As summer comes to an end, it is time to put away the old and bring in the new – including a fresh new look for Lawyer Monthly! We are excited to share the latest legal sector insights in the magazine’s new style. This month we continue our focus on alternative dispute resolution and the professionals who make it possible. Our front cover feature has us speaking with the experts at Quality Law and Corporate Services, who discuss what mediation should and should not be – an essential resource for anyone interested in pursuing it as a career path or a method of dispute resolution. You can read about their insights on page 12. Beyond ADR, the September edition also includes thought-provoking features from across the scope of the legal world. On page 22 we are treated to an exclusive interview with Jessica Mathewson, where we take a deep dive into title services, while on page 52 we hear from Alan Hochheiser, who gives us a comprehensive overview of the year’s bankruptcy and fraud litigation trends. Neither are to be missed. Though the magazine has a new look, our monthly news coverage is as comprehensive as ever. You can read about the latest in legal sector events and lawyer moves just overleaf, or turn to page 100 to get caught up on the biggest M&A and IPO stories of the month. We hope you enjoy this (revamped) edition! LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com. The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Approx. 302,000 net digital distribution. Oliver Sullivan Editor Lawyer Monthly Welcome to Lawyer Monthly Magazine SEPTEMBER 2022 EDITION @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 Production Team: Emma Tansey, Luke Ostle, Nathan Athersmith email@example.com Sales Enquires: Jacob Mallinder Jacob.firstname.lastname@example.org
Contents 52 6 Monthly Round-Up 8 Lawyer Moves FEATURE OF THE MONTH 12 Mediation: What It Should and Should Not Be Juliet Fenn, Chanda Glidden and Christine Bodden MY LEGAL LIFE 22 Jessica Mathewson The Necessity of Title Services 28 Felice Harris Navigating the Court of Appeals SPECIAL FEATURES 34 The Energy Crisis and the Courts Oliver Sullivan, Lawyer Monthly 38 The UK's Point-Based Immigration - New System, Old Principles? Alex Christen, Capital Law 42 How the EU Digital Markets Act Affects GDPR Bojana Bellamy & Aaron Simpson, Hunton Andrews Kurth LLP EXPERT INSIGHT 48 Making the Most of Workplace Dispute Mediation Rajinder Rai, Mediate With Me 52 The State of Bankruptcy and Fraud Litigation in 2022 Alan Hochheiser, Maurice Wutscher 58 Post-COVID Challenges in Trade Mark Law Beverley Robinson, Chartered Trade Mark Attorney 62 The Leading Lawyers Confidence Crisis Charlene Gisele Bourliout, Wellness Coach 64 Weighing the Pros and Cons of Compulsory Mediation David Bilbe, BASL 72 A Fresh Look at ADR: Preventing Disputes Deborah Hylton, Hylton ADR Services 76 ESG: The Effects on Construction Disputes Kevin Attrill, Ankura THOUGHT LEADER 84 Mediation in Malaysia: Ensuring Success Nishantel Kaur Balvinder Singh, Presgrave & Matthews 88 Preparing Effectively for Workplace Mediation Tony Munday, Achieve Success UK 92 Emerging Challenges in Shipping and Maritime Law Renato Pezoa Huerta, Allievi Larre-Marins & Pezoa 96 What Are the Benefits of Ad Hoc Arbitration? Rishabh Jogani, MRP Advisory LLC TRANSACTIONS 100 What’s Happening in the World of M&As and IPOs? 22
Monthly Round-Up SEPTEMBER 2022 Elon Musk Seeks Documents from Twitter Co-Founder Jack Dorsey Amid Takeover Row UK Barristers Vote for All-Out Strike Over Pay According to a court filing, Tesla billionaire Elon Musk is seeking documents from Twitter co-founder Jack Dorsey as he pursues his legal battle to abandon his $44 billion takeover of the social media platform. Barristers in England and Wales have voted to go on an indefinite, uninterrupted strike from 5 September. contract, alleging the company defrauded him by concealing the number of fake accounts in its regulatory filings. Twitter has denied Musk’s spam allegations. Both Musk and Twitter have since filed suit against one another. Twitter asked a judge on the Delaware Court of Chancery to order Musk to close the deal. A five-day trial is set to commence on 17 October. Dorsey, who stood down as Twitter’s chief executive in November and left the board in May, was asked for documents and communications about Musk’s April agreement to purchase the social media platform and about its spam accounts. In July, Musk told Twitter he was severing his agreement to buy Twitter for $54.20 per share because he claimed Twitter had violated the deal drop out due to long delays. The CBA is seeking a 25% increase in their legal aid fees, arguing that rates have effectively declined by 28% over the past decade. A 15% rise has been offered by the Ministry of Justice (MoJ) from September, but the CBA members have declared that this is not adequate compensation. Approximately 2,300 members of the Criminal Bar Association (CBA) voted in favour of escalating their action to a permanent strike over criminal legal aid rates from 5 September, the date when the new UK prime minister is set to take over. Only 9.11% of the members who voted called for all action to be ceased. Meanwhile, just 11.35% voted to continue their current action, which has seen the number of strike days mount over a four-week period. A permanent strike by criminal defence specialist lawyers will cause the majority of crown court trials in England and Wales to be postponed or, in some cases, collapse altogether, as witnesses 6 LAWYERMONTHLY SEPTEMBER 2022
Google Hit With Privacy Complaint Over Unsolicited Ad Emails EDF Sues the French Government Over Energy Price Cap On 24 August, an Austrian advocacy group, noyb. eu, filed a complaint with France’s data protection watchdog in which it claimed Google has breached an EU court ruling by sending unsolicited advertising emails directly to Gmail users’ inboxes. French energy giant EDF is taking legal action against its own government for €8.3 billion after being forced to sell energy at a loss. The group argued that the Alphabet unit, whose revenues stem primarily from online advertising, should ask users of Gmail for consent prior to sending them direct marketing emails. Noyb.eu said that, although Google’s ad emails look like typical emails, they include the word ‘Ad’ on the lefthand side and are not dated. In a comment, Romain Robert, programme director at noyb. eu, said, “It’s as if the postmanwas paid to remove the ads from your mailbox and put his own instead.” Noyb.eu is an advocacy group founded by Austrian privacy activistandlawyerMaxSchrems. prices that are exacerbating the cost of living crisis. EDF is required to sell electricity to rivals at a heavy discount to mitigate its monopoly position. French officials increased the cap on the discount by a fifth in January, impacting the company’s finances. EDF says the government’s move has forced it to sell energy at a loss, with its claim stating that losses have totalled approximately €8.3 billion thus far. EDF claims the government’s actions could cost more than €15 billion across the year. EDF, which is undergoing nationalisation, has filed a compensation claim over the extension of France’s price cap in January. The French government forced the company to sell more of its energy to rival firms at prices below the market rates in a bid to address record-high energy MONTHLYROUND-UP 7
Lawyer Moves RECENTAPPOINTMENTS FRROMACROSS THEGLOBE Mishcon de Reya has taken on former United Nations official Paul Clements-Hunt as a new director, expanding its Purpose offering. Paul Clements-Hunt is credited with coining the term ‘ESG’ in May 2004 and delivering the UN Principles for Responsible Investment (PRI) for the late UN Secretary General Kofi Annan. He has been a prominent presence in several breakthrough developments in responsible investment and sustainable finance over the past 30 years. A highly valued speaker on the global evolution and deployment of responsible investment and sustainable finance, Clements-Hunt also served as a Founding Board Member and UN representative to the PRI. He has worked extensively with the private sector developing and implementing sustainable business models. Over the course of a storied career he has also held roles as an entrepreneur, an energy and environment policy specialist and a journalist. Alex Rhodes, Partner and Head of Mishcon Purpose hailed the new hire: “We are delighted that Paul has decided to join our growing team,” he said in a statement. “His unparalleled experience in bringing business together with public and private capital to drive sustainability is increasingly central to our clients’ requirements to invest to create business and social value.” Clements-Hunt commented on his appointment at Mishcon: “I am thrilled to join the team as global markets for climate action, ecosystems protection, and social impact build to real scale. As the global, regional and national policy and regulatory architecture settles, Mishcon Purpose is well placed to advise on both the risks and opportunities of a just transition to sustainable development as these new markets evolve." Jason Raeburn has joined Paul Hastings LLP’s London office as a partner in its Intellectual Property practice. Raeburn brings with him a wealth of experience in intellectual property disputes relating to software development and licensing, cloud and AI-related implementations, in addition to a deep understanding of product counselling and technology litigation. His fields of experience include breach of contract, IT infrastructure, the misuse of data and reputational threats. Raeburn also sits as a part-time judge in the English High Court, as a Deputy Master of the Chancery Division and as a Judge of the First-Tier Tribunal, hearing specialist appeals. His 2020 appointment to the bench is believed to have made him the youngest judge ever appointed to the High Court in the history of England and Wales. His hire boosts Paul Hastings’ IP practice and builds upon a surge of growth in its London litigation team, which saw revenue increase by 41% in 2021. The firm recently added a band one finance team and two other expert hires: structured finance partner Jason Brooks and private equity specialist Tom Cartwright. Firm chair Seth Zachary welcomed Raeburn’s arrival. “Jason’s familiarity with advising the world’s leading technology companies in high-growth and highimpact areas like artificial intelligence and cloud fits well into our strategy of investing in strategic areas that will be increasingly important to our clients as a result of macroeconomic trends,” he remarked. Global law firm Kennedys has announced another prominent appointment to its growing corporate and commercial division. Partner Matthew Poli joins the firm from (formerly) BLM. He will be based in London but will work with clients globally on a broad range of non-contentious matters including mergers and acquisitions, private equity fundraising, joint ventures, restructuring, corporate finance and governance advisory. Poli, who brings significant experience in cases involving complex share issues, swaps, buy-backs, reductions and demergers with values exceeding £1.5 billion, spoke of his excitement following his new appointment. “I am thrilled to have the opportunity to build on Kennedys’ already successful corporate practice as the firm’s global reach provides a significant platform for future growth,” he said. “For international clients, that worldwide network of specialists with expertise across so many jurisdictions is an extremely attractive proposition.” New Director Expands Mishcon de Reya’s Purpose Offering Paul Hastings Boosts Intellectual Property Practice With London Technology Partner Kennedys Adds New Partner to Bolster Corporate and Commercial Offering London, United Kingdom Mishcon de Reya London, United Kingdom Paul Hastings LLP London, United Kingdom Kennedys 8 LAWYERMONTHLY SEPTEMBER 2022
Yi Han Dulkeith, PhD, has joined global firm Jones Day’s Intellectual Property practice. She is based in the firm’s New York Office. Dr Dulkeith’s main focus is on providing strategic patent portfolio development and counselling to world-leading research institutions and universities as well as leading biotechnology and biopharmaceutical companies. She is able to advise clients on cutting-edge technologies including immunotherapy, diagnostics, gene editing and cell therapies involving stem cell technology and engineered cells. Dr Dulkeith began her career in the legal profession as a Science Advisor, handling patent prosecution matters and opinions, as well as directing and devising strategies in re-examination proceedings before the US Patent and Trademark Office. She earned her law degree at Fordham University. Leon F DeJulius Jr, Partner-in-Charge of Jones Day’s New York Office, welcomed her arrival: "With extensive experience representing non-profit and health-care organizations, research institutes, as well as start-up biotech companies and multinational biopharmaceutical companies, Yi’s blend of deep technical knowledge and proven legal skills will be terrific for our clients.” Jones Day’s global Intellectual Property team includes more than 200 professionals who leverage courtroom skills and advanced degrees in chemistry, biology and immunology to help clients win disputes and build their IP portfolios. Dechert is expanding its funds practice with the addition of Emmet Quish as a partner in its Dublin office. Quish is an experienced funds lawyer with particular experience in the structuring, establishment and ongoing compliance of all types of investment funds, including alternative funds and UCITS. He provides counsel to asset managers, investment funds and management companies and has buit strong relationships at leading asset management firms across Europe and internationally. Gus Black, co-chair of Dechert's global financial services and investment management group, said of Quish’s appointment: “Emmet is a highly-regarded and experienced lawyer, and we are delighted to welcome him to Dechert. His arrival further enhances our market-leading and growing global funds practice.” Quish also commented on his appointment: “This is an exciting time of growth and expansion for Dechert, a firm known for its breadth and depth in financial services, and I look forward to contributing to its premier practice as well as its ambitious plans for the future.” Dechert was one of the first global law firms to enter the Dublin market in 2010 and has one of the largest financial services and investment management practices in Northern Ireland. Its Dublin team has grown rapidly in the last few years and includes six partners. Jones Day Welcomes New Partner to New York Intellectual Property Practice Dechert Bolsters its Global Financial Services Capability with New Partner in Dublin Dublin, Ireland Dechert Bolsters New York, USA Jones Day LAWYERMOVES 9
This month’s alternative dispute resolution (ADR) focus will cover a broad range of topics, from mediating disputes in Malaysia to the merits of ad hoc arbitration. To set the stage for these features, we have obtained an exclusive interview with three ADR specialists at Quality Law and Corporate Services. We hope that you enjoy the following spotlight article, as our special guest authors discuss the most popular form of ADR – mediation – and their vision for how it should be carried out. FEATURE OF THE MONTH
Mediation: What It Should and Should Not Be As we explore in depth in this edition of Lawyer Monthly Magazine, mediation and other forms of ADR are fast growing in popularity around the globe. While effective as a cheaper and less combative alternative to litigation, however, mediation is not guaranteed to succeed; it depends on the skills and insight of an experienced mediator to help all parties involved reach a satisfying solution. This month, we hear from Juliet Fenn and Chanda Glidden, who are both accredited mediators at Quality Law and Corporate Services. Along with their colleague, Christine Bodden, Attorney-at-Law, they will take us through a 360-degree view of the mediation process in the Cayman Islands, a jurisdiction with a population of approximately 70,000. Feature of theMonth FEATUREOF THEMONTH 13
What does the process for mediation typically look like in the Cayman Islands? Juliet: As a jurisdiction, the Cayman Islands has built a sound and mature judicial reputation with regards to litigation, leaving the culture of mediation still in its infancy. This is unlike our larger neighbours in North America and Jamaica, where mediation is a standard practice for dispute resolution. However, in the last decade we have seen the courts adjust their model and make a concerted effort to encourage mediation in family matters. Parties referred to mediation by the court will have the option of using court-appointed mediation free of cost, as well as the option to appoint a private mediator. The success of introducing mediation to the family court over the past few years has spurred discussion on the widening of the resource in other areas of dispute. Mediation in the Cayman Islands is finally becoming more popular for an increasing number of people as a means of dispute resolution. Indeed, the family court will expect parties to have utilised the services of a mediator before applying to the court for resolution. As mediation is not commonly offered as the first option in civil matters and any that are conducted are done so privately, there is no clear record as to how many mediations are taking place annually or whether there is a rise in the trend. A big part of the issue we face is that many people still do not know what mediation really is or how it can benefit them. What is mediation – or, more importantly, what is it not? Chanda: ‘Compromise’ – that is how it is often described. To me, however, this is an oversimplification of the process. Additionally, where you have a spouse or business partner who has been biting their tongue in endurance of another person’s behaviour for years, compromise can become a dirty trigger concerns separately in individual rooms so that each can be heard without disruption, which assists more expedient resolutions. The lawyers normally step back at the mediation stage but are on hand to advise their client as required and then more actively again at the stage of drafting and completing any orders by consent, which will ultimately then require signoff by the respective judge or magistrate as well. Chanda: With me as their mediator, the parties can expect to be heard and to answer some thought-provoking questions. I typically request that mediation clients reserve 90 minutes to three hours for their first session to allow ample time for discussion and breaks if things get too heated. word fuelling resentment and victimised feelings. I often describe mediation as creating an outcome that everyone can live with. My first experience with mediation was 14 years ago. A magistrate sent me into a room with my abusive ex and his overly aggressive attorney to mediate visitation arrangements for our young child. The whole time I sat there with his attorney demanding the terms while I was forced to negotiate like crazy for my rights, as well as the wellbeing of myself and my child. The whole time I was silently screaming: this is not mediation! What can clients expect from their first mediation experience, and how do you help your clients prepare? Christine: It is generally accepted in family law practice that mediation will be the first point of order for attempting to settle a matter. Often at the first appointment hearing the parties will already have determined whether they are open to the mediation process and will have instructed their counsel to seek orders for mediation at the onset. At this early stage of proceedings, it has become the norm for the judge or magistrate presiding on a matter to encourage the mediation process in the first instance with the court-appointed mediator, which has proven to be a successful avenue in even the most initially contentious matters. The process starts with acquiring background information regarding the parties. That information is then forwarded to the court-appointed mediator, who subsequently coordinates a Mediation Information and Assessment Meeting (MIAM) with the parties. This process will normally include providing the parties with forms (including financial disclosure forms) for their completion before the first actual mediation session. Next is the actual mediation, which can often run from one hour to half a day. In the event that the parties are very contentious, the mediator can decide from the initial MIAM to hear each party’s The success of introducing mediation to the family court over the past few years has spurred discussion on the widening of the resource in other areas of dispute. 14 LAWYERMONTHLY SEPTEMBER 2022
What role does mental health play in mediation? How can mediators accommodate people suffering from stress or mental health issues? Chanda: Due to its flexible nature, mediators can offer versatile, comfortable and neutral venues for the participants to hold their discussions. I have hosted sessions in gardens and luxurious office suites that put clients much more at ease before the hard conversation started. Additionally, with the aid of technology, participants that tend to have more hostile communication can opt for a virtual session that will include break-out rooms lessening, the anxiety that can arise from in-person confrontations. Most clients do not care about the witty rebuttals or the case law you cite. They just want to go home with a conclusion that leaves them feeling safe, financially sound and mentally at ease. If you can help them achieve that in a quick and cost-effective way, you will have their repeat business and be able to turn your attention to other matters that may require more of your time. Needless to say, it does wonders for managing your workload. What are some of the most memorable or rewarding mediation cases that you have worked on throughout your career? Chanda: An employment matter, coWhat role do lawyers play in the process? Chanda: A big one! Lawyers can make or break the entire process. Let’s face it, outside of advising on the law, lawyers speak in terms of billable hours, and there is no better way to accumulate them than with lengthy litigation. This flies in the face of a what mediation stands for in terms of a speedier resolution. Likewise, when a lawyer comes into mediation with the same ‘win/lose’ mindset attributed to traditional ligation it can threaten the integrity of the session. You have to be really honest with yourself about why you are there; you have to keep in mind that as a lawyer in a mediation setting your role is to advise your client on the law, so that they can make the best decision for themselves. FEATUREOF THEMONTH 15 Chanda Glidden, who is also a practicing attorney, is accredited by the London School of Mediation and specialises in employment, contractual and family mediation. She believes curiosity and genuine concern for a resolution can unlock the right solutions for her clients.
litigation where there can only be one winner, I realised that both parties were often left emotionally and financially exhausted by the process, their relationship worsened and one party was usually left completely defeated in the end. I also recognised that in some cases where judges may be sympathetic to the plight of one party, being that they were bound by the confines of law there was often little they could do. In contrast, where I was able to witness the parties being able to choose and agree their own outcome, I saw how it left them feeling empowered, relieved and happier with the conclusion. So as a mediator, I do not need to make decisions for others; they can do so for themselves. I just provide the right environment for that to happen, and that is far more meaningful of an experience for everyone. Are all mediators lawyers? Juliet: I believe it is important to stress that, as a mediator and non-lawyer, I am able to avoid the legalese that can be confusing to the parties, offering equal support to both parties to ensure they feel listened to and understood. Lawyers can be intimidating, and as mediation is not a legal process it certainly does not need a lawyer to preside over it! In fact, it is important to dispel the myth that all mediators are lawyers – we are not! You do not have to be a lawyer to be a mediator, and trust me, not all lawyers can be mediators – it is a specialised area that requires specialist training. Having been through mediation myself back in the 90s, I can certainly tell you what mediation should not be. Thankfully, mediation has come a long way since then and is now becoming accepted as a means of alternative dispute resolution. In family disputes I bring to the table a non-legal aspect that my clients are grateful for; I obviously do not get into the legal aspects of what they could achieve in court, because not only am I not qualified to do so, but at the mediation stage, I do not believe it is relevant or important. I am there to be the conduit between the parties and to give equal support to them both. Having a non-lawyer mediator can also help Christine Bodden is a seasoned family lawyer who also specialises in property, probate and general corporate commercial law dispute resolution. Christine often accompanies her clients through the mediation processes to provide knowledgeable advice on points of law. with my son’s father that I mentioned earlier and the self-discovery that this was a natural talent. I have always been someone who enjoys helping others through difficulty. At one point as a young girl I wanted to be a judge. In my mind it was a cool way to ‘help’ people by resolving their issues for them when they could not do so themselves. However, by the time I was 14, I noticed that I had a wider ability to seek out the truth and apply it to the wellbeing of others. Throughout high school and university I was always on the student council or acting as a peer counsellor. Looking back, I was consistently a liaison that both the faculty and other students could trust to help them resolve interpersonal issues on campus. As I gained more life experience and watched clients go through the rigors of mediated by the lawyers, that settled in less than 30 minutes. The employer was refusing to pay severance and accusing the employee of misconduct that they fiercely disputed. I was representing the employee and quite early into the session I firmly but gently asked the employer a simple question: “What do you need?” He immediately confessed that he wanted an apology because he felt taken for granted. Upon hearing him out, the employee had no hesitation in providing the apology. 15 minutes later the apology was given, the agreement drafted and the matter resolved. What inspired you to become a mediator? Chanda: For me, it was a combination of the horrible first mediation session 16 LAWYERMONTHLY SEPTEMBER 2022
beyond their own reflection. Chanda: It can sometimes feel like putting together a jigsaw puzzle without knowing exactly what the picture is. But that is the beauty of it: getting curious and digging down into what is and is not being said. Once you find the right thread to follow it can lead to all kinds if interesting places and possibilities for solutions. What mediation trends do you foresee for the next one to five years? Chanda: Although mediation is gaining traction, it is still very much an ’If you know, you know’ option in the Cayman Islands because of the easy access to Juliet Fenn is a Member of the Chartered Institute of Arbitrators,specialising in family mediation, focusing on the positive and addressing the negatives in an honest and open way with the parties to facilitate the best possible outcome for all. the parties feel less intimidated by the process. What is it like being a mediator? Juliet: Becoming a mediator was a natural process for me. As an empath I am a good listener and communicator. I am also very creative, and being a mediator takes a fair amount of creativity. Being able to see things that may appear obvious is a talent and quite often the obvious is what needs to be seen by both parties. However, the obvious is not always the solution, so creativity plays a part. I have been involved in amateur dramatics my whole life and playing the part of a mediator is a lot like playing a role in someone else’s life story. As mediator training involved a great deal of roleplay both as the mediator and mediated, I think I am quite good at it! My own experience of having mediation prior to a divorce in the 90s was certainly not an experience that I would have recommended. Had I known then what I know now, the divorce experience could have gone a lot smoother than it did. As a mediator I do not decide the outcome, but rather help the parties involved to focus on what is important and to see the bigger picture. We are all guilty of only seeing things from our own perspective, but a mediator helps both sides to see through the looking glass FEATUREOF THEMONTH 17 Most clients do not care about the witty rebuttals or the case law you cite. They just want to go home with a conclusion that leaves them feeling safe, financially sound and mentally at ease.
judicial remedies and the strong litigation culture for civil disputes. That said, with a recession predicted on the horizon, the stress induced from a global pandemic and other worldly events as well as more access to information than ever before, I predict that people will soon be looking for fast, affordable, creative ways to resolve their issues – which mediation is perfectly poised to provide. Do you have any closing comments to make about the suitability of mediation for effective dispute resolution? Juliet: The breakdown of any relationship is stressful enough on its own. A skilled mediator can take the argument away from each party whilst assisting both sides to explore the different options available before hopefully reaching a resolution. Whether it is a property dispute or arranging childcare and visitation, quite often a mediator is overlooked as an option to avoid all the fighting and bad-mouthing that can happen when a couple separate and have assets to divide or children to care for. Of course, there are cases that are not appropriate for mediation, such as cases of abuse, mental illness or cognitive impairment, but for the most part mediation can be utilised for a number of varying disputes or disagreements. This makes mediation a frequently successful alternative to the courtroom. All it takes is a willingness to listen, an open mind and a good, qualified mediator. Being able to express what you want to achieve in a confidential setting, and knowing that the mediator is working in the best interests of the family dynamic rather than for a single side, is paramount to what we do at Quality Law and Corporate Services. 18 LAWYERMONTHLY SEPTEMBER 2022 Contact Juliet Fenn, Mediator Chanda Glidden, Mediator & Attorney Christine Bodden, Attorney-at-Law Quality Law and Corporate Services 102 Cannon Place, George Town, Cayman Islands Tel: +1 345-233-7529 E: email@example.com www.quality.ky Quality Law and Corporate Services Quality Law and Corporate Services is a law firm based in the Cayman Islands with expertise across legal, corporate and notary public services. Its staff offer special perspectives acquired through active service as board members, directors and trustees of various commercial, civic, and non-profit organisations. I predict that people will soon be looking for fast, affordable, creative ways to resolve their issues – which mediation is perfectly poised to provide.
FEATUREOF THEMONTH 19
Each month, Lawyer Monthly Magazine has the privilege of interviewing the brightest and most ambitious movers in the legal space. In these conversations we dig into their areas of expertise, learning more about their practice and the stories behind their pursuit of excellence. Jessica Mathewson and Felice Harris are our headline guests for this September edition. Overleaf, they share insights into their respective specialities – title services and appellate law – along with the personal journeys that have led them to where they are today. MY LEGAL LIFE
Jessica Mathewso we will be unable to insure over. Secondly, In Minnesota, the buyer’s title company also has the role of the escrow company. Escrow is the process by which the interests of all parties in a real estate transaction are protected. The company ensures that all conditions of the sale have been met before the property deed and money change hands. We ensure that the conditions on our preliminary title commitment are completed before closing so that we can issue the title insurance policies. As the escrow company, we receive down payment funds from the buyer and the loan funds from the lender, and we comply with the lender’s instructions for closing. We also prepare the documents for the transaction, such as the closing statement with prorated property taxes, interest and insurance, and the deed or other seller-signed documents required to transfer the property. At the closing, we deliver these items to the appropriate parties, disburse the What does a title company do? A title company is a third party to almost all real estate transactions. When representing a buyer or lender, the title company protects both in two significant ways. First, we verify that the seller has a legal right to sell the property. We do this by searching up to 40 years of historical records, depending on how old the property, and in so doing also determine the individuals that have owned the property. Next, we must determine that the property is free of defects and there is no one else who may have a claim or rights to the property. Once the searches come back, an examiner will type what is called a preliminary title commitment. This commitment lists everything that must be completed before the closing can occur and be insured. This document also lists any exceptions that 22 LAWYERMONTHLY SEPTEMBER 2022 My Legal Life The Necessity of Title Services Title insurance and other services are an essential component of real estate transactions, guaranteeing security for both lenders and buyers. This month we have the pleasure of speaking with Jessica Mathewson, president of Executive Title, who offers an indepth look at the title services sector as it stands today. She shares her own experiences in the sector, the processes that are involved, and the greatest threats posed to the wider real estate industry in 2022.
on MY LEGAL LIFE 23 FEATUREOF THEMONTH
funds, and record the documents with the county, putting the new buyer into title. Who needs title insurance? Title companies do everything possible to get the most accurate information in our searches, but unfortunately, the information we receive is not always 100% guaranteed. Humans make mistakes, and past records may be inaccurate or recorded incorrectly. There may be unknown errors, fraud, or forgery. These risks are why title insurance exists. Title insurance guarantees the lender and buyer the right to the property unencumbered. Should an issue arise after closing, the title company and insurer have the duty and costs associated with defending those rights. Lenders If a buyer is obtaining a mortgage to purchase their property, all lenders will require a lender’s title insurance policy for the amount of the loan. The lender’s policy is issued to the mortgage lender. The policy protects only the lender from covered losses arising from any defects that become known after the closing. This policy remains in effect until the lender is paid in full, the property is refinanced (in which that new lender would require a new policy), or the property is sold. Owners An owner’s policy is issued to a home buyer. Just like the lender’s policy protects a lender, an owner’s policy protects a buyer from losses that could occur after the closing. Should a buyer not have purchased an owner’s policy, they would have to hire an attorney at their own expense to defend them or solve the issue. What is the process involved in acquiring title services? I will try to make this short and outline a cookie-cutter scenario. Of course, not all transactions necessarily go this way. The average timeline of a transaction is approximately 30 days. As the title company, we usually receive an order request early in that timeline from a lender, a real estate professional, or an attorney. Once we receive a lender order and purchase agreement, we create a new file. Usually, within the first week, we contact the parties, gather the information we need, order abstracting and searches and wait for a commitment to be produced by one of our examiners. Once completed, we send the commitment to insure to all parties, and a closing day and time will be scheduled for everyone involved. Once everything is closed and funded, and after receiving the recorded documents back from the county, we issue the final insurance policies. By whom are these services intended to be used? Typically, our clients are lenders, real estate agents, attorneys, banks, investors, and home builders. Because we have relationships with these professionals, they are usually our first contact. We offer many services for different clients and needs. A couple of examples could include: A real estate agent is getting ready to list a property but feels the homeowner is not telling them the entire truth about the transaction. Something just isn’t adding up, and they do not want to list the property under this suspicion. An agent may come to us and ask us to do a preliminary search on the property. In the 24 LAWYERMONTHLY SEPTEMBER 2022 Most consumers are not familiar with what a title company does, what title insurance is, or how important of a role we play.
thought of. However, even in the most extreme of cases, our job is to help resolve the issues and get the title to the property insurable. One common resolution tactic is called a quiet title action. This special legal proceeding is common with lender disputes, the death of an owner, cases of adverse possession, or other issues that must be resolved under a court order. Some common types of title deficits are: • A past mortgage had been paid in full, but unfortunately, the lender did not record the satisfaction with the county. The seller did not save any paperwork proving that they paid it off, and their mortgage company or title company went out of business. • A seller inherited a property from someone, and the paperwork was filed incorrectly for a legal transfer. They go to sell the property and find out about the issues that need to be resolved before they can sell. • Although it is common for properties to have certain easements like utilities, sewer, or water, the city may have an easement that goes through the property lines that could hinder a new buyer from adding on to the property. • There may be mechanic’s liens from previous work done on the property that had not been paid for. If not taken care of before the sale of the property, this lien would pass to the new buyer. • The property might have been part of a bankruptcy, and there are special sales requirements. • One that happens quite often: the seller was previously married but is now divorced. There is an outstanding marital lien on the property outlined in their divorce decree in which the other spouse is to receive a portion of the proceeds of the sale. If this is not taken care of before or at closing, that spouse still has an interest in the property and would have a claim against the property. • Any past owners' outstanding judgments or tax liens may have a right to an interest in the property. • A foreclosure, redemption, or short sale may have been processed incorrectly or with errors. • Sticky situations may also come up investigation, we discover that the seller has judgements on and an outstanding mechanic’s lien on the property. This information would be helpful for the agent before listing the property, as it would affect the sale. When someone is refinancing a property, the lender will use our services. We provide them a title commitment, complete the closing, and issue them a lender’s policy, ensuring that the lender is in first lien position. Who chooses the title company? Most consumers are not familiar with what a title company does, what title insurance is, or how important of a role we play. Although it is up to a homebuyer to choose a title company, homebuyers usually leave it up to their lender or real estate professional to determine as, most of the time, these professionals already have relationships with title companies they work with and trust. Because of this, typically, our clients come from lenders, real estate agents, and attorneys. In turn, their clients become our customers. What are some types of title defects? Each property and transaction are very different, and many issues could arise. These issues can make a real estate transaction an unpleasant experience for a buyer or seller and are often elements they were unaware of or would not have MY LEGAL LIFE 25
when there are deceased people that have an interest in the property. They may have passed away without a will or probate done, or there may be missing heirs that were unaccounted for. All of these scenarios would be a defect on title that will pass on to the new owner if not cleared up prior to closing. Why is it advisable for a property buyer to consult a title expert prior to completing their purchase? Ideally, a buyer would not try to purchase a property alone without involving a professional. But, again, if a new mortgage is applied for, it would not be an option to not have representation since the lender would require it. As long as a professional was involved, so would a title company, as we are a part of almost all real estaterelated transactions. A buyer that does not consult with us or does not perform due diligence before purchasing a home could run into one of the many serious issues I described earlier. What is the most notable growing threat in the title services industry? In the past few years, real estate cyber scams have become more and more prominent. In 2021, real estate cybercrime losses reached $350 million. That amounts to one attempted scam every 37 seconds. Wire fraud is the largest threat to real estate transactions. Cyber perpetrators use social engineering to impersonate a title company, real estate agent or lender. They often send fake emails to the buyer with fraudulent wiring instructions, conning them into wiring their closing funds to bank accounts under the fraudster’s control. It has become almost effortless for a fraudster to get information. They can go right online to MLS property listings or Zillow and see active real estate transactions. They can look up who the seller is, and the agent’s contact info is in the listing. Then they will send phishing emails to the parties, pretending to be others to gain information. If any of the parties involved do not use secure email (and most customers do not), the fraudster will hack their email account and harvest the details of their upcoming closing. They can even find out how much money the buyers will need at closing. They use the email signatures of the professionals involved to make it appear that the scam email is legit. In many cases, they will tell the buyer a story that they changed banks or account numbers and now need them to wire the funds to the new bank information. Fraudsters sit back and wait for the right timing. They are waiting to see if someone has a family emergency, a panicked situation, or an upcoming vacation. They will use the information to plan the perfect attack. Unfortunately, many fall for this and wire their funds to the fraudster. No one plans on getting scammed. Money that is sent by a wire transfer is extremely difficult to recover. Why did you choose to specialise in title services? I am not sure I was the one that made the choice; I believe it chose me. First, let me give you a little background. I joined Executive Title in 2009, partnering with Eric Whites, the original owner, who had started the company in 2002. We were still dealing with the fallout of the market crash of 2008. The housing market and industry altogether looked very different from what we had ever dealt with in the past. I came to Executive Title with a lending background. As a lender, I worked with title companies but did not fully understand the ins and outs that happened behind the scenes. What I did have was a drive and passion for learning and for success. Eric had lengthy title knowledge, and I knew he would teach me the areas I was unfamiliar with. 26 LAWYERMONTHLY SEPTEMBER 2022 In 2021, real estate cybercrime losses reached $350 million. That amounts to one attempted scam every 37 seconds.
For those next five years, my focus with the company was its foundation, encompassing its overall growth and efficiencies. To me, the goal was simple. I would find and employ the best of the best, and that is what I did. You could probably say that I specialised in people more than title services. We have some of the most amazing humans I know. Some of our staff have been here from the beginning, and most have been here for more than 10 years. We have mothers and sons, sisters, brothers, and more. We have numerous multi-generations of our own and employees’ family members working here. Some have been in the business since they were young, with their careers expanding for over 40 years. With over hundreds of years of combined experience, everyone specialises in different areas, and together we specialise in everything relating to ‘title’. With that said, in 2014, Eric had decided that he wanted to focus his time on his other endeavour as a real instate investor and developer, so I ended up buying his 50% stake in the company. Fast forward a year later, the saying ‘you are meant to be together’ holds a special meaning for the two of us. While very unexpected, we ended up in a relationship and have been married since 2018. Together again, we run and operate Executive Title as a team. How have you witnessed the sector change since joining Executive Title? One of the largest changes is now being able to submit documents to the county recording offices electronically, where we used to have staff drive around or use different courier methods to manually record the documents. Another significant change for our industry is being at a point where technology and newly passed laws meet. It is now becoming possible to get documents signed, notarised, and recorded electronically. We had already been working with various vendors and customers on the implementation of RON (remote online notary) closings. This new platform is where the closings happen online, instead of in person. Being ahead of the game on this helped us immensely during the pandemic, as we were able to help hundreds of people close on properties without them having to leave the comfort of their homes. Our industry overall is known to be very slow to change, and only a handful of lenders currently allow these RON closings to occur. Still, we believe this will become a normal course of business in the near future. MY LEGAL LIFE 27 Jessica Mathewson Jessica Mathewson became President of Executive Title in 2015. With more than 18 years of experience in lending and title insurance, she has a deep understanding of the intricacies that arise in real estate transactions. In addition, she enjoys specialising in providing strategies to resolve complex cases. Jessica is a member of the American Land Title Association and the Minnesota Land Title Association. Executive Title Executive Title is an established full-service independent title insurance agency that has been built on reputation, knowledge and experience for over 20 years. Familyowned and operated, the firm is crewed by a dedicated multi-generational team that values family, traditions and hard work. The agency has six offices around the Twin Cities Metro. Although the majority of transactions it acts upon are in Minnesota, Executive Title is also licensed in Wisconsin and Colorado. The firm is underwritten by Stewart Title Guarantee and Fidelity National Insurance. Contact Jessica Mathewson President, Executive Title 11112 86th Ave N, Maple Grove, MN 55369, United States Tel: +1 763-424-1850 E: firstname.lastname@example.org www.etofmn.com
Felice Harris What are the most common avenues used to attack a criminal conviction? A criminal defendant may file an appeal (direct, delayed, and application to reopen); motion for new trial or motion to withdraw guilty plea; and petition for post-conviction relief. A civil defendant is more likely to file an appeal (direct) or motion for relief from judgment. What does the typical appellate process look like? Are there any common factors that might shift the standard process? The appellate process begins with the filing of a ‘notice of appeal’, praecipe, What makes appellate law necessary? Although there is no federal constitutional right to appeal, in Ohio, a criminal defendant’s right to direct review is granted in the Ohio constitution and by statute. Therefore, the first challenge to a court’s final order – in a criminal case, a sentencing entry; in a civil case, a judgment entry – is often an ‘appeal’. Appellate law, which is comprised of rules, statutes and caselaw, is, therefore, necessary to govern the appellate process. Ohio’s 88 counties are organised into 12 appellate districts. Hamilton, Cuyahoga, and Franklin counties each constitute their own districts (1st, 8th and 10th, respectively). The remaining appellate districts are comprised of multiple counties. 28 LAWYERMONTHLY SEPTEMBER 2022 My Legal Life Navigating the Court of Appeals When appealing against a criminal conviction, a thorough understanding of appellate law is necessary to ensure a chance of success. This month, Lawyer Monthly speaks with Felice Harris, an Ohio appellate attorney, to shed light on the fundamentals of the appeals process. She describes the ins and outs of appeals in her jurisdiction and shares a little of her own professional development to date.