First Quarter 2015 - ACC North Florida Chapter Newsletter

FOCUS...on the North Florida Chapter

 

By in-house counsel, for in-house counsel.®

North Florida Chapter News and Information
Chapter President's Letter
By Harvey Granger, SVP and General Counsel, Baptist Health

I had to laugh the other day when I ran across an article in Lawyers Weekly entitled “Is Working In-House Better Than Working at a Law Firm?”  

The article suggests that lawyers seeking to balance family and personal commitments with work may be in for an unpleasant surprise if they were to move to an in-house job.  A lawyer surveyed for the article commented: “Working in-house can be miserable if senior management has a bad attitude.”  Another one:  “Limited resources, tight budgets, lack of support and greater diversity of advice required of in-house lawyers all increase stress.”  Plus:  “You can’t go hide from your clients – they are sitting next to you.”  (So lawyers in law firms hide from their clients?)

Of course, one’s view on all this is colored by his or her own experience.  I had the privilege of working as a young lawyer in a Jacksonville law firm for eight years (1979 – 87).  I was thrilled with the opportunity to work with good, experienced corporate attorneys who had a very sophisticated practice for Jacksonville in the early 80’s.  I retain many friendships from those times and continue to have a very collegial relationship with the firm.

During my time there, the firm’s primary client, whose corporate office was located in Jacksonville, required some of our lawyers to travel all over the world.  My travel was limited to meetings and closings in places like Washington, New York, Boston, Houston and the Bahamas.  However, when I think back on my time on those trips, I do not recall many important tasks that I performed, other than the work of the typical corporate associate organizing and ensuring the accuracy of the myriad documents needed for loans and other commercial transactions.  For some reason, my most vivid recollection of those trips is my carrying heavy “litigation bags” full of transaction documents.

No surprise – the law firm like many others had requirements for long work hours and the pressure to produce billable hours. At the time, there was no expectation that a law firm associate would have the healthy work - life balance that so many of us crave today.   The credo was that the young law firm attorney would work as late as it took to get the work done. 

The firm also served as outside counsel for Baptist Medical Center and I enjoyed my occasional work for Baptist – mostly assisting a senior partner with the hospital’s tax exempt bond issues.   In 1987 my career took a turn when I volunteered to spend ½ days at Baptist Health on an interim basis because my predecessor at Baptist had experienced a serious health issue.   My ½ days quickly turned into full days and, when my predecessor chose not to return, I applied for the job and got it.  It was the biggest break of my professional life!  

Don’t misunderstand.  The last 27+ years have not been stress-free.  I can say honestly that, at this point in my tenure at Baptist Health, I have never worked as hard.  The hard work and long hours come with the territory.  As correctly publicized, the Affordable Care Act (Obamacare) seeks to change the healthcare paradigm in the U.S., so that means more challenges for physicians, healthcare system leaders and their lawyers.  I like being in the middle of that especially as Baptist Health embraces change and seeks to succeed in the face of change. 

I continue to enjoy my in-house role because of Baptist’s outstanding leadership team and its Board of Directors who take pride in fulfilling the mission and values of this healthcare organization.  Also, I have been fortunate to have a very talented legal team at Baptist Health, including not only the lawyers but the Compliance and Risk Management professionals, who have stuck with me through the years.  I could not have survived this long without them.  And by the way, we get great help from several Jacksonville law firms (including the one that I came from).

Friends and colleagues of mine have flourished in their law firm careers during the time that I have been at Baptist Health.  But our roles as in-house lawyers for Baptist Health, allow us to work closely with our “clients” and see our advice implemented.  Lawyers in law firms may know some health care laws in more detail than we do, but we know best how to apply those laws to our “business”.  So maybe I am biased by my experiences, but I have no doubt:  IN-HOUSE IS BETTER!

Return to Top
Upcoming Events
By Rodolfo Rivera, ACC North Florida Board Member

1) Past, Present, and Future of Life on Earth (Global Issues Evening) April 21, 2015, 7:00 PM – 8:30 PM. Speaker Dr. Richard Leakey - Paleoanthropologist, Political Advisor and Environmentalist. To register contact Barbara Johnston at BarbaraJohnston@regencycenters.com.

2) ACC Advanced Compliance Education Summit (ACES) April 26-28, 2015, New Orleans, LA. For more information Click Here.

3) McGuireWoods – Jacksonville Suns Game, April 28, 2015 6:00 PM - ?, Baseball Grounds – 301 A Philip Randolph Blvd. Jacksonville, FL 32202. Additional details will be provided. Time is TBD and confirmed closer to event.

4) 2015 ACC Annual Meeting, October 18-21, 2015. Boston, MA. Stay on Top of Evolving Corporate Legal Challenges. Gain the skills and insights you need to address the challenging corporate legal matters at the 2015 ACC Annual Meeting. This uniquely relevant and essential educational opportunity is designed specifically by in-house counsel, for in-house counsel and is the largest gathering of the corporate legal community. Develop your global peer network, choose from over 100 CLE/CPD sessions and tap into resources and ideas for your in-house practice. For more information Click Here

Please be sure to check our Chapter page for other upcoming events by clicking here.

Return to Top
Newsletter Articles
Plenary Power under Review
By Giselle Carson, Esq. (Marks Gray, P.A.)

Over 100 years ago, in the Chinese Exclusion Case, the SCOTUS set in motion a long line of cases that established the doctrine of consular non-reviewability. Under this doctrine, decisions regarding the admission of foreign nationals to the U.S. rest exclusively within the powers of the Legislative and Executive branches, with the Judicial branch lacking any authority to review such determinations.   

As a result, consular officers’ decisions to grant or deny a visa have been subject to little or no judicial review.  In a recent decision, one federal district court noted “a court does not have jurisdiction to review a consular official’s decision, even if its foundation was erroneous, arbitrary or contrary to agency regulations.” However, in February 2015, after the Justices’ winter break, the first case they heard was on the subject of consular non-reviewability and plenary power.  

In Kerry v. Din, the Court examined the current status of the doctrine of consular non-reviewability and will decide whether a naturalized U.S. citizen married to a foreign national and affected by the Department of State’s (DOS) decision to deny a visa to her husband has the right to know the factual basis for the denial.

It is not unusual for the DOS, after USCIS has approved a petition, to deny an immigrant visa to the spouse or parent of an U.S. Citizen or to a talented foreign worker sponsored by a U.S. employer and cite a vague statutory provision or to give no reason for the denial. 

For years, the DOS has claimed complete discretion over its decisions to deny visas. This power has led to permanent family separation, employers the inability to acquire foreign talent, and our courts generally deny review of these decisions. However, in 1972, the SCOTUS in Kleindienst v. Mandel provided a narrow exception to the doctrine and the opportunity for judicial review when the denial affects the rights of U.S. citizens and the government does not have “facially legitimate and bona fide reason” for denying the visa.   

In the case at issue, Mrs. Din, the aggrieved U.S. citizen wife, sought Court review of the DOS’ denial of an immigrant visa to her husband. Mrs. Din filed an immigrant “green card” petition for her Afghan husband, Mr. Berashk. USCIS approved the petition, and in 2009 Mr. Berashk was interviewed at the consulate in Islamabad, Pakistan for his immigrant visa. During the interview, he answered that he had worked as a clerk for the Afghan Ministry of Social Welfare and the Afghan Ministry of Education under the Taliban regime. After the interview, he was advised that his immigrant visa was approved and he should receive his visa shortly. 

Almost a year after the interview and after many inquiries, Mr. Berashk was informed that his visa had been denied under INA sec. 212(a) and he was ineligible for a waiver. After additional inquiries, he was informed that his visa was denied more specifically under INA sec. 212(a)(3)(B), which renders a person inadmissible under terrorism related grounds. DOS refused to offer any additional or factual evidence to justify the denial. 

Mrs. Din sued the DOS in Federal Court but the District Court dismissed the complaint citing the doctrine of consular non-reviewability. She appealed and the Ninth Circuit ruled that the limited Mandel review was applicable and ordered the DOS to provide a “facially legitimate and bona fide” reason for the denial of the visa. The government appealed to the SCOTUS and the Court heard oral argument on February 23rd.  

The government argued that Mrs. Din lacked a constitutionally protected interest in her husband’s visa denial; that the government has the undisputed power to exclude foreign nationals from the U.S.; and that there is no judicial review of the consular officers’ decision. 

During oral argument, Justices Sotomayor, Kagan, Breyer and Ginsburg expressed concern about consular officers’ potentially erroneous or discriminatory visa denials with no opportunity for judicial review. Justice Sotomayor described the administrative process after a spousal visa denial as an “administrative nightmare.”

The attorney for Mrs. Din, urged the Court to affirm the Ninth Circuit’s decision and require the DOS to provide an explanation for the visa denial. The Justices questioned him as to the scope of Mrs. Din’s constitutional rights and the possibility of increased litigation and appeals if the Court were to allow a more liberal review of consular officers’ decisions.  

The SCOTUS decision is expected in June 2015. The decision will affect not only Mrs. Din and her husband, but also the lives and hopes of many U.S. citizens who petition for their families and the right and interests of U.S. employers. The decision will largely depend on how the Justices apply the limited Mandel review to this case. We hope  the Court’s decision will preserve the current Mandel review and expand the right to know for U.S. citizens’ spouses and employers affected by the DOS’ visa denials.  

###

1105845

 ____________________

Giselle Carson is a shareholders at the law firm of Marks Gray, P.A. Ms. Carson focuses her practices on immigration.  Please contact her with any questions or concerns at gcarson@marksgray.com, 904-807-2147.  Marks Gray, a full-service law firm, has served clients in Jacksonville and North Florida since 1899.

More information about the author of this article, Giselle Carson, can be found here.


Return to Top
Same-Sex Married Couples Now Have Equal Rights to FMLA Leave Regardless of Their Residence
By Jean L. Schmidt and Kimberly J. Doud (Littler Mendelson P.C.)

The U.S. Department of Labor (DOL) has issued a Final Rule revising the regulatory definition of "spouse" under the Family and Medical Leave Act (FMLA) to ensure that same-sex married couples receive the rights and protections under the FMLA without regard to where they reside.  The new definition takes effect on March 27, 2015. 

Under the FMLA, an employee may take up to 12 weeks of unpaid, job-protected leave to care for his/her spouse or for a qualifying exigency arising out of the fact that the employee's spouse is a military member on covered active duty.  It also affords an employee who is the spouse of a servicemember the ability to take up to 26 weeks of unpaid, job-protected leave to care for a covered servicemember with a serious injury or illness. 

Under the existing FMLA regulations, whether or not an employee had a spouse was determined by the law of the state where the employee resided.  This was called the "place of residence" rule.  Thus, same-sex married employees who resided in a state that did not recognize same-sex marriages, although legally married elsewhere, were not permitted to take FMLA to care for their spouse.   

The new regulatory definition utilizes the "place of celebration" rule for the definition of spouse – i.e., the definition looks to the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides. This new regulation allows all couples who were legally married in any state or country, whether to an opposite-sex or same-sex partner or married under common law, to have consistent rights under the FMLA regardless of where they live. 

This long-anticipated revision to the FMLA definition of spouse follows the U.S. Supreme Court's decision in United States v. Windsor, which struck down the Defense of Marriage Act (DOMA) as unconstitutional, and President Obama's instruction to all federal agencies to review all relevant federal statues to ensure that the "decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly."  Most federal agencies had already adopted the place of celebration rule unless the relevant statute provides for another test. 

In issuing the Final Rule, the Department of Labor stated the "place of celebration rule will give fullest effect to the purpose of the FMLA to permit employees to take unpaid, job-protected leave to care for a spouse for an FMLA-qualifying reason.  The need to care for a spouse is the same for all married couples and does not change depending on their state of residence." 

While the change will mean that more employees are entitled to FMLA leave to care for their spouse, it eases the administrative burden the old rule imposed on employers who operate in more than one state because they can now apply the same eligibility standard for married couples nationwide. 

Employers should note that by adopting the new definition of "spouse," the DOL did not expand it to include domestic partners.  Only employees who are legally married are afforded the right to take leave for their partners under the FMLA.  

What Should Florida Employers Do?

In January 2015, Florida recognized same-sex marriages after a stay expired on a federal judge’s explicit ruling that Florida’s same-sex marriage ban was unconstitutional. The ruling has been appealed to the U.S. Court of Appeals for the Eleventh Circuit, the federal appeals court for Florida. However, the Eleventh Circuit has refused to rule on any pending same-sex marriage case – instead opting to wait until the Supreme Court of the United States rules on the constitutional issue.  That ruling is expected this summer, after the Supreme Court holds oral argument in late April to decide whether the U.S. Constitution prohibits a state’s same-sex marriage ban.

The Supreme Court’s ruling may impact the DOL’s new definition of “spouse.”  As it currently stands, same-sex marriage is legal in Florida.  Therefore, if a same-sex couple marries here, then a spouse qualifying for FMLA leave may exercise such leave to care for his/her spouse regardless of whether the couple remains in Florida or moves to another state, even if the state does not recognize their marriage.  As a result, Florida employers should:

• Review your FMLA policy.  If it contains a definition of "spouse," be sure it conforms to the new regulation.  

• Provide training to benefit managers and human resource professionals, and operational supervisors if applicable, on the rule and its implications.   

• Provide notice to your employees of the change in the regulation so that same-sex married employees are aware they now have the right to FMLA leave to care for their spouse.  

• If an employee is requesting leave to care for a family member, an employer may still require reasonable documentation to confirm a family relationship.  However, an employer should not require documentation for some employees and not others.  The new rule did not change the existing regulation on the type of documentation that may be requested.  Under that regulation, "documentation may take the form of a simple statement from the employee, or a child's birth certificate, a court document, etc."1

________________________________________

1 29 C.F.R. § 825.122(k).

Jean L. Schmidt is a Shareholder in Littler's New York City office and Kimberly J. Doud is Of Counsel in Littler’s Orlando office. If you would like further information, please contact your Littler attorney at 1.888.Littler, info@littler.com, Ms. Schmidt at jschmidt@littler.com or Ms. Doud at kdoud@littler.com. 

Return to Top
Keeping Up With the Latest Trends: Is Your Company Ready for an I-9 Audit?
By Yova A. Borovska (Buchanan Ingersoll & Rooney PC)

Immigration and Customs Enforcement (ICE) audits begin with a visit by Homeland Security Investigations (HSI), the agency enforcing the I-9 compliance requirements.  When HSI agents repeatedly chant that “they are here to help,” an unprepared employer might submit its I-9 forms and other requested documents without thinking twice.  Unfortunately, the stakes in I-9 audits are very high.  If I-9 violations are discovered, civil fines for simple paperwork errors – even if no undocumented workers are discovered – will range from $110 to $1,100 per I-9 Form depending on a number of factors.  Penalties for knowingly hiring or continuing to hire undocumented individuals range from $375 to $16,000 per individual.  The company owners, managers and human resources professionals can be held criminally liable for certain infractions.  ICE has significantly ramped up enforcement in recent years, targeting employers in various industries.  Therefore, it is imperative for employers to be fully prepared for an ICE audit and to be aware of recent trends in enforcement practices.  

When an employer becomes the subject of an ICE audit, it will be served with a Notice of Inspection (NOI).  The most recent NOI template request includes a number of items separated in two groups:

A. Documents that must be provided within 72 hours: 

1. The original and a copy of all Forms I-9 subject to retention (all active employees and all terminated within 1 year or hired within 3 years, whichever is longer) as well as copies of any document copies retained and copies of E-Verify or other verification results. 

2. Employee roster/spreadsheet; 

and 

3. Completed company survey provided by HSI that includes questions relating to the company’s I-9 practices, organizational structure, financial status, and use of leased employees or contractors.  HSI typically also requests the name of software being utilized and copies of internal business practices/protocols related to the use of such software.  Electronic storage must comply with very rigorous requirements, such as audit trails and security measures.  A form I-9 that involves a failure of electronic compliance may be invalidated, leading to a fine.  A vendor and its software products must, therefore, be evaluated based on a number of factors to minimize risk exposure.

B. HSI will typically provide an extension of at least one week to the employer to provide the following items:   

1. Forms UCT-6 for three years;

2. Payroll reports for three years;

3. Copies of W-4 forms;

4. A list of independent contractors utilized and copies of all forms 1099 issued in the past year.  Even though independent contractors are generally not required to complete the Form I-9, federal law prohibits hiring contractors knowing that they are not authorized to work.  Further, HSI will ask questions regarding the nature of the contractors and the work that they perform for the employer.  If it appears that the contractors meet the definition of “employees” for purposes of I-9, HSI will expect to see forms I-9 for such individuals.  Many factors are considered when determining whether or not an individual or entity is an independent contractor, most of which relate to control over the contractor’s work.  It is very important for employers to ensure that individuals provided a 1099 are not actually “employees” for I-9 purposes. 

and

5. A list of all staffing agencies utilized in the past year and a list of all temporary workers employed through such agencies.  Employers sometimes struggle to obtain a list of staffed employees from the staffing agency, if they did not retain a copy. 

Following the submission of the above documents, HSI will determine if any suspected unauthorized workers are being employed and, if so, it will issue a Notice of Suspect Documents, or a Notice of Discrepancies, if not enough information is available to ascertain the employment eligibility of certain workers.  The employer will have a reasonable amount of time to resolve such employees’ work-authorized status or to terminate them.  If any technical violations are present, HSI will issue a Notice of Technical or Procedural Violations, allowing the employer 10 days to correct them without a fine.  If no substantial violations are found or circumstances do not warrant a penalty, HSI may issue a Warning Notice.  If substantive or uncorrected technical violations are present, HSI will issue a Notice of Intent to Fine (NIF).     

Traditionally, significant reductions of the amount of the fine as listed on the NIF could be obtained from ICE’s Office of the Chief Counsel (OCC), depending on the facts of the case.  However, certain HSI offices recently changed their fine calculation methodology, requesting a lower fine on the NIF and resulting in smaller reductions from the OCC.  If no settlement is reached after negotiations with the OCC, the employer may request an administrative hearing before Office of the Chief Administrative Hearings Officer (OCAHO), which is responsible for review of penalties imposed by ICE for I-9 compliance violations.  

Some important, recent OCAHO decisions illustrate the latest trends and takeaways that are helpful in evaluating and reducing your company’s I-9 liability:

* HSI will return for a repeat inspection.

Employers often believe that, once audited by ICE, they are safe from a repeat inspection.  On the contrary, ICE will likely return to ensure that the company has brought its Forms I-9 into compliance.  On October 23, 2014, in U.S. v. Durable, the Chief Administrative Hearings Officer (CAHO) affirmed an enhanced penalty of $329,895 for 300 I-9 Forms in the context of such a repeat inspection. 

* E-Verify does not provide blanket protection from I-9 liability.

On March 26, 2014, in U.S. v. Employer Solutions Staffing Group II, LLC, OCAHO held that E-Verify does not exempt the employer from the requirement to properly complete its I-9 forms.  In fact, the first requirement of E-Verify is to properly complete a Form I-9.  Further, proper use of E-Verify only establishes a presumption that the employer is not knowingly hiring unauthorized workers.  The employer can still be liable if it had actual or constructive knowledge of the workers’ unauthorized status.  

* Pre-signing of I-9 forms in Section 2.

On March 11, 2014, in U.S. v. M&D Masonry, OCAHO found that signing the I-9 forms in Section 2 before actually reviewing the documents presented by the employee is a substantive error because it does not comply with the attestation under penalty of perjury.  

* Knowing employment and handling destroyed or damaged forms.

On June 27, 2014, in U.S. v. Jalisco’s Bar and Grill, OCAHO found the employer to have “knowingly” employed an unauthorized worker because that employee had told his employer that he was unauthorized.  Further, even though a number of the employer’s forms I-9 had been destroyed or damaged, the employer should have prepared substitute forms, without backdating anything, as well as a memorandum explaining the circumstances. 

As the crackdown on employers continues, is imperative for employers and their counsel to be aware of the latest trends and requirements relating to I-9 compliance in order to ensure that they are ready to face ICE agents and produce the required documentation in the event of an enforcement audit.  

 ____________________                                                                                                                                          

Yova A. Borovska is an Associate with Buchanan, Ingersoll & Rooney PC. Ms. Borovska’s practice is in the field of immigration and nationality law, which includes services related to applications for non-immigrant and immigrant visas; employment and family-based immigrant petitions; applications for change/extensions of status through the USCIS; applications for adjustment of status and naturalization; applications for passports; I-9 compliance/E-Verify counseling and representation in defense of ICE HSI audits; applications for waivers of inadmissibility; representation of individual non-citizens in Immigration Court proceedings; and assistance with other unique immigration issues. Ms, Borovska can be reached at yova.borovska@bipc.com.

Return to Top
Faster, Cheaper Dispute Resolution Starts With A Smart Arbitration Clause
By Sarah Stoddard Toppi and Frank Morreale (Nelson Mullins Riley & Scarborough LLP)

Arbitration clauses are often included in the back pages of commercial contracts with the expectation that, should a dispute arise in the future, the contracting parties will be protected from an expensive, distracting lawsuit that plays out in a public forum over many years.  But a boilerplate clause can cause more headaches – and cost more money.  Attention to a few important issues when drafting such clauses can minimize the time, cost and pain of commercial arbitration.  This article focuses on five such issues.

1. Refine The Arbitrator Selection Process

The process of selecting an arbitrator can be a hidden and unwelcome source of delay that bottlenecks progress after arbitration has been demanded.  To avoid spending months attempting to agree on an arbitrator, measure the time allotted for selection in days or weeks.  Include a default method of selection if agreement cannot be reached, such as the use of a roster provided by an arbitration facilitation organization from which the name of the arbitrator must be randomly drawn by an established deadline absent prior agreement.  

Equally important, create arbitrator selection criteria.   If you are choosing arbitration over a traditional lawsuit because you have concerns about whether the pool of judges have the right expertise to resolve the expected disputes, make sure to identify critical expertise or other qualifications in the arbitration clause.   Criteria could include 10 years experience with a certain industry, IT project management experience, Florida Bar membership for at least 10 years, a residence in the arbitration forum, or higher education that includes an MBA.  Identifying critical expertise which the arbitrator must have can eliminate the potentially substantial cost of non-party experts if you select an arbitrator who does not need expert assistance to "understand the evidence or to determine a fact in issue."  However, avoid drafting the provision such that the requirements for the arbitrator are so narrow that you complicate, rather than expedite, the selection process.

Absent good reason, avoid panel arbitration.  Not only does a panel triple your direct payments to arbitrators, but there will be additional costs and delays associated with selecting the neutral, coordinating two more schedules, and asking three strangers to reach consensus.  You should also expect arbitrators to command higher, non-negotiable hourly rates than your humble outside counsel because of the arbitrators' experience.  If you cannot identify a benefit that exceeds those costs, avoid agreeing to panel arbitration.

2. Limit The Scope Of Discovery And Motion Practice

As a general rule, keep discovery narrow, and include a "safety valve" for additional discovery as agreed by the parties or as permitted by the arbitrator upon a showing of good cause.  Most private arbitration organizations have adopted flexible rules that rely on the parties' cooperation and the arbitrator's discretion to establish discovery and motion practice limits.  Because arbitration is often chosen to avoid the burdens of traditional discovery, think twice before agreeing that the Florida or Federal Rules of Civil Procedure will apply.  Is the current federal default of 10 depositions of 7 hours each acceptable?  Or is it more consistent with your goals to limit each party to, say, no more than 4 fact witness depositions or no more than a total of 20 hours?  Is there a reason for allowing unlimited non-party experts?  Will it hurt your ability to present your case if all briefs are limited to 5-10 pages, and the only permitted types of briefs are initial statements of the case, discovery motions and a pre-hearing brief?  Should the cost of e-discovery be shifted to the party requesting it?  Can you limit, in advance, the custodians, time period, or volume of e-discovery?    

3. Establish A Mechanism For Scheduling A Short, Early Hearing

After a dispute arises, one party often has an incentive to postpone resolution for as long as possible.  Since the cost of outside counsel is often linked to the length of the dispute resolution process, that incentive costs both parties money.  To minimize that problem, the parties should require that the final hearing be held within a certain number of months from a fixed event such as the filing of the arbitration demand or the appointment of the arbitrator.  Again, a safety valve should be included that allows the arbitrator to permit a modest extension in the event of unavoidable delays.  

If the duration of the final hearing is not agreed upon, retained counsel will likely want a final hearing of at least five days, without considering that a week away from the office is unappealing to your "star" witness.  Why not limit the final hearing to a fixed number of consecutive days, with a safety valve for additional days as agreed by the parties or as permitted by the arbitrator upon a showing of good cause?  Shorter hearings can work.  For example, the arbitration clause could include a provision to use attorney proffers acceptable to the arbitrator.  (An attorney proffer, common in bankruptcy court, is the direct testimony of a witness that is stated by counsel or through a written declaration provided in advance instead of direct examination.  The witness would be made available for cross-examination by the opposing party and the arbitrator.)  Not only will the final hearing proceed more quickly, but the costly preparation of direct examination scripts is eliminated. 

4. Identify the Exact Location of the Hearing

Merely identifying the city, county or district where the final hearing will be held is not enough.  Remember, you need a facility in which to hold your final hearing, and facility rental can become a significant expense.  If you are not specific, and the agreed arbitrator suggests holding the hearing in the five-star hotel in which he or she is staying, it can be uncomfortable for your counsel to oppose that suggestion.  Consider a clause that favors using free available options:  the offices of outside counsel or the arbitrator.  And make sure the location stands the test of time.  If you identify the city of your headquarters when the agreement is signed as the forum, what happens when headquarters is relocated years later?

5. Agree on Confidentiality Terms … Once

Arbitration is private litigation, but that does not necessarily mean that the dispute will remain confidential.  Consider including a confidentiality provision that will govern any discovery exchanged in the arbitration and public comments about the arbitration.   It will be more cost-effective to negotiate all confidentiality issues once upfront, when everyone is cooperating, than to negotiate a discovery-focused protective order for each arbitration, and a confidentiality provision as part of the inevitable settlement process.

Conclusion

The issues that are significant for drafting a smarter arbitration clause vary from client to client and, to some extent, from dispute to dispute.  Identifying all of them is beyond the scope of this article.  None of these suggestions is a deal breaker that should frustrate an otherwise sound business contract.  But consideration of these issues should help achieve the particular advantages of arbitration that are sought. If the goal is a non-public resolution, focus on confidentiality.  If the goal is a quick resolution, focus on scheduling and limiting discovery.  If the goal is a trier of fact with particular expertise, focus on arbitrator selection.  

~#4838-2730-1410 v.1~

 

Sarah Toppi and Frank Morreale practice business litigation out of Nelson Mullins Riley & Scarborough LLP's Jacksonville office.  Sarah can be reached at sarah.toppi@nelsonmullins.com. Frank can be reached at frank.morreale@nelsonmullins.com.

Return to Top
The Benefits of Becoming a Mentor
By Charles A. Volkert, Esq. (Robert Half Legal)

For corporate attorneys, the clock is always ticking. Few lawyers feel they have time to spare for activities beyond response and filing deadlines, drop‐dead dates and other burgeoning demands of the job. But whether an in‐house attorney has years of experience or just a few, deciding to invest time in mentoring a promising lawyer could be a triple win — for the department, for the mentee, and for the mentor.

Organizational and Personal Benefits

Corporate lawyers who accept or seek out an opportunity to foster the careers of newly hired professional colleagues bring distinct advantages to their organizations.  Most in‐house attorneys get their start at law firms and already have a track record in their field upon arrival at their first corporate employer, but that doesn't mean they can't benefit from a mentoring experience. For most making the transition, the corporate environment is new, and, despite having excellent legal credentials and experience, these individuals often lack an understanding of company culture and business priorities — both key success factors for today's in‐house practitioners.

Historically, relatively few corporations have recruited legal talent on‐campus, but the competitive hiring market is prompting more organizations to do so. As a result, lawyers joining the ranks of corporate legal departments directly out of law school may be increasing in number. These newcomers have a particular need for the personal assistance and support of an experienced guide. Mentees will appreciate an adviser's explanation of the nuances of working with the attorneys and other legal professionals in the organization. The insights they gain can give them a solid underpinning for working smoothly in a new environment and contributing effectively to project teams. In the process, not only do mentors assist the department in cultivating future leaders, but they also gain something less tangible but no less important: the inner satisfaction of knowing they have helped facilitate someone's career growth.

Career Advantages for Mentors

At the same time that mentoring is rewarding on a personal level, serving in the role also brings some concrete, practical career benefits for the mentor. Senior attorneys will value their assistance in helping prepare professionals new to the organization to serve internal clients more effectively. To win the trust of management and position themselves as advisers, it is becoming increasingly important for corporate lawyers to combine their legal skills with a thorough understanding of a company's business objectives. A mentor can help new colleagues gain a deeper perspective of overall goals and concerns, improving their ability to anticipate potential legal problems.

Becoming a Mentor

The good news about mentoring is that professionals don't always have to find their own partners. Many corporate legal departments have systems in place to pair veteran employees with newer attorneys. The most progressive legal organizations feel that investing in enhancing the development of individual attorneys with efforts such as mentoring programs is good business. The connection is straightforward: 

The quality of client service directly depends on the caliber of the legal team.

Some companies use a hybrid approach that combines both formal and informal mentoring, defining specific responsibilities but leaving other elements — such as topics to be covered and length of mentorship — to the involved individuals. Given the realities of time pressures and impending deadlines in the role of a corporate attorney, it's important for mentors to make clear to the mentee the amount of time he or she has available to devote to the relationship. That way, both parties can better define expectations and avoid potential disappointments. Mentoring relationships come in many different shapes and sizes — all designed to fit an organization's specific needs. Sometimes, for example, a mentorship period is set for a specific duration, such as six months or one year, while in other situations, pairings are created "as needed" during a particular legal project or portion of a project.

Avoid supervisor ­employee mentorships

Lawyers with direct reports can make excellent coaches but are not ideal to serve as mentors to their own employees. In fact, mentees should never be paired with one of their supervisors or team leaders. Partners will be unable to speak freely or discuss sensitive topics if the mentor is also the boss. Whereas the goal of a coach is to direct a person to a specific — and typically more short‐term — end result, a mentor should be someone who has a professional interest in the long‐term development of another person. Mentors, whether in a formal or informal capacity, focus on long‐term career growth and provide objective advice.

Mentoring is one of the few activities that has virtually no downside. At its heart is one very simple requirement: the ability to enhance the personal and professional growth of another. Even for a profession in which there never seems to be enough time to "get it all done," attorneys who fit this profile can shorten learning curves for colleagues and, in the process, multiply professional and departmental effectiveness.

The most effective mentors...

• Offer direct, candid feedback, but always maintain a positive attitude and provide constructive criticism;

• Possess solid leadership and communication abilities; provide clear explanations; guide — but don't direct — mentees;

• Are empathetic; take the time to fully understand mentees' career goals, concerns, strengths and weaknesses;

• Know how to listen; act as sounding board for mentees as they face new challenges;

• Realize they can't be all things to all people — when they don't have the answer; they refer mentees to individuals who do;

• Maintain an open door policy, letting people know they can come to them virtually anytime;

• Keep an open mind; don't allow their years of experience to cause them to respond negatively to new or different ideas or dismiss an employee's 

concerns;

• Always look for chances to praise and celebrate the achievements of others.

__________

From Robert Half Legal

Charles A. Volkert is executive director of Robert Half Legal, a leading staffing service specializing in the placement of attorneys, paralegals, legal administrators and other legal professionals with law firms and corporate legal departments. Based in Menlo Park, Calif., Robert Half Legal has offices in major cities throughout the United States and Canada.

 
Return to Top
left corner
In This Issue
right corner
North Florida Chapter News and Information
Chapter President's Letter
Upcoming Events
Newsletter Articles
Plenary Power under Review
Same-Sex Married Couples Now Have Equal Rights to FMLA Leave Regardless of Their Residence
Keeping Up With the Latest Trends: Is Your Company Ready for an I-9 Audit?
Faster, Cheaper Dispute Resolution Starts With A Smart Arbitration Clause
The Benefits of Becoming a Mentor
Sidebar Bottom
Spacer
left corner
Newsletter Tools
right corner
Search Past Issues
Print-Friendly Issue
Forward to a Friend
Subscribe to This Newsletter
Subscribe via RSS
Calendar
Sidebar Bottom
Spacer
left corner
2014 Chapter Sponsors
right corner

Platinum

Gold

Sidebar Bottom
Spacer
left corner
ACC North Florida Chapter Quick Links
right corner
•  Chapter Website
•  Upcoming Events
•  Chapter Leadership
•  Chapter Photos
•  Chapter LinkedIn
Sidebar Bottom
Spacer