continuous challenges to solve new problems every day. Even after all these years I still learn new things on every project. When I taught Construction Management at night to working adults, all I requested the students to do is attend and listen. I never opened a textbook; I presented the whole course explaining the various principles from my real life experience. I got very high evaluation grades from students and they felt that they learned the most in my class compared to their other classes taught in the standard ways. So, I decided to share this idea with others by writing a Construction management book offering real life perspectives and lessons. The book was published and got 3 awards. The book’s title is “Real Life Construction Management Guide from A – Z”.
