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Exxon Legal Issues with Establishing Environmental Accountability:

Watts Up With That?

This is in the news today via “Climate NEXUS”, which is a Madison Ave. PR firm:

New York Attorney General Eric Schneiderman announced that he is launching a legal probe into Exxon’s climate denial. The inquiry will look into both consumer and investor protection laws, covering the oil giant’s activity dating back to the 1970s. Schneiderman’s investigation could open “a sweeping new legal front in the battle over climate change,” says the New York Times, which broke the story. Two separate reports by InsideClimate News and the Los Angeles Times uncovered that Exxon has known about the dangers of climate change since the 1970s but sowed doubt by funding climate change skeptics to preserve its business. Exxon has been compared extensively to the tobacco industry, which was convicted of racketeering in 2000 for deliberately deceiving the public about the dangers of its products.

It seems all this is part of…

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Follow Up Etiquette RE: Biz Issues

Top 10 Items every LLC needs Contact Aiden: (720) 722-0639 and aidenkramerlaw@gmail.com
The Law Office of Aiden H. Kramer, LLC http://aidenkramerlaw.com
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Twitter: @_AllUpInYoBiz
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Related: Ryan H. Flax, Esq.
Managing Director, Litigation Consulting & General Counsel

Top 7 Things I’ve Observed as a Litigation Consultant:

I’ve passed another anniversary at A2L Consulting and in my time as a litigation consultant I’ve been both surprised and reassured about the state of the litigation business and its players (I also wrote about my surprises upon beginning my career as a litigation consultant). I’ve seen both the very best and quite bad litigators in action and have consulted for both. Although some litigators don’t live up to my high standards, I’m impressed by many litigators as both professionals and people. Here are seven of my observations over these years that I think might help you in your practice.

  1. Many Lawyers Confuse Chronology With Storytelling

It is almost universally accepted that storytelling is important to engaging an audience (including a jury) and that framing a client’s case as a compelling story is key to doing your best at trial, particularly in opening statements. But more often than not, when I ask a litigation team what their client’s story is, rather than explain “why we’re really here” as they would to a jury and illustrate some conflict and emotionally valuable moral that is critical to juror engagement, they rattle off some chronological series of events that led to a legal injury to their client or some misconstrued relationship by the opposing party. These are not stories and presenting a case framed this way, while possibly interesting to a legal scholar, is not compelling to a juror.

I’m surprised that so many smart litigators fall into the chronology trap and forsake emotional connection to engage jurors. I don’t advise pandering to a jury or excessive emoting by a litigator, but for a jury to care about you and your client and generate the stamina jurors need for a trial, litigators must tap into their emotional brains. This is not done by an information dump, a calendar, or using a lot of words.

A story answers the question posed above – why are we here today, in this courtroom? A story also has all the stuff you learned in grade school: a beginning, middle, climax, and end, characters, setting, theme, and moral.

  1. Some Lawyers Focus Too Much on Too Small Things

It’s easy for litigators (even more so for the associates doing the day-to-day stuff) to over-focus on every detail. The prospect of overlooking a potentially key piece of evidence or being surprised by an unknown fact exposed by opposing counsel is frightening for attorneys (it was for me), so we often wind up thinking way too much about every little thing in a case. This is called being “in the weeds,” and when you’re there it’s exceedingly difficult to escape without help. It happens with the selection of evidence, with witness prep, and even with the development of graphics, where sometimes counsel wants to very carefully think over every aspect, e.g., choosing what font style and color palette and slide aspect ratio will best work for their case.

On each of these things, I urge counsel to take a step back and delegate where possible so they can focus on the BIG PICTURE. The best first-chair litigators do this naturally, and the rest of us need to do it deliberately. Attorney time and brainpower should be spent on figuring out what it will take to win. Let litigation graphics consultants decide what font works best for your opening statement presentation. It will be a relief when you do.

  1. Many Litigators Don’t Know What Tools Are Available

Even though the litigation consulting industry has been around for decades, I still find a lot of lawyers really don’t know what we do (in total) and what persuasive tools are at their immediate disposal. Often, my first conversations with new clients include questions like, “What all do you do?” The concepts of litigation graphics, presentation and persuasion consulting, trial technology, and jury consulting are not concrete ideas in many litigators’ minds, and I often have to educate clients on what we have in our (their) toolbox.

Most often, such attorneys think of litigation graphics as discrete images created for specific points they want to make during trial. They don’t understand that, while that’s a part of our work, such graphics won’t alone provide the immersive visual experience necessary (particularly during opening statements) to persuade jurors.

Also, many litigators seriously consider doing their own graphics and/or in-court technology presentation. They have Microsoft PowerPoint and Word and can cut and paste and they’ve heard that iPad apps make evidence presentation easy. The former is never a good idea and, while the later might be true for some situations, e.g., a hearing or very small trial, it’s not going to work in any bigger trial that could have hundreds or thousands of exhibits. There is a lot to know about crafting persuasive trial visuals and there are professionals who do nothing but build trial databases, edit deposition videos, and run trial presentation software to create a seamless trial for you and your jurors. Litigators should understand this and use professionals (and let your paralegals focus on what they should be doing as well).

  1. Litigators Still Wait Too Long to Bring in a Litigation Consultant

Even though they know better, most of the time litigation teams wait until just weeks before trial to engage a litigation consultant / jury consultant / graphics team / trial tech. Even though they know waiting makes it a more difficult budget-sell to their client, leads to an uncomfortable rush to develop graphics, may make mock jury exercises impossible, and forecloses the possibility of building discovery around what they learn from a consultant, they wait. I urge early planning for trial (at the complaint/answer stage), which is the right time to develop that important two-track litigation strategy, and begin working on your case story and graphics as early as possible. Although we can certainly help you late in the game, we can do a lot more before halftime.

  1. A Lot of Litigation Graphics are Subpar

When I get the chance, I always go to my client’s opening statements and then to as much of the rest of their trials as possible. So I get to see the litigation graphics developed by/for opposing counsel. I’m consistently underwhelmed.  It’s impossible to say whether these poor visuals directly led to the oppositions’ losses at trial, but they didn’t help.

More often than not I see a lot of text-heavy graphics – a severe barrier to juror engagement and communication. I see a severe lack of style, clarity, and intentional design – this screams lack of preparation and deliberateness in presentation. There are key visual presentation concepts that, if understood and followed, lead to persuasive graphics, e.g., font type, color choice, simplicity, complexity, branding, style, and others. There is no shortage of information about these concepts out there, but it seems most folks are not paying attention. We are.

  1. Lawyers Don’t Spend Money Where It Can Help Them

Litigation consulting, jury research, trial graphics, and trial technology cost your client money – very true. But the ROI on these services far outweighs their expense in bigger cases. The cost of a typical larger litigation, such as an employment case, hovers just around $1M. A typical bigger patent case costs about twice that amount. However, the services and tools that could be used to hone your persuasive game at any stage of such litigations turn out to be a very, very small fraction of these costs.

Take a big-time patent and breach of contract case where our client won over $300 million in damages. The costs for A2L’s services were well below $200,000, about 5% or less of the litigation budget and about 0.005% or less of the damages award. I know that our services played an important role in the victory, even though the trial team was beyond outstanding.

But, we still see litigation counsel struggling to decide whether $30,000 or $50,000 is the right spend for a mock jury focus group (a $20K difference that could be the difference between scientific data results and seat of the pants analysis) or whether to spend $12,000 to have a professional trial tech hot seat operator at trial (they should), or whether they can make their own graphics for opening statements in house (they cannot). In my view, saving a penny to lose a dollar makes no sense.

  1. Practice is as Important as Everyone Thinks

Finally, it’s been shown time and time again that practicing oral argument makes sense. The more you practice, the better you’ll do. It takes time, but again, the ROI on this time investment is tremendous. When litigators do several full speed run-throughs for opening statements or oral arguments, I see them do a fantastic job at the real thing. They don’t need notes, they know their subject matter, they are and appear more comfortable, they seem more reasonable, and they use their graphics perfectly in a compelling way.  Not practicing so that you can feel and seem more spontaneous at opening is a recipe for a poor performance. Practice. And start early.

Other articles and resources about litigation consulting and trial preparation from A2L Consulting:

Trigger finger a common condition

TRIGGER FINGER-VO It may sound like it’s caused from shooting a gun, but that’s not what normally causes trigger finger. The condition, when one finger is bent over and gets stuck, is caused when the tendon in the finger gets caught in one of the sheaths in the finger that surrounds it. For some people, the finger will snap back into place, but in some cases, surgery is required to get the finger back to normal.Bible-Gun-1263002One local doctor says the condition is very common – something he sees every week. And if you think you have the condition, consult your family doctor first.“Sometimes we may think it’s from the finger and it’s arthritis or there could be some other thing that’s causing pain in the hand, there are some conditions that cause contractures in the hand,” Dr. Richard Rattay of Mason City Clinic and Mercy Medical Center North Iowa said.
Trigger finger can sometimes be treated by anti-inflammatory medication or a shot of cortisone into the tendon, but in severe cases, surgery is required.
“There are a lot of patients that they’ve kind of been worked up and we may try a cortizone shot and they actually get better and never need surgery but then there are other people who just don’t get better enough or they come in and their finger is already stuck and then those people are better off with surgery,” Rattay said.  triggerfinger  MASON CITY, Iowa –

Kraft recalls 2 million pounds of turkey bacon

How Judges can Avoid Decision Fatigue – RELY ON AND LEARN FROM YOUR IN-COURT CLERKS

June 25, 2015 MINNESOTA Update 15-12 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309. How to Avoid Decision Fatigue

THE PROBLEM: In a perfect world judges make decisions by applying legal analysis to the facts of a case in a rational, fair and deliberate manner. But in the real world, we know that judges and judicial decision-making, despite their best efforts, are often subject to the same foibles, biases and imperfections that affect everything humans do. We would love to believe that a judge’s rulings are solely based on rational decisions and written laws. In reality, they can be influenced by a variety of non-relevant factors that may be so subtle that they go mostly unnoticed by attorneys, the parties and most importantly, judges themselves. In order to keep this update short and concise, these non-relevant factors are broken down into two main categories: 1) IMPLICIT BIAS; and 2) DECISION FATIGUE.

1) IMPLICIT BIAS & The Committee for Equality and Justice (CEJ): Explicit Bias: The problems of overt discrimination have received enormous attention from lawyers, judges, academics, and policymakers. While explicit sexism, racism, and other forms of bias persist, they have become less prominent and public over the past century. However, explicit bias and overt discrimination are only part of the problem – What about “implicit bias”? Implicit Bias: An implicit bias is a positive or negative attitude toward a person or group of people that a person holds at an unconscious level. An implicit bias is formed by a person’s individual developmental history, life experiences, and culture causing it to be so ingrained in a person’s personality that he or she is unaware of its existence. Over the past decade, researchers have provided convincing evidence that implicit biases exist, are pervasive, are large in magnitude, and have real-world effects. Since fairness and unbiased decisions are fundamental to the justice system, several studies and articles have been published that provide guidance and strategies to reduce implicit bias in the courts. Committee for Equality and Justice & “The Implicit Bias Bench Card”: Minnesota Judicial Counsel’s Committee for Equality and Justice (CEJ) is dedicated to eliminating all forms of bias in Minnesota’s judicial branch. The CEJ recognizes that detecting and eliminating implicit bias is difficult and there is no perfect tool to do so. Studies have shown that in order to combat the effects of our implicit biases, it is crucial to be aware that they exist and to actively question whether they are affecting our rationale. The CEJ offers the “Implicit Bias Bench Card” (see attachment) as a reminder that implicit bias exists in all of us and as a tool to help reduce its influence on our decision-making processes when possible. Please copy and distribute the attached bench card to anyone you think may have an interest. JUDICIAL TRAINING & EDUCATION UPDATE Prior training updates (103) can be accessed by clicking on: Judicial Training Blog JUDICIAL DECISION-MAKING Dangers of “Implicit Bias” & “Decision Fatigue” June 25, 2015 MINNESOTA Update 15-12 Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309

2) DECISION FATIGUE: In Judicial decision-making, decision fatigue refers to the deteriorating quality of decisions made by a judge, after a long session of decision-making. For instance, judges in court have been shown to make less favorable decisions later in the day than early in the day. Why? Judges, being human, were worn down by a day full of mental work. They had, as social psychologist Roy F. Baumeister states, fallen victim to decision fatigue. In other words, if judges don’t learn to manage their reservoir of mental energy, they won’t be able to manage their judicial decisions. That’s a lesson learned from a 2011 study on extraneous factors in judicial decisions, published in the “Proceedings of the National Academy of Sciences” (www.pnas.org/cgi/doi/10.1073/pnas.1018033108). Jonathan Levav of Columbia University and his colleagues analyzed 1,112 parole hearings for inmates of four Israeli prisons, made by eight experienced judges over a ten-month period. Prisoners who appeared early in the day or right after a food break received parole about 70% of the time, while those that came late in the day or long after scheduled food breaks or lunch had less than 10% chance at landing parole. This pattern is readily evident in the following 2011 graph published as part of the study. The graph is dramatic. It shows that the odds that prisoners will be successfully paroled start off fairly high at around 65% and quickly plummet to nothing over a few hours. After the judges have returned from their breaks, the odds abruptly climb back up to 65%, before resuming their downward slide. These rulings were made by eight Jewish-Israeli judges (two females), with an average of 22 years of judging behind them. Their verdicts represented 40% of all parole requests in the country during the ten months. Every day, each judge considered between 14 and 35 cases. They took two food breaks (a morning snack and lunch) that divided their day into three sessions. Judges had no control over the scheduling of cases. The study found that the three prisoners seen at the start of each “session” were more likely to be paroled than the three who are seen at the end. That was true regardless of the length of their sentence, or whether they had been incarcerated before. The following four findings are highly relevant for judges: 1. All repetitive decision-making tasks drain our mental resources. We start suffering from “choice overload” and we start opting for the easiest choice. For example, shoppers who have already made several decisions are more likely to go for the default offer, whether they’re buying a suit or a car. And when it comes to parole hearings, the default choice is to deny the prisoner’s request. The more decisions a judge has made, the more drained they are, and the more likely they are to make the default choice. Taking a break replenishes them

Judges, even experienced ones, are vulnerable to the same psychological biases as everyone else. They can deliver different rulings in similar cases, under the influence of something as trivial as a food break. Their training, their experience, and the weighty nature of their decisions do not insulate them from the sort of problems that plague our everyday mental abilities. The mental work of ruling on case after case can wear any judge down – even the best ones. This sort of decision fatigue routinely warps the judgment of everyone, executive and nonexecutive, rich and poor. Yet few people are even aware of it, and researchers are only beginning to understand why it happens and how to counteract it.  You can’t make decision after decision without paying a biological price. No matter how rational and high-minded you try to be, you can’t make decision after decision without paying a biological price. It’s different from ordinary physical fatigue — you’re not consciously aware of being tired — but you’re low on mental energy. The more choices you make throughout the day, the harder each one becomes for your brain, and eventually it looks for shortcuts, usually in one of two ways. a. One shortcut is to become reckless: to act impulsively instead of expending the energy to first think through the consequences. (Sure, tweet that photo! What could go wrong?); b. The other shortcut is the ultimate energy saver: do nothing or opt for the easiest choice. Instead of agonizing over decisions, avoid any choice or the more difficult choice. Ducking a decision often creates bigger problems in the long run, but for the moment, it eases the mental strain. You start to resist any change, any potentially risky move — like releasing a prisoner who might commit a crime. So the fatigued judge on a parole board takes the easy way out, and the prisoner keeps doing time. BEST JUDICIAL PRACTICE: One purpose for this update is to promote awareness of the increasing body of research that supports the view that all repetitive decision-making tasks drain our mental resources. Thus, when judges make repeated rulings, they show an increased tendency to rule in favor of the status quo (whatever that may be).  Research suggests that this tendency can be overcome by taking a break to eat a meal, or from other benefits derived from a short break, such as rest, physical movement and increased positive mood, all of which promote mental resource replenishment.  However, because none of these studies are definitive, perhaps the best judicial practice is for each individual judge to develop a sense of how much their decisions have fatigued them and to do whatever works best for them to bolster their mental energy supplies.

Read More: https://blogpendleton.files.wordpress.com/2015/06/judicial-training-update-15-12-implicit-bias-decision-fatigue.pdf

 

MINNESOTA JUDICIAL TRAINING & EDUCATION BLOG

NEWLY APPOINTED JUDGES – WHY THE RISK OF MISTAKES ARE HIGH: Judges have an incredibly difficult job. Most judges were appointed to the bench, in part, based on their training, experience and expertise in usually one or two areas of the law. Many judges come from a prosecution or criminal defense background with no significant civil experience. Many judges with a strong civil background have little or no criminal experience. And a large number of judges come onto the bench with no prior family law experience. And even those judges with a particularly broad background, few can boast of experience in areas such as: conciliation court, civil commitments, juvenile, probate, child support contempt and unlawful detainers, etc. This update answers the question why new judges should rely on and learn from their in-court clerks.

CLICK ON LINK BELOW TO READ MORE

PendletonUpdate14-14

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Know your Consumer Rights

Although most of us have most likely heard about the Consumer Protection Act (CPA), and may even know parts of it; most us don’t have the time or patience to read almost 100 pages of legislation. We tend to leave this up to our lawyers and the judiciary and, unfortunately, many businesses capitalise on this. Megan Whittingtonhas made a list of some consumer rights scenarios.

Cartoon: Calvin & Hobbes is (c) 2012 Bill Waterson - originally published by 1547 University Press Syndicate.

  1. You know those annoying advertisement SMSes that you’ve done your best to get rid of? According to section 11 of the Act, they’re not allowed to pester you if you’ve told them to stop; nor are they allowed to contact you on public holidays, Sundays or before 8am/after 8pm. If you’ve asked them to take you of their list or replied with ‘stop’ and you’re still receiving messages; you can make an official complaint with the Provincial Consumer Affairs Office.
  1. Perhaps as you’re shopping for a new fridge, you’re subjected to a particularly anxious-to-sell trainee who guarantees that it has all sorts of wonderful abilities. You cart your new fridge home and find that it’s below average. Luckily, the CPA says that if a product you buy doesn’t have the features that were promised; you’re entitled to a full refund. If the company refuses; they’re in violation of section 41 of the Act.
  1. As you’re reading the Sunday paper, a pamphlet with a fantastic special grabs your attention. Thespecial price is only valid on that day so you leave for the mall immediately. When you arrive at the shop, you’re told that the items on special had sold out within an hour after opening. Good news – section 23 of the Act lets you insist on being able to purchase the item at the special price, or at the very least, have one of their other stores organise the item for you.
  1. You found an old airtime voucher that you purchased over a year ago, but your network provider tells you it’s expired and you can’t use it. Section 63 of the CPA says that if you’ve purchased and not redeemed a prepaid or gift voucher within the last three years; you can insist on getting a new voucher (without paying anything more) or get your money back.
  1. You’ve booked and paid for a transport service. When you arrive, you’re told that the service in question is full due to over-booking and they can no longer accommodate you. This is a huge convenience, but the consolation is that you can insist that they refund you with interest and that they pay for another means of transport, even if it’s with a different company. If they refuse; a threat with making a complaint based on section 47 of the CPA should ruffle their feathers.
  1. If you buy a product that is faulty, use it correctly, and it causes damage to another one of your belongings; you have a claim. For example, you purchase a new cell phone charger, plug it in and connect it to your phone. It malfunctions and causes permanent damage to your phone. You can demand a full refund for the faulty charger and claim damages for the harm done to the phone. If they refuse, they will be in violation of section 55 of the Act.

These are just a few of the ways that the Consumer Protection Act can make a difference in the everyday lives of South African consumers. If you believe that your rights, as a consumer, have been breached then you can make a complaint to the National Consumer Commission here:  http://www.nccsa.org.za/complaint/complaint-form.html/.

For a user-friendly guide to the CPA click here: http://www.legal-aid.co.za/wp-content/uploads/2014/06/YOUR_RIGHTS-THE_CONSUMER_PROTECTION_ACT.pdf

Clickhere to access the full-length version of the CPA: http://www.thenct.org.za/NCTDocs/founding-legislation/f8d6f6aa-994d-4305-b3d0-ea056416bbd0.pdf.

Death toll from defective GM ignition switches rises to 107