Understand Your Rights. Solve Your Legal Problems
Kris Satkunas, Director of Strategic Consulting at LexisNexis CounselLink, outlines how legal departments can adapt and remain resilient through another unusual year.
Last year, legal departments had to quickly shift strategies to respond to and address the challenges presented by COVID-19. While challenging, it also gave legal departments an opportunity to examine and implement new approaches to work, spend and vendor management.
Although we have started a new year, legal departments and operations must continue to adapt to changing environments. By continuing to review and update work processes and supporting technology, in-house lawyers and their teams can successfully execute planning for the upcoming year. This will help their clients not just survive into 2021, but thrive.
While the events of 2020 launched a shockwave across the world economy, the shutdowns from COVID-19 also forced businesses to take a fresh look at the way they have traditionally operated. As we move forward into 2021, legal departments can continue to make long-lasting, positive changes by assessing several areas of their operations.
A great place to start is to scrutinise and evaluate workflow processes for in the legal department, including those related to knowledge, matter and litigation management – and revamp processes where necessary.
Most legal departments have processes that have been in place for many years and are rife with opportunity for increased efficiency. Mining data out of the systems used for these processes can be extremely useful in identifying bottlenecks and other process breakdowns. A fresh set of eyes evaluating old processes can often identify low-hanging fruit that results in overall improvement.
Most legal departments have processes that have been in place for many years and are rife with opportunity for increased efficiency.
Optimised processes make good use of staff time and take into account the skill level that an individual needs in order to complete a step in a process. For example, increasing the role of professional staff such as paralegals may be one area where legal departments can better scale. Rather than automatically sending work to in-house lawyers, paralegals can often take on some of the work earlier in the process and serve as the first point of contact with outside counsel to handle the initial intake.
Legal departments should leverage the right technologies to refine and adjust workflow processes. Automation is one way in which processes and technology come together. Consider contract management. Contracts are often reviewed by multiple paralegals and lawyers, even though organisations frequently execute contracts that are extremely similar. Through automated workflows and the use of templates, legal departments can minimise the number of people who have to touch any given contract. As remote work continues, this approach makes even more sense.
In-house counsel may also find that they are using redundant systems or failing to fully leverage the systems they do have. For example, some departments may be using one platform for billing and another for matter management. Yet their billing system may already have robust matter management capabilities that can be easily integrated into the entire workflow process, eliminating the need for two separate systems.
Effectively tracking and managing outside counsel spend, including the examination of alternative fee arrangements (AFAs) and pricing rates, can improve legal departments’ positioning in 2021.
The negotiation of fees and hourly rates is always an important conversation with outside counsel, and that is particularly true when the economy is uncertain. But before in-house counsel have meaningful conversations about AFAs and rates, they need analytics and tools that allow them to benchmark firms against each other, both for their own legal work as well as for external benchmarks.
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Most legal departments continue to feel increasing budgetary pressure. Making data informed decisions regarding outside counsel pricing is essential to meet the demands of the business on tightening budgets.
In 2021, legal departments should prioritise client relationship management techniques, both internally and externally. A more personal interaction like a phone call or Zoom meeting is often more effective than an email, which can be misinterpreted or require extensive or excessive follow up.
Within the organisation, regular meetings with business teams can help to minimise ongoing issues that frustrate business people and the legal team alike.
When dealing with outside counsel, identifying one point person can make challenging conversations easier. For some legal departments, designating a relationship lawyer is the best approach. For others, someone from the legal operations team may be in a better position to lead business conversations related to fees and matter budgets.
For in-house lawyers, 2020 brought unprecedented change for their teams, their clients and their law firms. One thing we can be certain of is that this year will continue to be unpredictable. By honing processes and technology, legal departments can stay ahead of the shifting environment and take advantage of the opportunities available from new approaches.
Volkswagen AG (VW) and a German auto supplier on Tuesday asked the US Supreme Court to review an appeals court decision allowing state and local governments to regulate modifications to emissions-control systems once a vehicle is sold.
The Ninth Circuit Court of Appeals stated in August that it would not revisit a unanimous June decision that would allow two counties to seek financial penalties from VW for violation of laws prohibiting tampering with diesel emissions-control systems.
The penalties related to Volkswagen’s ‘Dieselgate’ scandal could total tens or even hundreds of billions of dollars.
"Volkswagen believes that the Clean Air Act preempts the unprecedented effort by these two counties to challenge auto manufacturers' nationwide, post-sale updates to their vehicles' emissions systems and that the Supreme Court should review this important question of federal law," a spokesperson for Volkswagen Group of America said in a statement.
On Tuesday, the Ohio Supreme Court heard oral arguments in the state’s suit against VS over damages caused by the altered emissions-control systems of 14,000 Ohio-registered vehicles. VW said that Ohio’s claims "could total $350 million per day, or more than $127 billion per year, over a multi-year period."
The appeals court found that, though Volkswagen had settled US criminal and civil actions related to the emissions scandal for more than $20 billion, it was not shielded from local and state government liability. The court said they were "mindful that our conclusion may result in staggering liability for Volkswagen."
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The court added that this liability was "due to conduct that could not have been anticipated by Congress: Volkswagen’s intentional tampering with post-sale vehicles to increase air pollution."
Waterfront Solicitors Partner Jean-Marc Pettigrew discusses commercial contracts in the post COVID-19 world.
For many businesses, existing commercial contracts came under sharp focus with the outbreak of COVID-19 in March. With such a big shift in our day to day lives, some businesses who had previously been trading well suddenly faced a great drop in revenue and were quickly looking for ways to cut costs across the board, which meant taking a closer look at the long-term agreements they were locked into.
Having drafted, reviewed, and negotiated a range of general commercial and technology contracts since the outbreak of the pandemic, what is for certain is negotiating large scale commercial contracts looks vastly different now from how it did pre-pandemic.
I have pulled together some of the key areas which have come under particular security in the COVID world:
This is the most talked about clause in the last 12 months, but it is worth remembering that force majeure can only be relied on in a contract if it is expressly referred to. This is unlike other European jurisdictions where it is a recognised legal term.
When drafting a force majeure clause, make sure the clause is not limited to specific examples. While it’s common practice to list examples of force majeure events (e.g. a global pandemic!), it’s also recommended you include a general catch-all clause too (generally referred to as circumstances beyond a party’s reasonable control).
Some of our supplier clients have found that customers tried to rely on the force majeure clause as a means of excusing the payment of invoices. Economic downturns are not normally considered to be force majeure events, although we recommend specifically excluding payment obligations from force majeure events, to try and prevent any arguments being raised in the first place.
We often see force majeure events being allowed to continue for up to 60, even 90, days before a right to terminate becomes available. If you are a customer, we always recommend that the length of time be reduced as much as possible.
Some of our supplier clients have found that customers tried to rely on the force majeure clause as a means of excusing the payment of invoices.
New laws to curb the spread of COVID-19 have become commonplace, so it is important your contracts can deal with these changes. Most well drafted contracts should have some form of change control procedure so that parties can assess the impact of changes in law and how any potential increase in costs can be allocated.
It is a real possibility that certain changes in law may conflict with your ability to comply with your obligations under the contract. Contracts can deal with this through the use of compliance with law clauses, where performance is excused on the grounds that it would result in a breach of applicable law. In the absence of compliance with law clauses, an escalation clause can be useful for dealing with any potential disputes regarding failures to perform.
COVID-19 has certainly made suppliers and customers alike take more notice of business continuity and disaster recovery clauses. While previously not a clause that was cause for much discussion, it is now likely to be something that merits greater scrutiny. Parties should spend time reviewing and discussing BCDR plans and scenarios and how they will be implemented. Clauses assuring that they will be regularly tested, with results supplied to the customer, will also be important to ensure all is in working order.
Audit clauses vary greatly in scope, but almost all of them include a right to inspect the premises of the audited party, in particular premises from where the services are performed. With many places of work now empty following various lockdown measures, premises from which services are performed may be considered to extend to people’s homes. It is therefore worth making sure clauses are expressly limited to premises owned by or under the control of the audited party.
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Continuing the working-from-home theme, many information security policies will often include restrictions on accessing data from home or impose requirements on user devices like laptops, tablets and mobile phones. Do you have oversight on what devices are being used by your employees when working from home?
It is likely that the COVID-19 crisis had a significant impact on many project timelines over the last few months, so it is important to have a contract that promotes a more flexible way of dealing with delivery issues.
Governance clauses requiring frequent meetings and supplier progress reports can help parties identify and discuss potential issues earlier. Instead of referring to specific dates, agreeing to delivery windows may help settle differences between supplier and customer.
Understandably, suppliers are also often resistant to liquidated damages clauses and termination for missing delivery dates. We find that early warning for late delivery clauses and escalation to senior management can help settle differences, particularly when they reflect what most suppliers and customers would expect with their projects in the first place.
A third class action lawsuit has been launched against Apple over the company’s practice of planned obsolescence in its iPhone product line.
The latest lawsuit, filed by Italian consumer association Altroconsumo on Monday, seeks compensation from Apple “of at least €60 on average for owners of iPhone 6, 6 Plus, 6S and 6S Plus” for the devices’ having been designed to become prematurely out-of-date, which the group describes as “environmentally irresponsible” and a “deliberate unfair practice towards consumers”.
The group said that it was targeting the iPhone 6 range specifically because it represents a “very concrete example” of consumer frustration caused by the practice of planned obsolescence.
Altroconsumo’s class action lawsuit is the third in similar cases brought against Apple by European nations. Similar lawsuits were filed in December by organisations OCU and Test-Achats in Spain and Belgium respectively, each under the umbrella of Euroconsumers, the advocacy group to which Altroconsumo also belongs.
Euroconsumers said in a press release that it plans to launch a fourth lawsuit in Portugal.
Apple has denied planning the obsolescence of its devices. “We have never---and would never---do anything to intentionally shorten the life of any Apple product, or degrade the user experience to drive customer upgrades,” an Apple spokesperson said in an email to The Verge.
“Our goal has always been to create products that our customers love, and making iPhones last as long as possible is an important part of that."
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Last month, Apple agreed to pay $113 million to settle a lawsuit brought by 33 US states that alleged the company had deliberately throttled chip speeds in its iPhone 6, 7 and SE models through a software update.
Though Apple apologised for the slowdown and offered $29 battery replacements to affected users, it did not acknowledge any wrongdoing.
Commercial trucking accidents are always life-changing. These massive vehicles have a tremendous crash force that can leave both automobiles and human bodies mangled.
In 2014, popular actor and comedian Tracy Morgan was involved in a devastating collision that forever altered his life. While traveling on a New Jersey turnpike, his limousine was struck by a Walmart truck resulting in both severe injuries and one death. After a seemingly miraculous recovery, Morgan still has much to say about the lasting effects of this unfortunate event.
Friend and fellow comedian Jimmy McNair was traveling in the limousine bus with Morgan. Of the six people riding in the limousine, McNair was the only individual whose injuries proved fatal.
Although several years have passed, Morgan continues to publicly mourn McNair and honor his passing in social media posts. Although Tracy Morgan has seen remarkable improvements in his own general well-being, this is a loss that he'll never recover, and one that he still openly laments.
One of the most devastating developments resulting from this event was Morgan's traumatic brain injury (TBI). The crash occurred when the driver of a Walmart tractor trailer failed to respond to the slower speeds of surrounding vehicles and had to veer into Morgan's limo to avoid colliding with other motorists. Morgan's limousine bus was hit from the rear and went careening into other cars. The limousine eventually stopped moving after tipping over onto its side.
One of the most devastating developments resulting from this event was Morgan's traumatic brain injury (TBI).
After being diagnosed with TBI, Tracy Morgan experienced a long journey back to his former self. Some of the long-term effects of TBI include:
The comedian admits to suffering long bouts of depression throughout the early stages of his recovery, and he credits his family, friends, and professional team for being a constant source of support and encouragement. According to Morgan's lawyer, despite fighting to regain his pre-accident health, the comedian didn't show significant signs of improvement more than one full year after his crash.
For several months following his accident, Tracy Morgan remained wheelchair-bound. Over time and with lots of physical therapy, he was able to resume walking, albeit with a cane. During his crash, Morgan suffered several broken ribs, pulverised his femur, and broke every bone in his face. He spent several days in a coma, and was blind for a full week upon waking.
Today, Tracy Morgan is closer to the person he was before his accident, but continues to walk with great effort. Although his accident occurred in 2014, Morgan gave an interview in 2020 talking about his struggles to walk without a cane or any other assistive device. With upcoming nuptials, one of his goals has been learning how to walk independent of these tools so that he can have a normal trip down the aisle.
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During this interview, the actor stated that small actions such as sitting down and standing up without assistance were things that he had to learn how to do again, and that they're movements he still struggles with. Thus, even though his recovery has been hailed as remarkable, his life is still fraught with physical challenges resulting from his accident.
The driver of the Walmart truck that crashed into Morgan's limousine bus was undoubtedly speeding just before the crash. When encountering a large pocket of slow-moving traffic, his efforts at evasive action forever altered Tracy Morgan's life.
Surprisingly, however, Walmart attorneys argued that Morgan's injuries were not the result of the driver's negligence, but rather of Morgan's failure to wear a proper safety restraint while riding in the limousine. In spite of this argument, Walmart eventually settled with the actor and all other passengers for an undisclosed amount. This accident just highlights how important it is to speak with a lawyer after getting injured.
Truck accidents are often devastating. The recovery from TBI can be an incredibly long and challenging one, and TBI sufferers are never guaranteed to regain their former levels of brain functioning. Moreover, many people never reclaim their former personalities, speaking abilities, and other functions. Although Tracy Morgan's recovery is certainly impressive, he still struggles with both TBI and the physical ravages of this event more than six years later.
Dominion Voting Systems has filed a $1.3 billion lawsuit against former President Donald Trump’s personal attorney Rudy Giuliani, accusing him of pushing a damaging conspiracy theory against the company.
The 107-page complaint, which was filed in federal court on Monday, accuses Giuliani of having “manufactured and disseminated the ‘Big Lie’” that its machines changed votes from Trump to Biden during the 2020 US presidential election.
Giuliani’s claim “foreseeably went viral and deceived millions of people into believing that Dominion had stolen their votes and fixed the election,” Dominion alleged, stating that it had filed the lawsuit to correct the record and “stand up for itself, its employees, and the electoral process.”
Dominion’s complaint states that it spent $565,000 on private security to protect its employees as they faced harassment and death threats. The company says hundreds of its contracts in various states and localities have been placed in jeopardy by Giuliani’s campaign, and that it projects a loss of profits of $200 million in the next five years.
Dominion had previously sued lawyer Sidney Powell, whom the company also accused of deliberately disseminating conspiracy theories about the legality of the US election and Dominion’s role in it.
Last week, a group of prominent attorneys asked New York’s judiciary to suspend Giuliani’s license for making false claims in post-election lawsuits and for urging an audience of Trump supporters on 6 January to “fight like hell” and to engage in “trial by combat” shortly before they attacked the US capitol.
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Giuliani has stood by his claims about the election since its conclusion, saying during an appearance on a radio show last week that he has been attacked for “exercising my right of free speech and defending my client.”
During the winter season, you might decide not to travel by car. Not all drivers feel safe driving when there’s snow or ice. You might instead choose to travel on foot and see the beauty of the season, especially if it has recently snowed.
However, there are a few safety tips that you want to keep in mind as a pedestrian so that you don't fall and injure yourself or get hit by a car.
If at all possible, don't use your smartphone when you're walking. It's okay to take pictures, but you want to stand still while taking them so that you can pay attention to your surroundings.
When you use a phone while walking, it could result in not paying attention to traffic or other people who are walking nearby.
Try to wear clothing that makes you visible when you're outside. If you don't have bright clothing, you can use brightly coloured tape to add visibility stripes to your jacket sleeves or on the sides of your pants. You can always remove the tape after you reach your destination.
The shoes that you wear should be supportive for winter walking. Even if you don't expect to walk on snow or ice, cold temperatures can sometimes make your feet hurt. Supportive shoes can often decrease this feeling, making it easier to walk longer distances.
Boots are ideal for walking through snow. Make sure your shoes have good tread on them if there could be any icy spots on sidewalks or city streets so that you don't slip and fall.
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Instead of waiting until later in the day to go for a walk, try to plan ahead so that you complete your errands in the middle of the day. Here are some tips for planning ahead if you're walking:
One way to monitor your balance to decrease your risk of falling is to lighten your load. Avoid carrying a lot of heavy bags. If you plan to go shopping, then consider taking a bus or car instead of walking. Watch where you step so that you don't trip, and if you happen to walk through the snow, tread lightly so that you don't get stuck in deep steps and lose your balance.
Avoid jaywalking as this can be dangerous and could result in a citation or a ticket depending on where you live. Cross the street at traffic lights, paying close attention to drivers as some might make illegal movements while others might not always let pedestrians go first when they turn.
One way that you can decrease the risk of an accident is by making eye contact with drivers to ensure that they know you're there. Make sure they make contact back before you cross the road.
Walk on the right side of the sidewalk or the street. If you've ever walked in a hallway, then you've probably been told to walk on the right side. You have to drive on the right side of the road as well. The same thing goes for walking as this can keep you and others who are walking safe from being hit. Try to keep your head up as well instead of looking at the ground while you're walking.
If you happen to be hit while you're walking, then you should contact a pedestrian accident lawyer who can review the incident and determine if you can file a claim.
A federal judge on Thursday rejected an attempt by far-right social network Parler to force Amazon to re-host its app on AWS.
US District Judge Barbara Rothstein in Seattle forcefully rejected Parler’s suggestion that it was in the public interest for a preliminary injunction to require Amazon Web Services (AWS) to “host the kind of abusive, violent content at issue in this case, particularly in light of the recent riots at the US Capitol.”
Amazon cut Parler off from its web hosting services following the 6 January riot where a far-right mob stormed the US Capitol. In a statement, it said that the company had failed to address a large volume of “posts that clearly encourage and incite violence”, violating its terms of service.
In its lawsuit filed on 11 January, Parler asked the US District Court in Seattle for a temporary restraining order against Amazon to reverse its decision, which it claimed was politically motivated. It also claimed that Amazon and Twitter were engaged in antitrust collusion, an allegation that Rothstein dismissed as “faint and factually inaccurate speculation.”
“The evidence it has submitted in support of the claim is both dwindlingly slight, and disputed by AWS,” she said. “Importantly, Parler has submitted no evidence that AWS and Twitter acted together intentionally — or even at all — in restraint of trade.”
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Rothstein also dismissed Parler’s allegation that AWS broke its contract by failing to provide 30 days’ notice to fix issues with its platform before removing it, a clause in the two companies’ agreement that was immediately amended by a following provision stipulating that AWS could terminate the contract “immediately upon notice”.
“We welcome the court’s careful ruling,” an Amazon spokesperson said in a statement. “This was not a case about free speech. It was about a customer that consistently violated our terms of service.”
Google threatened on Friday to disable its search function in Australia if the government instates a new media code that would force it and Facebook to share royalties with news publishers.
Should Google make good on its promise, the move would forbid access to the Google search engine for the roughly 19 million Australians who make use of it every day.
“The code’s arbitration model with bias criteria presents unmanageable financial and operational risk for Google,” Mel Silva, Google’s managing director for Australia and New Zealand, told a Senate committee.
“If this version of the code were to become law, it would give us no real choice but to stop making Google Search available in Australia.”
Facebook has threatened similar action, stating that it will remove news from its feed for all Australian users should the code be passed. The social media company currently boasts around 17 million Australian users, none of whom would be able to post news articles on the Facebook platform if the company removed the function.
Prime Minister Scott Morrison fired back on Google’s warning, telling reporters on Friday that lawmakers would not yield to “threats”.
"Let me be clear: Australia makes our rules for things you can do in Australia. That's done in our parliament," he said.
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Though Australia is not the largest market for either Google or Facebook, its world-first media code is being seen by some as a global test case for government regulation of the world’s largest tech firms. The US government this week asked Australia not to go ahead with the proposed law, suggesting that it instead pursue a voluntary code.
If you don't have a bank account in your name only, it's time to open a checking account and a savings account. Tell your spouse when you do this and keep an account of how much you're going to be depositing into your personal account.
While you want your spouse to know about this account (that way you can never be accused of hiding your marital money), you don't want to keep it a secret.
Upon separation, when you file for a divorce, you'll be able to afford the required cash to cover your attorney's fees and any court fees that you'll need. Additionally, you should also have the monies required to pay for a new residence. It's a wise rule of thumb to avoid filing for divorce until you have the amount of money that you'll need to pay for your legal counsel and your living expenses for at least 3 months.
Make sure to pay down and close out all of your joint credit accounts that are held together. Regardless of whether you have a Target credit card, the mortgage on your home, or other credit cards, they should all be paid off if it's at all possible, or, put the cards into one name or the other.
If you can't pay the credit accounts off, make sure to speak with your creditors and ask them for the proper steps to take to remove your name from each of the accounts. In a divorce mediation or court, the debts must be split. The fewer debts the better and the easier the negotiations will be.
If you're not working or if you don't have an income, encourage the spouse that is earning money to assist you in removing your name from all of the joint accounts. You can also negotiate ways to split the debt by taking on a portion of the debt once you are receiving a living wage.
Make sure to pay down and close out all of your joint credit accounts that are held together.
Another way to protect your investments or money is to withdraw half of the money in the accounts and place them into your own personal account. Keep in mind that if you withdraw more than half of the money the courts may require you to return the overage. You can also consider changing the signature authority on joint accounts to ensure that you must both sign to complete a transaction. Instead of Mr or Mrs, it would read Mr and Mrs.
If you're in an abusive situation, or if you believe that the other spouse will attempt to hide or destroy valuables, hide them. Remember, however, if you and your spouse purchased these valuables together, they must be valued and split accordingly during the divorce proceedings.
According to Harrogate Family Law you need to list the valuables and not hide the fact that you know where they are. When you list your marital property after filing with the courts, you'll need to list any and all valuables that you've removed from the house. Don't sell any of the valuables if you need cash. Should you sell anything, you may have to pay the amount back during the negotiations.
It's important to save as much money as you can before filing for your divorce. Avoid incurring more charges on credit cards. This isn't the way to save money. Once you have removed your name from credit cards, cut them up.
It's important to only use cash until after the divorce is final. Always keep a level head and save so that you never have to be flat broke again. You don't want to start your new life with overwhelming credit card debts.
It's important to save as much money as you can before filing for your divorce.
It's important to know what your credit looks like, as well as what your spouse's credit looks like. If they have credit accounts that are open and you don't know about them you might have made a foolish mistake that could negatively impact your credit as well as their credit. Work on cleaning up your credit report before filing if it's at all possible.
It's important to keep your new banking information private as well as other important documents and information in regards to your divorce. Make sure that this information can't be intercepted by your spouse. Protect your privacy and avoid leaving anything lying around that your spouse could use against you. Get a Post Office box and have mail delivered there for the time being.
Before you file, you'll want copies of all cash sources, valuables, and anything else that may be important according to family law specialist Lenore Tsakanikas. She suggests that you take pictures of your marital assets. If you purchased something expensive on a trip, make sure that you have copies of the invoices as well as photos of the item. Keep receipts and bank account information as well as investment account information. Keep these items in a safe location away from your home.
If you've spent the last several years as a stay-at-home parent, you likely need to brush up on some job skills. Try to get back to school before you get your divorce. You can still protect your future earnings. Don't make a mistake and assume that you can live off of the child support or even alimony while you're job hunting.
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Alimony laws have drastically changed and today you'll get very little, and then only for a very short period of time.
If you've never been involved in paying the bills, learn how to take care of them. It's vital to understand how the bill-paying process works and know how much money is coming into and going out of the household. This will help to keep you on equal footing and to negotiate an equitable settlement.
Other than a house, retirement funds are typically the largest marital asset. Be familiar with the value of your retirement and your spouse’s retirement funds. Understand how they will be divided for your particular state. This will prevent you from being taken advantage of during the proceedings.
Know that alimony is a form of taxable income. Attempt to come up with an agreement that labels this payment differently so that you won't have to pay taxes on it. Don't claim it as income during tax time. Once your divorce is final be sure that you watch for the word alimony and avoid signing anything with this word in it.
It's normal for a divorce to shake up emotion and cause you to make decisions you wouldn't otherwise make. keep this in mind and be proactive to avoid making rash decisions. Think everything through carefully so that you won't have any regrets five years later.
