“Plans are worthless, but planning is everything.”
Dwight D. Eisenhower
Although representation in transactional work differs from being counsel in a claim or litigation, my experience as an advocate, mediator, and arbitrator has enabled me to recognize the commonalities between, and core skills inherent in, both forms of representation. There are, nevertheless, fundamental differences that often dictate strategy and tactics unique to the type of practice or matter.
Legal claims are subject to the jurisdiction of some tribunal where there is ultimately a procedure and a third party authorized to impose an answer or resolution to break any impasse. Claims subject to litigation almost exclusively focus on past transactions or behavior. An aggrieved party, including the state and the victim in criminal matters, must state a cognizable claim in a formulaic manner so that it is properly ushered through the litigation process. Procedural law and the maneuvering of counsel may be more determinative of outcome than the substantive law. When negotiations fail on a procedural matter, there is a well-understood path to follow for recourse. Many negotiations over process end with “I’ll see you in court” rather than in amicable resolution. There is no requirement that you persuade opposing counsel of anything during the course of the matter.
Transactional lawyers, however, operate entirely without the benefit of an external authority to resolve conflict or break an impasse. The art of the deal is an apt description since transactions, like art, can be primitive, simple, complex, abstract, layered, textured, and multi dimensional, using a wide range of materials, techniques, shapes, and sizes. When at an impasse in the formation of a deal, transactional lawyers have only one “best alternative” to a negotiated agreement: Walk away. It is often simply a case of deal or no deal. Your client has lived without the deal and can continue to live without it. A bad deal can lead to ruin. The most difficult part for the client may be to abandon the sunken costs, including your fee, and move on. Best practice for transactional lawyers is to immunize the client up front to the possibility of the deal being killed because of a failure to reach acceptable economic terms or risks within client and lawyer tolerances.
At its core, transactional lawyering is a cycle of obtaining and analyzing information, deciding, and then attempting to persuade. The final phase of documenting the deal is in creating the language that expresses the intent of the parties while allocating risk of future contingencies and events, especially defaults on the contract.
In short, litigators live past narratives while transactional lawyers venture into the unknown future. Despite these opposing orientations, there are common ways and means to achieve effective bargaining outcomes. This article will address the preparation and self-control necessary for sound decisions and effective communication in negotiating a transaction or resolution of a case.
Negotiating with opposing counsel is often analogized to warfare in that there is significant preparation, reconnaissance, marshalling of resources, foray, propaganda, concession, minor exchange and inconclusive engagement, and, at times, an epic battle that turns the tide one way or the other. The lawyer-warriors generally engage with words, pictures, or avoidance. Silence, or ignoring an opponent, is a form of communication and a position. Words are transmitted orally, electronically (videos, tweets, emails, texts), or in the more traditional way: by letter and document.
Oral communications may be by telephone, voice message, video, face-to-face meetings or through an intermediary. A typical claim or transaction often involves most (if not all) of these forms of communication, although most lawyers prefer the basic telephone call over Skype or other visual electronic engagement. I have yet to have a lawyer during a call say, “Hey, let’s FaceTime!” My take on this is that most lawyers prefer to remain unseen for a variety of reasons, including not having to be constantly on guard and having the freedom to think and talk in private.
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Real Estate Lawyer.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
Artificial intelligence (AI) has sparked a transformative revolution in the legal profession and how attorneys approach their tasks. The emergence of devices like the iPad has facilitated this paradigm shift, acting as a catalyst for incorporating AI into various legal processes. This harmonious blend of cutting-edge technology and legal expertise presents a dynamic opportunity to streamline tasks, enhance research capabilities, and reshape the legal practice landscape.1 In this article, the authors will explore some of the more useful iPad applications for litigators, delve into crafting and employing a Virtual Trial Notebook, and provide strategies for efficiently organizing evidence for analysis and presentation.
At its core, AI encompasses hardware and software applications that empower computers “to determine relationships between datasets and apply the learned relationships in a predictive fashion.”2 The software collects background information about a problem “through sensors or human input,” compares that to the accumulated data, and decodes that information using the previously collected materials.3 The approach evaluates multiple scenarios to anticipate the most effective action, drawing from the information collected.4 However, the effectiveness of this methodology is limited by the scope of the available data.5
THE TRANSFORMATIVE IMPACTOF AI ON LAW PRACTICESOF AI ON LAW PRACTICES
AI has swept across various sectors, and the legal profession is no exception. A recent Goldman Sachs analysis estimated that 44 percent of legal tasks can be effortlessly automated by AI, enhancing attorneys’ efficiency and cost-effectiveness.6 This technology doesn’t replace lawyers; it amplifies their specialized knowledge, creating opportunities for heightened productivity.7
The benefits of AI extend to refining legal research through natural language processing, streamlining document review and drafting, predicting case outcomes using data analysis, and improving access to justice.8
Among the notable tools in the AI arsenal, Chat-GPT stands out as a breakthrough that signifies the fusion of AI and legal practice.9 Developed by OpenAI, ChatGPT generates human-like responses to natural language questions, boasting the capacity to comprehend and promptly address various inquiries.10 Its prowess extends to document generation, solidifying its status as a pivotal AI innovation.11 While ChatGPT has garnered well-deserved acclaim, the iPad is another technological marvel that has remained somewhat in the shadows within legal circles.12 However, the arrival of this tablet computer has generated awareness among attorneys seeking to be more efficient and tech-savvy.13
The iPad has emerged as the preferred tablet among legal professionals, offering a versatile blend of computational power, portability, and user-friendly features.14 Its intuitive touchscreen interface empowers users to navigate and interact with the device through simple finger movements. It comprises a central processing unit with accompanying memory, display, and camera.15 Apple’s iPadOS mobile operating system powers it and has Wi-Fi and Bluetooth abilities.16 With models that range from the basic iPad to the more advanced iPad Air and iPad Pro, it caters to diverse needs and boasts a plethora of applications that effectively serve the needs of lawyers.17
EVOLUTION OF COURTROOM PRESENTATIONS
The approach to presenting evidence has recently shifted from analog methods to digital solutions.18 The courtroom landscape now embraces computer devices, and seasoned attorneys are transitioning from blackboard to digital presentations. This evolution has given birth to various tools for producing impactful digital representations. Contemporary trial lawyers have a large array of data supporting the convincing power of demonstrative evidence. At the same time, they have access to a wide variety of cutting-edge tools for producing notable digital presentations that, a short time ago, were limited to use by digital and video specialists.19
The iPad possesses the potential to revolutionize trial presentations, empowering lawyers to meticulously organize, annotate, and exhibit evidence during trial proceedings.20 Additionally, it enables attorneys to carry their entire case portfolio via cloud-based platforms like Dropbox.21 Surprisingly, statistics show that while attorneys frequently bring tablets into courtrooms, their usage often mimics large smartphones. Attorneys utilize tablets to check their email (23.7 percent), view their calendar (16.5 percent), conduct legal research (15.5 percent), and communicate in real-time (12.4 percent).22 Only 13.4 percent of the time was the device used to access important documents, and just 12.4 percent was used to deliver presentations.23 However, the iPad’s full potential for evidence management and presentation remains largely untapped, possibly due to traditional reluctance towards adopting new technology or misconceptions about its applications being limited to entertainment.24
It is worth noting that about 87 percent of law firms use a Microsoft Windows operating system, while only 13 percent use an iOS or Apple platform.25 Many law firms may be hesitant to adopt an Apple-based ecosystem for litigation as they have a misconception that Windows and Apple IOS cannot be used in tandem. Perhaps some legal professionals don’t know how to use both platforms together effectively and are unaware of the benefits of using an iPad to its full potential. As a result, they might not see the value in considering a new way of preparing and trying cases.
Lawyers have historically been cautious about investing in new software. They prefer user-friendly operating systems that can be implemented without additional training. The COVID-19 pandemic, however, significantly changed the legal landscape, and many lawyers are investigating how technology can improve their advocacy. In particular, the iPad and its apps offer features and a touchscreen interface that can replace a laptop for courtroom use.26 The touchscreen enables litigators to quickly access important information such as case law, documents, photos, and videos, essential in a fast-paced courtroom setting.27
The iPad’s smooth and stylish design, like an electronic legal pad, easy-to-use operating system, and a vast selection of productive apps make it an excellent choice for lawyers. Attorneys analyze, organize, strategize, and present evidence to support their cases. If these fundamental tasks can be aided by technology and accomplished quickly, efficiently, and cost-effectively, it offers a significant advantage for lawyers. It not only levels the playing field for small firms competing against larger ones, but if used correctly, it can provide an essential competitive edge.28
CLICK HERE to read the full article, which was originally published in ALI CLE’s The Practical Lawyer.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
This spring, the U.S. EPA released a number of significant final rules utilizing the CERCLA and RCRA statutes to curb the impact of PFAS.
In early July, the final rule designating PFOA and PFOS as “hazardous substances” under the CERCLA will go into effect. As the first time the EPA has directly designated any substance as a hazardous substance under its CERCLA 102(a) authority, it is expected to have immediate and significant impacts across industries and provide the EPA with additional data on PFAS through increased reporting and information gathering authorities, address and clean up PFAS contamination, and shift costs for addressing releases to private parties.
Join us in Washington, D.C., for ALI CLE’s upcoming program, Clean Water Act 2024: Law and Regulation. Attend in-person or live via webcast on October 17-18, 2024. Learn more about the program and stay in touch for program updates here!
In addition:
The EPA simultaneously issued a policy outlining how it would use its CERCLA enforcement discretion and settlement authority to shield those entities as much as possible from CERCLA liability.
Nine particular PFAS compounds have also been proposed as hazardous constituents under RCRA with the hope of addressing PFAS contamination under the RCRA cleanup program.
Maximum Contaminant Levels (MCLs) for PFAS were set under the Safe Drinking Water Act, giving public water systems three years to comply with monitoring requirements and then begin reporting the results.
These final rules, in addition to ongoing enforcement actions, clean ups, and related litigation in this space, as well as the Supreme Court’s end-of-term decisions in the Loper Bright/Relentless, Corner Post, and Jarkesy cases, makes for a lot of change.
Join our panel of practitioners and current and former government attorneys to learn more about these major final rules, as well as ongoing enforcement actions, clean ups, and related litigation in this space. Topics to be addressed include:
Recent developments in CERCLA, including the Jan. 2024 EPA guidance on lead in soil at CERCLA sites, what it addresses, and what it does not address
PFAS as a “Hazardous Substance,” including the recent regulatory developments establishing certain PFAS as CERCLA hazardous substances; establishing a drinking water MCL for certain PFAS; and the practical outlook for site clean-ups and liability, including EPA plans and guidance for PFAS review and enforcement under CERCLA
RCRA regulations identifying certain PFAS as “hazardous constituents,” the five features of RCRA enforcement, and the latest RCRA cases
How the Supreme Court’s decisions in Loper Bright/Relentless, Corner Post, and Jarkesy impact these regulatory initiatives and pending litigation
Case studies and lessons learned from sediment site clean-ups, remedies and objectives for complex sediment sites under CERCLA and RCRA frameworks, and the effects of EPA acceptance of interim remedial actions
Expand your knowledge and fluency with the latest EPA standards and actions in CERCLA and RCRA regulation and enforcement and their ties to PFAS.
Register now for an in-depth discussion and practical insights on these significant developments from leading experts in the field.
Stay tuned for our upcoming program, Environmental Law 2025, either in person or via live webcast on February 20-21, 2025! To stay connected and get the latest updates for this program, click here.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
The 2023-24 Supreme Court term has been one of significance in the world of property rights. Two unanimous cases in particular directly addressed takings: Sheetz v. County of El Dorado, 601 U.S. (2024) (holding that the Fifth Amendment’s takings clause does not distinguish between legislative and administrative land-use permit conditions) and DeVillier v. Texas, 601 U.S. (2024) (holding that property owners adversely affected by a flood evacuation barrier should be permitted on remand to pursue their takings clause claims through the cause of action available under Texas law).
Check out this webcast to better understand the importance of these decisions, as well as other property issues in the Court this year and what these cases mean for your practice.
Join us in San Diego, CA, in 2025 for ALI CLE’s upcoming program, Eminent Domain and Land Valuation Litigation 2025. Attend in-person or live via webcast on January 30-February 1, 2025. Learn more about the program and stay in touch for program updates here!
Featuring a faculty composed of the property owners’ lawyers in DeVillier and Sheetz as well as a distinguished law professor, this program will examine:
What the Supreme Court decided – and avoided deciding – in Sheetz and DeVillier
Why the concurring opinions are important
What these decisions may tell us about the Supreme Court’s direction in eminent domain and property law
Which issues remain for resolution
Join us for an enlightening discussion and get an inside look at these significant decisions and how they will apply to your practice.
Register now and explore how these decisions may impact takings and property law, now and into the future!
On June 28, the U.S. Supreme Court rendered its much-anticipated decision in Loper Bright Enterprises v. Raimondo and Relentless v. U.S. Department of Commerce, holding that the Administrative Procedure Act does not allow courts to defer to an agency interpretation of the law when an underlying statute is ambiguous.
This opinion overturns the 40-year old Chevron deference doctrine – a staple of administrative law and practice – and may dramatically impact the future ability of government agencies to set and enforce environmental regulations.
Watch this breaking news webcast, jointly organized by ALI CLE and the American College of Environmental Lawyers (ACOEL), for an expert take on the future of Chevron deference as panelists offer their perspectives on these hot-off-the-press cases and how they impact the future of environmental law and regulation.
Featuring speakers from academia, an environmental NGO, and the private sector (with significant prior governmental experience at both the EPA and DOJ), this program will provide an engaging and balanced discussion that explores:
The arguments raised, including in the amicus briefs
The Court’s majority, concurring, and dissenting opinion
The potential impact of this decision on environmental law and regulation
The interplay in the broader context of administrative law and other takeaways
Join us as our panel of leading environmental and appellate lawyers delves into the details and implications of these tandem cases.
Register now and be among the first to gain expert perspectives on this landmark decision for environmental practice!
Join us in Washington, D.C., for ALI CLE’s upcoming program, Clean Water Act 2024: Law and Regulation. Attend in-person or live via webcast on October 17-18, 2024. Learn more about the program and stay in touch for program updates here!
Stay tuned for our upcoming program, Environmental Law 2025, either in person or via live webcast on February 20-21, 2025! To stay connected and get the latest updates for this program, click here.
To find our more about ALI CLE’s in-person courses or webcasts, or to check out on-demand CLE, click here.
