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Friday, July 29, 2016

Using A Negotiation With Trump To Explain The Value Of Leverage

The full article is available here.

Thursday, July 28, 2016

A Lesson on Accountability

Just published on

Tuesday, July 19, 2016

Legal Advocacy: It's Your Campaign!

The word "campaign" has two common connotations, both somewhat negative.

One is the political type of campaign. If those 30-second ads have made you tempted to throw a brick at the tv screen, you know what I'm talking about. The second is a military campaign, one which conjures up images of a protracted, destructive march through the countryside. Think of the legendary (or infamous, depending on your perspective) campaign of Union General William Tecumseh Sherman, whose march exacted purposeful devastation through the Georgia countryside to the Atlantic Ocean in order to demoralize the South's civilian population and destroy as much of the Confederacy's economic strength (and by extension, its ability to sustain a long war).

But when you need an advocate, you are engaging in a campaign. Your lawyer is your advocate, your general.
There are similar processes in other fields. Salesmanship and marketing are, in essence, nothing but campaigns. So is government lobbying.

In the advocacy sense, a campaign is about communicating your position with the goal of persuading your audience.

The essentials of a campaign are its weapons. The better weapons you have, the better your chances. And if your weapons are being used by a skilled communicator, that's just as good as having the shiniest new toy.

The weapons in the advocacy campaign are basic facts, the situation (do you need help? Are you looking to buy a car?) and, sometimes, the law (because persuading you to do one thing may involve convincing you that doing something different might be illegal).

The best campaigners assess a situation and amass as much information as possible. Information is the best currency.

But deploying that information, that knowledge, is a skill set of its own. This is where the experienced negotiator and advocate can make a difference for you.

Thursday, July 7, 2016

Winning: Boost Your Odds With This One Trick

Any legal encounter has uncertainty, but there's one surefire way to increase your odds of fighting to a successful conclusion.

No matter what.

It's virtually free, too.

What is it?

Here's one clue. It helps you win the fact battle, the contest on the facts of the case or the negotiation.

It isn't enough to have the right facts. Even if the law, both statutes and court rulings confirming their meaning, is on your side.

You must be able to prove your facts. This almost always means you need documents or similar evidence, such as video or audio records or computer evidence (what is generally called electronic data).

The more information you have at the start, the less you will depend on discovery -- and the cooperation and honesty of the other side's lawyers -- to get the documents you need.

The biggest advantage is that you will know you have a strong case, well before the other side does. This can only help in negotiations. Some great court case victories are won this way, when you can spring favorable facts on your opponent and back them up with documents.

Your lawyer can help you go through your paperwork to pull out helpful or crucial information. But the real start is with yourself.

With the right discipline and organization, you may have a built in advantage in any legal situation.

Tuesday, July 5, 2016

Hillary's Server: Bad Judgment Is Not A Crime

The Federal Bureau of Investigation Director James Comey announced earlier today the agency will recommend no indictment of Hillary Clinton be sought in connection with the apparently major lapses in judgment in handling certain classified information and the technology hosting it.

This is the legally sound -- and politically conservative -- position.

The handling of sensitive information is a serious matter, in an understatement. If it isn't a serious matter, perhaps the government ought not to be handling it.

If you have been alarmed by the decades long march towards overcriminalization and overregulation along with the gradual erosion of the mens rea (criminal intent) requirement for criminal culpability, today's statements reflect a reaffirmation of several positive core values in the classic American jurisprudence as it pertains to criminal law. It is a victory for due process, for the liberty-protecting and government-power-restraining principle that one is presumed innocent until proven guilty in a court of law, and a victory for erring on the side of letting a guilty person go free over risking the liberty of the innocent. It is a victory for reason, over the passions of the street mob.

First, we see restraint in the use of government power. Haven't we seen far too many politically-driven or politically-suspect investigations and prosecutions in recent years? We should be thankful that we have a recognition of the value of restraint, whether you agree with the outcome and its political (for the moment) impacts. We should appreciate any time when the government acknowledges the ferocity of its fearsome prosecutorial powers and yet steps back -- and particularly when such power could rightfully be accused by a significant portion of the populace to either be politically driven or risking tipping the balance of a presidential election. (Note: It is useful to note that while the FBI and Justice Department work hand in hand and often effectively in tandem, the FBI's function is investigative and the Justice Department's function is prosecutorial, although one can be sure the FBI's recommendations carry great weight.)

Second, bad judgment is not a crime and neither is negligence. Director Comey criticized Clinton for being "extremely careless" but that is not a crime. The risks to the liberty of average Americans will be immense once we dispense with the criminal intent requirement. We don't prosecute people for mistakes -- not like Italy which started prosecuting geologists for failing to predict an earthquake in the last decade. That is a crucial point. Reasonable people can and do disagree on what is sound judgment, sound policy and so on.

We risk a great deal by rushing to criminalize policy differences and particularly when they are embodied by political opponents. This is most true, in a day when anti-intellectualism is on the march, when ignorance is celebrated and achievement often considered something that makes its holder suspect, when the Internet has emboldened the uninformed to delude themselves into believing and asserting that they are experts instead of fools.

Realize one point: these people, unaware of their foolishness, serve on juries!

But the prosecution of political enemies for subjective decisions should be the province of banana republics which pay lip service to sue process. Not of America.

Director Comey's remarks acknowledged bad judgment. And the judgment may even rise to egregious levels. You could even question whether such judgment warrants a candidate's disqualification (in the minds of voters), but that is a matter to be decided by voters and not by bureaucrats. Again, this is the federalist, restrained-government-power position.

The third and final point derives from the second. There are in some quarters the demand for a prosecution of Hillary based on who she is, what her role was. Again, this runs counter to the American legal tradition. We prosecute the act, not the man, nor the title.

When we start prosecuting people because of what they are, because they are business owners or elected officials and not really because of what they have allegedly done, we are again in despot territory where power exists to be abused and where men live at the mercy of the State.

Prosecuting Hillary because of her status, her achievements, is thusly wrong. Similarly, going after her in order to prove that "no one is above the law" also acts as a powerful and dangerous precedent, one which would surely embolden future reprisals and even more venal abuses of power.

Finally, the approaching election is and should be decided by the voters with as little government interference as possible. This again is the classic federalist position arising from the Bill of Rights and the enumerated powers of our Constitution, a document which stands for the limits of government power and the principle that the people must be protected from government overreach.

Yesterday we celebrated our independence. Lest we forget, the War for Independence began as the culmination of years if not decades of colonists' frustration with arbitrary and abusive government acts committed in the name of the Crown (the Kings of England).

So today's FBI decision should be hailed. Detractors may decry the perceived absolution of Hillary Clinton. But future Americans will be freer with this important Executive Branch decision affirming the value of the restraint of the State's prosecutorial power.