An article written on trade, commercial law and litigation, by leading expert Philip Lee

Whilst my title is Managing Partner I am not convinced I fulfil that role. My colleagues, who are heads of their various departments, do an amazing job at managing their own departments. What I try to focus on is providing a vision for the future and ensuring that we remain loyal to our values as they are the very essence of our existence.

I am very active as a practising lawyer, particularly in the areas of procurement and competition law. I also have a rather unique experience in WTO law. I was the first private lawyer to represent countries, in this case 77 countries from the ACP group, before the panel and appellant body of the WTO in the very long running and famous banana dispute. This was the most complex WTO dispute ever before the panel or appellant body.

In about 1995 I was appointed through a tender process to represent the 77 countries of the ACP Group in the major WTO dispute. I brought together a team with an American lawyer (former Deputy United States Trade Representative) and a French speaking lawyer who had previously been a high-ranking official with considerable experience of trade matters. Thus, I was ensured that my team covered all aspects and provided the experience needed to fight this comprehensive battle. The most challenging aspect of it in some respects was coordinating the responses from the capitals of the countries I represented. It is no easy task representing 77 countries and coordinating, through both the capitals and their representatives in Geneva, a coordinated position in a complex matter such as the banana trade dispute.

I also was a visiting professor of international trade law in UCD for about five years.

WTO and International Trade Law

WTO and international trade law were considered quite esoteric for most of the past 20 years with only a handful of lawyers having any practical experience in the substantive and procedural elements of this area of law. This is changing now and is likely to change even further as a result of the decision by the UK to implement a Brexit strategy. I have delivered seminars on what I consider will be the implications and the outcome of the UK position on Brexit. So far my predictions have proved accurate.  I correctly predicted that the UK would adopt a position of seek to enter into a customs union, like Turkey, with the EU. However, unlike the UK Government, I predicted that participation in the customs union would last between five and ten years. I note the UK suggests this may be a two-year interim arrangement. I believe I will be proved right. My confidence in my prediction stems partly from the fact that there seems to be a refusal to accept the reality that the negotiation of a comprehensive free trade agreement (FTA) with the EU (or for that matter with any other contracting party of the WTO) is a highly complex matter, even if you have an experienced negotiating team at your disposal. It usually takes upwards of ten years. The UK is short of experts experienced in trade negotiations and international trade law. They will not be able to set up a comprehensive FTA with the EU or anybody else within a two-year period. The UK strategy seems designed to produce confusion. When one examines the Prime Minister’s Lancaster House speech and the 11 objectives outlined in relation to their relationship with the EU, it is plain as a pikestaff that most of the objectives are completely contradictory and cannot be delivered. It is tantamount to the Prime Minister announcing that they have decided that in the UK, all cars should drive in the left hand side of the road but they are also going to allow cars to drive on the right hand side of the road! I await the car crash!

The UK has also ignored the fact that, whilst they are undoubtedly a member of the WTO, the UKs schedule of commitments (which represent what they will offer every other country concerning import duties and arrangements) is in a vacuum. It is possible that it will take years to establish the UK as an independent entity with its own schedules of commitments within the WTO. Simply adopting the EU schedule as its own is more complex than is being made out.

As things currently stand the only certainty is that UK companies involved in export or import and UK financial industries face uncertainty over the next, possibly lengthy, period. Nature does not like a vacuum and similarly business does not like uncertainty. Unfortunately, the uncertainty is a fact. We already see today a flight from London of financial institutions. The uncertainty means that a UK company exporting is unable to tell its customer what the import tariff or quota arrangements will be in the future. This is because the UK has announced that it will not be in the EU and it does not have a trade agreement with any other country. This leaves every UK importer and exporter vulnerable to any competitor located within the EU. That EU competitor will knock on the door of the customer of a UK exporter saying, ‘Hello, I can provide you my product and I can provide you absolute certainty in terms of the import duties into your country that this product will face, and I can probably also provide you with pretty good comfort in relation to the currency and costs of my product’. They can also say that, insofar, ‘as my product is made up of imports from other EU member states or even countries outside of the UK, I know the cost of importing the components that make up my product and I can therefore assure you that you will have the same quality and the same predictability of price as you have always had.’ The UK competitor of this EU Company is left somewhat abandoned. Whilst the flight of the banks has taken place, this second ‘flight’ of international customers and UK manufacturers will soon begin to be seen.

Which sectors boast the most challenges as a litigator?

Firstly, I would say the most challenging area of law to litigate is competition law. This is because in Ireland the size of the market is relatively small but the costs of a full competition case, with the requirement of expert evidence and a great deal of factual information poses significant challenges.  The challenges also arise from the need to get comprehensive discovery of “covert” actions. It is not clear that judges recognise the particular challenges of competition law and the need for a more intelligent approach to discovery to find documents - those documents usually being evidence potentially for criminal conduct. Having said that, we have had some phenomenal successes in competition law including establishing fascinating precedents on the entitlement to discovery, and also in receiving significant levels of compensation.

The Energy Sector

The energy sector is interesting because when there is a regulatory issue there are many different avenues which must be considered in delivering a solution to the client. There is obviously the possibility of dialogue with various Directorates or a formal complaint to the European Commission. There is also the possibility of dialogue with the Department for Energy or with the Commission for Energy Regulation (CER). These bodies may be under resourced and have difficulty keeping up with the complexities involved in ensuring the lights stay on, the cost of energy is as low as possible, and addressing climate change. In addition to dialogue with those bodies there are also the possibilities of litigation before the High Court or with the specific sectoral regulatory bodies. The variety of avenues makes the task particularly enjoyable and stimulating.

The other fascinating thing about the energy sector is that it is closely tied to climate change. From the very beginning, we have been heavily involved in renewable energy. We were advisers to the first Irish major renewable company Airtricity, and are currently advisers to the Sustainable Energy Authority of Ireland (SEAI) and numerous renewable energy developers. I was Founding Chairman of the Irish Green Building Council, whose objective is to facilitate the creation of a greener built environment.

As a firm we are passionate about the opportunities created by decarbonisation. We intend to be at the forefront of this challenge.

The Health Sector

Aside from energy I would also say that our experience in the health sector has been extremely rewarding. We advise many players in the health sector including the Health Services Executive (HSE). The HSE is the equivalent of the NHS in the UK and is the provider of public health services throughout Ireland. We work on many of their most exciting projects from procurement challenges to drugs pricing to major construction and PPP projects. One of the advantages of working for the HSE is that it is highly motivating. It is an organisation that will always be subject to criticisms in the press, but from our experience it is full of professional and dedicated clinicians and managers.

Whilst I believe we have the best lawyers in the country bar none, what we are particularly skilled at also doing is helping clients foresee their future. This is good for our clients and also very good for us as a law firm. I have always tried to foresee where the law was going and hoped to be the only lawyer in a particular area. So far, I think I have succeeded in achieving this.

Philip Lee is the Managing Partner of a 110 person law firm with headquarters in Dublin and offices in San Francisco and Brussels. The aim of the San Francisco office is to bring US companies to Ireland. The Brussels office, on the other hand, is aimed at WTO and EU Competition law issues and servicing clients with EU related problems. Philip is a leading expert in the area of procurement, competition, trade and construction law.

Philip advises clients in relation to the largest public utilities projects in the country. His extensive PPP experience includes roads, waste, waste water and electricity PPP projects where he acts for both public and private bodies.

The last we spoke with Gert Demmink, he spoke on the fact that billions of dollars are spent on futile efforts, like employing the proverbial Chinese Army of compliance officers, most of whom may know a bit about AML, but next to nothing about the actual business and transactions.
Gert offered some valuable insights to what could be done to tackle the issue and how it can so often relate to many regulators, who can only thrive by regulating big banks.
We decided to catch up with Gert, and see what has changed since we had last spoken with him.

The last time we spoke, you mentioned how, in order to tackle money laundering, banks should be authorised specific licences for specific transactions and levied with transaction tax; have you seen any developments in relation to this notion?

No, however in the Institute for Financial Crime (IFFC) in The Hague (partner of The Hague Security Delta) we will for sure pursue this dialogue further.

You stated the most pressing issue was shifting budgets from banks, to the intelligence and police forces; do you believe this is still the matter at hand?

Very much so. There is progress on this topic based on the August 2017 report from The FACT Coalition “Countering AML; Total Failure is ‘Only a Decimal Point Away” where it is stated that the incentives for law enforcement should be changed. From comparatively simple cases and quick arrests that look good statistically, to recognition that financial crimes investigators require specialised expertise and should be rewarded for it.

As Thought Leader, can you share ways in which the UN, US and EU could reform in order to ensure regulatory requirements are met on a wider, smoother scale?

As I mentioned in my previous interview, regulatory requirements could be geared towards the ‘Security Agenda’ thus taking a much more risk based approach as well. They ought to instantly deal with imminent threat and serious crime and do not shoulder financial institutions and corporates alike with responsibilities of handling petty crimes. If our respective governments find that an agenda is worth pursuing, let them make the funds available too. Currently, this agenda revolves primarily on the financial sector and the game is not worth the candle.

Can you share with Lawyer Monthly the challenges involved when you were responsible for setting up the Dutch Antilles FIU? How did you overcome these challenges?

In 1996 – 1997 when I was responsible for setting up that FIU, I was faced with the usual – and understandable: reticence. The legislation was passed and then, all of a sudden someone comes over from Europe to bring to life the ‘devoir’, to report unusual and suspicious transactions to an administrative body – a bumper or buffer between the financial sector and the investigative authorities. That buffer and analysis function of the FIU proved to be helpful in my position to sway the argument towards reporting and being exonerated for carefully reported suspicions. This took away some fears that reports would be picked up by the police immediately and that these would cast a shadow over the reporter and the ‘reported’.

Can you explain how your years of experience enables you to build various regulatory framework including Customer Due Diligence risk-based approach for banks?

Having worked with the Justice Department in exchange for intelligence and investigative information (police, prosecution), and having to set up an FIU as well as the AML/CFT regulatory framework for the Dutch Central Bank between 1998 and 2006, provided me with valuable insights into the ‘metrics’ of how an effective and risk-based framework should be designed, built and implemented. On the basis of a proper and well thought out risk analysis involving the ‘business risk owners’, I can come up with results quickly and convincingly. Actually, all it takes is an ‘iron logic’ to distinguish between a risk and the corresponding risk management procedure or measure; the latter designed by crisp, clear and concise policy choices. As Johan Cruijff, our talented and famous football player used to say: “You will not see it until you have it”.

What motivates you about your role?

Being able to help financial institutions and corporations improve their risk management and compliance framework, achieving more results against lower costs.

Is there anything else you would like to add?

Risk management and compliance must fully embrace artificial intelligence, algorithms, and the Fintech and Regtech developments in order to stay relevant. No doubt that also in these developments there is a need to separate the wheat from the chaff, but there will be gain. With Philip Sidney, we are working on some very promising joint industry platforms, also with the IFFC.

The EU and national telecommunications regulatory frameworks are complex and confusing. The law often struggles to keep up with technology. For some, this cat-and-mouse game has enabled new businesses to take-off without the constraints that apply to traditional telecoms companies allowing users to benefit from new and innovative services. But the game is almost over, with EU plans already under way to extend telecoms regulation to a diverse range of apps. Businesses in this space should familiarise themselves with the new rules. Now is a good time to conduct a health-check to understand how the new rules could impact your existing business models and the success of pipeline projects.

What are the EU regulations of which start-up businesses are often unaware relating to technology and communications?

For many start-up businesses the first real challenge is to understand whether their products and services fall within the EU communications regulatory framework and if so, to what extent. Start-ups face the further challenge that the current rules are spread across a series of different EU directives and there are nuances in how different EU Member States have implemented these directives into their own national laws.

Let me give you an example: in the UK, peer-to-peer over-the-top (OTT) chat style apps are not subject to the UK telecoms regulatory framework; but if you launch the same service in countries such as Germany or France, you may find the local telecoms regulator takes a different view.

Different regulatory treatment can pose real practical issues. Such issues are felt more acutely in the communications industry than most other industries, as apps and services are increasingly global in nature. The cost of having to tweak products and services and the underlying use terms along national borders can be prohibitive and contrary to the ethos / mission statement of the business.

There are many regulations in this area and the trend for more regulation will stay. But areas which catch US companies doing business in the EU off-guard is how network security and data privacy, net neutrality and customer protection are approached. The EU rules can often be stricter than equivalent rules in the US.

With the global ransomware attacks, what do you think could change on the legal spectrum, to help tackle such attacks?

Governments and regulators need to face-up to the difficult balancing exercise that has to be carried out here, and accept that trade-offs between conflicting interests may have to be made.

We all want the highest level of protection of our privacy and security of our data; and at the same time, we want to know that those guilty of heinous offences (such as terrorism, hate crime etc.) can be brought to justice quickly. Currently these conflicting goals are playing out in debates around encryption and whether ISP, telecoms companies and others in this space should be required to weaken / break encryption.

The solution is not in legislation. It's certainly possible to draft a law that at one end of the spectrum bans any form of encryption. At the other end of the spectrum the law could at least allow access to only certain state agencies (subject of course to a well-crafted process to ensure proper oversight and authorisation). However, any weakening of encryption creates risks that overall services become less secure. So it's not just the 'good guys', but also the 'bad guys' that can exploit these weaknesses.

With new technological advancements in commercial environments for example, drones and VR, what further considerations must your clients make to ensure they take the right legal action?

The law in these areas is still developing. Businesses should be looking not just to what is currently on the statute books, but should be trying to identify with their policy and legal advisers where the potential direction of travel of any new rules might lie. In many cases, the existing rules will either not apply or will apply in a way that was unintended as the advancements in question were not contemplated under the original laws. Early participation in any new legislative exercise can be critical to the future success of these businesses.

What is the most challenging aspect of devising pragmatic commercial advice for established businesses?

The most challenging aspect can be to truly know the business's commercial concerns and risk appetite. Advice can be legally correct but if it does not reflect the business's commercial needs, style or culture it cannot be implemented.  Taking the time to sit down and have some 'reverse training' from clients about where their business is going can pay huge rewards for both clients and advisers. However, clients are busy driving their businesses forward so getting their time may be challenging. Advisers need to be attuned to the time constraints of businesses, especially in this space where these businesses face 24/7 demands from their own customers.

What is on the horizon that businesses in this space should be aware of?

The current EU telecoms regulatory framework is being reviewed and updated. Existing rules in many areas will see changes. For those providers who operate at the B2C level, the changes to the current rights for end-users (including a new proposed contract summary template to be crafted by the EU Commission) need to be analysed carefully. For many OTT providers this will be the first time they become subject to the EU telecoms regulatory framework. It's critical that businesses in this space understand how the new rules will impact their products and services and plan ahead.

About Nina Cummins

Nina is a telecoms regulatory expert with over 15 years' experience. She assists multi-national clients on navigating the complex EU and various national telecoms regulatory frameworks, to enter new markets and launch new products and services. She has direct experience of working with high paced technology companies. Before joining Osborne Clarke LLP she was Associate General Counsel Competition & Telecoms (EMEA) at Facebook's London office. She is qualified in England & Wales, Northern Ireland, Republic of Ireland and Germany.

Firm Profile

"Tackling the digital, economic, environmental and political challenges that are shaping international business"

Like all progressive law firms, at Osborne Clarke, we’re perfectly aligned to the core sectors of our clients. But our thinking is what really sets us apart. We’re uniquely focused on the issues driving change and shaping the brave new world of international business. That fascination with what the future holds is something we apply to every shape and size of business that we meet. And the possibilities are limitless.

Contact

Nina Cummins (Partner & Rechtsanwältin)

Osborne Clarke LLP

London, UK

Tel: +44 207 105 7158

Email: nina.cummins@osborneclarke.com

We now interview Kevin Ross, who speaks on all you need to know to be a successful criminal law attorney.

You say that your success is due to the mentoring you received – what should young lawyers do to find a mentor when beginning a practice in criminal law?

You want to be the best you can be, my advice is to find lawyers who are the best at what they do and watch them and learn from them.  I learned from some of the best and most respected criminal defence attorneys in Texas.  I learned by watching them, engaging them in strategy, brainstorming cases, reading their briefs and arguments, and watching them argue issues in court.  They taught me how to use the tools of the trade, and provided me with the invaluable tips to be more effective and persuasive.  They taught me and pushed me to be the best I could be.  They mentored me, and for that I am forever on a path and pursuit of being the best at what I do.  Be yourself and find your style, but learn from those who do it right, who are effective and who are respected.  Seek them out and engage them.  I have yet to find a lawyer who would not graciously give advice and train a young lawyer who seeks their wisdom and knowledge. Ask to sit second chair in trial; work for them for free if necessary, you will not regret it.

What are common mistakes that clients make when they find themselves under arrest or investigation?

• Being adversarial with law enforcement.
• Trying to talk their way out of the situation by themselves.
• Failing to invoke their right to be silent because they feel pressure to talk and believe that if they don’t it will look bad for them.
• Trying to explain everything to family and friends.
• Waiting to hire an attorney believing that if they don’t think about it, it will go away.

In your federal white-collar fraud practice, what are the biggest challenges you face in preparing a client’s defence?

1. • Complexity of the case;
   • Analysing and processing voluminous discovery in document intensive cases; and,
   • Finding ways to make the case interesting and compelling for a jury so they stay engaged with the facts and remain on the edge of their seat for what’s about to happen next.  It is creating a real and engaging courtroom drama for them to actively participate in.

What are your three keys to seeking the best possible outcome in a criminal case?

1. • Hard work and preparation.  There will always be someone smarter than me, but there should never be anyone who will out prepare me.  You must be relentless to be the best at what you do.  Preparation is the key.  It is not casual nor optional, it is essential.  If you do not have the grit needed to work the case up, you are not giving the client what they deserve. When the case is over, I want to be able to look myself in the mirror and say, “no regrets, no reservations…I gave it my all”.  When a client sees that you have worked hard and put everything you have into the case, then no matter the outcome, they will know that you did everything you could possibly do, and it will be appreciated.
   • Building a professional working relationship with the prosecution.  I work under the philosophy that having a good working relationship with the prosecutor is more beneficial than starting off adversarial.  The time for being adversarial is in the courtroom during trial.  A criminal trial is akin to war.  The weapons of war are effective cross-examination, the rules of evidence and criminal procedure and using them to your client’s advantage and knowing how to relate and engage the jury so that they trust you and understand your theory of the case and want to decide in your client’s favour.  You are always professional, but consider yourself a skilled warrior.  You are after all battling for the freedom of another.
   • Understanding the rules of federal criminal procedure and evidence while strategically applying them better than anyone else in the case.

Aspiring to be the best lawyer you can be requires a mastery of the rules of criminal procedure and evidence at a minimum.  Yet, you also must hone your craft every day, continually learning and growing in the knowledge and practice of trial advocacy.  When you stop seeking to learn, someone will pass you in aptitude and ability.  Practice makes perfect.  The moment you think you have arrived and your ego tells you that you are the best, that is when you will get beat.  Pride comes before the fall.  Never think you know it all, always be learning and honing your craft to be a dynamic trial lawyer.

Kevin B. Ross

Board Certified in Criminal Law

Law Office of Kevin B. Ross, PC

8150 N. Central Expy, Ste. M2070

Dallas, TX 75206

214-731-3151 office

www.rosscrimlaw.com

Criminal defence Attorney Kevin B. Ross is Board Certified in Criminal Law by the Texas Board of Legal Specialisation.  He is a highly regarded criminal defence attorney in Texas. This is evidenced by his peers in the legal community voting him as a Texas Super Lawyer, a service of Thomson Reuters, from 2013 to 2017 and his past recognitions as a Texas Super Lawyer Rising Star from 2004 to 2011. Those receiving this recognition are selected based on ethics, experience and reputation. In addition, Ross holds an AV-Preeminent rating from Martindale-Hubbell for ethical standards and legal ability.

Criminal law is a serious and intricate process that requires expertise and strategic thinking to successfully defend clients faced with serious charges. The right firm handling your case can make the difference between incarceration and remaining free. We work to protect your rights throughout the legal process, providing an experienced and effective defense.

We represent clients who have been accused in a number of state criminal categories, including:

Drug Offenses

Sexual Assault

DWI (Driving While Intoxicated)

Unlawful Carrying of a Weapon

Minor in Possession or Consumption of Alcohol

Online Solicitation of a Minor

Bank Fraud

Theft

Christopher Adams has been practicing law for 19 years and he always knew he wanted to practice criminal law. Christopher takes the time to speak to us about his landmark cases and his motivation behind his sheer dedication to his role as a criminal defence lawyer, and it is clear to us at Lawyer Monthly to why he is a game changer in his field.

“Growing up in a law enforcement household there was always something about a criminal defence attorney that was attractive to me. I always wanted to be the person to defend someone. I always knew that the prosecution held all of the cards - so to speak - and the odds are stacked against a defendant. On one side you have prosecutors, investigators, police officers and other agents all trying to win their case. The only thing standing between those insurmountable odds and the defendant would be me. I know it sounds a bit strange, but I like those odds”, explains Christopher.

His expertise in this area has seen him partake in landmark cases, such as an odd, yet highly prominent case, involving abolishing hypnosis as a method of gaining witness testimonies.

“Also, maybe it is my upbringing and I can thank my parents for this, but there is something about being the person that gets to say something good about someone. What I mean by that is that in a criminal case that ends in a conviction, or even in a plea agreement, the prosecutor and a whole host of others get to say what a terrible person or what terrible things the defendant did; and people do line up from far and wide to do that. For me, as a criminal defense attorney, if I can find one good thing – one positive thing about a person – and I can say it and advocate for that person on that one good thing, I feel better about myself than if I was to pile on.

“That is not to take a swipe at prosecutors and law enforcement, like I said I come from a law enforcement family. But it is just my nature – I would rather be the one saying something good about someone, than piling on.”

This exclusive interview with Christopher surely projects his passion for his role and will motivate any individual following the legal industry.

What has been the biggest challenge you have faced in order to be established as you are now? What advice would you offer aspiring lawyers in order to help them overcome potential hurdles?

I think the biggest challenge and fear was always to go out on my own and start my own firm. Even though it was highly exciting, after having practiced in established and highly successful law firms that have incredible amounts of support and people there to support you, the fear of starting my own firm was paralyzing. That was heightened by the fact that I decided to start my firm in 2013 when the legal market was still on a downturn. At that time firms were making less money, fees were getting reduced and the number of qualified criminal defence lawyers was growing. You are in constant competition for work, so having a successful practice that relies solely on my contribution as opposed to what would be a guaranteed and reliable income was terrifying. But, because of my experience in the practice and the confidence to actually do it, I knew I was ready.

The advice that I would offer to lawyers considering doing the same would be to not let your fears paralyse you or keep you from reaching out for what you want in this career. You are far more that what you do for a living. For me, I may practice criminal defence and I may be a litigation attorney but that does not define me. I am a father to three great kids, and a husband to an amazing wife. I coach soccer and am active in my town. I have spectacular and supportive friends and family.  I always had that support network and that is very important – everyone needs to rely on that. My wife, who is a successful litigation attorney at a national law firm, one day looked at me and said if you don’t do this you are going to regret it for your entire life. So I would tell other lawyers who are contemplating doing the same thing: life is too short to regret not going out on your own. It’s okay to be afraid of the unknown, but just go and jump out of the airplane when you know your parachute is packed and ready.

What was your main aim as president-elect of the Association of Criminal Defence Lawyers, how do you settle to accomplish this?

It was a great honour to not only be a trustee of the association but to serve as its president. When I began my term as president I set out my goals to increase the professional relationship between the Bench and the Criminal Defence Bar in this state, as well as the prosecutors in both the state and federal systems. However, my main goal was to create a Veterans Diversion Programme in the State of New Jersey. New Jersey has an incredibly high concentration of veterans and the numbers across the country of those veterans being charged with crimes and being imprisoned is staggering. Posttraumatic stress disorder - whether diagnosed or undiagnosed - is a significant component especially with the number of military conflicts that have occurred since 9/11. I have read stories and met soldiers with repeated tours of duty that saw horror and conflict that no person can reasonably be expected to put out of their mind. I have met soldiers and veterans who talk about the horror they have seen and I can’t imagine what it would be like. And then I think that we as citizens ask these men and women to sacrifice themselves, their families and their futures for us, and we train and create these soldiers who are expected to go into these war zones or even places that are not exactly war zones and see the horror that is there and defend us and fight for us. And then we expect, when it is over, they will come back and just rejoin society and be “normal” - however we may define that term. That is simply unreasonable.  So, when they come back and develop a dependency issue or when they come back and they have anger issues, or when they come back and they are just emotionally crippled, they deserve more than to be charged with crimes and for us to turn our backs on them. They deserve treatment and a second chance.

What I set out to do was to start a Veterans Committee of the Association of Criminal Defence Lawyers headed by an army veteran who was also a trustee, and said that we as a defence bar should push for a Veterans Diversion Programme in New Jersey. We did that – both directly and indirectly – and lobbied the legislature and the Governor to pass a Veterans Diversion Bill. The bill was ultimately passed shortly before my term was over. The bill was not everything we asked for, but everyone agreed that we should not sacrifice success in pursuit of the perfect. So since then I have set out with other lawyers to continue the goal of bringing Veterans Diversion Programmes to the forefront. Recently the Monmouth County Prosecutor’s Office here in New Jersey instituted the first Veterans Diversion Program in the state. It is a collaborative process that will hopefully be the benchmark for all other counties in the state to follow. I will continue to volunteer my services for free to help veterans navigate the Veterans Diversion Programme.

What would you say is key to defending medical professionals that are under allegations of misconduct?

In the past several years the medical profession has been the target of both Federal and State prosecutors and the threat of losing everything – not just a criminal charge which could result in only probation – but also a doctor’s livelihood, is a daunting challenge. Doctors who have been practicing for 30 years, who have discrepancies in their medical bills, are being treated like the common criminal or thief. That is not to say that there are not bad apples in every bunch, but I look at defending medical professionals the same way I look at defending police officers. Sure, there are bad police officers all over, and because they are police officers they attract attention and publicity and that results in the public thinking that all police officers are bad. We know that is not the case, but instead, progress on the whole can be made by routing out the bad ones. The same applies to the medical profession. Doctors have worked their whole life to care for communities and just because it has become a priority to prosecute medical professionals in order to achieve a financial goal, either federally or statewide, does not necessarily make it right.

Our firm’s approach looks at the case as a whole. What I mean by that is we look at the criminal and the administrative part and try to work towards a resolution or ultimate defence that will help the professional survive the criminal justice system and not suffer a license revocation. A perfect example is the trial I had in 2016 in Bergen County, NJ where I defended a well-known and well renowned physician who was also the Mayor of West New York. Dr Felix Roque was charged in a massive indictment that alleged that he was being paid kickbacks by the owner and family members of an MRI facility. Dr Roque, an honorable man who immigrated to the US from Cuba, became a doctor and joined and served in the military until he retired a Major, denied any such conduct. The State, however, fully accepted the story of a known repeat criminal – the owner of this MRI facility. This MRI facility owner was a man who had a criminal past doing the exact same thing: bribing people. He was in the country illegally from Pakistan and began doing the same thing all over again. When he was caught, he was offered the opportunity to reduce his ultimate time in jail if he turned in doctors that he bribed. So he did what any good liar would do, he started making up stories about doctors so he wouldn’t have to go to jail. His entire family – including his 80-year-old father was facing deportation and jail. The State offered this man a cooperation deal that amounted to a bounty hunter agreement. In other words, he was incentivised to lie and make up stories about doctors. That is exactly what he did against Dr Roque. In that case, Dr. Roque absolutely refused to plead guilty and demanded to go to trial. He was actually offered a “slap on the wrist” of probation but refused. He was a client who told his lawyers I am not going to say I did something I did not do, in order to avoid the risk of the penalty. He empowered us to fight and go to trial in the face of what would seem to others to be insurmountable risk. We went to trial which lasted from Thanksgiving to Christmas and ultimately the jury returned a verdict of not guilty on all charges in a matter of hours. That was one of the more rewarding trials I have had. And it is important to note, that because Dr Roque stood up to the government, other doctors did as well, and they too were vindicated.

Can you share with lawyer monthly significant case you argue to the Supreme Court and the impact this had in your legal career?

I had the honour of representing as amicus curiae on behalf of the Association of Criminal Defence Lawyers, a gentleman by the name of Clarence Moore. Clarence Moore was imprisoned for many years in the State of New Jersey for crimes he claims he did not commit. An issue was whether or not hypnotically refreshed testimony was admissible in New Jersey and whether or not that was regarded as science.

In that case, two victims of otherwise heinous crimes – rape – were asked to identify their assailant. They were either unable to identify Clarence as their assailant, or they identified somebody totally different as their assailant. Not accepting what the victims said, police in two New Jersey counties put the victims under hypnosis and they underwent what was referred to as hypnotically refreshed testimony. That meant that the witnesses sat with the hypnotist and underwent hypnosis in order to try and have them identify someone they said they wouldn’t, or they thought was someone else. If that process sounds absurd, you’re right, it is. But that process was legal in New Jersey. I am sure you can imagine, but when the period of hypnotic suggestion was over, both victims identified Clarence Moore as the perpetrated.

The concept of hypnotic suggestion to a witness to identify a victim who is then going to be prosecuted for crimes and serve decades in jail offends me. I was able to participate in that litigation and argue at the Supreme Court that hypnotically refreshed testimony should not be admissible in any case in the State. After two arguments at the Supreme Court, in the middle of which the matter was remanded for a hearing at the trial level, the Supreme Court accepted our position and rejected hypnotically refreshed testimony in any case in New Jersey. Clarence Moore is free today and to me that was one of the more meaningful cases I have ever been a part of.

How do you guide yourself and your clients through complicated commercial litigation?

Commercial litigation is a challenge because it sometimes lacks the emotional connection that comes with criminal defence. Often, people make decisions without thinking them through because there is not the emotional risk of jail or other criminal penalties. What we strive to do is explain the opportunities for resolution to all of our clients at every stage of litigation. Commercial litigation is incredibly costly and I think that is why you see so few civil trials. But just like with our practice, our driving force in this instance is to provide the best representation available to a client – whether it is an individual or an entity – at a reasonable price using cutting-edge technology and collaboration. We are young and energetic and have the ability and facility with new technology that replaces the old manner of litigation that required countless bodies and resources. That is not to say that the large litigations do not require such resources, but we are able to offer a more streamlined approach for our clients.

Can you think of any other ways in which the legal sector could develop and address innovation in order to tackle big challenges?

It has always seemed to me that the legal sector lacked the innovation and technological advancements that are seen in the business community. Something as simple as e-filing and tracking cases online is so far behind what the business community has, it is frightening. Only recently New Jersey has begun on a more general basis to have e-filing and tracking online of cases. The federal system has been doing it for some time but it would seem to me that the courts and the legal community, as a whole, could make concerted efforts to increase technology to reduce costs and improve innovation.

Similarly, court appearances are costly and burdensome to the clients. Video conferencing and CCTV appearances for status conferences and other appearances are something that should be available. It would seemingly cut down the back log that plagues the judicial system and also spare litigants the expenses.

Is there anything else you would like to add?

The only other thing I think is relevant to mention are my partners, Kevin Buchan and Stephanie Palo, who have worked with me in the past. Kevin and I worked together in our last firm. We worked closely together on cases and know how each other think and act and react to cases. Stephanie Palo was a law student and law clerk that worked with both of us at that firm as well. Her work ethic and work product was second to none. Once I started my own firm I decided that I wanted to grow larger than a solo practitioner. What I didn’t want to do was look for “strangers” that I have come across in the practice. I started to think of the people that I would want to grow this practice with and those are people who think and act like me, that I can trust. Firm partnerships are like a marriage and you have to be open and trust each other. We have that ability and I believe it is why we have been successful. We remain close today both personally and professionally and that strength and bond is the base upon which this firm will grow in the future.

/////

Christopher Douglas Adams

Founding Partner

146 Route 34, Suite 325

Holmdel, NJ 07733

P: (732) 837-4544

F: (732) 837-2262

www.abplawfirm.com

About Christopher Douglas Adams and His Firm

My name is Christopher Douglas Adams and I am the Founding Partner of Adams Buchan & Palo, LLC in Holmdel, New Jersey. Our firm is a litigation boutique firm that services criminal defence, family law, civil litigation, professional disciplinary and ethics matters, and municipal law. I concentrate my practice in the areas of State and Federal criminal defence, attorney and professional ethics/disciplinary matters and complex commercial litigation. I am admitted to practice in New Jersey, the United States District Court for the District of New Jersey and the United States Court of Appeals for the Third Circuit. I have practiced in various states throughout the country: Florida, Pennsylvania, California and Illinois.

I graduated college from West Virginia University with a BA, Cum Laude, in Political Science in 1995 and I graduated law school from Seton Hall University School of Law in 1998.

Planning a career in the field of business is a common goal for many people studying at college and university. Many business degrees provide a certain level of flexibility in terms of what you can do with it, but not all are equally valued. Different business degrees often do focus on specific aspects of finance and business, making it essential to pick the right degree for your pursuit.

Anybody who has considered a career in business has probably also considered obtaining a MBA. This degree specifically opens up new doors across many different industries and sectors, and to this day remains the pinnacle of business education achievement. We'll talk today about four reasons this is still true.

1.      MBAs Are Easy to Obtain

At least in a relative sense, obtaining an MBA isn't too difficult. While earning masters degrees in certain fields such as law and medicine are both time- and cost-consuming, there are many options that make earning an MBA much easier.

From online institutions like the New Jersey Institute of Technology that provide courses to anybody, anywhere, to the physical classroom at thousands of college campuses, the ability to find a school and earn your degree on your own terms is straightforward.

2.      MBAs Provide Career Flexibility

Arguably one of the biggest benefits of having a masters in business administration is the career flexibility that it provides. While many degrees may have limited shelf lives or restrict you to working in a handful of career fields, businesses and industries of all sorts hire MBAs all the time. Whether you pursue a traditional degree or a MBA in information technology, you'll have plenty of businesses wanting you.

The skills developed in pursuit of an MBA make it a very appealing degree to virtually any brand or business. As such, your career can take a turn anywhere you'd like, whether you want to work in the public or private sector.

3.      MBAs Convey Authority

Especially in the professional world, possessing an online MBA or one earned at a physical campus is a sign of accomplishment, business sense and dedication. Unlike most four-year degrees, the work that goes into obtaining an MBA signifies that you are willing to do whatever it takes to get the job done.

In whatever occupation you ultimately find yourself, possessing that MBA can help you make decisions more easily without question, explain financial strategies more clearly and earn a better salary simultaneously.

4.      MBAs Provide Excellent ROI

Every degree has an effective return on investment. Some degrees are easily obtained and without much cost, but don't provide a huge increase in earning potential compared to not having one. Others are very, very costly but likewise produce massive salaries over the long-term to recoup that spending.

With an MBA, you have a high ceiling and a high floor, so to speak. An average person with an MBA can easily earn six figures under good conditions, but some individuals with MBAs manage to earn seven – and even eight – figure salaries. At the same time, costs associated with this degree aren't comparable to institutions such as law school and medical school. As such, it usually provides excellent ROI for those who pursue it.

These four benefits to earning an MBA should be all you need to decide on the right career path for you. From excellent return on investment to a limitless number of career opportunities, earning that MBA you've always wanted just makes sense.

Erin has more than 20 years of experience handling a full array of family law issues. She is a Certified Family Law Specialist with the State Bar of California. With family law being complex and constantly changing, Erin is committed to maintaining the highest level of experience and proficiency in family law. She speaks with Lawyer Monthly about her main motivation behind specializing in family law, and her work helping victims of domestic violence.

What was the most difficult aspect of working towards your law degree and how did you overcome that?

Law school presented me with a very different way of looking at information. Legal analysis requires a refinement of analytical and critical thinking. One needs to learn to identify the issues presented, apply the law, and learn why one case, rather than another, carries enough weight to set a precedent. I learned the importance of evaluating the facts, applying the law and ensuring that my personal values and preconceived biases or opinions were excluded from that process. I have applied this systematic approach in my 20 years of practice and I am very grateful to my law school and my professors for preparing me to succeed in the practice of law.

I was 21 when I started law school. My life up to that point had been one of a student. Although I worked throughout high school and college, my experience in the “real world” was somewhat limited. The majority of the students in my class were much older. For many of them, obtaining a law degree was a second career or something that they had postponed for a variety of reasons. They had the ability to apply the law in a practical way based on life experiences, which I lacked at that point. In fact, when I first learned about financial regulations in my corporations class, my teacher pulled me aside one day and suggested I read the book, ‘Den of Thieves’, a novel by James B. Stewart, which tells the story of insider-trader on Wall Street in the 1980’s. It was clear to my professor that my lack of business experience impacted my understanding of the stock market, which in turn, was affecting my ability to comprehend and apply some of the financial principals we were learning.

How did you develop the qualities needed to tackle the emotional cases you see in family law?

Family law is emotional. There is simply no getting around that. As a family law lawyer, you are working with individuals during one of the most stressful times in their lives. Feelings are raw, and there is a lot at stake.

It is my responsibility to remind people of what is truly important. People are not using their best judgment if decisions are based on emotion. I try to help my clients see the big picture. I ask my clients to explain to me what “winning” looks like to them. This often helps put things in perspective. It requires people to shift their focus to working on an agreement or solution that both parties can live with.

It is imperative to me that my clients view the process, and their own actions, through the eyes of their children. I remind people that when you say something unkind about one parent to your child, the child often adopts that criticism as being directed at them. Children are perceptive. They are like sponges. They internalise the good and the bad. Children do not deserve to be tangled in the heart strings of their parents.

I also have learned that I cannot effectively advocate for my clients if I am overly enmeshed or emotionally invested with my clients or a particular outcome. My focus needs to be on helping the family get through the process. This is often difficult in and of itself. I need to maintain the same level of integrity and good judgement as I expect from my clients. This often means that I, too, cannot take things personally. Not every attorney governs himself or herself by the same standards as I do. This can be frustrating and disappointing at times and can adversely impact the resolution of the case.

What is a case you are most proud of and why? How did this case further shape the way in which you practiced law in the future?
One of the reasons I decided to go out on my own is because it allows me to represent clients for the Harriet Buhai Center for Family Law. The Center provides legal services for very low-income families. On average, 70% of our clients report domestic violence. Our volunteers (attorneys, paralegals and law students) donated nearly 12,000 hours last year. We offer free legal services and education at six outreach sites regularly throughout the year. The Center has served an average of 900 clients annually over the last five years.

The clients I have represented from the centre have truly changed my life. Their courage and determination, under some of the most horrific conditions imaginable, is nothing short of a miracle. It is the experience of providing meaningful access to justice for the most vulnerable which fills my heart with hope and provides me with the motivation I need at those times when I find the day-to-day practice of family law disheartening.

What further considerations do you need to make when cases involve domestic violence? Moreover, how do you go the extra mile to ensure the safety and comfort of your clients?

When working with victims of domestic violence, my first objective is to safely remove my clients and their children from the immediate physical danger. This is what I consider a short-term safety plan. This often requires intervention of law enforcement and the court. For a long-term safety plan, we need continued oversight by the appropriate authorities, including assistance from schools and trained monitors for supervised visitation.

Once the physical threat has been removed, we work on finding an emotional support team. This may include family members, friends, support groups and individual therapy. I need my clients to trust me, to be open with me, to be able to discuss the details of what has happened. Developing this level of trust does not happen overnight but it is essential for effective representation.

What is the most complex aspect of family law in California, that others are not always aware about?

California is a progressive state. There is a diverse population serviced by the family law courts. This creates novel legal issues which are often cutting edge. It provides lawyers with the opportunity to make a difference, to set a precedent for recognising the multifaceted nature of family relationships in the 21st century.

Also, Los Angeles has a large entertainment industry. We have a 24-hour news cycle. Media is at the court house every day. When children are involved, they often become the “victims” of a highly publicised dissolution and/or custody battle. In those types of cases, I believe we need to find a better way to balance the right of information and the protection of our society’s most vulnerable children.

What was your main motivation for specialising in family law?

I clerked for a family law judge during my last two years of law school. Going into a different type of law never occurred to me. I was hooked from day one. Becoming a family law specialist was the natural progression in my education and career and I am very proud of it.

With family law constantly changing, how do you hope to see things change in the next few years?

I would like to see equal access to effective legal representation, greater resources for family law courts which are overburdened and greater civility and cooperation among lawyers.

Erin L. Grey, Esq.
The Law Offices of Erin L. Grey
11111 Santa Monica Boulevard, Suite 1040
Los Angeles, California 90025
t: (424)248-3463
f: (424)217-4487
www.greyfamilylaw.com

Erin Grey has more than 20 years of experience handling a full array of family law issues with extensive trial experience. She is a Certified Family Law Specialist with the State Bar of California. Family law is complex and constantly changing. As a Certified Specialist, Erin is committed through certification to maintaining the highest level of experience and proficiency in family law.

At the Law Offices of Erin L. Grey, we are devoted to family matters, including dissolution, custody, complex financial issues, prenuptial agreements, and financial elder abuse.

As Founder of Think Legal360, P.C., Beth Corriea has significantly developed her legal expertise from when she first graduated law school in 2000. She has tackled appellate cases, taken on a newly developed role in the Los Angeles Police Department (LAPD) to improve her department, and started her own company in order to help clients throughout the risk management process. We speak with Beth about the most rewarding aspect of working with the police departments and how she prepares for tough litigation.

Can you outline for Lawyer Monthly the steps you take for risk management consulting services to ensure no stone is left unturned?

My risk management consulting focuses on developing proactive risk management programmes that are able to: (1) identify early warning signs for high-risk issues; (2) respond quickly to warning signs; (3) track high-risk issues; and (4) recommend changes in policies, procedures, training and accountability to prevent and/or mitigate high-risk issues. This process begins with gathering and analysing both historical and contemporary data that is collected by an entity so that a foundation can be established for the identification and tracking of high-risk issues. By utilising data in this manner, evidence based decision-making can take place when reviewing and recommending changes to an entity’s policies, procedures, training and accountability systems.

What was the most rewarding aspect of working as the Department Risk Manager for the Los Angeles Police Department?

The most rewarding aspect of working as the Department Risk Manager for the Los Angeles Police Department was seeing how quickly positive change can occur. The position of Department Risk Manager was new not only to the Los Angeles Police Department, but also the City of Los Angeles, yet the Department and City’s leadership quickly embraced it. As a result, a new dialogue took shape that required risk management factors to be considered in the decision-making process. The effect was a dramatic change in behaviours that previously led to litigation and liability. Indeed, within one year, the Department experienced the following reductions:

·         Employment Lawsuits: Comparing 2012 and 2013, the number of lawsuits filed decreased from 26 to 12, representing a 54% reduction.

·         Preventable Traffic Collisions: Comparing 2012 and 2013, the number of preventable traffic collisions decreased from 526 to 409, representing a 22% reduction.

·         Workers’ Compensation Claims: Comparing 2012 and 2013, the number of new claims decreased from 3,680 to 3,590, representing a 2% reduction.

·         Use-of-Force Lawsuits: Comparing 2012 and 2013, the number of lawsuits filed decreased from 50 to 39, representing a 22% reduction.

·         Fair Labour Standards Act (FLSA) Lawsuits: Zero lawsuits were filed in 2013.

Moreover, what challenges came your way with this role and how did you overcome them?

The largest challenge that I experienced in my role as the Department Risk Manager was the fact that this position was brand new to the Los Angeles Police Department, as well as, the City of Los Angeles and the mission of developing a proactive risk management programme had not previously been defined. So, I basically started with a blank slate. Not only did I have to create my own function within the department, but I also had to identify and implement proactive strategies for reducing high-risk behaviours. LAPD’s prior risk management efforts focused on assisting in the defence of litigation and providing “lessons learned” from large verdicts and settlements. To overcome this challenge, I started with interviewing the various stakeholders within and outside of the department to get a better understanding of their expectations for this new position and to begin identifying high-risk issues that they believed were impacting the department and its ability to carry out its mission. From there, I began to collect and analyse historical and contemporaneous data related to the high-risk issues so that I could begin to understand why these issues, events and behaviours were taking place. Armed with data, I then established regular collaborative meetings with the department’s leadership to discuss the data and, as a group, identify a solution. With an agreed upon solution, I would facilitate its implementation and monitor whether it was having a successful outcome or required further analysis and tailoring.

Think Legal360, P.C. has been providing consulting services for the New York City Police Department – how does this differ to your role at the Los Angeles Police Department? In addition, do you think each jurisdiction could adopt regulations from another, in order to be better advanced?

Think Legal360, P.C. provided risk management consulting services for the New York Police Department from June 2014 to September 2016. During my time at the Los Angeles Police Department, members of the New York Police Department reached out to me to learn about the proactive nature of the programmes I had developed at the Los Angeles Police Department, which was unprecedented in law enforcement. At the time, the New York Police Department had no risk management programmes and was facing $180 million a year in liability. Upon becoming a consultant for the New York Police Department, I assisted in the development of their Risk Management Bureau, as well as the development of proactive systems for gathering, analysing and reporting on precursors to liability. With these new programmes, the New York Police Department experienced a 13% reduction in police action claims, a stark reversal to the upward trends that the Department had been experiencing in recent years. They also experienced a significant increase in defence verdicts on police action lawsuits.

I absolutely agree that different jurisdictions can learn and build upon the experiences of others whether it’s learning what to do or sometimes more importantly what not to do. For example, the use of body worn cameras is extremely complicated and very expensive. It’s not simply a matter of buying cameras and requiring officers to wear them. Considerable thought has to go into the circumstances for when an officer is required to turn them on. For instance, is the officer required to videotape interactions with domestic violence or sexual assault victims? Is the video only to be used in court as evidence of a crime or civil liability, or can the video also be used in the disciplinary process? Does the video have to be released to the public as part of a Freedom for Information Act request? Can the officer review the video before being interviewed in connection with an investigation? If more than one officer was at the scene, can the officer review all of the videos or only the video from his/her camera? On the technical side, does the agency have the necessary infrastructure for downloading and storing the video, and distrubuting the video to the District Attorney’s Office, the Public Defender’s Office, to outside attorneys involved in criminal and civil litigation? By learning from the experiences of others, law enforcement agencies can avoid significant missteps that may cost them not only financially, but may also impact their relationship with the community.

What motivates you about your role and what inspired you to delve into the land of law?

Being an agent of positive change is what motivates me. As a litigation attorney you are part of the fabric of society. You work every day with the very structures and systems that define what people are allowed to do and not allowed to do. By working with these structures and systems, I have the opportunity to effectuate positive change for individuals, families and communities.

How did you know you were cut out to handle tough litigation? Moreover, how did you develop your skills to tackle tough cases?

Growing up I was a competitive athlete and nothing thrilled me more then being in a game-winning situation. The same holds true in my professional career. I love being in the courtroom. I love arguing to a judge or jury why my client should win. The bigger the stakes, the bigger the thrill.

As any athlete knows, the more you practice the better you perform. When I get involved in case, I make sure that I know everything factually and legally that I need to know to win. I will always be the most prepared person in the room.

In addition to this, how do you prepare for the tough nature of the Courts of Appeal?

I was a second year attorney when I made my first appellate appearance.  I had never seen an appellate proceeding and no idea what to expect. To assist in my preparation, I went to the appellate court a month before my appearance so that I could watch the attorneys and the judges. I spent the entire day learning what types of questions the judges ask, how the different attorneys presented their arguments, what to do if you don’t know the answer to a judge’s question. This preparation not only calmed my nerves, but also informed what I needed to do to present my best argument to the court.

What surprised you the most when you first began instructing in court?

I was in my fifth year of practice when I did my first jury trial and what surprised me the most came after the conclusion of the trial when I was talking to the jury about their decision. The surprise was learning how little the law matters when a jury is making its decision. Jurors are not attorneys. They have not been taught how to apply the law to the facts of a case. They have not been taught to identify what facts actually matter when deciding a case. So, their decisions come down to what is the fair outcome. This dramatically changes not only how you prepare for trial, but also what cases should go to trial.

After years of experience in the legal sector, what would you advise your former self?

I’ve been practicing law for 17 years and I think the main thing I would tell my former self is that the law is not perfect. Going through law school you are taught a very black and white approach to the law. There is no middle ground; there is no wiggle room. But, once you get out there and start practicing, you see that the law is very grey. And, the grey comes from all kinds of different sources. There could be political influences, societal influences, personal influences, all of which contribute to a less then perfect and often unpredictable system.

Is there anything else you would like to add?

My risk management consulting services are unique in that the proactive risk management programmes that I develop focus on long-term sustainable change that is predicated upon changing employee behaviour and the department’s culture. The ultimate goal is furthering the department’s partnership with the community by recognising that such development starts with how members of the department treat each other. The expectation is that by creating a better work environment for employees and further developing the department’s partnership with the community, the department will reduce the number of claims and lawsuits filed against it, as well as the overall cost of litigation involving the department. To reach this goal, strategies are developed that become: an integral part of the department’s organisational process, imbedded within management’s decision making process, and strategies that are systematic, structured and take into account human factors in order to have sustainable impact on the community, work environment and ultimately litigation.

Beth D. Corriea

Founder and President

Think Legal360, P.C.

www.thinklegal360.com

Beth D. Corriea, President and Founder of Think Legal360, P.C., a litigation and risk management consulting firm that provides services to a variety of entities within California and across the nation.

 Think Legal360, P.C.’s litigation practice is presently engaged in the defence of labour and employment litigation, civil rights litigation, personal injury and property damage matters. Think Legal360, P.C. represents both employers and individuals in state and federal courts. Their risk management consulting services include conducting reviews and assessments of existing systems (including data collection and management) based upon best practices and providing guidance on building successful proactive risk management programs that are designed to identify and respond to risk issues across the organisation with the over-arching goals of improving performance and efficiency and reducing liability.

David Truex is a consultant with Taylor Hampton Solicitors, litigation specialists in London. He specialises in international family law. He has particular expertise in jurisdiction and forum disputes (where best to divorce), international child custody and abduction, and international enforcement. He speaks with Lawyer Monthly about his extensive experience; in this stimulating interview, David speaks on implementing the first family law mediation scheme in Australia, how the UK could advance their legal system, and the challenging nature of child abduction cases.

You have legal experience both in England and Australia; can you share with Lawyer Monthly the differences in the jurisdictions in relation to their legal system? What do you think they could adopt from one another to better enhance their courts?

When I first started to practice in England I thought it would be easy because the law looks similar to that in Australia. Very soon I realised that the cultural chasm is vast. Australia consigned fault to the historical dustbin in 1976. In England you still have to allege “fault” to get a divorce quickly. English judges tend towards a protective approach to women, especially young mothers. Australia is much more egalitarian. I’m still trying to decide which system is wiser. Mutual learning? The UK courts must get more tech savvy with on-line filing and video hearings. Australia should try harder to keep mums with young kids in the family home, rather than force a sale to achieve an immediate 50/50 asset split.

Can you share cases that you have been involved in that have defined and tested the laws in place?

Test cases are always difficult because you don’t know how they will turn out. Running them is like being a test pilot and sometimes you crash and burn. In that category I would put the two Wermuth cases, (No 1) [2003] 1 FLR 1022 and (No 2) [2003] 1 FLR 1029 (where we failed to secure English jurisdiction in a test of the then-new Brussels I and Brussels II Regulations) and Weymeyer [2001] 2 FLR 84, where we failed to convince the English judge to allow a maintenance creditor to use bankruptcy to enforce arrears. Actually, that case had a happy ending because the miscreant debtor moved to Scotland, which sensibly does allow bankruptcy for maintenance arrears (as do most civilized countries, including Germany, Sweden and Australia).

I still believe strongly that the Wermuth and Weymeyer decisions were moral travesties, albeit arguably correct in law as understood by the judges when they made their decisions.

On a happier note, I was lucky enough to be in London in the 1990s, just as the Family Division of the High Court was getting to grips with the 1980 Hague Abduction Convention. I was involved in several cases where the important concepts of parental responsibility, rights of custody, habitual residence, consent, acquiescence and grave risk of harm were defined.

You help implement the first family law mediation scheme in Australia: what were the challenges you faced before this was implemented? How did the sector react to once mediation became an option?

I could write a book about this! I was a legal aid family lawyer in Melbourne when the director of the Marriage Guidance Council, Dr Warwick Hartin, called me one afternoon to suggest we try this new-fangled American idea called mediation. I read a lot of American mediation texts, adapted their models for the Australian context, and started mediating with MGC couples who had been through counselling and had reached a decision to divorce. It was the hardest work I have ever done. Lawyers don’t sit in the same room as the traumatized couple. I was terrified. Nevertheless, I managed to get a 75% settlement/satisfaction rating. I then trained more mediators, starting with Susan Gribben who was doubly qualified as a counsellor and a lawyer. I persuaded the Law Institute to approve the mediation model in Victoria, against fierce opposition from traditionalists (“corrupting the lawyers’ partisan duty to the client”) and Foucauldian deconstructionists (“lawyers qua lawyers can never be neutral facilitators”). The Victorian model was subsequently implemented throughout Australia and has become the mandatory first point of entry in the management of family disputes.

As Thought Leader, can you share with us the most difficult aspect of cases involving child abduction and kidnapping, especially when taken abroad? How does this affect cases and can you think of any amendments in family law that can help tackle these cases in a more sufficient way?

International child abductions are some of the hardest cases a family lawyer sees. The issues are profoundly important, the parties are implacably polarized, compromise is not possible and resolution is urgent. The complexity of the law would challenge an appeal court comprising Daniel, Solomon and Portia: it is far too complicated for parents to understand, especially when their better judgment is overwhelmed by “fight or flight” emotions. I would de-clutter the law, simplify and shorten the procedure and (with the greatest respect to my judge friends) move the decision making from senior judges to multidisciplinary specialist tribunals consisting of professionals who are obliged to attend regular training courses in The Hague.

Regarding international family law, which jurisdictions often fall short for their citizens undergoing divorce and separation, due to the regulations in place? What could be done for them to improve?

It is a scandal that fault-based divorce continues to be an option in the motherland of common law and equity. Shame on cowardly governments of all hues for not reforming these cruel laws in the United Kingdom jurisdictions. Perhaps just as cruel is the failure of successive UK governments to give cohabiting couples financial obligations and rights equivalent to those of married couples.
Outside the UK and similar places lucky to be governed by (relatively) enlightened laws, families suffer terribly from capricious injustice. Legal systems are corrupt, inefficient or inaccessible. Family violence against women and children goes unrecognised and unpunished. Cultural norms which harm people are tolerated in the interests of international comity.

The answer? Education, education, education.

Can you share with Lawyer Monthly your main motivation for specialising in family law and how you hope to further impact the sector?

I think family law is the most important work any lawyer can do. Our opinions and actions impact on more people than the work of any other category of lawyer. Even the most “straightforward” case engages the family lawyer emotionally and intellectually. The difficult cases are like playing three-dimensional chess inside a tumble drier.
I would like to see greater exchange of ideas between family lawyers around the world. International organizations such as the International Academy of Family Lawyers, the International Bar Association and the Association of Family and Conciliation Courts do a good job with their journals and conferences but there should be more mobility in the profession. International job-swapping, even for just a few weeks, should become the norm. Familiarity with foreign law systems would breed consensus.

David Truex
David.truex@taylorhampton.co.uk
www.taylorhampton.co.uk
02074275970

David was born in Washington DC, grew up and took a law degree in Australia, then moved to London in 1989 to establish the world’s first specialist international family law firm. He is dual qualified in Australia and in England and Wales and has been accredited as a specialist family lawyer in both jurisdictions. In 1984 he pioneered the first family law mediation program in Australia and in 1987 the first lawyer specialist accreditation scheme in Australia. In 1999 he created the world’s first specialist international family law website, internationalfamilylaw.com. He has chaired law reform committees in Australia and England and has lectured on international family law in Italy, Germany, Ireland, Switzerland, USA, Australia and the UK.

Taylor Hampton is recognised as a leader in defamation, privacy, phone hacking and internet litigation.