As an experiment, we recently had our Contested Probate Website – Contesting A Will  re-designed because the quality of the leads we were getting from our site, whilst prolific, left quite a lot to be desired.

Indeed, the old website was flatteringly described by one of our probate team as ‘tacky’.

There is no doubt whatsoever that following the re-launch last week the quality of the leads this site has generated is hugely improved.

There is a school of thought that web-site design does not matter and that your advertising can be the child of  creative chaos and can look like a ‘car crash’ without it affecting your results.

We no longer subscribe to this view.

Chris Sherliker      cjs@silvermansherliker.co.uk

Re-possession of residential property has just got a whole lot faster with our new, fixed fee Accelerated Possession service.

Thats it.

You blinked?

You missed it.

The Law is an App.

At least, trade mark law now is…

Three days ago, we launched our first mobile application for iPhone and Blackberry:  NameSearch TM Legal.

If you are reading this on an iPhone or BB, you can download the App free from the above link.

You can also read the review in the AppStore.

NameSearch TM Legal helps you protect your trade marks, business names, product names, logos and brands and is designed as a resource tool for brand consultants, creative agencies, designers, NPD specialists, marketing executives and entrepreneurs.

In addition to a constantly-updated feed on what’s happening in the world of brands and marks, you can also request free trade mark search reports on the legal availability of business and product names and free legal advice on names, logos, trade marks and brands from the IP Team at Silverman Sherliker LLP.

You also have the full text of the UK Trade Marks Act 1994 at your fingertips.

The journey from the dawn of the initial idea to its eventual launch in the Appstore has been a long and formative one and, like most journeys, it has taught me quite a lot.

This is what I have learned.

Lesson 1: When you want to generate a new idea …go large.

There are a lot of iPhone applications about trade marks and ‘matters legal’ but a lot of them just replicate legal statutes and provide very limited functionality. They are stuffy. They are basically just adverts.

I wanted to create a really useful tool for anyone involved in branding, trade marks, name creation, design, NPD or business start-ups. Something that would enable busy creatives and entrepreneurs to clarify the legal availablity of new trade marks, brands and designs ‘on the hoof’, as it were …in a taxi, at the water-cooler, from the white-hot centre of the brain-storming session. In short, I wanted it to deliver  something of real value for the creative and entrepreneurial community.

So what about an app that enables anyone in the world to request a free trade mark search and get an initial professional assessment of the results from their iPhone or Blackberry?

Okay. That’s not bad.

But what if people could also request free legal advice on branding and trade marks as well and request a fee quote for the registration of their chosen mark at the same time?

Better.

What about logos, graphics and designs? Could people take a quick snap of the logo or graphic with the iPhone camera and upload it from the app into our CRM database for immediate legal evaluation? ……er, yes….

So I think this is the most important part of the process.

Get excited. Ask yourself what would be the best thing you could possibly create…and then keep adding stuff.

Be demanding of yourself …and keep demanding.

Keep on asking yourself …. ‘Why not?’ …and ‘What if?’

So could we have improved on the first version of the app that we submitted to Apple?

Yes, we most definitely could. In fact, it was the initial and disappointing rebuff from Apple (more below) that drove us on to produce what we now think is a really fantastic application.

We hope that you will agree.

Lesson 2: Choose a good, professional iPhone App developer

Come on, guys! …We are lawyers, not tekkies!

Don’t skimp on the choice of a good developer.

Don’t just settle for the cheapest offer on eLance from Timbuktoo.

It makes much more sense, in my opinion, to pay the premium for having a good local developer who you can brief face-to-face and who is reasonably near to home when a few home-truths need to be shared. They will have a better understanding of your business and what you are trying to do if you can discuss the project with them across a table and they will probably come up with a much better look-and-feel for the new application as a result.

Include them in the conversation right from the beginning. What seems impossible and expensive to a work-a-day lawyer suddenly appears to be do-able.

I can whole-heartedly recommend my friends Ankush and Jason at PolydiamInfosoft. They are extremely dedicated and client-centric folk and showed great patience and fortitude in bringing this new app into being.

Great guys.

Lesson 3: (the big one) Never Give Up.

My Twitter friends know that this is a recurring Churchillian theme of mine and will forgive me. But there will be bumps in the road in any project. Sometimes they are big bumps that throw you off the road completely. We ended up in the proverbial ditch in March on this one:

The gestation period of this app has been 6 long months rather than the intended 2 months. The idea was conceived early one morning in December 2009, whilst shaving. I get a lot of good ideas whilst shaving. Developers were appointed and briefed in late December and we anticipated a launch in February. In fact, it was March 2010 before we were first in a position to submit the fledgling app to Apple Inc for assessment for inclusion in the AppStore.

Now, Apple Inc became very skittish in March 2010 for some unknown reason and suddenly started rejecting perfectly good applications on the flimsiest of pretexts, at least this is what I have managed to glean from various sources.

In short, our application was rejected because it, and I quote, ‘did not make full use of the available iPhone functionality’.

Well, stuff you, Duckie!

We found ourselves in the proverbial ditch.

So we went back to the drawing board with our developers, who were as frustrated as were we, and we started to build an even better application.

We incorporated the full text of the UK Trade Marks Act 1994.

We built in an RSS blog feed so that we could now offer bloggers on branding and design a further outlet for their blog-posts. We included a Twitterfeed.

We refined the back-end CRM databases to enable us to communicate with our enquirers by email and by SMS.

We upgraded the graphics and revisited the screen designs and the copy.

We resubmitted on June 9th and were notified of the inclusion of Namesearch TM Legal in the AppStore on June 15th….and great was the celebration.

In its first 3 days, and without any advertising apart from a few tentative tweets on Twitter, we have scored 164 downloads of our new application worldwide.

Interestingly, many of the initial enquiries are from Canada and the US so we will immediately be setting up a  referral conduit to our trade mark affiliates in those countries to handle those enquiries effectively.

NB: Don’t Miss Your Blog Opportunity

We are also looking for relevant blogs on marketing, branding and design to include in the application’s RSS feed so if you would like your blog included please do get in touch with me as soon as possible and we can help get you an increasing, targetted readership for all of your blog-posts.

Just email me at cjs@silvermansherliker.co.uk. We can include your blog in the Namesearch application within a few seconds and would be delighted to extend this courtesy to you. Don’t be shy!

May all your ideas be big ones.

I look forward to meeting you in the ditch.

Chris Sherliker

@London_Law_Firm
cjs@silvermansherliker.co.uk
Tel:  +44  (0)20 7749 2700

Silverman Sherliker LLP, 7 Bath Place, London EC2A 3DR

Yesterday, I was taken by the notion that I should acknowledge my 9000th Twitter follower with a blog-post, whoever he or she …or it …may be.

Serendipitous? Risky? ….Well, yes. After all, it may be a nutter or a liberal, a poker or golf freak or indeed a twitterbot. In all probability it would be.

Nevertheless, the die was cast. The rule was set.

I resolved to blog on follower 9000 whoever he, she or it turned out to be. No tricks. No poetic licence.

It was to be a gesture intended as a thankful celebration of the glorious and provoking arbitrariness of the Twitterverse.

The spotlight duly came to rest on @backstopp, of whom more later.

It could have been anybody.

In fact, it very narrowly missed being @GeneHunt of Ashes to Ashes fame  

(…”Now, that would have been one bastard of a blog-post – Eh! Bolly Knickers?”)

It would not have mattered who it was.

This is not to demean my blog guest, @backstopp. Heaven forfend!

It is simply to acknowledge that, in the Twitterverse, there is a law at play that seems to tolerate the most arbitrary of casual connections without impairing its own inexorable and constructive purpose.

It takes a while to realise that this is going on, but I can attest that it is so.

Indeed, if I was to be deliberately provocative I would say it really doesn’t matter what you tweet about, or with whom, you will soon be left ‘bouche be(acute)e’ by the network of coincidences and connections that will arise and be offered to you as if by some unseen hand. You cannot avoid them. That is why I am equally happy to engage in mad twitter burlesque or host virtual Twitter parties as I am to discuss serious matters legal. I have recognised that there is a law of synchronicity at play….and it is playful, but I believe the Universe as a whole is essentially playful so that does not surprise me much.

And before I am inundated by a deluge of  ’Law of Attraction’ tweets from the States, I would point out that it was Carl Gustav Jung who, in 1920, first coined the term ’synchronicity’ to explain the frequent occurrences of ‘meaningful coincidence’ that he attributed to ‘an acausal connecting principle’.

Jung would have loved Twitter. 

He tells the story of a woman who was recounting to him her dream involving a golden scarab when there was a repeated tapping on his study window that turned out to be a large and very rare scarab beetle that was clearly intent on entering the room. Spooky.

Then there is the case of the French Romantic, Emile Deschamps, who claimed in his memoirs in 1805 that he was once treated to some plum pudding by a stranger, one Monsieur Fontibu. A decade later, Deschamps ordered the plum pudding in a Parisienne restaurant to be told that the last portion had just been served to another customer who turned out to be the same M. Fontgibu. Many years later, Deschamps was served plum pudding and related the previous coincidence, adding that all that was needed now was for Monsieur Fontgibu to appear. At that moment, the elderly Fontgibu entered the room.

This kind of thing happens all the time on Twitter, of course.

It is a truly synchronous playground where, so often, so tirelessly and so appropriately, amazing and potent coincidences are conjured up by the creative principle, seemingly out of the very primeval twitter-froth itself. 

You can go hunting for these connections. The point is that you do not need to. Jump into the twitterstream; let go; have faith and see where it takes you. That is all.

So what of @backstopp?

Well, they have a stupendous technology that every company or organisation whose staff use lap-tops and other mobile data devices should definitely know about. Did you know that over 10,000 lap-tops are left in London taxis every year? If that happened to you, all of your personal data, passcodes, files would suddenly be out there for anyone to exploit. Backstopp by Virtuity enables organisations and individuals to perform a remote deletion of data files on any lost or stolen PC, Laptop, PDA or Mobile phone utilising either the GSM (mobile) network, Internet or RFID. As soon as you realise your device is lost or stolen simply login to the BackStopp web console to securely delete all data on the device using US Department of Defence standards. Once your data is secured a detailed report will show what data was destroyed, the device’s last known location and even a photo of the culprit.
 
How good is that!

The coincidence is that I was talking about this very technology just a short while back with another good twitter friend of mine Mike Briercliffe ( @mikejulietbravo).

Well, I say it is a coincidence…but on Twitter there is really no such thing.

Anyone fancy a party?

 HR Expert, David Thompson, has joined Silverman Sherliker to head up Silverman Sherliker Specialist HR Services, a dedicated HR Specialist service

The service will provide front-line HR advice and resources to complement the legal services offered by the firm’s extremely busy employment team.  
 

Innovative Client Benefit

Senior Employment Partner, Nicholas Lakeland, explains how this innovative step will benefit clients:

“Silverman Sherliker can now provide an integrated and complete HR Service thus assisting clients with practical advice and on site assistance whilst also being able to offer Employment Law advice as and when required. Our HR consultants are available to undertake regular weekly or monthly first-line human resources support on a retained basis or to deal with on one-off projects as may be required.    The services are flexible and can readily be tailored tosuit a client’s requirements.”

A Wealth of Experience

During his 23 years HR career with Barclays Bank, Dave Thompson has acquired a wealth of hands-on HR experience in successfully dealing with contentious and non-contentious HR-related issues.  Dave progressed through the branch network to Operations Management where he quickly gained a reputation as an effective troubleshooter, turning negative situations around through a combination of re-motivating employees and bringing good disciplines to the workplace. From the London Regional HR team, he progressed to Employee Relations Manager in Barclays’ Head Office and also spent two years as a Project Manager for Employee Development and was responsible for implementing Recruitment & Assessment Centres. 

Dave explains the service that he now heads up at Silverman Sherliker Specialist HR Services :

“I am excited to be offering a seamless professional service to businesses of all sizes, backed by Silverman Sherliker’s legal expertise.  We offer a standard HR package to small, medium and larger employers.  Our range of services includes:
 
·        Absence Management
·        Guidance on issues involving incoming employment legislation
·        Assessment & Development Centres 
·        Avoiding Employment Tribunal Claims 
·        Disciplinary & Grievance procedures
·        Employee Attitude Surveys & Employee Relations
·        Managing line managers and personnel to improve attendance
·        Organisational, Employee and Management Development 
·        Record Keeping/Monitoring
·        Psychometric testing, CV and  reference verification  
·        Restructuring and Redundancy
·        Salary Reviews
·        Terms & Conditions of Employment
·        Training Team Leaders on employment related issues.”
 
For further information please contact Dave Thompson on dt@s2hr.co.uk  or Nicholas Lakeland on ncjl@s2hr.co.uk  or call +44 (0)20 7749 2700

A question for you:

“Would you sell your right to vote for £750?’

No? I thought not.

Nor would I.

Nor, I suspect would the thousands of British voters who, on Thursday night, had the doors to the Polling Stations slammed in their faces up and down the country, after using best efforts, for most of the day, to exercise their constitutional right to vote.

Their extreme outrage and noble indignation was piteous to behold.

It seems fairly clear that these unfortunate Britons, disenfanchised by administrative incompetence, in more than 14 constituencies and in 8 major cities including, London, Sheffield and Birmingham, do have a legal right to claim compensation.

Article 3 of the First Protocol to the European Convention on Human Rights records the individual’s right to participate in fair and free elections ‘under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature’.

That would at least seem to presuppose that you get let into the Polling Station before closing time and handed a ballot paper.

This principle is enshrined as a ‘Convention right’ by section 1 of the Human Rights Act 1998 , section 6 of which provides that ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right’.

An electoral law that dictates that people can only vote at a single location, and only before 10pm, presupposes that the public authorities whose job it is to ensure the system works will provide enough staff and resources to ensure that all who wish to vote can do so. If, as on this occasion, they fail so miserably to do so, they are liable for infringing the ‘Convention right’ of thousands of would-be voters who, in spite of their best efforts, were unable to vote.

So far, so good.

The question is what level of compensation would it be proper and appropriate to award to those voters for the flagrant breach of their rights that they have thus suffered?

It would have been interesting, if not instructive, to put this question to the drenched and serried ranks of anguished voters whose right to exercise their vote on Thursday was so effectively thwarted by grievous maladministration

…I doubt that ‘up to £750′ would have been a typical answer!

(Incidentally, the annual budget of the Electoral Commission is about £25 million. What do you think they spend it on?).

Eminent, if informal, legal opinion (eg Geoffrey Robertson QC, Lord Pannick), has apparently, upon journalistic enquiry, put it variously at ‘up to £750′ or ‘at least £750′.

Surely, the loss of the right to vote is worth more than that, if it is worth anything?

The opportunity to vote, once stolen, is irretrievable. Surely, one’s vote is priceless.

People have died for the right to vote. People still are dying in Iraq.

That a British voter should be prevented from voting in any election is unacceptable. That it should happen in 2010 during the most momentous election in living memory, in a country described by John Bright, in 1865, as ‘the Mother of Parliaments’, and at a time when the British military is fighting in Afghanistan and Iraq to uphold the principle of democratic rule, is a bitter irony of the kind to which it seems Britain has now become almost impervious.

The impromptu witterings of the Returning Officers button-holed for ‘News and Ten’ and the embarrassed excuses of the Electoral Commission only served to intensify the outrage.

If these voters decide to pursue claims for compensation, as surely they must, the question ‘what price the vote?’ will soon fall to be judicially decided.

I, for one, hope that the judges will err on the side of outrageous and punitive generosity. Perhaps in this way the message that certain things like the right to vote are sacrosanct will be clearly heard, as will the message that a half-hearted and complacent approach to discharging one’s public duty is no longer acceptable and, anyway, does not pay.

Section 8 of the Human Rights Act 1998 provides that compensation for breach of a Convention right should be decided using the approach established by Article 41 of the Convention itself, namely the principle of ‘just satisfaction’.

The problem is that the European Court of Human Rights is surprising mean in awarding damages for ‘non-pecuniary’ loss such as the mental anguish suffered by those voters who were so rudely disenfranchised last Thursday.

In its Practice Direction it declares that assessing  ’non-pecuniary damages’ for ‘non-material harm’ does not lend itself to precise calculation.

However, it does go on to invite applicants who wish to be compensated for non-pecuniary damage ‘to specify a sum which in their view would be equitable’.

Okay. Right.

I have to say that if, on Election Day, I had tried, throughout the day, to cast my vote and had thereafter joined the queue at 7pm and queued in the pouring rain for a further 3 hours only to have the Polling Station doors slammed in my face at 10pm, or told that I could not vote becuase they had run out of ballot papers, I would not be thinking in terms of £750. More like £750,000!

If any court had the gall to award ‘up to £750′ I would be filing appeal papers with the European Court that same hour.

For shame, England! For shame!

Volcano alert!

All hands to the pump!

etc, etc ……but can travel businesses suddenly ask their staff to work around the clock to cope with the huge upsurge in business?

As the ash clouds from the Icelandic volcano slowly disperse, the rail, road and sea ferry industries have been working at full steam (pun intended) to take advantage of the extra business. This means that employees are suddenly being asked to work greatly extended hours with inevitable legal implications under current employment law.

If employees are asked to work in excess of their contracted hours, they can simply refuse to do so, and their employer can’t do much about it. Changing contract terms without employee consent could entitle employees to resign and claim constructive unfair dismissal or wrongful dismissal for breach of contract.

Offering impromptu financial incentives, such as overtime and bonus payments, is the immediate and obvious practical way to get employee ‘buy-in’ to consent to the increased working hours. However, with some forward planning, it is possible for employers to include contractual provisions to cover a sudden, unexpected requirement for extra work in the future.

For employees who are asked to work more than the average 48-hour week and who have not already opted out of the Working Time Regulations, employers must keep careful records to be able to calculate just how may hours are being worked. As the average for the Working Time Regulations is calculated over a 17-week period (and can be argued to be over a 26 week period in this special situation), employers are unlikely to be caught for claims on account of breaching the Regulations by the current volcano situation but may still be required to produce their records in such circumstances.

Again, forward planning may include asking employees to opt out of the Regulations at some point in the future but they cannot be obliged to do so.

Employers must also be mindful of Health and Safety implications for over-worked employees and must ensure that, regardless of the over-time worked, employees are afforded all statutory rest breaks including the minimum provided in their existing contract of employment which, for most employees, must not be less than 20 minutes rest every 6 hours, 11 hours rest in every 24 hour period, and either 24 hours rest each week or 48 hours rest each fortnight. As breaches of health and safety laws can result in personal criminal liability for employers it is vital that, despite the extra hours required, employee’s health and safety is never put at risk.

What about the legal position of employers whose staff are stuck sunning themselves in the Canaries and are unable to get to work?

Employers who deduct pay or insist the time is taken as extra holiday, may receive claims for unlawful deductions from wages.

Employers must try to avoid using their discretion or making decisions on a case-by-case basis as claims may arise for indirect discrimination if decisions are arbitrary or applied inconsistently.

Employers therefore should ensure that they use reasonable and clear communication with those employees burning the midnight oil and those in far off lands buying extra tanning oil.

It may be a good time to consider updating employment contracts generally, to have provisions in place for such situations, not least because the unpronounceable Icelandic volcano isn’t finished yet ….. but then we would say that wouldn’t we.

by Victoria Russell, Employment Law Solicitor

Last week, the staff at Blackminster School, Evesham contrived to stage an impromptu hoax killing in a playground full of 10 to 13 year olds.

For some unfathomable reason they thought it would be a formative experience for them.

Without any warning, the poor lambs were obliged to witness a hooded figure run up to Mr Kent, their beloved religious knowledge teacher and gun him down in cold blood before running off.

Mr Kent apparently met his maker most convincingly.

The terror-stricken children, were then led off , crying, vomiting and right royally traumatised, into the classrooms and, thereafter, were herded into the assembly hall where, after an unconscionable delay of about a quarter of an hour or so, they were told it had all been a hoax.

So that’s alright then, is it?

Er…no actually.

In a British playground, where it is now forbidden to play conkers, throw snowballs, eat sweets, climb trees or even to run, it’s apparently quite OK for the teachers to stage horrific murders in front of the children without warning.

How infuriatingly and pathetically ironic;  but also how unforgivably arrogant of the Blackminster staff to think that such a ghoulish act could in any circumstances be thought educational or anything other than severely harmful to the children.  Apparently, the idea was to create a Crime Scene Investigation to spice up the science lesson. Ha!

Will they just get on with teaching our children how to count, read, write and string a sentence together and leave off trying to turn them into pre-pubescent forensic investigators?

For pity’s sake!

The following blog comment set my lawyer’s mind working:

In the US you would not be able to see the school gates for ambulance-chasing lawyers.  I would hazard that the damages awarded against the school by a US jury would stretch to seven figures.

So what is the legal position in the UK?

Can these teachers be successfully sued for such outrageous behaviour?

One thing is for sure, if the boot was on the other foot and it was the children that had staged a mock massacre of the innocents for laughs, they would be suspended and probably expelled.

So…what about the teachers?

English Law, as is so often the case, is not entirely clear on whether or not an intentional hoax that causes panic, trauma and nervous shock of the kind that every child in the Blackminster School playground must have suffered by the deliberate act of their teachers, is actionable, but I suspect that I voice the opinion of many when I say it damn well ought to be.

It is high time to revive an old authority in the form of Wilkinson –v- Downton [1897] 2 QB 57 and bring it back into service especially to deal with cases like the Blackminster case where the hoax in question is perpetrated in the context of the special relationship of trust that exists, or should exist, between teacher and pupil, or any other special relationship of trust for that matter.

Wilkinson –v- Downton  was a case involving a hoax or practical joke of  similar ilk, although nowhere near as gruesome as that practised upon to the poor childer of Blackminster School. The defendant was successfully sued in damages for causing nervous shock and trauma to the landlady of The Albion Public-house by telling her that her dear husband had been severely injured in a riding accident. It was not true but he thought it was a bit of a laugh. She was so traumatised that her hair turned white and fell out, apparently. The perpetrator had to cough up damages of £100 which was a tidy sum in those days.

This early case established that the legal tort of intentionally causing emotional harm to another person was actionable before the English courts. The court deliberately fudged the question of intention saying that intention could be imputed to the defendant if a reasonable person would have recognised that the hoax would cause severe trauma to the plaintiff.

So we are already up and running in our claim against Blackminster then.

It is pretty clear that the staff of Blackminster School intended the hoax killing to be witnessed by the children and to produce some kind of emotional effect upon them. Even if the staff were so emotionally-challenged themselves as not to recognise the effect that the gruesome subterfuge would have on the children (which alarmingly seems to be the case), no reasonable person would conclude that the effect of staging a cold-blooded killing in a school playground by the very people who stood ‘in loco parentis’ could do anything other than to cause severe nervous shock and mental distress to the children.

The problem is that the legal tort of intentionally or recklessly  causing emotional harm to another person has rather been over-reached by the broader law of negligence and, the courts have, as a matter of public policy, deliberately sought to limit the principle that anyone who causes nervous shock or severe trauma to another person is liable to be sued in damages. The argument seems to run that it is commonplace for pranks to be played, or words to be used, with the deliberate intention of causing humiliation or some kind of shock and the law should not award damages as a matter of course in such cases.

Well OK, but it is rather a matter of degree, isn’t it?

Surely, there is a distinction to be drawn between telling a workmate that his fly his undone and then flicking his nose when he looks to see, and a hoax murder in cold blood of a teacher followed by  make-believe and unsuccessful CPR by teachers in front of their pupils without any prior warning or explanation.

By staging the murder hoax, it would appear that the staff of Blackminster behaved negligently and in breach of the high standard of care that any teacher owes a pupil. The question is whether the law, in its current unsatisfactory state, would uphold a claim in damages for the nervous distress thereby caused.

The children would have more of a chance if they suffered, or go on to suffer, recognisable psychiatric illness as a result of the shock that they endured, although, of course, no-one would wish this upon any of them.

What the law regards as ‘psychiatric illness’ is again open to debate. It would probably include severe post-traumatic stress disorder, anxiety disorder and other severe psychological condition caused by the shock. It may well not include simple nervous shock and its immediate, but temporary, symptoms.

Shame.

An action in negligence against the school would also require the various ‘proximity tests’ to be satisfied. These are the somewhat arbitrary limitations that the courts have used to prevent a proliferation of ‘anxiety claims’. For instance, the law requires that there should be a ‘special tie of love or affection’ between the personal suffering the accident and the witness claiming nervous shock as a result. It may be doubted whether the teacher-pupil relationship would satisfy that test, especially in this particular school.

However, I would argue that the children in this case were not witnesses but principal victims of the hoax that was perpetrated against them so that the proximity tests should not apply.

Sometimes, old law is good law.

I would like to see a class action brought against the school based on Wilkinson –v- Downton (discussed at length with other relevant case law by the House of Lords in the Wainwright case [2003]) on the basis that real nervous shock and psychological distress (though short of psychiatric illness) suffered by the victims of a deliberate hoax, where the perpetrator intends to shock, or is reckless as to whether shock is caused, and where the perpetrator is in a special position of trust such as  a teacher, should be compensated by the payment of substantial damages.

This would teach the blighters a lesson since they seem incapable of teaching a decent lesson themselves.

Quis cusodiet ipsos custodes?

Only the courts, I fear.

Welcome to the Blawg Review #243 from a sunny, snow-covered London.

Fighting Back: A Festive Meditation for Lawyers

The Physical Unverse tends towards chaos and dissolution …the Moral Universe towards injustice and despair ….the Legal Universe, for surely such a dimension does exist, towards obfuscation, misdirection and delay.

But there is a contrary principle.

…the Light shines in the darkness and the darkness comprehends it not.

So let us declare this contrary principle that it may burn ever brighter and more unquenchable in the minds and hearts of all who practise the Law. 

Let us, as lawyers, on the eve of the proximate festivities, at the threshold of another year, and as the destructive tide of the 2009 Recession begins to turn, celebrate and magnify all those amongst our number who, in the practice and profession of The Law,  ….FIGHT BACK! 

For should not the steely and dogged courage and determination to fight back, often in the face of overwhelming odds, often in total default of resource and often when the very capacity to fight has itself been exhausted, be the distinguishing hallmark of our profession?

The case is bad. The facts are poor. The evidence is not there. It seems a forlorn endeavour. It seems a hopeless cause.

No matter. We will fight. We will fight back. We are fighters to the core. We have no choice. We must oppose to overcome. We will keep alive the intermittment spark of hope. Whatever the cost. However long and hard the fight may be.

As @London_Law_Firm, I am known to figure the epigrammatic inspiration of Winston Churchill in my sporadic tweetings. I make no apology for this.

That I am a Scholar of Churchill College, Cambridge University, is irrelevant. That I live a few minutes drive from the Churchill family retreat at Chartwell in Kent is purely incidental.

I would tweet Churchill anyway …because he fought back. Big Time.

He fought back when all hope was already extinct; when the British Parliament had already been bombed to rubble; when defeat and death had already taken up residence in men’s hearts; when there was no rational basis upon which the fight should continue.

When he was an old man ….still he fought back.

The legal blogosphere fairly rings with fighting spirit this week.

Ilya Shapiro, illustrious and ambitious champion of Individual Liberty, Free Markets and Peace, fights back this week against the constitutional dangers of vague laws arguing nobly and persuasively in the context of a Supreme Court review of ‘honest services fraud’ charges against Enron CEO, Jeffrey Skilling, that due process requirements of fair warning and definiteness apply equally in the contexts of white collar business crimes, business torts, and civil regulations. Tim Lynch also takes up the legal cudgels against the dangerous trend of overcriminalization in US federal law. Keep fighting, brothers.

John A Flood fights back characteristically with humour against the fact that all UK lawyers will soon be required by the Legal Services Act 2007 to be Superman (”Here’s my card, sweetie. I also happen to do a bit of lawyering on the side”). Now, in very truth, all UK lawyers must fight like super-heroes as the UK market for legal services undergoes virtually total deregulation. We say, ‘Bring it on’!

For another great example of a lawyer who is fighting back heroically against the devastating forces of natural disaster and political conflict, look no further than my twitterfriend, Thomas P Valenti, Member of the Board of Mediators Beyond Borders, fighting back undaunted against the consequences of Hurricane Katrina, Climate Change and the political tensions in the Middle East. Thomas it is a privilege to know you.

Brian Inkster is another lawyer who is fighting back, in true Churchillian spirit, this time against homelessness in Argentina….and not just by raising a phenomenal amount of money for the Habitat For Humanity cause. He actually carved time out from his busy and successful law practice in Scotland to go to Argentina himself and get building with his own bare hands, complete with hard hat and impressive boots that he broke in by wearing them to the office before he went. You can read the whole story of the fight from the links on yesterday’s Argentina compendium blog-post. To The Noble Inkster (aka ‘Lord of the Dance’), we say …..

…keep on dancing, brother!

No legal blog on the subject of ‘fighting back’ could hope to be complete without inclusion of the UK Legal Blogmeister himself, CharonQC who copiously and continuosly wrestles with all manner of subjects, some of whom are known to be perfectly law-abiding citizens. Most recently, he continues his trenchant commentary on ‘Trafigura‘ who have, ironically, extracted £25,000 from the BBC, for apparently straying wide of the mark on the subject of causation, a topic generally best left to lawyers. His most excellent podcast on Trafigura filled an otherwise futile 20 minute wait at the Bluewater checkouts recently whilst my eldest son attempted the purchase of exactly the right  kind of hot water bottle. 

Charon has recently taken up the fight against the pretentiousness of the contemporary art scene…a battle from which he has alreay emerged the victor with his revolutionary new concept, F**Kart ……Another Rioja? ….A la tienne!

‘Snow White Snorts Snow’ – Charondigliani

From the sublime to the subject of re-insurance and a particularly interesting blog by Philip J Loree Jr of Loree & Loree who is fighting back to ensure that the limits of arbitral power are kept within proper bounds. Fight on, brother.

Fighting back with both tactics and strategy is that mighty martial foe and quick-witted twitterer The Trial Warrior whose highlighting this week of some state-of-the-art (of War) thinking on forum and jurisdictional issues typifies his declared belief that: “Strategy without tactics is the slowest route to victory. Tactics without strategy is the noise before defeat.” (Sun Tzu). Antonin I Pribetic has turned ‘fighting back’ into a noble art form of which he himself is a supreme embodiment. Fight on, oh quick-witted One!

The Efficiency Coach fights back this week against poor delegation skills in law firms . Quite right, Heather. Quite right! Fight on!

Fighting back is a mind-set whether you are One Minute Lawyer fighting back against the routine shackling of young offenders, Criminal Defense Lawyer fighting the 14,000 illegal US consumer scams or Lemon Law Court fighting against, well ….lemons.

Maternal generosity does not normally provoke a major legal battle unless, of course, the mother is, Liliane Bettencourt, heiress to the L’Oreal fortune and one of the richest woman in the world and the generosity involves gifts totalling over a billion dollars. Andrew Mayoras in The Probate Lawyer Blog records the permission granted to Bettencourt’s daughter by a French Court to press criminal charges against the recipient of such lavish generosity and also to subject her mother to a medical examination on the assumption, presumably, that she must be deranged. It will be interesting to see how effectively the donor fights back in defence of her generosity. Nowhere is the ability to get up and fight back more necessary than in the growing field of UK contested probate work.

Illinois law firm, Levin & Perconti record the legal fight of Linda Kaiser that resulted in the product recall of 50 million roller blinds and window shades after the tragic death by strangulation of her baby daughter in 2002. She thought it was just an accident until she discovered many similar tragedies. She could not but fight back and she did.

The recent fight back in Brent, North London by a Jewish family against the attempt by the Jewish Free School  to exclude their 12 year old son on the grounds that his mother had converted to the Jewish faith at a ceremony conducted at a progressive synagogue is highlighted by Law Less Ordinary along with the Supreme Court’s exhortation that all UK faith schools must now operate strictly non-discriminatory policies.

Some fights are eternal.This week @Clarinette02 fights back against Google’s apparently increasing disregard for the principle of personal privacy. With tenacity and gentle irony, she debunks the arrogance of the “If you have nothing to hide, you have nothing to fear” argument. We don’t have doors and curtains to preserve our shame, but to retain some vestige of privacy. Google’s pre-eminent position as garnerer of our virtual lives is ever open to hackers, over-zealous government investigators and simple accident whatever the policy of Google may be…and that policy seems to remain frighteningly ambiguous. (..Have you found this blog yet, Googlebot?). Fight on, Tara, fight on!

This week, The AM LAW Daily fights back against a seasonal menace. A flying champagne cork travels at 60 mph. Tipsy lawyers are unlikely to blink in time. Here you will find advice about how to defeat Seasonal Champagne Cork Blues.

Neil Worral, guest blogging this week on The Barrister Blog fights back against the ‘conkers-in-goggles’ ‘elf ‘n safety gorn mad brigade. On balance, he says, over-regulation in the filed of health and safety is not prevalent.

Jonathan Mitchell QC fights back against holiday boredom with a 12 question legal quizz (Question 12: Which court sustained the refusal of a bank to replace a banknote allegedly eaten by the claimant’s cat?). There is a bottle of claret in it for the winner but wrap up warm ….because it is snowing on this site.

@ABeautifulMind1 is not just a beautiful mind. Although not yet sporting a blog (it will be a good read when she does!), she deserves a very special mention as a lawyer who has been fighting back in difficult circumstances and with admirable tenacity against a major UK bank. The bank will lose, of course. Her tenacity has recently yielded good news indeed. Follow her and learn.

Stephanie West Allen (Idealawg) is fighting back this week against the lack of creativity amongst lawyers. For reasons that we must presume are purely professional, she wants us all to dress up as fire-fighters. Result! Now our clients will be able to swoon when they first meet us and not wait until they get the bill. The idea is clearly catching on in London where I have just today seen a fire engine being driven by a team of perruqu’d barristers who are obviously celebrating creatively at the news that they can now be marked up and charged out at a profit and even take their own court bookings online.

Rees Morrison fights back this week against too much information-gathering and not enough intuitive thinking in law departments. This must be right, I feel.

Sam Hasler fights back against the incipient danger of The Stray Text Message.

China Law Blog fights back against ineffective food safety regulations in China in spite of a new Food Safety Commission and Richard Goldfarb on Food Liability Blog fights back against ‘bagel-related injuries’ and, the more prevalent, ‘chicken-related injuries’.

So should we celebrate all lawyers who fight back, in matters great and small, personal and professional. It is an art. We should cherish it.

We live in a strange Universe where lawyers can fight and beat dentists, funeral directors and, surprisingly, catwalk models.

Lawyers are marginal victors over a wet Sunday in London but in the perennial fight between lawyers and a night in with a good book, the solitary night in with a good book wins the contest convincingly.

We should not be too upset about this.

In a world defined by conflict and struggle, we must choose our battles well.

May God bless and sustain all those who fight back, on every level, and in every walk of life, against confusion, evil, injustice, lack, stupidity, oppression and the arbitrary exercise of power and let us, as 2009 draws to a close, recognise and celebrate our own role in that struggle.

Lawyers who fight back will triumph over oppression and injustice. Let us be in no doubt about this.

May I take this opportunity to wish you a peaceful and joy-filled winter respite and a prosperous and sucessful 2010.

Thank you for allowing me to host this Blawg Review.

Blawgreview has information about next week’s host and instructions how to get your blawg posts reviewed in upcoming issues.

Author: Chris Sherliker

Adrian Dayton’s timely book on Twitter for the Legal Profession:   Social Media for Lawyers: Twitter Edition  is a ‘must-read’ for all law  firms.

Indeed, it should be studied avidly, not only by lawyers, but also by any professional service firm that wants to grow its business fast using Web 2.0 techniques.

As a successful New York attorney turned social media guru, Dayton deals with his subject comprehensively and with an easy authority.

He begins by dismissing, with an unanswerable charm, the main excuses that the legal profession commonly gives for avoiding Twitter. Indeed, in a world where the High Court in London has recently authorised the service of formal legal proceedings by Twitter, it is difficult to understand how anyone can now fail to see the relevance of Twitter to the legal profession.

The author goes on to explain, with a kindly guiding light, how to set yourself up on Twitter, how to find people to follow and how to establish your own following. More importantly, the book bursts with practical advice and tips on lead generation and marketing and the secrets of how to turn tweeps …into clients.

The depth and power of Twitter is not immediately apparent to new tweeters. Many people just do not ‘get it’ at all. This book gives you the do’s and don’t’s upfront and shares the inside secrets that will save you weeks of trial and error.

It is both an honour and a pleasure for me to endorse this book in the week when my own firm’s Twitter following has surpassed 5000. It is also an act of great selflessness on my part that I may live to regret. In the vernacular of the Twitterstream:

@London_Law_Firm: MEMO TO UK LAWYERS. Follow @adriandayton. He rocks. His book is a gem, a veritable Twitter-piece of Web 2.0 wisdom. Read and learn.

Picture the Scene

Our defendant clients had been involved in long-running proceedings involving complex copyright issues.  There were 10 parties involved in the proceedings some with cross claims against each other.

The legal issues were numerous and complex and the contentions that would have to be determined in court included: Who was the true copyright owner? Had there been joint authorship? Had there been copying? If so, what was the precise extent of the copying? Was similar ‘look and feel’ enough to establish copying? To what extent did the judgment in Navitaire Inc –v- Easyjet (No3) 1725 (Ch) (2005) ECC30 impact on the issues? The question of the personal liability of directors for any infringements by their companies would also have to be adjudicated as well as some very opaque issues of fact.

The parties had been in battle for 5 years and the proceedings on going for approximately 18 months. The proceedings had reached a critical point and it was expected that in 12 to 18 months time there would be a 10 to 15 day trial.

The High Court granted a stay of proceedings to permit the parties to try to resolve their differences by mediation.

The Outcome

At the outset, the Mediator (himself a highly-respected copyright barrister) commented that it was impossible to predict the outcome if the case went to trial as there were at least 64 possible permutations.

It was a long and difficult mediation lasting 15 hours and at which, it can be reliably said, the parties aired their views, and it in the end it produced a resolution that all of the parties could live with.

Had the matter gone to trial, there would probably have been a judgment in favour of some and against others, but it is unlikely that there would have been any clear outright winners.

A little bit of “thinking out of the box” at the mediation meant that the solutions adopted by the parties resulted in a settlement agreement that gave something to everyone. Most importantly from our clients’ point of view, there was no longer a threat of an injunction that might have constrained their business and overall the parties came out of the mediation with honours shared.

The estimated costs to the parties to take the proceedings from the point they were at to trial, £250,000 to £300,000. The cost of the mediation was somewhat less than one-tenth of this figure.

It was a “no brainer” as they say.

The Dispute Resolution Team:

John Abbott:   jca@silvermansherliker.co.uk    
Richard Pearlman: rhp@silvermansherliker.co.uk
James Robertson:  jvar@silvermansherliker.co.uk
Stefan Arestis:  sa@silvermansherliker.co.uk
Asil Albayaty  aa@silvermansherliker.co.uk

As I was dancing an idle fly across my corruscating Twitterstream a few days ago, I hooked a tweet from @idealawg on mindfulness for lawyers. It struck a chord. I RT’d it immediately with a deft roll-cast, thus:

The University of Miami Law School is teaching law students the art of mindfulness for lawyers  offering its students what it calls ‘a robust contemplative practices offering’ and, a few days ago, The Florida Bar News publicised a Mindfulness Program designed to help lawyers to ‘live in the moment’ on the thesis that contemplative practices for lawyers are key for the effective study and practice of the law.

The originator of this tweet, Stephanie West Allen, JD a US lawyer an advocate of the practice of mindfulness for lawyers, asserts that in the law, as in ‘any field in which it is important to understand, predict or influence human behaviour, neuroscience will play an increasing role’.

This should not be a surprise. The pressures of legal practice are huge and teaching lawyers to wake up and smell the coffee in terms of developing the necessary mental,emotional and psychic resources to succeed (indeed, to survive) appears to be becoming a burgeoning new industry in the US with progams such as The Mindful Lawyer and recent publications like The Six-minute Solution: A Mindfulness Primer for Lawyers(apparently sold out!). This development echoes, in the sphere of legal practice, the more populist philosophy of Eckhart Tolle in books like The Power of Now: A Guide to Spiritual Enlightenment and Practising the Power of Now.  I expect we will be seeing more of this kind of thing shortly in the UK. We certainly need it.

Mindfulness or an ability to concentrate is the single, most effective life-skill of any practising lawyer. However, the depth and quality of concentration demanded by modern-day legal practice goes far beyond the commonplace. It does, I think, demand a special kind of mental training.

Lawyers are required to define and re-define complex goals, both for themselves and for their clients; they must, steadfastly and continuously, avoid distraction in spite of a constant plethora of interruption; they must set and re-set work priorities, often on an hourly basis; they must, instantly and constantly, identify relevance and eschew irrelevance; they must be able, often and at short notice, to draw deep on their mental and emotional reserves. Legal practice in the 21st century requires a very high level of mental acuity indeed.

These abilities, referred to, in part,in the Mindfulness for Lawyers program as ‘Jurisight’ and verging on the Siddhis of occult Vedanta, are not the natural fruit of traditional legal training. Indeed, the development of these abilities demands incredible mental stamina, a high degree of emotional intelligence, acute insight bordering on the visionary and a depth of awareness that is characteristic rather of the Zen warrior, the religious ascetic or the contemplative devotee, than of the work-a-day, jobbing lawyer.

Whilst the lawyer coaching industry gathers pace, ultimately it falls to individual practitioners to equip themselves for the exigences of professional life. A good start is to become acquainted with techniques of basic time management as expounded in books by Mark Forster such as Get Everything Done and Still Have Time to Play and Do it Tomorrow and Other Secrets of Time Management and, if up for the elephantine battle that it entails, wrestling with some more esoteric works on developing the power of concentration such as Concentration and Concentration: A Guide to Mental Mastery by the Hindu acsetic, Mouni Sadhu. For de-stressing New York style Meditation in A New York Minute: Super Calm for the Super Busy.  And see Mindfulness Meditations for Management The Mindful Leader: Ten Principles for Bringing Out the Best in Ourselves and Others.

It is really not surprising that the profession should be turning to the annals of neuroscience and religious asceticism for urgent help, for urgent and inspired help is certainly needed.

Not for nothing is mindfulness and an ability to concentrate a corner-stone of personal and spiritual development in all the great religions. ‘If therefore thine eye be single, thy whole body shall be full of light,’ advocates the Apostle Matthew (Matt 6:11) and, in the Hindu epic, the Mahabharata, the warrior archer Arjuna is taught by his guru Dronacharya that, to hit the distant bird with his arrow, he must see, not the sky, not the tree, not the branch, not the bird, but only the minute scintilla of sunlight reflected in the black centre of the very eye of the bird.

Such is the degree of intensity of concentration demanded by modern legal practice and those who lack it simply flounder.

Finally, for those who do find it difficult to concentrate on one thing at a time - remember the Ancient Chinese Proverb:

 ’ If you chase two rabbits, both will escape’ …..or go hungry.

Not anymore. Yesterday, Sir Michael Burton made a ground-breaking ruling in the UK Employment Tribunal that the claimant’s “green beliefs” deserved as much protection in the workplace as that accorded to religious views. 

But when does a belief become ‘a philosophical belief’ of the kind that may give rise to a discrimination claim?

Nick Lakeland was interviewed live recently on Candian Radio(the Dave Rutherford Show) and you can hear the entire interview  here.

Tim Nicholson claimed that he was unfairly made redundant from his position as Head of Sustainability at Grainger (apparently the UK’s largest residential landlord) and that he was discriminated against because of his beliefs about man-made climate change.

There seems little doubt that Mr Nicholson’s views were strong and sincerely held. He had changed his own life-style to fit his “green beliefs” by no longer travelling by air and also by making his home eco-friendly. He had lodged complaints about his employer flying an employee to Ireland and back just to pick up his BlackBerry that he had forgotten on a business trip and claimed that the firm had failed to execute its documented Green policies. On this basis, he alleged that he had been discriminated against unfairly.

Sir Michael Burton ruled that: “If a person can establish he holds a philosophical belief based on science as opposed, for example, religion, then there is no reason to disqualify it from protection.”

He went on to say that, “a belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the Employment Equality(Religion or Belief) Regulations 2003.”

Throughout the case  Grainger maintained its position that Mr Nicholson was fired because of “operation needs during a period of extraordinary market turbulence.”

This ruling is bound to encourage many more discrimination claims by employees who feel that they have been treated unfairly because of their ‘philosophical beliefs’. 

What is next one might ask? Protection for vegetarians, re-cycling fanatics, social networkers, conspiracy theorists, flat-earthers…perhaps even Jedi knights?

There is no financial limit to a compensation claim for discrimination on grounds of philosophical beliefs….Employers be warned!

The Labour Government promised that the Licensing Act 2003 would foster a ‘continental-style’ cafe culture and bring an end to binge drinking.

Has it actually worked?

Er……not yet!

Police chiefs think that the changes have simply moved alcohol-related disorder into the early hours of the morning and have increased or, at least, failed to change, levels of drink-fuelled incidents.

Binge drinking has been part of the British ‘culture’ for centuries (as Chaucer’s images of drink and revelry in The Canterbury Tales clearly show and that’s not the earliest reference to binge drinking) but centuries old behaviour like this will take more than a few years to eradicate. It is simply too early for the Licensing Act to be shown to have worked (if you still believe that it is ever going to work) and it will take at least one generation to eradicate the social scourge of binge drinking from the life-style of the young and boisterous (not that it is restricted to the “young”).

David Cameron sets his sights on more short-term goals, namely dealing with the ever-pressing issue of drink-related crime. He has said that the Conservatives plan “serious changes” to the Licensing Act to tackle the problem of drink-related violence: “We need to look at the unbelievable availability of very cheap drink, getting 3 litres of cider for £1.99, at all hours of day and night. We’ve got to do something about this and I’m exploring what we can do to deal with the drink that is fuelling so much of the crime in our country.”

The Shadow Home Secretary, Chris Grayling, goes even further by saying that the licensing regime is a mess which the Tories would “tear up.” New measures would include giving councils the powers to restrict the opening hours of pubs, clubs and off-licences and impose much tougher penalties on pubs that break the rules ….which all sounds rather similar to Mr Brown’s new proposals on the licensing regime.

On 30th September 2009 Gordon Brown – who has never been entirely comfortable with parts of the Licensing Act 2003 introduced under Tony Blair (but has stopped short of overhauling it) – told delegates at the Labour Party Conference about his plans. These would see licensing authorities being able to suspend 24-hour licensing to restrict pubs and clubs that stay open around the clock, if they are believed to be responsible for anti-social behaviour in a part of the community.

These measures seem likely to have only a limited effect. For one thing, much of what Gordon Brown is trumpeting as ‘new reform’ are powers that are already available under the existing licensing laws. For another, there are only 700 hundred pubs, bars and nightclubs that can actually stay open 24 hours. Of those, few do. The council and the police already have a range of powers to deal with problematic venues, including closure orders and review procedures. The Policing and Crime Bill currently before Parliament will add to that by allowing licensing authorities to impose additional conditions on existing licences in a locality where there has been particular nuisance or disorder caused by binge drinkers in that locality. The Bill seeks to introduce a statutory Code of Practice on the supply of alcohol and allows the Secretary of State to prescribe mandatory conditions for all venues holding Premises Licences without exemptions.

Since 31 August 2009, ‘post-conviction’ Drinking Banning Orders were introduced. Police and Councils now have powers under the Violent Crime Reduction Act 2006 to apply to the courts on a civil basis for DBOs – dubbed ‘alcohol ASBOS’ – that prevent individuals from entering licensed premises if they have already exhibited “criminal or anti-social behaviour linked to consumption of alcohol.” The post-conviction DBO process will require both magistrates and county courts (in appropriate cases) to consider whether to impose a DBO, or to state why they have not done so. We may well be seeing lots of DBOs in the not too distant future.

Finally – how is all of this news being treated by the people at the sharp end, i.e. pubs and other businesses that will be affected by the changes?

In July 2009, pubs were already closing at the rate of 52 per week. Pubs and clubs will not take kindly to further restrictions on their opening hours and even greater control measures.

The smoking ban has already seen profits fall dramatically in the licensed sector and campaigners who want to lift or relax the smoking ban believe that, without a relaxation of smoking laws, hundreds more pubs and clubs may be forced to close due to lost trade from smokers.

Balancing the needs of the actual operators of pubs and clubs against the concerns for health, law and order is not easy, but it seems that the actual commercial effect of these changes on the licensed industry is the last thing on the mind of the Prime Minister or his Heir Apparent. .

One this is certain. The future of the Licensing Act 2003, introduced by the Labour Government, is uncertain and whichever party wins the next general election, it looks like we are set for major changes.

For more insights on the UK Licensing scene follow @Licentious_Law on Twitter.