Understand Your Rights. Solve Your Legal Problems
Time and time again, we mention how technology is rapidly taking over; it has shaken up many industries and where there are countless benefits, there are also drawbacks. The financial industry has been victim to this, with money laundering now taking place in a variety of jurisdictions, as well as crypto-currencies bringing to surface encryption issues. Phillip Gibson speaks with us this month on the matter. He states: “Certainly the practice of criminal defence law is changing rapidly with the shrinking world - due to technology - and the ability of individuals to conduct business across jurisdictions and anonymously.” Below, he discusses the issue in more depth.
How have you seen international crime develop over the years? What has impacted this change?
Traditionally most crime was committed within a geographic boundary, so crimes were very jurisdiction specific. With the advent of e-commerce and the emergence of crypto-currency, many crimes are now committed across multiple jurisdictions and proceeds of crime can be moved around the world outside traditional banking. Sophisticated encryption technology has also made detection of criminal activity much more difficult.
Do you think the convictions of such crimes are appropriate or do you think there needs to be harsher sentences to prevent such crimes?
Perhaps a more interesting question is often which jurisdiction criminal conduct should be prosecuted in when you have conduct covering multi-jurisdictions with different criminal justice systems and different penalties. In fact, it is common now for an individual to be charged in more than one jurisdiction for the same conduct. Expanding the jurisdiction of the International Criminal Court to include international fraud, would be one solution to this issue.
Out of the variety of crimes you deal with in cases, which is the most common and why?
In New South Wales and Australia generally crime rates for traditional crimes such as Murder, Sexual Assaults, and Drug offences have all been reducing over the last 10 years, but they still make up a significant amount of the criminal defence work we do. However, we now see an increase in work such as extradition, international money laundering, cyber-crime including fraud, identity theft and extortion.
From this, what types of cases are the most complicated and how do you overcome such complications?
Definitely the most complicated work is that which involves multiple jurisdictions whether that means extradition or gathering evidence from witnesses outside Australia. Often these cases involve liaising with law enforcement agencies from different countries.
Phillip Gibson
Partner
Nyman Gibson Miralis
Criminal Defence Lawyers
Level 9, 299 Elizabeth Street, Sydney NSW 2000
PO BOX 21147, World Square NSW 2002
DX 11543 SYDNEY DOWNTOWN
p +61 2 9264 8884
ngm.com.au
Phillip is one of Australia’s leading criminal defence lawyers. Having over 30 years of experience in all areas of criminal law his practice now focuses solely on serious, complex, and international crime. Phillip has advised on cases involving China, U.S.A., United Kingdom, Sweden, Czechoslovakia, South Korea, British Virgin Islands, Hong Kong, Singapore, and New Zealand. These cases often involve assets forfeiture and multiple jurisdictions. This work includes the following:
International money laundering
New South Wales Crime Commission (NSWCC)
Australian Criminal Intelligence Commission (ACIC)
Independent Commission Against Corruption
Royal Commissions
Transnational crime
Cyber crime
Extradition law
Mutual Assistance in Criminal matters
National Security law
Proceeds of Crime law
We are an international award winning criminal defence law firm based in Sydney, Australia’s global city.
Established for over 50 years we are market leaders in all aspects of general, complex and international criminal law and are widely recognised for our involvement in some of Australia’s most significant criminal cases.
In the field of domestic and local criminal law our reputation has been built on the principles of delivering the highest quality legal service in every type of criminal case for over half a century, including leading cases in the High Court of Australia and the Court of Criminal Appeal.
When tragedy occurs as a result of the wrongdoing of another we must hire the right individual to represent the victim and his or her family.
Being a personal injury lawyer is no easy job; you need to believe in your client, have faith in the justice system, and, very importantly, learn and develop the skills necessary to convince a judge and jury that the clients we represent are not overreaching or crying out for mere sympathy, but instead are persons deserving of civil justice. Money is often the only justice available in a civil case.
Nick Rowley, who we have spoken with previously on Lawyer Monthly, has repeatedly achieved excellent outcomes for his clients, winning record-setting jury verdicts and settlements across the country. Nick has won some very difficult and complex cases that not only provided compensation for his clients, but also have given strength and courage to those who have lost faith in our justice system. As one the youngest top trial lawyers in the US, Nick has won over $1 billion for his clients.
We decided to learn a little bit more about Nick and how he got where he is. Nick has a lot of experience under his belt by the age of 40; he has tried over 130 cases. His key behind becoming established at such a young age was to commit to becoming a trial lawyer. In the beginning of his journey, Nick made a name for himself trying other lawyers’ cases, living by the mottos: “I will try any case anywhere and against anyone if it’s for a deserving client” and “I am not afraid to lose or get knocked down, I will just get up again and win the next one.”
One thing about Nick is that he has no problem answering tough questions:
We have heard about your wins. Have you also lost cases, and if so how have you coped with loss?
“Losing absolutely sucks. It’s the worst, but it is part of being a real trial lawyer. I know because I have lost cases. Waiting for a jury verdict is one of the most stressful experiences I have endured. It’s as if the world stops turning the moment the jury gets the case and begins deliberating. “The experience of losing a case and feeling that we have failed somebody we care about is just, well, it’s awful. The cases I have lost, whether true or not true, I can point to something other than the mirror to blame for the loss (the opposing side’s experts were better, the judge was unfair and made bad rulings, the client didn’t listen, or the case was just a super tough case). But then there are the cases where if we are truly honest with ourselves, we know it was our fault. Those are the toughest to deal with but it is absolutely necessary to own up to our mistakes in order to get better and do better in the future.
“Gerry Spence taught me many years ago that we learn most through painful experiences and being honest about our role. I remember losing a medical malpractice case years ago and I still blame myself completely for that loss because of two jurors I left on the case. I had convinced myself that I thought they would be fair and I believed in my case that much. I didn’t listen to my gut and use pre-emptory challenges I had. Sure enough, they railroaded the case. The jury came back in our favour on negligence but against us on causation. Interviewing the jury afterwards, it was those two jurors who led the assault on tanking the case. It was my choice to leave the jury on or kick them off and I was wrong. I still feel that pain every time I pick a new jury. But, I don’t feel it as anger or resentment, I remember the lesson I learned. We learn more from losing than we do from winning if we are able to get past the anger and resentment.
“Importantly, and I know this because I know the best of the best, is that the best trial lawyers in our country know what it is to lose. They know because they have gotten to the point where they are by being true warriors, being knocked down but finding the courage to get back up again and keep going. To be a great trial lawyer we must commit to trying the difficult cases, the unpopular ones, and not just pick and choose those we know we will win. It doesn’t take much courage to go in and try a slam dunk a case against an opponent we know we are going to beat. It takes great courage to go in and put everything on the line, including your reputation, as a winning trial lawyer knowing there is a good chance you will lose. We must be willing to talk about our losses and the lessons learned as much as, even more than, the wins. “The cases I have lost are part of the foundation upon which I stand when I win other cases. I know I will win and lose cases going forward if I am going to commit to continuing to be a real trial lawyer for humans who deserve representation.”
You handle many emotional, gut, and heart-wrenching cases, so how do you handle the emotions and channel them to your advantage, in a way that helps you win at trial?
“The short answer to your question would be that I have learned the importance of being honest about where we are emotionally at every stage of a case. Handling catastrophic medical malpractice, personal injury, and wrongful death cases is very tough, especially when we deeply care. I live and breathe my cases, especially when it comes to trial. When I sleep, most of my dreams are about the cases I am getting close to trial on. I make most of them personal which can be exhausting. On the same token, it is what motivates me to stop at nothing to get the best result possible. “Finding balance with emotions such as anger, fear of failure, caring and compassion, takes a lot of work. Emotions do not win cases in and of themselves, and out of control emotions can lose a case. Lawyers who think a case is going to be won based on emotions or sympathy without logic and hard evidence learn tough lessons. Jurors take an oath to base their decision on the law and evidence and I have found that most jurors work very hard to keep their oath”.
“We live in a society where tragedy is on television or smart devices 24/7. Some people are very numb and don’t feel emotions. Others will turn away from overwhelming emotions in a case. It is therefore important to reel in and control what we feel. There were times in the past when it was tough for me, even to the point where I lost control of my temper and locked horns with opposing counsel and even a couple judges when I didn’t have to and when being in better control of my emotions would have been the better thing to do. I have a hard time being a rational lawyer once I am invested in a case, but it is important that I reel myself in and stay in control.”
Personal injury lawyers know too well that insurance companies can be difficult to deal with and anger can reside when big corporations often lack sympathy in hope of retaining financial gain. Nick believes that channelling honesty can have a hard impact on a case.
“What I have found to be the most important thing to do in situations like this is being honest about where I am in the moment. That means being honest with the judge, opposing counsel, oftentimes the insurance company representative (which I have found is always the person behind the scenes controlling the money decisions and is the reason the case is going to trial; the powerful decision-maker who the judge and jury never meet or even get to know about), and most importantly, the jury. By being honest, embracing and separating my emotions from logic and evidence, I can step outside of myself for a moment and have an honest conversation about everything that is at play in a case with credibility that I otherwise might not have. It shows the people involved in the case that I am a human who cares, which is something my opponents often are not capable of, because they are being directed and controlled by an insurance company and corporate decision-makers.”
At the age of 40, Nick has won more than $1 billion on behalf of injury victims and families but he says “It’s not just about the money, it’s about changing lives, effectuating change, and the ripple effect that cases I handle have.” When dealing with cases that potentially do not involve a lot of money or that have a high risk of losing at trial, how do you ‘keep positive’ and motivate yourself to be the best you can be for your client?
“I have found that money comes in and I am successful at making an income when I focus on doing what is right and not so much on the money. Being a smart business person is certainly necessary, but I have found that the energy we put in and what our intentions are for our communities is even more important when it comes to being a trial lawyer and being successful at it. Individual cases can greatly affect the greater good. I have seen that most lawyers who are primarily focused on the money settle most of their good cases and often take cases they should not, with the hope of making an easy buck. These lawyers settle their good cases for mediocre amounts, making easy money and always looking at the case with that goal: a settlement that they get a chunk of where they never intended on trying the case. The defence knows who these lawyers are and pay accordingly resulting in deserving people never getting full justice. It’s sad, gross actually, and anybody reading this who works in the field of personal injury knows the truth of what I am saying. My message is that it is never too late to change and do better. I know that may not be the answer to the question you anticipated but let me explain why it is responsive. Johnny Cochran said it best: ‘sometimes money justice is the only justice’. I have experienced this and seen that money is often the only justice available to injury victims and families who have suffered horrific consequences of misconduct and negligence. When we look at a case and its importance based on the amount of money - with a large amount of money being an important case and a small amount of money being a less important case -, we can make the mistake of misjudging the case by the end result and not the reason why pursuing it is important.
“Over the past 16 years of practicing law, I have handled cases with passion and the end goal of exposing the wrongdoing of negligent health care providers, exposing the truth of what happened which victims and their families deserve, knowing that what I get paid, if I get paid, is sometimes minimum wage at best. But, doing these cases, investing the time and caring about the outcome as much as I would if the end result is a big pay-day makes the medical community better. Pursuing these cases improves patient care and even saves lives.”
The same goes for cases in other States where there are caps on damages. As lawyers handling personal injury, medical malpractice and wrongful death cases, we are policing our communities and achieving truth and justice that makes the world a safer and better place. If we limit consequences and justice for wrongdoing to criminal cases where a case must be proven by a reasonable doubt, tens of thousands badly behaved people, HMO’s, corporations and insurance companies will have no motivation to change their ways and do better in the future.
“With that said, the short answer to your question is that I stay positive and motivated in cases by knowing that as a lawyer, I have the power and duty provide something that injury victims, families and the community deserve, and that is the truth. By exposing the truth and holding those who are badly behaved responsible, the world ends up being a safer and better place. When we are doing things for the right reason, the money will take care of itself. The more we give, the more we receive, that is energy, which is the essence of life. And, importantly, what is small to the rest of the world might be a very big deal to the humans who are asking us for help. We must not lose sight of what is important by only focusing on the money.”
You often teach across the country; what would you say is a motto young lawyers should live by?
“Remember who you were before law school, the human beings you were raised to be before you had to read tens of thousands of pages of legal ‘mumbo jumbo’. The law is important, but it exists so there can be justice. It is our job to breathe life and humanity into the law so that there can be justice. Get out there and get experience and whether it is good or bad make it part of the foundation upon which you stand to make a difference. Be willing to take the risk of failing, but always give it your best. It is the getting back up again that will make you a champion of justice.”
You’ve recently won a $131,000,000 jury verdict; can you share with Lawyer Monthly more about the case and the challenges you faced and overcame?
“The verdict in that case speaks for itself. It is a big number, but it was a very catastrophic injury and the value of a young woman’s life that was being appraised by the jury. I asked for almost double that amount. The woman I represented will never walk again or be able to toilet or feed herself. While her motor function is mostly gone because of the spinal cord injury, she can still feel everything and experiences 24/7 pain in most of her body from the neck down. She won’t be able to flick the flies off of her nose when they land because her arms don’t work. She is a mother of four. Representing her was scary, I didn’t think I was going to win the case going into it because liability was really tough. In the end, the world will be a safer place because we chose to go to trial and made what happened a public issue. I think the verdict should have been higher than it was.”
If you could change something about the legal industry that would benefit your clients, what would you chose?
“Two things:
Leanne Townsend has a unique approach to tackling the stressful and emotional nature of divorce. Not only does she guide her clients through the legal process, but simultaneously guides them through the personal roadblocks her clients often face, from dating to finding their self-confidence.
Leanne says: “I am excited to be offering a new approach to family law that I believe fills a void in the legal landscape.
With the high rate of divorce, we need to look at the best way to service our clients during this extremely stressful time. We have holistic approaches in so many other sectors these days, it is time for the legal world to join in.”
She speaks more on her holistic approach towards divorce and how it positively impacts her clients.
You approach cases with a holistic approach – can you share with Lawyer Monthly to what this entails and how you undergo such an approach?
Divorce is one of life’s most stressful events and many people going through divorce feel devastated. During this challenging time, clients must make decisions that affect their children, where they will live and their financial wellbeing for years to come – essentially everything important in their life. I approach my clients holistically by looking at their entire wellbeing, not just their legal situation. This means that I not only provide them with topnotch legal expertise, but I ensure that they have the other support they need to get through this challenging time as best as possible. My background in coaching allows me to help clients set goals, move through personal or emotional roadblocks and make more effective decisions during this turbulent time. I also assist them in the aftermath of divorce with such issues as moving forward, returning to the dating scene or returning to the workforce after many years at home. I approach each client individually and their legal and coaching needs will be different.
How does this make a difference with your clients?
My clients tell me that they feel very supported through this process. They are making more effective decisions on the major areas of their life affected by divorce because their needs on a variety of fronts are being addressed. I am comfortable dealing with emotional clients and this ensures better communication and a stronger lawyer client relationship.
How does professional coaching tie in with your work as a family lawyer? How does this bring you to more of an advantage?
Many of my clients arrive feeling very lost and unhappy, overwhelmed with the emotional and practical upheaval of divorce or other family ruptures. My approach helps clients better heal and move forward with their lives so that they can make more effective decisions on their legal issues and are less likely to get caught up in the past unhealthy dynamics of their broken relationship. Coaching helps clients move forward, remove unhealthy roadblocks and design a roadmap to where they would like to be. Family law clients all too often can get stuck in the past and coaching really helps them to break out of the rut they may be in and move forward with positive changes that they designed themselves with the assistance of a coach.
Can you name three things which are important factors to remember when undergoing a difficult situation such as divorce or separation from an abusive relationship?
I have significant training and experience working with abused partners as I was a prosecutor for over 15 years and the Domestic Violence Lead in my office for a significant portion of that time. The three most important factors I advise clients to remember are:
Leanne Townsend
Family Lawyer & Coach
King Law Chambers
43 Front Street East, Suite 400
Toronto, ON
M5E 1B3
Main: (888) 405-5003
Direct: (416) 931-5811
Fax: (416) 364-9705
Email: leanne@leannetownsend.ca
Web: www.leannetownsend.ca
Leanne is a graduate of degrees in political science, education, and law. She has practiced law for over 20 years including obtaining extensive experience working with abused women and children as the Domestic Violence Team Lead in the Crown Attorney’s Office. She worked as an Assistant Crown Attorney prosecuting a full range of criminal cases for over 15 years and has significant trial experience in both the Ontario Court of Justice and the Superior Court of Justice. Leanne has completed professional coaching courses and is currently working towards obtaining her designation as a Certified Family Mediator.
Leanne Townsend provides a unique combination of family or criminal law legal services and coaching using a holistic approach. Helping clients as a lawyer, supportive life coach, or both.
She provides a full range of family law services including legal representation for separation, divorce, support, custody, marriage contracts, cohabitation agreements and many other issues.
The term “welfare of the child” is vague. It is deliberately value-neutral and thus expresses the lack of any State-prescribed ideal for raising children. As a guiding principle, the welfare of the child as a legal term at the heart of the system of child and youth care is in need of fleshing out and has to be constantly recalibrated on an individual case-by-case basis.
What common family circumstances can cause challenges when discharging the office entrusted?
Despite many attempts having been made at a casuistic structural system, the challenges faced by the professionals in the youth welfare offices are extremely demanding, as they always have to take individual family circumstances into consideration when discharging the office entrusted to them by the State as guardians of child protection. The basis in law for examinations and interventions in the fundamental rights of parents is formed where there is a specific and urgent threat to the welfare of the child by Section 8a and Section 42 of Book VIII of the Social Code (SGB VIII).
What is classed as a ‘threat’ in such instances?
Under Section 8a Undersection 1 Social Code Book VIII every professional involved in a case must work with at least one other team member in assessing risk. Central, in both Section 8a and Section 42 Social Code Book VIII, to assessing the situation of the child or adolescent is a professional understanding of the situation, since a threat to the welfare of the child cannot as a rule be easily spotted. This requires that the professional’s own values, convictions, world views et cetera, need to be neutralised as well as any so-called “middle class view”.
In your opinion, what is the best way to remain neutral in such emotional cases?
The Social Code does not forge its own path in its use and structuring of the idea of the welfare of the child, but refers rather to Section 1666 of the Civil Code (BGB). This is appropriate, for if there is a risk, this can result in intervention under Sections 8a Undersection 2 and 42 Undersection 1 No. 2 Social Code Book VIII and Section 1666 of the Civil Code in parental custody rights where the family court is called upon to adjudicate. The central yardstick of assessment by the family court is then Section 1666 of the Civil Code. Family court judges do not possess the professional expertise of social workers and social education workers. The way the law is applied is thus affected to a high degree by the way results of team-based professional assessments are submitted to the family court in child welfare proceedings. In assessing the (at-risk) welfare of the child, the family court largely relies on the assessment made by the youth welfare office and trusts in its special expertise.
What problems can occur during the process when professionals need to provide assessments for a particular legal case?
Thus, the family court and the youth welfare office together form a community of responsibility which is unique in the German legal system and means that the guiding principle of child welfare in the child and youth support system has its own particular (yet symmetrical) structure.
Is there anything you would change about this unique system, if you had the power to?
In view of the constant problems occurring in the interaction between the Family Court and the Youth Welfare Office a structural improvement is necessary. The Federal Constitutional Court has repeatedly stressed, most recently through its Decision of 07.12.2017 (Federal Constitutional Court Decision of 07.12.2017, ref. 1 BvR 1914/17), the need in all decisions affecting a child's welfare to establish the child’s current needs and the consequences, depending on the envisaged decision. However, such determinations are not possible or are only possible to an extremely basic extent if the person in question lacks expertise outside the legal profession. Family judges and lawyers in child custody cases should therefore also be trained in the central principles of child developmental psychology and possess special socio-educational expertise. Without this, the actual and legal requirements faced by lawyers working on child custody cases can no longer be met in the long term.
In your opinion, what do you think companies ought to implement to ensure their employees are happy?
Employees are happy with their work if, overall, they feel well “rewarded” for the work performed.
Besides monetary remuneration such rewards, in particular, should include:
What do you think is the best way for companies to deal with termination of an employment relationship? What must be taken into account?
To terminate an employment relationship is always a difficult decision which should be well thought over. Because Switzerland, in comparison with other European countries, still has an employer friendly employment legislation, termination of an employment relationship is quite straight forward from a legal perspective. Unless a termination is deemed to be unfair in the sense of the law (based on political opinion, gender, sexual orientation, etc.) an employment relationship can be terminated at will, only subject to the observance of the statutory or contractual notice period. This means that non- or underperformance is a valid reason for termination. Swiss law does not know the principle of “reinstatement” which means that even if the termination is unfair in the sense of the law, the employment relationship is still terminated.
We recommend that the termination process follows certain pre-established procedures. This means that if the reason for termination is, for instance, based on non- or underperformance the employee concerned should be aware of the issue and have been given a chance to improve. If the reason for termination is due to disciplinary measures as a result of employee misconduct, the employee concerned must have the right to be confronted with the facts and defend him- or herself.
Do you think that national employment legislation can or should influence multinational companies in their decision to locate their operations abroad?
When deciding on where to locate their operations abroad, multinational companies mainly outweigh the following criteria against each other with respect to possible prospective locations:
We are of the opinion that, in addition to the above criteria, companies should also take the following "legal" criteria into account in their decision-taking process:
The more employer friendly the local law, the better the company's ability to flexibly react to market changes and business needs which, in turn, will have an important impact on the overall profitability of the business. The predictability of judicial decisions helps to evaluate the pros and cons of an action and to take a final decision on an informed basis.
Dr. Hans Jörg Graf, LL.M., Attorney-at-Law
graf@grafundpartner.ch
Attorneys-at-Law
Seegartenstrasse 2
Postfach
CH-8022 Zürich
T +41 44 221 17 17
www.grafundpartner.ch
Hans Jörg Graf is the Founding and Managing Partner of Graf & Partner, a boutique law firm in Zürich Switzerland. The major focus of the firm's activities is on all areas of national and international business law with a strong focus on employment law. Graf & Partner is a member of Ellint, a European network of law firms specialised in employment law with more 120 professionals and offices in nine European countries. Hans Jörg Graf has a long term and profound experience as legal practitioner and is admitted to the bars of Switzerland and New York.
Ensuring your product is protected is a clear must when it comes to ensuring the development of your business runs smoothly.
On this topic, Joachim Gerstein explains: “Germany has a strong patent court system and plenty of innovative companies and so it is advisable to work seriously with IP. In particular, SMEs should be aware of the risk of weakening their position compared to the big players when ignoring investments in IP.”
Below, he discusses the role Germany plays in patent disputes, as well as changes we should keep an eye on in 2018.
From your experience, what is the most difficult aspect for suppliers involved in patent infringement?
The supplier is faced with claims from the patent owner on the one side and from his customer on the other side. A careful review of the contractual obligations towards the customer is advisable, since liability fails often with invalid standard business terms, or in case of SEP, due to the lack of a guarantee clause. The difficulty for the supplier is the balancing act between assisting the customer in the patent dispute and discussing the liability with the customer without damaging the trustful business relationship.
Can you think of anything which may help ease this difficulty?
Care should be taken when negotiating development or production agreements in order to clearly specify the duties and exemptions of liability of patent infringement. In most cases standard business terms are overstressed by the customer to attempt shifting liability for the royalty rates for SEP to the supplier, without the chance for adapting the market price. Royalty rates and cost risks should be considered in the early price negotiations or clearly transferred to the burden of the customer.
What role does Germany play in such patent disputes?
The district courts of Düsseldorf and Mannheim are word-class and well-esteemed for handling patent disputes, in particular related to standards. After the general guidance by the European Court of Justice (ECJ) in the Huawei vs. ZTE case C-170/13, the German courts are on-going to provide more detailed rulings related to licensing of SEP. The European Commission (EC) just published additional guidance. It is exciting to see how relevant the EC guidelines are for the German courts in the next future.
How does this affect the Internet of Things (IoT)?
In particular, SMEs and suppliers should be more sensitive when implementing communication chipsets in their products. IoT is the new battlefield for patent disputes and excessive demands for royalties.
Are there changes in Germany to which you are keeping an eye on for 2018?
Design protection provides a cheap and sharp sword against competitors to protect investment in products. However, the scope of technical features in a design is not clearly specified yet. The higher district court Düsseldorf brought several cases before the ECJ (e.g. case DOCERAM C-395/16) which provide guidelines which are of interest.
Anyhow, design should be stronger considered in the early stage of the technical development to provide strong protection in addition to patents for the technical ideas behind the product.
Joachim Gerstein, LL.M.
- Patent Attorney -
Gramm, Lins & Partner
Patent- und Rechtsanwälte PartGmbB
Freundallee 13a
30173 Hannover
Germany
Tel.: 0511-51 51 20-0
www.grammpatent.de
Joachim Gerstein, LL.M. is patent attorney and managing partner of the IP law firm GRAMM, LINS & PARTNER located in Hannover and Braunschweig, Germany, with roots of the law firm reach back to the year 1896. He is focused on patent prosecution and litigation in the field of electronics and standard essential patents (SEP) and design litigation.
Gramm, Lins & Partner specialises in providing comprehensive IP law consultation services for mid-sized businesses and international corporations. Their attorneys provide companies with a range of consultation services and not only take legal questions into account but also the economic situations and special interests of individual clients.
Robert Don Gifford represents clientele in a broad range of complex civil and white collar criminal litigation, Native American law, and military law in courts of all jurisdictions. He represents companies in preparing criminal compliance guidelines and corporate criminal risk assessments, as well as individuals charged with state and federal violations.
We got in touch with him this month to discuss a variety of his specialisms. From having a vast amount of experience in Native American Law, to working as a military officer and lawyer on cases at Guantanamo Bay, Robert offers many insights into his work as a legal expert in Oklahoma.
Can you share with LM your experience in Native American law and what it entails? What difficulties did this sector pose for you and how did you overcome them?
The practice of law in the tribal courts or representing tribal governments in non-native courts is some of the most complex and broad areas of law in the United States. The practice is a broad one that includes tribes which includes: negotiations with state and federal governments, gaming law, criminal law, employment law, and nearly every other area of law that is found in any court anywhere. Navigating the jurisdictional complexities and knowing which court has the jurisdiction over a matter is what challenges the courts the most. The difficulties in working in Native American law is the general misunderstanding by many non-Native courts in failing to give “full faith and recognition” to tribal court judgements and orders. These are usually cleared up fairly easily, by providing the non-Native courts the law and authority upfront, but there are many jurisdictions that have no experience in Native American law and are often surprised when the see the complexity of the practice and the high quality of the work that is being done in tribal courts.
How does your experience as a Tribal Court Judge enable you to be ahead of the game for your practice now?
I have been serving part-time as the Chief Judge for one tribe and a justice on another tribe’s Supreme Court for many years. Many people who become judges recognize, for the first time, about what actually makes a difference in a compelling argument or case presentation. Unfortunately for those individuals, they are full-time judges and will likely never have the opportunity to take this perspective and apply it themselves as litigators in the courtroom. Being a tribal member with the Cherokee Nation with nearly fifteen years as a federal prosecutor in different federal courts and over twenty as both an Army active duty and reserve lawyer (Judge Advocate), I brought a perspective to the tribal court bench that was unique. With over one hundred trials and fifteen arguments in the federal appellate courts, I have appeared before a lot of judges and seen good and bad practices from the bench and believe that I have learned from them.
What more could be done for the Tribal Courts to better recognition and respected as a Courts system?
Every tribe in the US is recognised, in the words of Justice John Marshal, as a ‘domestic, dependent sovereign’. In my state (Oklahoma) alone we have 39 separate tribes. The next step for more recognition is for more lawyers to aggressively seek litigation within the tribal court system and challenge those decisions up on appeal. In certain litigation, those cases may move over to non-Native federal courts and could work their way to the United States Supreme Court. There is a fear among many lawyers to use the tribal court system, thus the boundaries have not been fully explored. Many lawyers are failing to recognise the advantages of using the tribal court system, and in doing so are failing to give their clients every viable option.
Do you think this has changed ever since Donald Trump’s appointment as President? What challenges do you foresee for the tribes?
The big question for many will be the speed and ease in which tribes are allowed to take their historic lands back into “trust”. Many of the tribes in the United States are looking at developing their business aspect of their sovereignty, and in doing so must fight to re-claim historical lands to be placed in trust to build casinos, hospitals, and even defence contracting industry. Once this land is taken back into trust, it becomes what is known as ‘Indian Country’ and subject to the jurisdiction of the tribal court for that tribe. If the United States government slows down or denies tribes from putting land into trust, it will slow the growth in many areas.
Moreover, do you foresee more cases involving tribes in legal disputes against non-Natives or even state/federal governments increasing?
Absolutely. In one of the tribal courts in Oklahoma, there is a multi-million-dollar lawsuit against several oil and energy companies. The lawsuits in the tribal court involved the sovereign tribe suing non-Native companies for their alleged involvement in “fracking”; it is being argued that such activity is causing earthquakes and damage to tribal facilities. There will be challenges made to jurisdiction and that litigation over the proper venue could be fought in non-Native courts.
As military officer/lawyer you worked on cases at Guantanamo Bay and as a prosecutor you worked National Security matters, what cases are you often involved in? How do you see this area of law changing with national security being a topical area regarding terrorism?
With over two decades of serving in the military (active duty and reserve component), teaching at several law schools, and being a graduate of the Army War College, I have opened up some doors that may not be there for most lawyers. I have had several military members come to me to help them address investigations from the Navy and the Army, an example is being called to represent a rape victim who was being harassed by a military officer who was being court-martialed, and have been providing legal commentary to the media regarding matters that range from Homeland Security to National Security to military law. These connections with the military have even transitioned to representing military members (and their families) in non-military courts for things that range from divorce to lawsuits.
What was the biggest change you had to adapt to from your transition as a federal prosecutor, to having a private practice?
Building that ‘book of business’. The time it has taken to let the public know that you are now a resource to them is slow and hard to develop. Advertising is not something I seek to do or am comfortable with, as I know that after time accomplishments in and out of the courtroom will lead to referrals and a reputation that draw clients. Leaving the safety-net of the government does require me to take the time to get more involved in non-legal social events and within the community. I can see where many lawyers can get burned out or just do not like the practice of law in the private sector, but for me it has been a natural transition. The change has been refreshing and exciting.
How does your experience with governmental investigations help you assist clients at your private practice?
Every individual or business is going to have to deal with government regulation. Government officials come from the same gene pool as every other human and may believe that a person or a company has engaged in intentional wrongdoing. Sometimes it is a misunderstanding, a clerical error, or a mistake. Other times it is grossly negligent or crossed the line into what is considered a crime. I would say knowing how agencies may view things is key. The relationships between an attorney and government investigators can make the difference from being indicted to paying a small civil or administrative fine. In addition, understanding that the need for an attorney to be aggressive and proactive requires energy and confidence to go into court with little time to prepare and litigate a matter that can be volatile, uncertain, complex, and ambiguous.
How has white collar crime changed in Oklahoma overtime? What could be done to cut down on such cases?
The advancement of technology, the growth of Native American casinos, the increasing number Fortune 500 oil and gas companies in Oklahoma, and government regulation in the health care industry, has created more exposure to otherwise hardworking, law abiding citizens. Most people (or businesses) that find themselves under criminal investigation never had any intent to commit crimes, but sometimes neglect or the temptation to cut corners leads to criminal liability. More and more, the need for learned legal counsel is becoming a necessity. If more people (or businesses) simply took the time and expense to seek the privileged and private advice of an attorney on the front end of things, many criminal problems would never occur.
Can you think of one sector that is the biggest contributor to white collar crime and if so, why do you think that is?
Quite honestly, complex government regulation is probably the biggest contributor. There is so much regulation on both individuals and companies that range from complexities in tax law, immigration law, securities law, etc., that it’s nearly impossible for even a small business owner to know all of the requirements without having to hire outside help. At some point, any person in any situation will be tempted to look for an easier way to do business or make money. In doing so, they are likely breaking a law that has criminal consequences.
You are an adjunct law professor at several law schools, what would you say is the most important pieces of advice for aspiring lawyers to know?
Building a reputation of being only a good lawyer who is not only smart, experienced, but also hardworking, is just not enough. Professionalism and being reasonable wins the day, whether it is in negotiating with other lawyers, advising clients, or making an argument to a judge or jury; these two things will win the day.
Robert Don Gifford
Senior Attorney
101 Park Avenue
Suite 1400
Oklahoma City, OK 73102
www.gungolljackson.com
Prior to joining Gungoll, Jackson, Box & Devoll, P.C., Gifford worked for the U.S. Department of Justice as an Assistant United States Attorney doing both trial and appellate work, where over time he served as the Tribal Liaison, Human Trafficking Coordinator, Anti-Terrorism Coordinator, and Project Safe Neighborhoods Coordinator. During his career with the Department of Justice, Mr. Gifford has been honored for outstanding performance by the Director of the Federal Bureau of Investigation (2006 & 2015), Director of the United States Marshal's Service (2008), and the United States Department of Agriculture (2004).
Mr. Gifford began his legal career for the Cherokee Nation under Chief Wilma Mankiller, served as an Assistant District Attorney in Tulsa and as an active duty Army Lawyer as an Army Judge Advocate at Fort Sill, Oklahoma, Fort Knox, Kentucky, and in Bosnia-Herzegovina. Now a Colonel in the Army Reserves, Gifford has served in the Army for over twenty years on active duty and as a Reservist. In 2007-08, Colonel Gifford mobilized back onto active duty to the "War Courts" at Guantanamo Bay where he served as the Legal Spokesman to the world-wide media and Deputy Director of Legal Operations.
Mr. Gifford earned his Juris Doctor from the University of Oklahoma College of Law where he served as an Editor on the American Indian Law Review. Mr. Gifford graduated with honors from Southwestern College in Winfield, Kansas where he lettered four years in both football and track, and he also holds a Masters in Strategic Studies from the U.S. Army War College at Carlisle Barracks, Pennsylvania.
Mr. Gifford is the 2018 Chair of the Criminal Law Section of the Oklahoma Bar Association, a fellow of the Oklahoma Bar Foundation, the founder and two-time past chair of the Military & Veterans Law Section, and previously served on the Board of Governors for the 17,000 members of the Oklahoma Bar Association. The Oklahoma Bar Association's Criminal Law Section named Mr. Gifford "Professional Advocate of the Year" in 2013 and recognized him with the Justice Cardozo Award in 2016.
Over thirty years ago, three young attorneys formed Gungoll, Jackson & Collins with the goal of providing clients with legal representation that serves their diverse needs. Today, Gungoll, Jackson, Box & Devoll, P.C. is a diverse compilation of seasoned legal professionals who, with pride and integrity, represent individuals and local companies, as well as large commercial corporations in numerous areas of the law.
The attorneys and staff at this highly respected AV-rated firm work diligently to serve clients throughout the Midwest with litigation needs, whether it is a matter of negotiations, a trial, an appeal, arbitration or mediation. With access to numerous legal resources and cutting edge technological solutions, they do quality work in the timeliest manner.
Civil litigation, commercial transactions, insolvency and reorganization, real estate transactions, trusts and estates, oil and gas, environmental law, family law, employment law, criminal defence, municipal law, personal injury and appeals are among the areas encompassed by the firm's practice.
We hear from John Hayes, who has offered thought-provoking insights to Lawyer Monthly before, on why partners move law firms and how they can improve their working lives.
As an employment lawyer, I am fascinated by working culture and, in particular, why partners decide to move firms. More and more partners are deciding to change firms and I list below the main reasons for doing so. At Constantine Law, www.constantinelaw.co.uk we advise both law firms and partners on the opportunities and risks involved in leaving law firms. We begin by considering the risks of leaving a current firm before describing how innovative law firms are creating new opportunities for partners.
1. Leaving isn’t easy
It is no easy process for a partner to decide to leave their current firm: at the very least, it requires doing two jobs at once (the day-job and the search); explaining to clients the rationale for leaving; and negotiating one’s way out of the current firm, to the new firm. This involves consideration of restrictive covenants and, frequently, complicated pay variables such as repayment or retention of bonuses and delayed equity release.
A wise partner once told me “everyone is their own worst counsel”, and I promptly engaged his services! This maxim is correct: we may be lawyers but even we are blinded by complicated notions of self-worth and self-interest. Further, some situations are complex and require external advice: what do you do, for example, if your firm instructs you not to communicate to a client that you have resigned, but where (as in my client’s case) there was an important High Court deadline which indicated that it was in the client’s interests to be so informed? How is one to reconcile the potential conflict between the overriding duty of good faith to the firm against the professional obligation to act in the best interests of the client, at all times?
The answer is to seek appropriate advice and we explain the benefits of this, including potentially a “privilege wrapper” below.
My other strong view is this: frequently the worst does not happen. Partners do leave firms and every firm is, from time to time, both a poacher and a gamekeeper. Partners need to be mindful of their professional obligations, but they are rarely injuncted. I say this because frequently the best advice is tactical and strategic. I know of one potentially legitimate team move which was torpedoed because the partners concerned went straight to a leading QC, who gave them a very conservative interpretation of the LLP Agreement such that they were scared witless to proceed. One of the partners sat in their car, after that meeting, in tears. Another backed out of the proposed plan entirely. My advice is that smart advice, taken early, can result in a more practical way forward.
2. Main Reasons for leaving
At Constantine Law, we frequently see partners leaving law firms. We are advocates of change, provided that a partner is leaving a firm which is not properly supporting their practice and moving to a firm which is better aligned to it. In our experience, here are the Top 5 reasons for wanting to leave a law firm.
(a) Pay
Who is affected? Typically, high performing “fixed share” partners and well-established partners carrying underperforming practice areas.
Partners should earn the majority of what they generate in billings. I have written previously that the traditional 1/3rd, 1/3rd, 1/3rd model is broken because, at the very least, the middle 1/3rd is accounted for in overheads which cannot be justified in the truly modern firm. Law firms need to take advantage of the current IT revolution, improved outsourced service providers and new management techniques, to drive down costs and improve pay.
High performing fixed-share partners are treated particularly egregiously because they are relied upon as the “worker bees” to generate fees for their firms on the promise of “jam tomorrow”. In the main, the promised nirvana is just that: a far-off land forever glimpsed just over the horizon.
In such circumstances, a partner should seize control of his/her destiny and work in a structure which allows them to take-home at least 66% of the fees generated. This is what we do at Constantine Law.
(b) Merger
Who is affected? Experienced partners in the smaller firm who, typically are “cannibalised” by the partners in the bigger firm. Frequently, new ‘super departments’ are created which are top heavy and which create casualties. More often than not, the culture of the old firm dies, and experienced partners are less willing to put up with a new management culture.
If this happens, partners are encouraged to ‘seize control’ and to have faith in their followings rather than make the unworkable, work. Again, new firms can be better aligned to a given partner’s client followings.
(c) Boredom
Who is affected? Typically the experienced partner who, having worked as a lawyer for 20+ years, and who has made some money, seeks a new challenge. My strong advice is that “we are only here once” and too many partners in large and medium sized firms are simply batting out time. The ‘bored’ partner will be a poor manager of people and an even worse work-generator because both aspects of the role require huge elements of self-motivation and commitment.
The solution is to seek a new challenge so that a partner is motivated to do work and win work in a new environment. The consequences of not seizing the initiative will be damaging both professionally and probably, personally.
(d) De-focus
Who is affected? Any partner who finds themselves in a firm where there is no longer sufficient focus on their practice area. Where this happens, it will be very difficult to achieve senior equity partner ‘buy-in’ to invest in the practice area. This will limit the practice area to hire new staff and action marketing initiatives. Where this happens, partners should leave because the alternative is a “slow-death” of their practice area. I have witnessed this in a number of national employment law departments over recent years.
The solution is either: (a) to move to a bigger firm where there will be more money to invest in the practice area; or (b) to move to a high performing boutique which only focusses on the practice area in question. This is more possible for some practice areas (e.g. employment and family) which are less reliant on support from other departments.
(e) “Playing Up”
Who is affected? The ambitious partner at the mid stage in their career who believes that their current firm has become too “small” for them. They perhaps seek more cross-departmental support and, certainly, more pay.
This move will have to be handled carefully and advice taken because the outgoing firm will often be sore about being told that they are not good enough for the partner concerned and restrictive covenants will be engaged.
3. The Bottom Line
Ultimately, partners need to work in a firm which supports their personal brand and that of their clients. I have seen a very difficult team move of a leading corporate real estate practice join a leading PI firm with all sorts of day-to-day challenges in terms of aligning that practice with a non-aligned national firm. Ultimately, it did not work, and all those partners have now left.
Against this, at Constantine Law we have hired four leading employer-focussed partners during the past two years because they want to be supported by an entrepreneurial platform which their clients understand. The result is that each of these partners has won new work and created new opportunities because they are now working with a firm (note, not “for” a firm) which allows them to prosper.
4. Seeking Advice
For the reasons set out above, there is far more churn in partners leaving law firms, particularly in London. More often than not, partners are more inclined to seek external legal advice and they should do so, for three very good reasons: (1) everyone is their own ‘worst’ counsel (see above); (2) the benefit of legal professional privilege and the creation of joint interest privilege (a “privileged wrapper”) between the lawyer and their new firm (with their new firm frequently being prepared to contribute towards legal fees). This ‘privilege wrapper’ can, potentially extend to the recruitment agency assisting the departing partner; and (3) the value of a ‘following’. Would you advise a client who faced a high six figure/low seven figure risk (often more if billings are averaged over 3-5 years), not to take independent advice?
For all these reasons, partners should take appropriate advice early and be prepared to move with confidence.
At Kao, Mr. Kato has long been responsible for managing and promoting the company's technology related IP activities worldwide. Currently as IP Fellow of Kao, he advises on strategic development of the corporate IP function, while enhancing external coordination/collaboration in the context of IP. Below, he discusses how to conquer the world of IP.
Can you share ways in which Japan is advancing which is affecting your work as an IP attorney?
Like the rest of the other industrialised countries, with the advancement of new technologies involving IoT and AI (collectively referred to by the Japanese government as ‘Connected Industries’), Japan is about to go through a rapid change in the industrial landscape. Japan is also mindful of social issues such as its aging society and environmental challenges. All of these necessarily affect consumers’ behaviours, needs and preferences, which in turn deeply impact companies like Kao in developing new products and services. Corporate IP professionals have to reevaluate the types of patents and the types of IP activities as a whole, from the view point of which could better serve to cultivate future businesses. In doing so, you need to remember that IP is itself not a goal but just a ‘tool’ for achieving the business goal.
What complications often arise in your line of work and how do you overcome this challenge?
Corporate IP professionals need to strike a delicate balance between tackling new challenges and preserving lasting values. Even though an IP team may strive hard to adapt to technological and social changes, it does not mean that they could disregard what has been important until now, such as the quality of individual IP rights. The outcome of a multi-million dollar patent litigation may hinge upon the interpretation of a single word or two in a patent claim. It is the nature of our work and it will continue to be so. There is no magic pill to find a good balance point. You just need to keep the big picture and a long-term perspective.
Do you have a new year’s resolution which will reshape your life as an IP attorney?
Having been in the IP field for more than two and a half decades, I feel obliged to provide my expertise in assisting younger generations to strengthen their career for the benefit of the entire IP community. This is my basic standpoint when I act as Managing Director of JIPA. Along the same line, currently I give an IP course at a university; this all stems from my belief that enhanced and sound IP activities should lead to more dynamic growth in Japanese economy. Of course, it calls for more balance between directly working for the company that you belong to, and working for the surrounding community. In the New Year I hope to spend more of my time in the latter direction.
With technology advancing at a rapid pace and affecting inventions, how do you ensure your knowledge on the latest developments are up to date to ensure your corporate clients are not at risk of falling behind in utilisation of IP assets?
First, it is a fun part of IP practice to be close to the cutting edge of new technologies. Learning is an enjoyment and also a necessity for an IP professional because without understanding the core value of new technologies, you could not obtain the appropriate IP protection they deserve. Another necessity for today’s IP professional, is a global mindset. While technologies and related businesses may easily spread beyond borders, today’s IP systems remain unique by countries/regions in many aspects. For the purpose of advising effective IP strategies, it is essential to grasp characteristics and potential future trends in IP rules and practices in at least the major jurisdictions involved. When flooded with IP-related information, you should make best efforts to discern parts that might affect corporate decision-making from the rest which will have less impact. Naturally you cannot be the master of everything, so it is important to build a strong network and know right person to work with.
Minoru Kato – KAO corporation
2-1-3 Bunka, Sumida-ku, Tokyo, Japan 131-8501
Phone: +81-3-5630-9241
Fax: +81-3-5630-9712
Email: kato.minoru@kao.com
Minoru Kato is a registered Japanese Patent Attorney (“Benrishi” in Japanese) working for Kao Corporation. Before joining Kao in 2000, he was a prosecutor/litigator specialising chemical and biotech patents at a Japanese IP law firm. As a part of his external activities, Mr. Kato serves as a managing director of JIPA (the Japan Intellectual Property Association).
Kao Corporation is a company operating in Asia, Oceania, North America and Europe in the field of consumer products and industrial chemicals. Founded in Japan in 1887, Kao has been offering customers cleanliness, beauty and health for the last 130 years, and is committed to continue to enrich the lives of people around the world. Representative consumer brands outside Japan include “Bioré” and “Jergens” skincare, “John Frieda” haircare, “Kanebo” cosmetics and “Merries” diapers (available in Asia).
We now hear from Anthony Trace who has extensive experience behind him allowing him to be a skilled mediator. With 35 years at the Bar, Anthony is often described as astute, responsive and unflappable. He speaks with Lawyer Monthly about his work and how he prepares to work with participants involved in banking and finance mediations.
You began at 4 Pump Court in June last year and have been very busy ahead of 2018. What does your daily schedule currently look like?
On a typical day when I have a mediation, I remind myself about the papers and consider the strategies that will or might be needed by me in the course of the mediation in order to facilitate a settlement. A mediator in a facilitative mediation does not advise, but seeks to help the participants reach a settlement. In the period running up to the mediation, I will carefully read and digest all the respective papers and in certain cases might speak with each participant in advance, to check how each participant would like to begin the mediation; in some cases, participants prefer not to have a plenary session (with all the participants present) at the beginning of the mediation and instead go straight into negotiation.
What are the biggest concerns regularly addressed in mediation regarding the banking and finance sector?
In business/finance cases, the biggest concerns that each participant has are to ensure that any agreement reached is a commercial one and one that properly reflects its interests and aims. My role is to facilitate the reaching of an agreement that both sets of participants are prepared to sign up to.
How does 19+ years of being a QC prepare you to take part in high profile mediations in this sector? Do you have any past examples of such cases?
I find that participants very much like the fact that I have been a QC for some 19 years, working on all types of leading business/finance cases and that they consider that this experience is invaluable both in terms of my suitability for appointment as a mediator (because the participants in business/finance cases prefer a mediator experienced in these areas), and in terms of facilitating a settlement in the mediation; because, although a mediator does not advise the participants, nevertheless, with their agreement, I can "stress test" the strengths of their arguments. In these situations, my experience is seen by the participants as very useful.
From fraud and commercial claims to partnerships and trusts, which area of the banking sector do you find most challenging and how do you confront this?
I find that the most challenging areas in the banking sector are the regulatory ones and the ever-changing and fast-changing commercial ones. In order to ensure that the business/finance mediations that I am involved in are the best possible, I keep up to date with all the relevant regulations and keep myself abreast with the commercial banking world generally.
According to client feedback, you prove to be ‘good at unpicking difficult cases’ and have ‘excellent strategic vision’; do you have a particular process for the analysis and implementation of strategies in your mediations?
I find that one of the best ways to facilitate the participants to reach an agreement in a business/finance mediation is to seek, to get them both to analyse what the issues actually are and what their respective strategic aims are. When mediations are unpicked in this way, I find that the participants are helped in recognising the strengths and weaknesses of their respective cases which, in turn, helps in facilitating the reaching of an agreement.
Is there anything else you would like to add?
I would add that the finance/business world is a highly specialist one, that this sector is involved in a fast-moving world and that it is important to choose the right mediator who has proper finance/business experience and who is fully up to date in the relevant areas in issue.
Anthony Trace QC
4 Pump court
Temple
London
EC4Y 7AN
+44 207 842 5555
www.4pumpcourt.com
Anthony is a hugely experienced barrister who practised at the Bar for 35 years,19 of them as a QC. He appeared in many of the most complex and high profile cases across his areas of expertise and was ranked in Chambers & Partners directory as a leading silk in 8 practice areas. Anthony is now working as a full time commercial mediator doing both facilitative mediations and evaluative mediations (e.g. early neutral evaluation). Anthony is accredited by CEDR and by the London School of Mediation who have accredited him as a mediator to international standards.
4 Pump Court is a leading full-service commercial set of barristers’ chambers with particular expertise in commercial dispute resolution, professional negligence, IT and telecoms, energy, shipping, construction and engineering and insurance and reinsurance. Our wide-ranging commercial work also includes banking, sale of goods, pensions and financial regulation, dry shipping, oil and gas.
