The History Of Boilerplate Clauses & How To Draft Them Effectively

The RMS Titanic might be the most famous steamship in the world. In 1912, it was certainly the largest.

Roughly 200 years after the rise and fall of the steamship, lawyers still reference it everyday—but not in the way you may think.

Going back in time to the mid-1800s, steel plates were once bolted on the boilers of steamships that contained water. Water, heated by fire, generated steam. The steam was then pumped under pressure into engines; but, with such great pressure comes risk, and to keep the boiler from exploding, extra steel plates were needed on each boiler: a simple yet effective way to control the power of physics and oceanic transportation.

One hundred years later, when the steamship industry was on the decline, the newspaper industry repurposed these large steel plates from decommissioned steamships for their printing presses. Some of the plates contained textual information, such as the newspaper name or city, which would be stamped on each and every page of the newspaper.

The meaning of the term “boilerplate” was thus dichotomous, indicating both the strength and security steel plates provided steamships, as well as the repetitive text that was regularly and identically reprinted (read more at Gianelli & Associates).

In recent years, the word is used primarily by lawyers to mean the fine print at the end of contracts. “Boilerplate” most often represents terms and conditions that are fixed, powerful, and sturdy to match the boilers of its steamship days.

In New York, the boilerplate on the back of Yankees tickets are particularly famous for claiming, “The bearer of the ticket assumes all risk and danger incidental to the sport of baseball,” which disclaims all legal liability if a fan is injured at Yankee Stadium (read more in The New York Times).

This is known as the “assumption of risk” doctrine and even, at times, as the “baseball rule” to personal-injury lawyers who recognize how difficult baseball-stadium injuries are to litigate.

Today, however, the power of the boilerplate may be fading. Boilerplate clauses may not be as unyielding as once thought. In fact, they often lead to unintended consequences.

For example, a liquidated damages clause specifies a predetermined amount of money that must be paid as damages for failure to perform under a contract. While most business contracts contain a damages clause, they’re not always enforceable.

Business counsel can help mitigate challenges to enforceability through careful drafting of liquidated provisions. Attend C4CM’s CLE “Drafting and Negotiating Liquidated Damages Clauses in Business Contracts,” on Wednesday, December 16, 2015 from 2:00 PM To 3:15 PM Eastern.

During this information-packed webinar, our expert faculty will present real life examples and considerations for drafting and negotiating of liquidated damages provisions in commercial contracts. It will provide strategies for anticipating and overcoming enforcement hurdles with the clauses.

Researching the effectiveness of boilerplate clauses will be of titanic help to your firm, as well as your clients, in order to weather the obstacles ahead—icebergs and all.

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Getting Over The Post-Thanksgiving Hump: A Few Organizational Tips For Cold Weather

Thanksgiving wasn’t a day to give thanks for everyone this year. Oklahoma Governor Mary Fallin was forced to declare a state of emergency for all 77 Oklahoma counties due to the winter storm and flooding. The Governor’s office reported that nearly 100,000 homes were still without power Sunday afternoon as a result of freezing rain, ice and sleet, according to USA Today.

Rains continued in Kansas and North Texas, as well, where waterways swelled and flood watches remained in effect, the AP reported. Seven people were swept away in high water in the Trinity River in Dallas Sunday afternoon. Fortunately, they were able to be rescued from the swift water.

But don’t let a dreary holiday engulf your weekly goals. Through a few easy steps, you can salvage a productive and welcoming start to what’s likely to continue to be a wet week.

1. Concentrate despite the cold

Although the autumn weather is finally be turning, your office heat may still be turned off.

If you find yourself losing concentration in a cold office, try using the countdown method. Look at the clock and plan to work ten more minutes, read ten more pages, or write ten more lines of a brief. Then, reward your effort with a warm cup of tea or coffee.

Whether it’s due to temperature issues or end-of-the-workweek procrastination, don’t lose your focus. Counting down a few more minutes will help you finish that less stretch of work before heading home. Or, finishing that last memo before going to lunch.

You’ll be surprised at what you can achieve in just a few more minutes. More often than not, having a distinct, short-term deadline to complete a task will bring back your fat-waning concentration.

2. Do the most important task first

It’s easy to waste your day working on little projects—filing papers or filling out timesheets, for example.

But, procrastinating with the more important case-related matters you left behind will only lead to a weekend spent at the office.

So, today, find your most important task at hand. Complete this item first.

If you funnel your concentration and effort into one, single work item, you’ll be more satisfied with your progress, and you’ll have set a more manageable tasks to complete before the end of the week.

3. Ignore your email

Obsessing about incoming e-mail is the quickest way to lose your work momentum.

So, maintain your concentration by ignoring new, incoming e-mails—at least for awhile.

Create a schedule for checking them (say, every hour). This will also give you an occasional, much-needed break from completing your more important projects.

4. Don’t forget your to-do list

When you’re feeling overwhelmed, your concentration starts to decline. There feels like just too much to do in so little time.

Creating a to-do list is one of those basic, old, but still valuable tasks for any professional. Create a to-do list for the day and for the week. If you can, assign dates to each task (you can modify them later).

Creating a to-do list will get you in the habit of writing things down.

After every phone call, e-mail, or in-person conversation, write down the project being discussed, along with the related-tasks.

This is one of the many reasons why Excel was created and can be used by lawyers.

At the end of the day, you’ll be grateful for the visual representation of all your work—especially once you see that none is urgent and hump day has finally transformed into the weekend.

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Law Firms, Watch Collectors & How To Know When ‘Time Is Money’

In the case of high-end watch collectors, time is literally money.

At a recent Christie’s auction, a Patek Philippe watch sold for more $50,000—quite an improvement over its 1950s retail price of $275, reports CBS News.

“I’ve seen artwork being traded for watches. I have seen somebody trade a very rare Patek Philippe for a down payment on an apartment,” said Benjamin Clymer, Founder and Editorial Director, Hodinkee.com.

In today’s digital age, you still can’t stop the clock. Apple shelled out $21 million in a “lump sum” to license a clock-face design from the Swiss Federal Railway service, reported French news agency AFP, citing a Swiss paper.

Swiss Federal Railway service (SBB) objected to the clock-face design in iOS 6 because it too closely resembled a trademarked design created in 1944 by SBB employee Hans Hilfiker. Today the design is used in train stations throughout Switzerland and licensed the pricey Swiss watch manufacturer, Mondaine.

Hilfiker’s design is timeless, and thus has been honored by both the Museum of Modern Art in New York and the London Design Museum. The Swiss consider it a national symbol of punctuality, but it’s also an example to lawyers of the power technology holds when protected by intellectual property.

It’s not just watches; there are myriad other reasons why technology converts time into money for your firm. Here are some lessonds, according to an Accellis Technology article, for law firms:

“When you’re efficient, you take on less risk – Simply put, the less time you spend on a contingency case, the less risk associated with taking it on. If you lose, you’re not sacrificing as much time or revenue. If you win, you’ll make the same amount of money, but since you spent less time on the case, your margins are higher. And, if you win or lose but don’t get paid, you’re out less money.

When you’re efficient, you can take on more cases – If you can generate a Will twice as fast as your competitor, you can do twice the amount of work, right? When your process for settling civil disputes speeds up, you can twice as many disputes.

When you’re efficient, you can spend more time on client-facing activities – Spend your new-found time meeting people, creating stronger relationships with your clients, and building value in your firm. Try to drive in new opportunities from your current client base (maybe they didn’t know you take on divorces). Did you know that once you have a client, each subsequent sale has a close ratio of over 70%? It’s easy money!”

To read the entire article, go here.

Sold on technology, but need to know where to start? Think about integrating the following products into your business systems:

The iPad.

Apps for the mobile phone and iPad have contributed some of the most significant improvements in efficiency and productivity within law firms in some time. Get with your IT Department to brainstorm how best to implement these gadgets into everyday legal activity.

For some of the best legal iPad apps, go here.

Near-field Communications (NFC) Technology.

From Google Wallet to Starbucks Mobile Payment App, NFC technology has myriad uses in law.

Read more about their applications here.

Social Media and Blogging.

Social media sites like LinkedIn or legal recruitment web-agencies, including lawcrossing.com, are cheap and easy ways to locate qualified candidates. It saves recruiters time and money by already compiling information about prospective employees.

Even if your firm is not looking to hire, it’s certainly still looking to recruit clients. At which point, social media—blog posts, tweets, or Facebook feeds—become crucial in advertising what services your firm offers, who its lawyers are, and why a client should hire you, as opposed to another firm.

In the time it took you to read this line, I sent a tweet and 500 people read it. Talk about a new value for time in money.

E-discovery software

By this time, most law firms already (from necessity) have some sort of electronic discovery software. However, when was it last updated?

The capabilities of software and technology changes rapidly everyday. If you haven’t updated your online systems for some time, it’s likely that there’s a more efficient way to organize and file e-discovery.

In sum, what have you learned about time, money, and technology? They’re inextricably linked.

So, consider putting together a “technology team” at your law firm—to keep apprised of developments in the field of legal gadgetry—one that will ensure your associates are not falling behind or sinking your bottom line. And if you’re feeling generous, make timeless timepieces part of your end-of-year bonuses: They appreciate (and your associates will appreciate them).

Regain control of your time and technology.

Take C4CM’s audio course, “Microsoft Outlook: Unlock E-Mail, Calendar and Time-Saving Secrets” on Tuesday, December 1, 2015, from 2:00 PM To 3:15 PM Eastern.

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Tom Brady & The Patriots Face More Controversy & Record Retention Lessons For HR

Even if you’re not from the Northeast—even if you’re not a football fan—by now you’ve heard of the New England Patriots. Whether it’s Tom Brady’s supermodel wife or its Deflategate controversy, the team certainly knows how to make the news. And last night’s game was no exception.

First, an inadvertent official whistle during a live play stopped what may been a 50-yard touchdown by the Patriots’ receiver Danny Amendola. In a close game against the Buffalo Bills, such an error could have been costly to the Patriots’ undefeated team.

Then, with seconds left on the clock, a questionable call ended the game abruptly—smashing any chance the Buffallo Bills had at a hail marry pass (or other play) to tie in the fourth quarter.

Final score? 20-13. The New England Patriots continue their winning record of 10-0 in the AFC Eastern Division.

As if Monday night’s football wasn’t enough, the Patriots headlined this morning for another reason.

The NFL’s appeal of a district court decision vacating the suspension of quarterback Tom Brady will be heard on March 3, it announced today. The 2nd Circuit U.S. Court of Appeals on Monday scheduled oral arguments for well after Feb. 7, also know as Super Bowl 50.

The hearing date is over a year after the 2014 AFC Championship Game where the Patriots played the Indianapolis Colts with deflated footballs, reports USA Today. An independent investigation found two Patriots employees responsible for these rule-breaking activities and concluded that Brady was at least “generally aware” of the situation.

However, at least for now, the Deflategate controversy won’t keep the Patriots’ from another championship season.

But what if your company was forced into an independent investigation? What if your personnel records were audited this very minute, could they stand-up to a DOL probe, an EEOC investigation, or an ICE inspection?

As an HR professional one of your primary responsibilities is to maintain personnel records. But what began as putting important files in a folder has developed into a complex web of compliance. And each year, compliance gets more and more difficult, as you add in electronic documents and other formats.

There are the modified FMLA rules, the updated ADA regulations, the FLSA, and the Lilly Ledbetter Fair Pay Act, all of which have separate rigid requirements for retention. And the federal push for I-9 compliance means employers must have their immigration forms meticulously maintained… but you don’t have to worry about that, right?

When it came to evidence on deflating footballs, Tom Brady also thought he was in the clear. But, technological advances (for Brady, the availability of cell phone records) and the threat of potential litigation (or the suspension from professional football) should impact the way your team does its record-keeping.

For Brady, it may be too late. But for law firm professionals, attend The Center For Competitive Management’s audio course, “Save it, Shred it, Delete it? Employee Record Retention for HR,” on Friday, December 11, 2015 from 2:00 PM To 3:15 PM EST.

For law firms or football teams, there’s a big difference between making headlines and being victims of them.

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Laptops & Tablets For Notetaking: Law Office Distraction or Time-Saving Device?

More and more, people blame technology for poor performance.

A Cornell University study called, “The Laptop and the Lecture,” gave half a university class unfettered access to their computers during a lecture, and then imposed a strict “no-laptop” policy on the other half.

Clearly not the perfect experiment, the study nevertheless showed that overwhelmingly the disconnected students performed better on a post-lecture quiz, regardless of the kind or duration of the computer use.

“I banned laptops in the classroom after it became common practice to carry them to school. When I created my “electronic etiquette policy” (as I call it in my syllabus),” wrote Dan Rockmore in his New Yorker article, “The Case for Banning Laptops in the Classroom.”

“I was acting on a gut feeling based on personal experience.”

And that’s the problem.

Whether it’s via the haphazard policies of university professors or the random experiment touted as “proof”, technology is getting the brunt of blame for poor performance in students and professionals when—in reality—technology is key to positive change.

The majority of issues with technology stem from the user. Cell phones, for example, are not a problem in movie theatres until somebody leaves them on or—worse yet—answers a call during the séance.

Computers can be great tool in class or the boardroom, until people become distracted by e-mail or surfing the web. Years of rock-solid research has shown multi-tasking leads to decreased productivity–but it’s the person, not the laptop, who is accountable.

Ultimately, technology is not the problem. Politeness is.

Whether or not we realize it, technology has made us less polite. When two people are talking, a third person would excuse themselves before entering the group conversation. Yet, when the phone rings, people won’t think twice before picking it up in front of a colleague or friend.

In meetings, dozing off is a definite no-no. But, for some reason, people won’t say no to spending an entire meeting or presentation distracted by the Internet.

The debate isn’t about which innovative technology to use, but rather, can we use it politely?

Last year, Roy Speckhardt, Executive Director for the American Humanist Association came up with “Five Recommendations for a New Politeness,” published in the Huffington Post. Here are a few of his ideas, summarized:

1. Stop fretting about political correctness. Instead, simply identify people in ways they prefer to be identified.

Remember the Golden Rule and treat people as they’d like to be treated.

2. State your opinions or critiques with respect for present company who may disagree.

“Politeness doesn’t mean censoring the flow of ideas or even respecting your opponent’s positions; just don’t forget they’re human, just like you,” explains Speckhardt.

3. Daily prejudice and discrimination exists, whether or not you personally witness it or experience it.

With that in mind, be aware of stereotypes and avoid speaking as if you endorse them.

4. Give in once in awhile.

“When you’re in the majority group, and most everyone is in some aspects of who they are, consider giving ground once in a while to someone who isn’t,” writes Speckhardt.

That means, lawyers: “Hit the brakes on your Beemer and let that minivan merge into traffic.”

5. Keep the behavior of others in check with constructive criticism, but maintain your composure and compassion while doing so.

So, before you make policies to stop smartphones in the workplace, start leading by example with politeness and see if behavior will change. It means more than just putting your cell phone on silent.

At presentations, if you decide to take notes on a laptop, alert the presenter ahead of time. Ask their permission. And, during the presentation, be sure to make eye contact and show your enthusiasm and alertness.

It’s tempting to jump at every ping, but condition yourself away from this sense of urgency. When in company, abstain from looking at your phone.

If you must, excuse yourself for a minute and explain why the phone call is urgent. Colleagues will be more understanding with a sincere apology and quick explanation.

Finally, follow Speckhardt’s five steps to politeness. When you practice politeness outside the office, it will become more natural to practice it within. Just because the environment is more stressful or busy at work, doesn’t mean you should get away with being disruptive, distant, or rude. Plus, you’ll be surprised at how small gestures go a long way to achieving a more pleasant workday.

Don’t restrict the innovation, re-condition your behavior as the user.

Forgot what it’s like to live on planet Earth instead of cyberspace? Practice your inter-personal communication skills with C4CM’s course, “Effective Interpersonal Skills and Communication Techniques.

According to the Stanford Research Institute, 85 percent of your success is related to people skills (communication skills/rapport skills), and only 15 percent is related to technical skill and ability. So pry those eyes away from the computer screen and into the eyes of your competition during court—learn how to excel outside Excel.

And, if you’re already sold on the value of technology, go here to discover more ways to use Windows 10 or MS Office efficiently and productively at your firm.

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Why Your Firm Should Fear Legal StartUps & How To Compete

Millennials, the group of tech-toting, flip-flop wearing adults born after 1980, have been the subject of eye-rolling. They’ve been stereotyped as expecting rewards just for participating and believing that spending long hours at the office is overrated.

Yet, legal professionals say that depiction as applied to their younger colleagues is wrong. In fact, they may work differently, taking full advantage of technology, but they’re smart and productive.

In fact, that may be why many of these young graduates interested in law are not going into law firms, at all. Millennials are forming legal start-ups that compete with both small and large, established firms in different ways.

In terms of small-firm competition, small start-up legal services companies can’t rely on a longstanding, loyal client base. Usually they must drive business, and small firms and start-ups will thus be competing among the same pool of potential customers.

Solo practitioners be wary, as well. New ideas, better comprehension of modern technology and a young mindset are assets to these start-up firms looking to represent similar start-ups in the business environment.

Take a look at your millennial competition:

1. Willing

“Founded by Eliam Medina and Rob Dyson, and backed by some of the biggest names in Silicon Valley like Y Combinator, 500 Startups and Ashton Kutcher, Willing is looking not only to change trust and estates, but the entire death care industry. Willing lets your write a will for free in five minutes, plan your funeral and after life and then connects you with the right vendors,” reports Above The Law.

“Is Willing even a legal tech company, or are they simply using a free, automated legal service — will writing — as a way to get customers?”

Well, it’s not the first time that free services have been used to bait and hook customers on related paid services. It’s a tried and true business model, so firms beware.

2. UpCounsel

How does it work? Clients answer a few questions about their legal needs, get connected to relevant attorneys who make a proposal and budget, and then interact online to complete your case.

“Matt Faustman at UpCounsel is convinced that the law firm model is going to change and he just raised a cool $10M from Menlo Ventures to prove it,” wrote Above The Law.

There’s a lot to be said for a system that makes it easier and—ah hem—pleasant to work with a lawyer.

The two examples above (get more here) explain why small or solo-practice law firms might fear the new legal kids on the block, but what do large law firms have to lose?

Properly incentivizing and compensating this new generation of lawyers is essential for your firm’s profitability, retention and key to attracting like-minded clients. When you’re losing key talent to start-ups due to hourly flexibility, superior work-life balance, or other compensation, it’s time to pay attention.

With all this venture capital and private equity money being thrown around to legal services start-ups, don’t be surprised if millennials follow the (dollar) bill.

What can you do? Consider:

  • Specific non-monetary rewards that are certain to improve job satisfaction (flexible leave or work-at-home policies, for example)
  • Tiered compensation for new associates
  • Alternative compensation models (i.e., anything except the traditional partnership model, such as including first-year associates in the profit-sharing)
  • Reward achievements, not simply hours for attorneys at every level

Need more specific ideas? Take the Center for Competitive Management’s webinar “Compensating Millennial Associates: Customizing Compensation and Rewards for Increased Productivity and Firm Profitability,” on Thursday, October 8, 2015 from 2:00 PM to 3:15 PM Eastern.

This information-packed webinar explores real-life methods for embracing the goals, expectations and ambitions of today’s millennial associates, and how to ‘meet in the middle’ when it comes to compensating this new generation.

Plus, in just 75 minutes, you will learn:

  • Surprising attitudes millennial lawyers have about total compensation
  • Who millennial lawyers are, and how they differ from other generations in terms of pay
  • Common misconceptions and truths about millennials lawyers
  • Mentoring, evaluations, and feedback tips that emphasize professionalism and increase associate self-sufficiency
  • And more!

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New Developments USPTO & Why You Should Reconsider Your Patent Appeal

“User-centered design will be a top priority” announces the U.S. Patent and Trademark Office (USPTO), which has made plans to develop a new online patent filing and viewing system, said agency CIO John Owens to FedScoop. The USPTO hopes to get feedback from intellectual property lawyers, firms and other users before it starts creating its eCommerce Modernization, or eMod, platform, Owens said.

Announced last month, eMod aims to improve how patents are submitted, reviewed and appealed. Once the office receives feedback, a special team will review suggestions about what stays and what goes, explains Owens. See, the patent-seeking process today is just too long, too confusing, too convoluted to keep. Even the USPTO is investigating its organizational process. Perhaps your firm should, too.

Among changes at the USPTO office, there are myriad reasons your firm may consider waiting to write that long list of grounds for appeal–and most of them involve re-organization–including:

1. Assume Backlog Means Quicker Consideration Of Your Arguments

To begin, the Board of Patent Appeals and Interferences (BPAI) is severely overloaded. In fact, the BPAI is behind on opinions for more than 20,000 pending appeals—a number that is only increasing, reports the Patently-O Blog.

To catch up, each case will need to be read more quickly and efficiently than before. With so many appeals to review, there will be little tolerance for errors or frivolry. Thus, if you aim to join the appellate fight and win, your legal arguments better be, well, appealing.

2. Mimic The Concise Style of BPAI Opinions In Your Appeal

In addition, since 2009, the number of words per BPAI opinion has declined at an alarming rate. In just two years, the average number of words per opinion has dropped from over 3,000 words to almost 2,000 words, according to Dennis Crouch of the Patently-O Blog.

Not only has the average words per opinion changed drastically, but the median words per opinion has also changed notably. The median opinion from February 2009 contained 60 percent more words than the median opinion from January 2011, says Crouch. This means the board has become less and less verbose, and likely prefers you to be as well.

3. Determine If A New Chief Judge Means Changes In Your Patent Appeal

Finally, there’s a new lawmaker in town. The United States Patent and Trademark Office is still seeking a new Chief Administrative Patent Judge to serve as a member of the Patent Trial and Appeal Board (PTAB) of the USPTO. Where will he or she be from? What will their legal style be? Perhaps it’s worth a wait-and-see.

And, if you couldn’t tell from this blog post already, arguments are best understood in to-the-point, succinct lists. Unconvinced? Wired Magazine has frequently heralded the success of a list-making site, Cracked.com, and the fact that its various mobile app counterparts have ammassed 7.3 million unique users each month. According to Wired, the list-making site’s success is based on its ability to “crowdsource and filter and other buzz-worthy things.” 

It’s important to find a hook for your audience (say, a judge or patent board) and filter subject matter down to the most critical (content managers for cracked.com commission six article items in order to edit them down to the five best).

The result is a list of popular and prolific points that sell. So, with this in mind, you should be able to create a case that is equally captivating as “The 7 Most Ridiculous Cases of Misplaced Priorities” and “9 Words You’ve Used Today With Bizarre Criminal Origins,” read on Cracked.com.

In the end, when you’re rewriting your patent, your legal brief or a simple inter-office memo, don’t forget to express your ideas in short, succinct, eye-grabbing lists. That way, dear attorneys, you have time to get back to what you really want to read, “7 Items You Won’t Believe Are Actually Legal.”

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