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A Word From Tor“It’s like special forces training for trial lawyers.” Thus spoke one of the lawyers by the fireside one night at Gerry Spence’s Trial Lawyers College (TLC) in rural Wyoming. 55 of us had gathered for a three-week, invitation only, intensive of 12 hours a day of trial technique practice, off the grid on a sprawling ranch, with only three days off. It was a profound and rewarding experience. Gerry Spence is one of the greatest trial lawyers of the last hundred years. He’s never lost a criminal case (he started out as a prosecutor) and hasn’t lost a civil case since 1964. He’s 89 now and retired after a storied career representing famous, infamous, and private clients including Karen Silkwood, Randy Weaver, and Imelda Marcos. Gerry started TLC because law school doesn’t teach trial skills. What little you learn of trial advocacy in law school , you quickly learn, at trial, is mistaken. As another famous trial lawyer once said, “Evidence professors have ruined trial practice.” In other words, you can’t object or bluster your way to victory, whatever you may have seen on television or movies to the contrary. The fact that the legal academies have a stranglehold on the teaching of law (a relatively new development) and are so abysmal at teaching practical skills goes a long way to explaining why the crucial constitutional right to a jury trial is rapidly disappearing. No one who graduates from law school is prepared to do a trial. And few lawyers ever learn how to, as most cases settle these days. Our criminal justice system has mutated into a plea bargain system where many innocent defendants enter a guilty plea rather than run the risk of the harsh penalties they may face if they lose at trial. At TLC, I met someone who spent 24 years in prison for a crime they didn’t commig. Prosecutors routinely load up indictments with every charge they can think of to force a defendant to plea. TLC’s mission is to restore the civil and criminal trial to the primacy our Constitution gives it. For three arduous weeks you practice jury selection, opening statements, direct and cross examinations, and closing arguments in a hands-on environment. Your teachers are experienced trial lawyers from all over the country. Academic discussion is frowned upon, you got plenty of that in law school. The statement “Show, don’t tell” is common. Some of the techniques are radical, but are tried and proven. The week after our session ended, one of our classmates had a federal criminal trial. After he employed his new-found techniques at jury selection and opening statements, the government dismissed the case. None of us were surprised. The three weeks at TLC were ones well spent in a rewarding and profound environment. We are extremely proud of the trials we’ve litigated to date, along with the experience and skills of our attorneys, with Tor’s new insights from Gerry Spence we are excited to bring even more expertise to the table.
Intellectual Property NewsOn July 2, the Supreme Court of California issued a ruling that will sharply limit removal of defamatory comments from third-party websites. In Hassel v. Bird (San Francisco), a personal injury lawyer sued a former client for defamation over a negative review the client posted on Yelp. After the defendant client failed to appear in court, the plaintiff obtained a default judgment, meaning that the client was held liable for defamation. The lawyer then obtained an order requiring Yelp, a non-party to the defamation action, to take down the review. Yelp objected leading to this key decision in California’s highest court. If the plaintiff had sued Yelp directly, this would have been an easy issue to resolve. Under the federal Community Decency Act (typically referred to as the “CDA” or “Section 230”), a third-party website like Yelp is deemed to not be the “publisher” of information uploaded by users. Thus, Yelp and similar websites cannot be held liable for allegedly defamatory reviews. In Hassel, however, the plaintiff did not sue Yelp for defamation and did not seek any damages from Yelp. Nevertheless, the Supreme Court of California held that plaintiff was seeking an “end-run” around Section 230 which would “subvert a statutory scheme intended to promote online discourse and industry self-regulation”. The court reasoned that if plaintiff were successful, the maneuver would be widely adopted by litigants, particularly in situations where defaults are likely, just to have unfavorable information removed from websites. The Takeaway: The end result of this opinion is that, at least in California, it might be nearly impossible to have unwanted information removed from third-party websites through the court system. That doesn’t mean that there is no recourse for false reviews. Yelp and other websites have their own takedown mechanisms so that false or obscene material can be removed. This has been increasingly common where an establishment’s actions have gone viral, leading to hundreds of Yelp reviews from people who hadn’t ever visited the place. For instance, the Red Hen restaurant in Virginia was flooded with negative Yelp reviews after it reportedly refused to serve Press Secretary Sarah Huckabee Sanders, In fact, unaffiliated restaurants across the country with the same name also received dozens of fake, negative reviews. Yelp removed reviews from people who hadn’t visited these restaurants but were only reacting to viral news. Note: Section 230 doesn’t apply to copyright. Copyright holders may use DMCA takedowns to have infringing material removed from third party websites, unaffected by Section 230. Partner Mark Jaffe counsels tech companies on Section 230 and DMCA protection, and other regulatory compliance.
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Trademarks For Creative CompaniesThank you to all who attended our presentation in Berkeley! We will be taking this presentation to other locations in the Bay Area and New York locations. If you’d like to join us next time, would like to host a presentation, or would be interested in a webinar let us know!
Cybersecurity and Data Breaches
Your behavioral response to the breach can be far more damaging than the hack itself. That’s because your business reputation and legal and regulatory standing are on the line.
The Average Cost of a Data BreachIn this year’s study from the Ponemon Institute, it was found that:
- The average cost of a data breach, per compromised record, was $148,000.
- It took organizations 196 days, on average, to detect a breach.
- The mean time to contain a breach was 69 days. 25% of breaches were caused by employee error.