November 2018 Archives

Welcome to the November 2018 Issue of EIT

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We are pleased to submit the November 2018 issue of Electronically In Touch. This issue consists of articles on five key issues to watch for when negotiating talent agreements (which may also arise in other contract settings), a new perspective on Batson challenges, wisdom from Sun Tzu adapted to the legal negotiation context, advice about having your daily "roadmap" written out on a piece of paper in front of you every day, recommended NYSBA events, and a listing of the new members of YLS.

Electronically In Touch is a member driven publication. We welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life balance, and information regarding upcoming meetings and events. Please submit articles to Justin Batten at jwb413@nyu.edu.

By: Ronald J. Coleman, Esq.

"I'm a Lawyer . . . Ask me anything! Not contract law, okay?"
--Jimmy McGill (aka Saul Goodman), Better Call Saul1

Although a TV lawyer like Saul Goodman may not need to know the ins and outs of contract law, if one is representing a TV or Film client in a matter relating to a talent agreement, one should. In addition to the myriad general contractual issues an attorney must consider, there are certain items worthy of particular consideration by attorneys in the TV and Film talent context. Five such items are highlighted below.

1. Are Any Guild Rules Applicable?

In the entertainment industry, talent will sometimes belong to one of the industry's Guilds, such as SAG-AFTRA (Screen Actors Guild‐American Federation of Television and Radio Artists), the DGA (Directors Guild of America), or one of the branches of the WGA (Writers Guild of America). Where applicable, Guilds may impose rules in connection with talent, and attorneys working on the talent side or production side need to be aware of such rules. Even when such rules are inapplicable, knowledge of them can still be helpful, in that an attorney might be able to argue that a given contractual provision is reasonable since it would be consistent with the Guild rule.2

2. Does the Talent Have Leverage?

In addition to the applicability of any Guild rule, leverage is of paramount importance in the entertainment talent context. Famous talent, such as Steven Spielberg or Meryl Streep, obviously have a great deal of leverage; but even less-established talent may have some leverage. For example, a new actress who uniquely fits a part, or a new writer who has written an exceptional script with many interested bidders, might still have leverage in negotiations. The degree to which talent is willing to walk away from a project may also inform the leverage analysis. Where talent has substantial leverage, extremely unique requests can sometimes be made. Conversely, where talent has little leverage, it can be more difficult to alter terms. If talent is unable to negotiate for all their preferred terms due to lack of leverage, it can be helpful to remember that if the project in question is successful, such talent may have more leverage in future negotiations.

3. What Credit will the Talent Receive?

Unsurprisingly, credit is often an important issue in the entertainment context. Credit may be more important to a client than even the compensation he or she receives for the project. Credit takes many forms, including formal credits at the beginning and ending of a TV show or Film, or reference in promotional or advertising materials. The latter includes things such as movie posters, print advertisements in popular or industry news sources, DVD packaging, audio-advertisements, and many other types. Talent may, for instance, want to set out the size of font used, or the placement or mention of their name. Talent may also, for example, want some form of assurance that if similarly-perceived talent in a project is referenced in a given way in a given context, they will similarly be so referenced.

4. Will the Talent Have any Control over the Project?

Some degree of control over the project is also something with which talent is often concerned. Even if ownership, IP rights, and/or ultimate decision-making is ceded to a production company, experienced talent may wish to retain some degree of control over aspects of the project. This might take the form of the talent being consulted on key decisions or at certain key points in the life-cycle of the project. It may even take the form of talent retention of veto power over certain decisions, or the right to approve certain aspects of the project.

5. What Payment and/or other Compensation is Available?

Payment and compensation terms are presumably important in any contract for services, and talent agreements are no exception. There are several forms of potential compensation that can come into play in the context of talent negotiations, and it is important to consider all of them. Talent may be entitled to certain types of fixed compensation. Such fixed compensation might be a set payment for working on a Film or an episodic TV show. Talent may also be entitled to certain types of contingent compensation. Contingent compensation might, for example, entitle the talent to some percentage of proceeds, revenue, or profits (but always be mindful of how such terms are defined). Talent may also be entitled to numerous other forms of compensation or benefits, such as per diems, transportation and accommodation expenses, dressing facilities, merchandising royalties, and insurance coverage.

The entertainment community is full of repeat players, so it is important to preserve reputations while advocating vigorously for a client. It may be helpful to remain mindful of the five items highlighted above, even though the list is neither exhaustive nor applicable in all contexts. Ultimately, it is important to be guided by the needs and goals of your client, and for young lawyers to consult an experienced entertainment lawyer (absent Saul Goodman being available, of course).

Ronald J. Coleman (RJ) is based in Washington, DC at Georgetown Law, but he remains very active in NYSBA. He is currently the NYSBA Young Lawyers Section (YLS) Co-Liaison to the Entertainment, Arts & Sports Law Section (EASL), and he serves on the YLS and EASL Executive Committees, as well as the EASL Committees on Motion Pictures and Television and Radio. He would encourage any young lawyers or law students interested in learning more about entertainment law to join EASL and/or attend one of its many offerings throughout the year.


1. Wikiquote, Better Call Saul, https://en.wikiquote.org/wiki/Better_Call_Saul#Mijo_[1.02]. The suggestions in this article are based on my experience, helpful entertainment law resources I have come in contact with over the years (in particular ALEXANDER LINDEY & MICHAEL LANDAU, LINDEY ON ENTERTAINMENT, PUBLISHING AND THE ARTS (3d ed. 2017), DINA APPLETON & DANIEL YANKELEVITS, HOLLYWOOD DEALMAKING: NEGOTIATING TALENT AGREEMENTS FOR FILM, TV AND NEW MEDIA (2d ed. 2010), and Practicing Law Institute's annual "Counseling Clients In The Entertainment Industry" program), and advice from real (and fictional) lawyers.
2. Guild rules may, in some instances, prescribe an approach for other items on this list; however, such possibility is ignored in order to keep the discussion general.

How Sun Tzu's Art of War Will Help You Negotiate

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By: Mansi Parikh, Esq.

The Art of War, a highly influential and succinct treatise on military strategy, was written by Sun Tzu, in sixth century B.C. Applying the teachings of Art of War to a legal negotiation setting in no way means glorifying war. The essence of Art of War is not to defeat the enemy but to maximize gain for one's own self. The book is very valuable for the lawyer involved in dispute resolution because of the emphasis it places on the context of the conflict. Effective negotiators should have a deep understanding of words like INTERESTS, PREPARE, STRATEGIZE, LISTEN, and EXECUTE; and should have these words ingrained in their memory before appearing for a negotiation. The teachings of Art of War profoundly describe the importance of the above words and are directly applicable to the process of legal negotiation generally, and to interest-based negotiation specifically.

1. INTERESTS: "The supreme art of war is to subdue the enemy without fighting."1

Winning without fighting is the bedrock of interest-based negotiation. But here, "winning" does not mean gaining ultimate victory and defeating the opponent; rather, it means reaching a deal that satisfies the client's interests and solves the problem for all parties involved. Interest-based negotiation is a phenomenal shift from the traditional adversarial negotiation.

The first step in a negotiation process is to identify the interests, i.e., what does each party care about and what are the client's desires or goals. "Interests include both tangible interests (such as obtaining a payment, having legal rights vindicated, or setting a precedent) and intangible interests (building trust, maintaining self-esteem, maintaining quality relationships, getting respect, participating in a respectful process, obtaining credit, communicating effectively, saving 'face', or enhancing political leverage)."2

An in-depth analysis of the client's interests allows the negotiator to focus on the client's needs rather than client's wants and enables him to avert the resolution-resistant conflicts.3 "When you do look behind opposed positions for the motivating interests, you can often find an alternative position which meets not only your interests but theirs as well."4

A simple story further illustrates the importance of focusing on interests rather than positions. Two kids were fighting over an orange and each took the position that they wanted the whole orange. Their mother, in order to resolve the dispute, split the orange into half and gave it to each child. However, one child wanted the orange to eat and the other child wanted the skin of the orange for a science project. Had the mother known "why" the two children wanted the orange, both would have gotten all of what they wanted.5

2. PREPARE: "If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle."

This teaching emphasizes the importance of knowing the opponent in the event of a war and can be aptly applied to a legal negotiation. Understanding the relative strengths and weaknesses of the opponent and exploiting them by controlling opponents' reactions makes victory inevitable. This factor involves thoroughly researching both the physical and psychological aspects of the opponent. The physical aspects involve knowledge about an opponent's power, wealth and resources; whereas the psychological aspects focus on assessing the opponent's interests, expectations, vulnerabilities, and the opponent's psychological pattern in past negotiations.6

Extensive information and knowledge about such traits enable the negotiator to use the information strategically in a way that controls the opponent's reactions and may help both parties reach a mutually agreeable deal. Every effective negotiator should definitively seek the following information about the opponent: "(1) their objectives; (2) their interests and needs; (3) their alternatives; (4) their resources; (5) their reputation, negotiation style and behavior; (6) their authority to make an agreement; and (7) their likely strategy and tactics."7

Equally important is the knowledge and assessment of one's own strengths and weaknesses. An effective negotiator would not fail to take the negotiation environment, facts, personal attitude, or patterns of behavior into account before facing the opponent. It is imperative that the negotiator takes an objective stance when analyzing the facts of the cases while coming up with best possible alternatives.

This assessment also results in the expulsion of "negotiator's bias" from the process of negotiation,8 which proves detrimental when the negotiator enters a negotiation process with preset assumptions or judgments about the opponent. Inherent in human nature is the trait to hear what one wants to hear while disregarding the rest. "The best protection against all psychological traps is awareness."9 An effective negotiator can avoid falling prey to such psychological traps by an objective self-assessment as well as a comprehensive analysis of the opponent's strengths and weaknesses.

3. STRATEGIZE: "Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win."

Once a negotiator has a clear sense of target and is thoroughly informed about the client and the opponent as well as personal strengths and weaknesses, he or she can now devise a plan of attack before entering a negotiation. At this point, a decision tree analysis or mapping of various alternatives would prove beneficial.10 A negotiator must pin down the arguments he might make during a negotiation along with the specific facts to support those arguments. An analysis of successful and failed arguments during similar negotiations in the past may strengthen the case and enable the negotiator to present facts in a more convincing manner.11 "When parties understand what their chances of success are for each of several possible choices, they can make better decisions on how to proceed . . . People who are negotiating need to be able to evaluate what is likely to happen to them if they accept a deal and what will occur if they do not."12

A negotiator must decide at what point his side would walk away from the negotiation, i.e. "the point at which rejecting a deal constitutes a superior alternative to taking the other side's best offer."13 This concept is called "Best Alternative to a Negotiated Agreement" or BATNA.14

In the event of a powerful opponent with a superior bargaining power, analyzing BATNA will help a party determine the bottom line to avoid a bad deal. Also, in the event that the opponent's interests and goals differ from that of the client, a negotiator can effectively use the BATNA analysis to come to a mutually agreeable solution that would prevent a deadlock in the negotiation. In addition to analyzing one's own BATNA, the negotiator must be aware of the opponent's BATNA and anticipate the point after which the opponent might walk away. Perceiving the opponent's BATNA gives a sense of the challenges that may come up in a negotiation. "Your BATNA may be weak but the other side's BATNA may be weak too."15 Therefore, being intimidated by a powerful opponent and not researching the opponent's BATNA (that may reveal his pitfalls) would harm the negotiator and his client.

Another important step in creating a negotiation strategy is to determine how and when to disclose confidential or other information to the opponent. A negotiator may come across as desperate if he or she discloses too much information. On the other hand, a negotiator may seem non-cooperative or timid if he or she discloses only minimal information. Such a situation is termed as a "negotiator's dilemma" due to a fear that the transparency of one party may not be duly reciprocated by the other.16 In the absence of an ideal solution to the negotiator's dilemma, the best approach is to tread carefully, reconnoiter each other's readiness to share information, limit vulnerability by revealing only some information, and then determine the reciprocity of the opponent.17

4. LISTEN: "Therefore at first be shy as a maiden. When the enemy gives you an opening be swift as a hare and he will be unable to withstand you."

During a negotiation, one should be patient and seek the best opportunity to act. Being patient and listening to the opponent does not indicate cowardice because it is not just a passive act of listening. Rather, it is an active way of understanding another's perspectives, concerns, and reasoning.18 A lawyer can gain substantial information by applying active listening during a client meeting to learn about client's experiences, interests, concerns, and reasoning behind the client's position.

This skill can help build client's trust and increase the comfort level resulting in discussion on more personal, emotional, or controversial topics and applying this knowledge strategically during a negotiation.19 The skill can also be applied more tactically during a negotiation where an opponent can reduce his degree of adversity or stubbornness if he or she feels at least heard.

In addition to active listening, a negotiator should also be focused on the opponent's or speaker's body language. "A glimpse of the eyes, a facial expression, and a slight movement of the body all effectively communicate."20 The involuntariness of the body language may convey more than spoken words. Body language is imperative in assessing the overall personality of the opponent since non-verbal communication sometimes divulges important information.21 "Reading the body language of another person is not a trick to gain advantage. It is a tool to improve communication."22

5. EXECUTE: "The general who advances without coveting fame and retreats without fearing disgrace, whose only thought is to protect his country and do good service for his sovereign, is the jewel of the kingdom."

In the context of a legal negotiation, a negotiator, who makes every effort to advance his client's interests while balancing them with the interests of the opponent, emerges victorious and is the "jewel" of the negotiation. Taking notes during the negotiation and articulating the interests of each party clearly at the end of the negotiation can lead to a faster conclusion of the case and save valuable time that may otherwise be wasted by reviewing the interests and deals finalized during the negotiation.

A controversial teaching from Art of War is that "[a]ll warfare is based on deception." Some parties employ deceptive tactics where once an agreement has been reached, they reject the deal and raise the demand. "Even after you've gotten a sincere handshake, your counterpart may come back with further demands."23 Therefore, it is important that the negotiator confirms the key provisions at the conclusion of negotiation and draft the contract at the earliest while all the terms are fresh in everyone's mind.

The teachings in Art of War and the application of these teachings in legal negotiations are critical to an effective negotiator. The most important principles ingrained in the book are that of psychological strategy and subduing the enemy without fighting. In modern times, Art of War can be rightly named as the "book of peace" rather than the "book of war."

Mansi Parikh is an attorney at the law firm of Schumann Hanlon Margulies LLC, where she chairs the Intellectual Property group. She is admitted to practice law in New York and New Jersey. Her intellectual property practice puts emphasis on trademark clearances and enforcement, patent clearances, due diligence analysis, copyright filing and enforcement, freedom-to-operate investigations, and the assignment or licensing of intellectual property rights. In addition, she is also involved in commercial litigation, residential and commercial real estate transactions, and contract drafting and negotiations.


1. All the quotes in italics at the start of each paragraph are from Art of War by Sun Tzu.
2. Jayashri Srikantiah & Janet Martinez, Applying Negotiations Pedagogy to Clinical Teachings: Tools for Institutional Client Representation in Law School Clinics, 21 Clinical L. Rev. 283 (2014).
3 Roger Fisher & William Ury, Getting to Yes: Negotiating Agreement Without Giving In (2011).
4. Id. at 43
5. Brad Spangler, Beyond Intractability, Integrative or Interest-Based Bargaining (2003).
6. Bradford H. Brown et al., Introduction to Miyamoto Musashi - The Book of Five Rings 70 (1992).
7. Roy Lewicki et al., Negotiation 6, 28 (1999).
8. Robert S. Adler et al., Emotions in Negotiation: How To Manage Fear and Anger, 14 Negotiation J. 161, 171-72 (1998).
9. John Hammond et al., Smart Choices: A Practical Guide to Making Better Decisions, 214-15 (1999).
10. Evan Slavitt, Using Risk Analysis as a Mediation Tool 18 (2005).
11. Lewicki at 62.
12. Jeffrey M. Senger, Decision analysis: Decision Analysis in Negotiation, 87 Marq. L. Rev. 723 (2004).
13. Robert S. Adler, Flawed Thinking: Addressing Decision Biases In Negotiation, 20 Ohio St. J., 683, 762 (2005).
14. Fisher & Ury at 104.
15. Id. at 24.
16. Wynand Pienaar & Manie Spoelstra, Negotiation: Theories, Strategies & Skills 3 (1991)
17. David A. Lax & James K. Sebenius, The Manager As Negotiator: Bargaining for Cooperative and Competitive Gains 11, 158 (1986).
18. David A. Binder et al., Lawyers as Counselors: A client-centered approach, Ch. 5 (2004).
19. Marcus T. Boccaccini et al., Client-Relations Skills in Effective Lawyering: Attitudes of Criminal Defense Attorneys and Experienced Clients, 26 Law & Psychol. Rev. 97, 97 (2002).
20. Chinning Chu, The Asian Mind Game 124 (1991).
21. David V. Lewis, Power Negotiating Tactics and Techniques 147-52 (1981).
22. Donaldson et al., Negotiating for Dummies 169-80 (1996).
23. Program on Negotiation, 5 Tips for Closing the Deal in Business Negotiations Drawn from Negotiation Case Studies (2016).

By: Roya Imani

Charles Reed was a young African-American who was every mother's dream: a Harvard medical student, fought for his country before pursuing medical school, and highly admired by his community. One morning, Reed made the mistake of driving a nice late-model Acura Integra to the lab he worked at. Two police officers pulled him over and claimed that Reed had run a stop sign, but Reed rejected their allegation.1 Even though he was ordered to stay in the car, Reed was determined to get out of the car to show his army decal so that the two officers would understand Reed was a law-abiding citizen. Instead, Reed was brutally forced down to the ground and arrested by the police officers. He would later be charged with two counts of assault and battery of a police officer.2 At trial, the moment of truth arrived: venire, which is pool of potential jurors. The O.J. Simpson case vividly demonstrated that a jury is the meat of trials. So it is no wonder that when the venire consisting of all whites walked into the courtroom, Reed turned to his attorney and timidly asked, "You're kidding, these are the people who are going to choose between two white cops and me?"3 After all, the U.S. justice system reflects the interests of "a powerful [white] community that benefit[s] from keeping black people in 'their place,' namely, in the ghetto and without power."4

Racism continues to exist in society, so we cannot expect it to suddenly disappear in courtrooms. This article will present a study that explores the degree to which scientific jury selection can lessen biases without perpetuating stereotypes, to ensure an impartial jury.

RACISM REFLECTED IN JURY VERDICTS


Before discussing scientific jury selection, it is important to assess the role of race in jury selection. The Batson v. Kentucky 1986 U.S. Supreme Court case established the rule prohibiting prosecutors from using race-based peremptory challenges, and later in 1992 Georgia v. McCollum extended the prohibition to defense attorneys.5 The problem with the Batson challenge6 is that it assumes we live in a "color-blind" society. But no matter how well-intentioned, no one will completely put aside his or her bias when called upon for jury duty. Some studies have even illustrated the correlation between the race of jury and verdict. Ugwuegbu conducted experiment on two groups of mock jurors using the same methodology but different race population - one group was all black and the other white.7 The jurors were presented a case involving aggravated and forcible interracial rape.8 Results indicated that the white jurors condemned black defendants more than white defendants - especially when the victim was white.9 Similarly, black mock jurors more often convicted white defendants than black defendants - especially when it involved a black victim.10 Ugwuegbu's study reflects the similarity-leniency theory, which is the assumption that jurors who are similar to the defendant will empathize with the defendant and thus be less likely to convict.11 The pull of such tendency, however, depends on the strength of evidence against the defendant and how many "similar" people are members of the jury.

Kerr's study tested the similarity-leniency theory and the "black sheep effect," which posits that when evidence is strong, jurors of the same race as the defendant are harsher because they desire to preserve the positive image of their own race.12 The researchers presented mock jurors with a case involving child molestation, which confirmed the similarity-leniency theory when evidence was weak and the "black sheep effect" when confronted with strong evidence.13

A more recent study conducted by Sommers and Ellsworth involved white mock jurors who were given a trial summary of an interracial battery case and another without a racially charged altercation.14 They divided the jurors into two groups: half of them listened to cases involving a white defendant and a black victim; the other half read the same trial summary, this time about a black defendant and a white victim.15 Results showed that white jurors were more likely to convict a black defendant whose victim was white.16

Such jury simulations are often criticized because of their artificiality, but that point is not well taken here because these studies included real people who returned a verdict based on the evidence and legal instructions of the judge - the same procedures included in a real trial. Attorneys seeking to comply with Batson should not disregard such studies. Overall, they show that the Batson challenge in practice still does not afford the "disproportionately poor, black defendants the legal protections to which they are entitled."17 More importantly, the Batson challenge fails to live up to its own challenge of serving the best interests of justice.

SCIENTIFIC JURY SELECTION


Scientific jury selection originated in the remarkable Harrisburg Seven trial in 1972 in which seven defendants were charged with conspiracy related to Vietnam anti-war activism.18 The defense team recognized the difficulty they would be facing with the venire that would consist of inordinately conservative and pro-government citizens.19 Since the change of venue motion was denied, the defense team decided to seek the aid of social scientists to select a favorable jury.20 The social scientists interviewed 252 Harrisburg residents and determined that the best juror for the defense would be "a female Democrat employed as a white-collar worker or skilled laborer who belonged to no specific religious denomination."21 After taking that advice, the trial ended with a hung jury and a 10-2 split in favor of the defense.22 Scientific jury selection has since been employed in other closely watched trials such as O.J Simpson, the Gainesville Eight, Angela Davis, and the Camden 28 - to name a few.23

Social scientists acquire their knowledge about juries through systematic empirical methods. They design questionnaires to collect data from a sample of locales rather than looking up data on national trends because each community has its own unique circumstances.24 This allows social scientists to uncover key predictive factors for the jury's attitudes and prejudices. This was strongly evident in the O.J. Simpson trial in which the prosecutor, Marcia Clark, disregarded the advice of Dr. Donald Vinson, a litigation consultant, that "black females were the worst conceivable jurors."25 Instead, Clark believed that black women would be strongly against domestic violence, considering the prevalence of spousal abuse in black households.26 Unlike the prosecution, the defense team retained the services of a social scientist who advised that black women were more neutral on the issue of domestic abuse than white females.27 The jury that exonerated O.J. Simpson consisted of eight black women, two white women, one black man, and one Latino man.28

Clearly, scientific jury selection is a powerful and expensive technique that allows attorneys to be guided by race in their selection of jurors, which is prohibited by Batson.29 Etzioni considers it a sophisticated yet insidious tampering with the jury system.30 Critics like Etzioni are short-sighted, however, because the alternative is for attorneys to rely on groundless stereotypes that they learned in life, such as when Clark concluded that black women would be harsher on O.J. Simpson. Indeed, Golash explains, paralleling the "black sheep effect," that

the closer the jury is to the defendant's own social context, the more likely it is that the jurors will have a full understanding of the defendant's conduct, and the better they will be able to evaluate its excusability. Such full understanding will not always favor the minority defendant: The jury may correctly perceive the defendant's conduct as inexcusable, where a more demographically distant jury would have found it excusable.31

The essential distinction between the two methods is that one is grounded in science while the other is based on stereotypes, which makes the wisdom of choosing the former obvious.

CONCLUSION


Reed's life and liberty was at issue and the principals who made the ultimate decision on his life and liberty reflect the values and interests of the white majority. Society must not rally against new innovations intended to reduce inequalities, but against the system that fosters such inequalities. Attorneys must disregard the Batson challenge and protect their client's "life and liberty against race or color prejudice."32



1. Abbe Smith, "Nice Work If You Can Get It": "Ethical" Jury Selection in Criminal Defense, 67 Fordham L. Rev. 523 (1998).
2. Id. at 524.
3 Id.
4. Bob Blauner, Still The Big News: Racial Oppression In America 163 (2001).
5. Smith, supra at 531.
6. Batson v. Kentucky ruling will be referred to as the "Batson challenge."
7. Denis Chimaeze E. Ugwuegbu, Racial and evidential factors in juror attribution of legal responsibility, 15 J Exp Soc Psychol. 133 (1979).
8. Id. at 135.
9. Id. at 144.
10. Id.
11. Norbert L. Kerr, et al., Defendant-Juror Similarity and Mock Juror Judgments, 19 Law Hum. Behav. 545 (1995).
12. Id. at 562.
13. Id. at 555-61.
14. Samuel R. Sommers & Phoebe C. Ellsworth, "Race Salience" in Juror Decision‐making: Misconceptions, Clarifications, and Unanswered Questions, 27 Behav. Sci. & L. 599 (2009).
15. Id. at 600.
16. Id. at 601.
17. Smith, supra at 560.
18. M. Juliet Bonazzoli, Jury Selection and Bias: Debunking Invidious Stereotypes through Science, 18 Quinnipiac L. Rev. 247 (1998).
19. Id. at 296.
20. Id.
21. Id.
22. Id.
23. Id. at 296-97.
24. Michael J. Saks, THE LIMITS OF SCIENTIFIC JURY SELECTION: ETHICAL AND EMPIRICAL, 17 Jurimetrics. 3 (1976).
25. Bonazzoli, supra at 298.
26. Id.
27. Id.
28. Id.
29. Id. at 263.
30. Amitai Etzioni, Science: Threatening the Jury, Wash. Post (May 26, 1974), http://jfk.hood.edu/Collection/Weisberg Subject Index Files/L Disk/Legal System/Item 057.pdf
31. Deirdre Golash, Race, fairness, and jury selection, 10 Behav. Sci. & L. 155 (1992).
32. Strauder v. West Virginia, 100 U.S. 303, 309 (1880).

By: Paul Unger, Esq.

Daily planning is critical if you want to change your life and change your habits. If your current routine doesn't include planning, that routine must be broken and reconstructed! The reality is that very few people take the needed 5 to 10 minutes at the beginning of the day or the end of the day that will save them hours, days, weeks, months, and years of waste and inefficiency. Most people just dive in or "show up." We jump right into email and become instantly derailed by fighting little fires instead of creating clear goals or a roadmap for the day. We need to sketch a daily plan, huddle with our team, adjust our daily plan if needed, and then use that daily plan as our roadmap that will keep us focused. When you have no roadmap, it is incredibly easy to allow distractions to control you.

I have observed many people experience success by planning tomorrow's roadmap at the end of the previous day. We tend to know where we left off with tasks and are ambitious. Others have experienced success engaging in daily planning in the morning before the day starts, after we are rested and have a clear mind. If you engage in that morning planning, I recommend coming in early to do so, before all the fires have already started. It is difficult to focus once the chaos begins, especially if you don't have a solid roadmap for the day.

HOW TO CREATE YOUR DAILY PLAN

As a 20-plus-year paperless lawyer and consultant, as much as I love technology, I am a huge fan of using some form of paper for planning. Take, as an example, the simple index card. A pack of 100 index cards will cost you less than $3. Use one card per day, writing three to five tasks that you want to accomplish that day. Another way of articulating this is: "Today is a success if I get these three to five tasks completed." It is okay to rewrite items that are on your calendar, and if you get those three to five things completed, then get another card out and write down three more tasks!

Another great tool is a planning journal. Two of my favorites are Best Self-Journal (https://bestself.co/) and Panda Journal (https://pandaplanner.com/). Many people ask me why you should rewrite this information on paper if it is already on the calendar in Outlook. There are multiple reasons:

1. I want that roadmap for the day prominently in front of me so I can see it at all times. If it is out of sight, it is out of mind. That means for me that this list is near my keyboard. If the list is in Outlook, it is probably minimized most of the day.

2. I don't want to waste a big computer monitor to display my roadmap. I use my monitors for more useful functions like comparing documents, or displaying reference/subject matter relevant to projects that I am working on.

3. It is likely that events on my calendar were created weeks ago, so they are not freshly on my mind. It is helpful to rewrite those events.

4. It is helpful to time-block those events and tasks so you engage in realistic planning about how long it will take you that day.

5. Taking five minutes to write that daily plan serves as a contract with yourself to get those things done that day.

Here are examples of the Best-Self Journal and Panda Journal:

Whatever way you choose - index card or journal or something else - creating your daily plan before you get down to the business of the day will help you accomplish your goals more effectively.

Paul Unger (punger@affinityconsulting.com) is an attorney, author, speaker, and thought-leader in the legal technology community.He is a frequent lecturer throughout North America. Twitter: pauljunger. Website: www.affinityconsulting.com.

Recommended Events for November and December

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November 2
Representing Clients with Disabilities

This event will take place in New York, NY. 7 MCLE credits are available. This event helps attorneys to learn how to represent some of our most vulnerable clientele by understanding the nature of disabilities and learning the skills necessary to ensure these clients retain their autonomy while enjoying their rights to the fullest extent possible.
Cost: Tickets are $175 for members, $150 for co-sponsoring section members, and $275 for non-members.
Time: 9 am to 4:30 pm.

http://www.nysba.org/store/events/registration.aspx?event=0FK34

November 8
Administrative Hearings Before NYS & Local Agencies

This event takes place in Albany. 7 MCLE credits are available. Follow the link for a list of administrative courts and agencies discussed in this event.
Cost: $175 for NYSBA Members, $150 for Section Members, and $275 for non-members.
Time: 9:00 am to 4:30 pm with a networking followed by a reception.

http://www.nysba.org/store/events/registration.aspx?event=0FM81

November 16
2018 EASL's Annual Music Business and Law Conference

This event takes place in New York City at New York Law School. 7 MCLE credits are available. Note: This program is not suitable for transitional attorneys and is best suited to attorneys admitted two or more years. Transitional attorneys should only consider this event for informational and educational purposes as these credits will not count toward their 16 required transitional credits.
Cost: $289 for Members and $249 for section members. (It is cheaper to pay the section membership and get the section member discount than to pay the NYSBA Member price.)
Time 8:00 am to 5:00pm

http://www.nysba.org/store/events/registration.aspx?event=EASLMJ18

December 11-12
Bridging the Gap

This CLE event takes place in Syracuse, New York. You can earn 16 transitional MCLE credits at this event.
Cost: This event is $240 for members and $695 for non-members. There is a special rate of $295 for Newly Admitted Attorneys and Young Lawyers Section Members.
Time: December 11 at 9 am to December 12 at 5:30 pm.

http://www.nysba.org/store/events/registration.aspx?event=0FS26


A full list of all New York State Bar Association Events can be found at www.nysba.org.
*The full event description and details are located on the NYSBA Events page.

YLS Membership Profile

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Overall, the Young Lawyers Section is by far the largest in NYSBA, with over 11,000 members. Take a look at some of these eye-popping facts about the members of YLS.

  • 99 are employed as in-house counsel
  • 21 are academics
  • 78 are solo practitioners
  • 45 are 56 years of age or older
  • 663 are also in the Criminal Justice Section - the largest such overlap with another section
  • Besides Manhattan, the most populous location for young lawyers is Brooklyn
  • Outside of NY, the most populous locations for young lawyers are Washington, D.C. and Jersey City
  • The most represented law school is Syracuse, with over 1,000 alumni or current students in YLS
  • Outside of NY law schools, the most represented school is Rutgers

Brand New Members of the Young Lawyers Section

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Please join me in welcoming the following new members to the Young Lawyers Section!

Oluwatumise O. Asebiomo

Jessica Barragan, Esq.

Amy Bickersteth

Stefanie See Wun Chan, Esq.

Katherine Chang, Esq.

Macky H. Cherif

Laura Dexter

John H. Geager

Alexandra N. Getsos

Ryan T. Huntsman, Esq.

Daudi Justin

Benjamin Kaufman

Janice J. Lee, Esq.

Geormary Sanchez

Rishav D. Shah

Lorenzo Sordi

Matthew Thompson

Serena D. Wu, Esq.

Joshua B. Kiel

Beatriz R. Wahba, Esq.

Ilana Sharan

Erica A. Sollazzo, Esq.

Olivia R. Cox

Michelle R. Hutchins

Tess M. Mclaughlin, Esq.

Cassidy V. Milam

Kenneth L. Perkins, Esq.

Michael T. Supley, Esq.

Emily Vacilik

Savannah Chinski

Melissa A. Whyman

Hassan Ahmed

Nabil Akl

Robert M. Baurley

Shannon Bausinger

Kristine Bialy-Viau

Jordan Broadbent

Alexandre G. Carvalho

Jacqueline Chilbert

Aaron Cooper

Kaitlyn Crobar

Robin Evans

Christian Gonzales

Elizabeth Harraka

Anna Holdrer

Ammar Y. Jaradet

Songling Jiang

Francisco Jose

Anoop Kahlon

Dominique Kelly

Jordan Kiehl

Nikkia Knudsen

Allison Kowalczyk

Charles Kuehnle

Katie Lee

Ryan Martyn

Ricardo Masias

Kylie Mason

Batool Mufreh

Allan S. O'Brien

Aili Obandja

Ure Obioma

Jillian Pascua

Dwij Patel

Evan M. Pfeifer

Kelly Ristoff

N'Dezha Robinson

Skylar M. Salim

Sehseh Sanan

Hemaxi Shah

Sheridan Su

Sohela Suri

Chiora Taktakishvili

Beth-El Thomas

James Thyden

Nikolai Tillman

Shannon Wagner

Kayla Wheeler

Fahimeh Zaheri

Ivan Zylberberg

Katherine M. Silvestri

Nichole M. Austin

Daniel M. Caves

Carly Cazer

James W. Cook

Armand A. D'Alfonso

Adam T. DelleBovi

Samantha C. DiMora

Justice K. Dunwoody

Ryan Falk

Shane Kelly

Emily A. Kosciewicz

Jesutowo A. Adeniji

Aldiama Anthony

Kristopher J. Bartz

Kerry Q. Battenfeld, Esq.

Juan David Bazzani Montoya

Alisha Bell

Kali L. Benjovsky

Courtney Bow

Kevin M. Bronson

Katherine R. Bruno

Adina Buturuga

David Carr

Luke A. Catalano

Jake Cercone

Yoo R. Cho

Trent Citarella

Hannah Cominsky

John Conti

Kristen A. Coons

Courtney E. Dec

Michael M. Dolce

Jillian Faltyn

Thomas Finnigan, III

Ryan Fortuna

Lindsay Gratien

Thomas J. Heubusch

Wanxue Hu

Destiny Johnson

Lindsey M. Johnson

Kennita Jose

Nicholas Kaiser

Zachary Kiel

Jordon J. Kilijanski

Emily C. Liao

Peter Mattar

Miles C. Michienzi

Charles Moran

Ian Q. Rogers

Kelsey Ruszkowski

Alexander Segelhurst

Amber A. Small

Donald Sonnefeld

Joseph Tantillo

April A. VanOrman

Thomas J. Warren

Bobby West

Khalil Williams

Nathaniel J. Yood

Mariah Almonte

Stefanie A. Cerrone, Esq.

Syed A. Gilani

Genna Amick

Annette Bevans

Jeanelle Dawes, Esq.

John Diamandis

Alexis Fretwell

Matthew J. Giacobbe

Rina M. Hernandez

Lauren Shavolian, Esq.

Marybeth L. Smith

Nicole Venator

Kinya Kuhuna

Changhui Li, Esq.

Angelica Razack

Aaron B. Schweitzer, Esq.

Theresa Shim

Mercy C. Chumo

Nayram S. Gasu

Melanie J. Monroy

Ana I. Arraut Colon

Caitlin M. Bardill, Esq.

Thomas Caraher

Elizabeth G. Costello

Catlin A. Davis, Esq.

Nicholas J. Doyle, Esq.

Andrew B. English, Esq.

Jocelyn E. Ezratty, Esq.

Adelayo E. Fawole

Daniel J. Fullerton, Esq.

David B. Grau, Esq.

Trejahn J. Hunter

E. Michael Johnson

Chuancheng Lin

Jacob W. Petterchak, Esq.

Kourtney J. Pratt, Esq.

Daina Rindler

Tatiana A. Robinson, Esq.

Travis Swanson

Aline V. Tanaka

Edward J. Willner, Esq.

Total New Members: 182

Join the Young Lawyers Section

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Become the voice of newly-admitted and young attorneys in NYSBA. Designed to help make the transition from law school to practice an easier one for newly-admitted attorneys, the Young Lawyers Section connects you with experienced attorneys lending general advice, legal guidance, or expert opinions. Take advantage of educational programs, networking events, and the exclusive Young Lawyers Section Mentor Directory, which is just one of the Section's mentoring initiatives. The Section publishes Electronically In Touch and Perspective. Law students may also join the Section and get a jump start on their careers.

ALREADY A MEMBER OF THIS SECTION? JOIN A COMMITTEE!

Are you interested in volunteering for a Section Committee? Please email Amy Jasiewicz at ajasiewicz@nysba.org and indicate the committees you wish to join. The Young Lawyers Section has the following committees:


  • Executive Committee

  • Communications Committee

  • Community Service and Pro Bono Committee

  • Diversity Committee

  • Law Student Development Committee

  • Long-Range Planning Committee

  • Membership Committee

  • Mentoring Committee

  • Nominating Committee

  • Perspective Editorial Board

Disclaimer

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The Officers of YLS and the Editors of Electronically In Touch wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors and do not necessarily represent the thoughts and opinions of the authors' employers or clients, the New York State Bar Association, Young Lawyers Section, or its Officers or Executive Committee.

About this Archive

This page is an archive of entries from November 2018 listed from newest to oldest.

October 2018 is the previous archive.

December 2018 is the next archive.

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