Menu
Blog Archives
BakerHostetler Hires A.I. Lawyer, Ushers In The Legal Apocalypse
May 27, 2016
When Jeopardy superchampion Ken Jennings fell to IBM’s Watson, a chill fell over the ranks of white-collar professionals who saw the cold, merciless grip of technology tightening its grip around their hearts just as surely as the steam hammer did in John Henry. Lawyers in particular recognized that the slayer of the Jennings dragon wasn’t destined to stalk syndicated television, making Alex Trebek’s contestant chit-chat, almost improbably, more stilted and awkward. No, Watson was coming for our jobs. As...
May 27, 2016
When Jeopardy superchampion Ken Jennings fell to IBM’s Watson, a chill fell over the ranks of white-collar professionals who saw the cold, merciless grip of technology tightening its grip around their hearts just as surely as the steam hammer did in John Henry. Lawyers in particular recognized that the slayer of the Jennings dragon wasn’t destined to stalk syndicated television, making Alex Trebek’s contestant chit-chat, almost improbably, more stilted and awkward. No, Watson was coming for our jobs. As...
Bryan Garner’s 3 Neglected Keys To Effective Advocacy
May 26, 2016
Here are his three keys: 1. Advocates should use deep issues — that is, multisentence issue statements ending in a question mark by the 75th word. The one-sentence issue should be banned. This might diverge from what you learned in your legal writing class in law school. But it is, as Justice Scalia put it, Garner’s “greatest contribution to advocacy.” According to Garner, the key thing in a case is to frame the issues properly. Yet many lawyers frame issues in a way that’s just...
May 26, 2016
Here are his three keys: 1. Advocates should use deep issues — that is, multisentence issue statements ending in a question mark by the 75th word. The one-sentence issue should be banned. This might diverge from what you learned in your legal writing class in law school. But it is, as Justice Scalia put it, Garner’s “greatest contribution to advocacy.” According to Garner, the key thing in a case is to frame the issues properly. Yet many lawyers frame issues in a way that’s just...
WDTX Refuses to Stay Arbitration Proceedings in Wind Energy Dispute
May 26, 2016
The Western District of Texas has refused to stay arbitration proceedings in a dispute between a wind energy company, Papalote...
May 26, 2016
The Western District of Texas has refused to stay arbitration proceedings in a dispute between a wind energy company, Papalote...
Fifth Circuit Finds Federal Jurisdiction Over $10,000 Arbitration Award
May 26, 2016
The Fifth Circuit recently addressed a hard question: what should the court consider when determining the amount in controversy for purposes of federal jurisdiction over an arbitration award? The court decided to rely on the amount originally sought by the claimant in the demand for arbitration. Pershing, LLC v. Kiebach, __ F.3d __, 2016 WL 1375874 (5th Cir. April 6, 2016). In Pershing, the claimants demanded $80 million in damages from their broker. The arbitration panel rejected their claims,...
May 26, 2016
The Fifth Circuit recently addressed a hard question: what should the court consider when determining the amount in controversy for purposes of federal jurisdiction over an arbitration award? The court decided to rely on the amount originally sought by the claimant in the demand for arbitration. Pershing, LLC v. Kiebach, __ F.3d __, 2016 WL 1375874 (5th Cir. April 6, 2016). In Pershing, the claimants demanded $80 million in damages from their broker. The arbitration panel rejected their claims,...
Silicon Valley Arbitration Clauses
May 25, 2016
The NY Times today described the increasing use of arbitration clauses for Silicon Valley and other similar start-up firms. This issue is nothing new to readers of this post, but it perhaps shows that even Silicon Valley isn't immune from broader workplace trends (although they certainly put a nicer spin on it). As always, the devil is likely in the details. Workers represented by experienced unions tend to fare well under arbitration systems, while individual employees--or those trying to form...
May 25, 2016
The NY Times today described the increasing use of arbitration clauses for Silicon Valley and other similar start-up firms. This issue is nothing new to readers of this post, but it perhaps shows that even Silicon Valley isn't immune from broader workplace trends (although they certainly put a nicer spin on it). As always, the devil is likely in the details. Workers represented by experienced unions tend to fare well under arbitration systems, while individual employees--or those trying to form...
The Arbitration Bootstrap
May 25, 2016
Christopher R. Leslie, Chancellor’s Professor of Law at the University of California, Irvine School of Law has published “The Arbitration Bootstrap,” Texas Law Review, Vol. 94, No. 2, 2015; UC Irvine School of Law Research Paper No. 2016-19. In his paper, Professor Leslie examines the legislative intent behind the Federal Arbitration Act and argues the law was never meant to be applied to consumer contracts. Here is the abstract: Arbitration clauses in contracts require consumers to waive...
May 25, 2016
Christopher R. Leslie, Chancellor’s Professor of Law at the University of California, Irvine School of Law has published “The Arbitration Bootstrap,” Texas Law Review, Vol. 94, No. 2, 2015; UC Irvine School of Law Research Paper No. 2016-19. In his paper, Professor Leslie examines the legislative intent behind the Federal Arbitration Act and argues the law was never meant to be applied to consumer contracts. Here is the abstract: Arbitration clauses in contracts require consumers to waive...
Sign O’ The Times: SCOTUS Denies Cert In Franchise Arbitration Dispute
May 25, 2016
On Monday of this week, after stringing the parties along for five months, SCOTUS denied cert in a case involving the intersection between arbitration and franchise regulation. The petition was filed in November of 2015, and after the respondent initially declined to respond, the Court specifically requested a response, and conferenced the case twice, before denying the petition. This could be an indication that, without Scalia, the Court is less interested in arbitration issues, or at least...
May 25, 2016
On Monday of this week, after stringing the parties along for five months, SCOTUS denied cert in a case involving the intersection between arbitration and franchise regulation. The petition was filed in November of 2015, and after the respondent initially declined to respond, the Court specifically requested a response, and conferenced the case twice, before denying the petition. This could be an indication that, without Scalia, the Court is less interested in arbitration issues, or at least...
Empathy is Critical to Successful Negotiation
May 24, 2016
If you want your interests taken into consideration by the other party you should clearly explain them. When the parties feel they are paying attention to each other and honestly making an effort to settle a matter there’s a better chance of reaching a resolution. Discussions should focus on the desired outcome not on past events that created the conflict while being open to different proposals and positions. Examples of how this works comes from the political world where there is no lack of conflict....
May 24, 2016
If you want your interests taken into consideration by the other party you should clearly explain them. When the parties feel they are paying attention to each other and honestly making an effort to settle a matter there’s a better chance of reaching a resolution. Discussions should focus on the desired outcome not on past events that created the conflict while being open to different proposals and positions. Examples of how this works comes from the political world where there is no lack of conflict....
SCOTX: Arbitration Conducted Under the TAA May Not Be Vacated on Common-Law Grounds
May 24, 2016
On Friday, the Supreme Court of Texas ruled that an arbitral award may not be vacated under the Texas Arbitration Act (“TAA”) based on common-law grounds. In Leonard K. Hoskins v. Colonel Clifford Hoskins and Hoskins, Inc., No. 15-0046 (May 20, 2016), two siblings were ordered to engage in arbitration over the allegedly improper transfer of certain mineral rights from their father’s estate. Following arbitration, one of the siblings asked a trial court to vacate the arbitrator’s decision...
May 24, 2016
On Friday, the Supreme Court of Texas ruled that an arbitral award may not be vacated under the Texas Arbitration Act (“TAA”) based on common-law grounds. In Leonard K. Hoskins v. Colonel Clifford Hoskins and Hoskins, Inc., No. 15-0046 (May 20, 2016), two siblings were ordered to engage in arbitration over the allegedly improper transfer of certain mineral rights from their father’s estate. Following arbitration, one of the siblings asked a trial court to vacate the arbitrator’s decision...
Fifth Circuit: Authority to Execute Arbitration Agreement
May 24, 2016
The Fifth Circuit Court of Appeals consolidated two cases that asked similar questions: what level of authority does one need under Mississippi law to execute an arbitration agreement. Both cases involved arbitration agreements relating to nursing homes. The cases are: Gross v. GGNSC Southaven, LLC and Cotton v. GGNSC Batesville, LLC. In both instances, the trial court denied the nursing homes' motions to compel, reasoning that Mississippi law required an executed power of attorney, or some other...
May 24, 2016
The Fifth Circuit Court of Appeals consolidated two cases that asked similar questions: what level of authority does one need under Mississippi law to execute an arbitration agreement. Both cases involved arbitration agreements relating to nursing homes. The cases are: Gross v. GGNSC Southaven, LLC and Cotton v. GGNSC Batesville, LLC. In both instances, the trial court denied the nursing homes' motions to compel, reasoning that Mississippi law required an executed power of attorney, or some other...
