Category Archives: Duties

Guest Post – John Sadler: What Can You Learn About Teamwork By Playing in a Band?

John Sadler - Teamwork PNG

As a (former, recovering, retired) musician, I relate to this post by my friend, John Sadler:

Playing music in a band is a team activity that can be complicated by the ego issues and creative preferences of the band members, as well as role ambiguity. Over many years of playing music with other people, I’ve learned some behaviors that help a group work well together musically, and others that can make it fall apart. Many of those lessons port nicely to other team activities.

The biggest element of success in a band is to show respect for your bandmates. Other necessary conditions include:

Show up, on time – Clarinetist (among other vocations) Woody Allen has been quoted as saying that “Eighty percent of success is showing up”. It’s important to be dependable and do what you say you’re going to do. It’s equally important to pick bandmates who do the same.

Come prepared and in tune – don’t waste your bandmates’ time by playing your part poorly or wrong if you could have practiced it beforehand. Similarly, nobody wants to stand around while you set up and tune your instrument. If you have a complex kit, show up early and be ready to go when everyone else is.

Listen to the band – not just yourself. A great bandmate is a great listener, and will adapt his or her performance to make the band sound as good as possible. There is a lot to this. When you accompany, your job is to make the soloist sound great. What you don’t play is at least as important as what you do play. Leave space! (AKA silence). Get used to hearing yourself in the context of the band to get a feel for the right volume level. If you’re accompanying a soloist or a singer, make sure you’re not too loud – you may even lower your volume so the featured performer stands out in the mix. What sounds like the right volume when you practice may be way too loud in the context of a band. When you solo, you need to be a bit louder; more importantly, others need to back off. If in doubt. record the performance and listen carefully.

No drunks, no jerks – it’s hard enough to make great music without impairing your ability to think and perform. Give yourself every chance to have sound judgement and the best possible control over your actions. Check your ego at the door as much as possible – there needs to be honest give and take to make great music. You may think that you are a creative genius, but the odds are against it. Few team efforts are improved by verbal abuse, ego games, or infliction of emotional distress. A great band can rise above the limitations of its individual members if everyone is working well together.

Take mistakes in stride – the audience notices how you react to mistakesmuch more than the mistakes themselves. It’s OK to make a mistake. It’s not OK to call attention to it while performing. If someone makes a mistake (and everyone will) during practice, keep playing and have a critique at the end of the song. Remember that you will make mistakes as well – treat people kindly. They’re supposed to be your friends.

Everyone should have a chance to contribute ideas to improve the sound and performance. Everyone should be able to try ideas, especially during practice, that might result in a better sound. So mistakes have to be OK in order to perform at the highest possible level.

Expecting mistakes to happen and handling them with grace is a huge life skill. As bassist Victor Wooten points out in his excellent book The Music Lesson, a “good” note is never more than one fret away. Did you know that you can practice recovering from mistakes, the same as an astronaut practices dealing with emergencies?

Discuss and align your goals together – this one issue is responsible for the demise of many bands. You and your bandmates must agree on goals, whatever they may be, in order to form a cohesive team. If one person needs income or commercial success while the rest want to jam on the porch on a Sunday afternoon, you have a problem. You must decide what kinds of music you will play, what the roles of the members are – to name a few:

  • Who selects the material?
  • Who is the band leader?
  • How many soloists or lead singers are there?
  • Who are the song writers?
  • Who buys the beer? (Just kidding)

Finally, a couple of ideas for performance:

Play it the way you practiced it – Conversely, if you practice poorly, you will perform poorly. Good practice skills are highly underrated! Here’s one pointer that is easy to miss and hard to learn, but works exceptionally well: go slow to go fast. Practice only as fast as you can play smoothly and without mistakes. Speed up the tempo gradually. If you practice too fast, you will be teaching your muscle memory to make mistakes, and you will never play your part well. This general principle applies to almost any physical activity.

By the way, most great soloists practice their solos. Really. They don’t just step up and fake it unless they have to. Yes, there are exceptions, but I’ll bet they worked very hard to become exceptions.

Don’t stop until the song is over – Starting and stopping together are the second steps to sounding like a band (the first step is to play the same song together in the same key and tempo). You need to agree as a band on how you will know the song and tempo, how it will start, and how you will know when to end it. These things do not happen by magic. They happen by agreement, by knowing the material cold, and possibly by years of playing together.

Those are a few lessons I’ve learned the hard way by playing bands since I was a kid. I think many port nicely to the workplace. What do you think?

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About the Author

Reprinted by Permission.  Photo credit: Tomasz Budzyński.

1st Things 1st: The Litigation Hold Letter (A Blast from the Past)

J0309498 All – as part of my ‘repairs’, I’ve looked at some of the blog logs (say that 3x fast) and since this item was posted over six years ago, it’s still ranked as #1 on the site!  So, it seemed like this was the perfect opportunity to republish it.  The letter itself is slightly updated, but the post is reproduced verbatim:

Wow…this is my 100th post!  Who knew I could pontificate this long?

In analyzing the new California Electronic Discovery Act (I’m going to start calling it “CEDA” for short), I might as well start at the beginning.

The first thing that will occur if litigation arises?  There’ll be a bunch of litigation hold letters going around.  I say a bunch because it could manifest several ways; outside counsel to your adversary, outside counsel to inside counsel, inside counsel to the enterprise, the CIO/CTO to the IT department, the CEO to the CIO/CTO…you get the idea.  In some cases, as illustrated above, the letter may not even be coming from an attorney.

What might the letter look like?  Here’s an example of a litigation hold letter theoretically issued from outside counsel to an adversary (in PDF format).  The names were changed to protect the innocent (and the guilty, for that matter).

This is only a sample to give you an idea of what a letter of this kind might look like.  The purpose is to illustrate items you may or may not have thought about.  Like snowflakes, no two letters will ever be exactly the same.  Only a professional with personal knowledge of your specific requirements should ever create and/or issue a litigation hold letter.

Enough disclaimers?  Ok then…chew on this for a Monday.

My Analysis of Calbar Formal Opinion 2015-193: eDiscovery & ESI? “Don’t Be Stupid”

The last three words from this short Beverly Hills Cop video clip sum up my analysis of the opinion:

I wrote public comments to COPRAC (The State Bar of California Committee on Professional Responsibility and Conduct) re their interim versions of the opinion and, in a rare step, I’m posting a verbatim excerpt because my assessment of this opinion remains unchanged.  One modification – I bolded a quote, because the Committee adopted my definition verbatim in their opinion (page three, footnote six):

“I’m seeing a very common thread in COPRAC’s reasoning that afflicts those who understand technology at a more surface-level; the tendency to think of it in physical, rather than ethereal terms.  In other words, the Committee has focused on the word evidence, instead of the word electronic.  Take water, for example.  Whether it exists in a lake, a bathtub, or a glass, it’s still water.  It’s the same with evidence.  Whether it exists as writing on a tombstone, a paper document, or in electronic form (e.g. sitting on a flash drive), it’s still evidence.  It’s the medium that should distinguish it for your purposes.  That’s the contrast missing here.

Whereas the Committee has done a better job of defining parameters such as clawbacks and laying out accurate mistakes by our hapless attorney, once again, it descends into conduct that isn’t eDiscovery-based; but competence-based.  This opinion relies too much on unrelated reasoning, such as “assumes”, “relying on that assumption” and “under the impression”.  That’s not an eDiscovery problem; that’s a general competence problem.  It’s also not what the audience needs.  If they’re attorneys licensed in California, they’ve presumably passed both a Professional Responsibility course and the MPRE exam and know – or should know – their duty of competence.  It’s not as if an attorney retains a med-mal case, then immediately “assumes” or is “under the impression” that s/he’s a doctor and can read an x-ray.  But I could intertwine those facts with this opinion and make it about medical experts.  What attorneys specifically need to know is how their actions, or lack thereof, in the procurement, assessment and handling of electronic evidence morph into a violation.  This is a highly specialized area unto itself.  See my previous example.  The x-ray is electronic evidence.  Proper acquisition is one matter; analysis, forensic or otherwise, is quite another.  That doesn’t just include the adversary’s evidence.  It also includes the Client’s evidence.  In this scenario, one is seeking to exculpate the Client through all available means – not just via the adversary.

Contradictions also exist in Footnote Six on page three that states, “This opinion does not directly address ethical obligations relating to litigation holds.”.  I respectfully submit that the opinion goes on to do exactly that.  Perhaps this is due to the criteria set forth in Footnote Six being inaccurate as defined.  In a legal setting, Attorney is charged to know what the Client does not, and this may involve issuing litigation hold instructions to their own Client; not just third parties or adversaries.  If attorney was interacting with the CIO or CTO (The “Information”/”Technology” chiefs, perhaps s/he could reasonably reply on their assessments.  But here, attorney is interacting with the CEO who likely has no intimate knowledge of what goes on in the IT department.  It should read, “A litigation hold is a directive issued to, by or on behalf of a Client.”  Otherwise, how does the competent Attorney protect a Client who, in good-faith, endeavors to do the right thing or protect themselves when a Client, in bad-faith, engages in intentional spoliation?  One of those scenarios exists on page two, when the eDiscovery expert, “tells Attorney potentially responsive ESI has been routinely deleted from the Client’s computers as part of Client’s normal document retention policy”.

Understanding these nuances and acting on them is the very definition of competence as applied to an eDiscovery attorney – or an attorney who engages the services of a third-party eDiscovery vendor.  In this arena, eDiscovery is like a game of falling dominos; once competence tips over, the rest (acts/omissions, failing to supervise, and confidentiality) will logically follow.  As they say, timing is everything.”

Conclusion:  The opinion does a good job of explaining fundamentals of the eDiscovery process, but in my opinion, doesn’t go nearly far enough.

Calbar Solo Summit – June 18-20, 2015

Solo Summit 2015It’s that time again, folks.  The State Bar of California Solo and Small Firm Summit will be held at the Newport Beach Marriott from June 18-20, 2015.  I’m presenting program ten this year on Thursday, June 18:

 

Earth(quake), Wind, Fire & Flood: Disaster Planning for the Law Practitioner

Four things are certain in life: death, taxes and disasters. The fourth? The disaster won’t manifest itself in the way you expect nor when you expect it. This program broadens your perception of what a disaster is and – should one occur – guides you through preparing and planning for continuity in your law practice.

I’ve been a fan of this conference for years because it provides a more intimate experience between attendees and presenters.  I hope you join us this year!

Calbar Proposed Formal Opinion Interim No. 11-0004 (ESI & Discovery): Comment Period Extended!

Emergency HumorousA quick note to let you know that the proposed opinion was revised and resubmitted for public comment with an extended deadline of April 9, 2015 at 5 p.m.  I stress that the opinion is revised because – if you're going to submit comments – you need to review the new version first!

PLEASE NOTE: Publication for public comment is not, and shall not be, construed as a recommendation or approval by the Board of Trustees of the materials published.

Calbar Proposed Formal Opinion Interim No. 12-0006 (Attorney Blogging)

Emergency Humorous

 

The State Bar of California Proposed Formal Opinion Interim No. 12-0006 (Attorney Blogging) has been posted for public comment.  The comment period expires March 23rd, 2015 at 5pm.

PLEASE NOTE: Publication for public comment is not, and shall not be, construed as a recommendation or approval by the Board of Trustees of the materials published.

Calbar 87th Annual Meeting: Upcoming Program(s)

Calbar 87th AM Banner
I just took a look through this top page.  I've only posted ten times (including this one) in almost an entire year!  I've got to try to step up my game, but honestly, it's going to be difficult as I get busier and busier.  I'll do my best; in the meantime, here are my upcoming program(s) at the State Bar Annual Meeting in San Diego (I used the (s), because for one program, I'm making a guest appearance but am supposed to be in two places at once!):

* * * * * * * * * * * * * * * * * * * *

Leveraging Technology to Win the Discovery Game:  Program 31

Thursday, September 11, 4:15 p.m. – 5:15 p.m.

This is tentative.  There's a meeting of the Council of Sections simultaneously with this program and since I will be assuming the role of Co-Chair at the conclusion of the Annual meeting, I need to be there.

I'm hoping to make my way to this session and appear for the last thirty minutes or so.  But be warned; if I'm delayed, I might not make it.  My colleague, Alex Lubarsky is presenting, so either way, I encourage you to check it out as he's extremely knowledgable.

This program will cover the rules and new technologies governing electronically stored information (ESI). Learn about cutting edge litigation technology advancements that will result in cost savings and streamlined management of ESI.

CLE: 1.0 Hour of Which 0.5 Hour Applies to Legal Ethics

* * * * * * * * * * * * * * * * * * * *

The National Security Agency and Attorney Confidentiality: How to Protect Your Clients:  Program 63

Friday, September 12, 2:15 p.m. – 3:45 p.m.

The National Security Agency (NSA) has been heavily featured in the news. While the agency collects our data, how does it use it?  This program will address the NSA’s data collection and the unique challenges it presents to lawyers. Learn how to protect yourself and your clients' confidence.

CLE: 1.5 Hours of Which 0.5 Hour Applies to Legal Ethics

As you can imagine, questions about the NSA come up a lot in my presentations when I discuss attorney confidentiality, but with the outright panic I'm starting to see due to all of the misinformation out there, I feel it is time to address the issue in-depth.  We're going to spend ninety minutes exploring attorney ethical obligations, what the NSA says they do vs. what they really do and how you can best protect client confidences – hopefully without experiencing a meltdown in the process.

That's it for this year.  Hope to see you in San Diego!

The Mobile Lawyer & Professional Responsibility: Friday in Long Beach



MP900442484
Just a quick reminder that I'm presenting Program #19 at the Calbar Solo and Small Firm Summit in Long Beach, California:

The Mobile
Lawyer & Professional Responsibility: Confidentiality in the Digital Age

Friday, June 21, 2013 
1:15 p.m.-2:15 p.m.

Lawyers
are open for business 24-hours a day. 
They communicate via Twitter & Facebook, on smartphones, tablets
& notebooks – in coffee shops, taxicabs, airports and on airplanes.  This program reviews recent COPRAC opinions
addressing technology
and provides tools to protect confidences and privacy for
both attorney and client.

It's not too late to register and join us!

Upcoming Presentation: Calbar Solo & Small Firm Summit: “The Mobile Lawyer & Professional Responsibility: Confidentiality in the Digital Age”

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I didn't intend for this blog to be a billboard for all of my 'stuff', but lacking much time these days, that's what it's been lately.  Since I'm already on a roll, I might as well tell you about a new program I'm presenting at the Calbar Solo and Small Firm Summit in Long Beach, California.  The Summit runs from June 20 – 22, 2013 and my program (#19) is entitled: 

The Mobile
Lawyer & Professional Responsibility: Confidentiality in the Digital Age

Friday, June 21, 2013 
1:15 p.m.-2:15 p.m.

Lawyers
are open for business 24-hours a day. 
They communicate via Twitter & Facebook, on smartphones, tablets
& notebooks – in coffee shops, taxicabs, airports and on airplanes.  This program reviews recent COPRAC opinions
addressing technology
and provides tools to protect confidences and privacy for
both attorney and client.

Hope to see you there!

Calbar Looking at Limited Law Licenses: It’s all about Standards

MP900341927An article in the February 2013 issue of the California Bar Journal states that the Calbar Board of Trustees is examining the possibility of creating a class of "limited-practice licensed" individuals.  Among the reasons provided as the catalyst (e.g. lower cost to consumers, path to eventual Bar passage), ostensibly, the Board also believes this would circumvent instances of unauthorized practice of law (UPL).  UPL (Rule 1-300) falls outside of the Bar's jurisdiction and is normally addressed as a misdemeanor charge via a criminal complaint.

A form of certification already exists within the Bar (or at least, it used to), called "Certified Law Clerk".  I know it well because I was one when I worked at the L.A. County D.A.'s Office during law school.  From memory, some of the criteria to be certified included being a 3L and having already passed the Evidence course, among other things.  Certification allowed me to perform more duties than a standard law clerk.  Obviously, I see some benefit to the idea.

However, I also see detriment, and the first one that comes to mind is expectations.  What level of expertise will a client of this class of legal professional believe they are – or should be – receiving?  Who will guard the line between limited-practice and unlimited practice to ensure that the provider doesn't cross it?  Who is at fault if the provider doesn't meet the standards the client believes they should meet?

Is a new tort called "Limited-Malpractice" going to spring out of this plan?  Will it ultimately 'dilute the brand' of what being a lawyer means?

Considering that I'm Chair of the Law Practice Management and Technology Section Executive Committee, if this new class is ultimately created, my Excom will likely be front and center during the implementation process.

Either way, I'll say this; the Board has their work cut out for them!