Look for Fraud, Blame the Lawyers
February 7, 2007 | Filed Under Investigations, Tactics
We’ve heard of “shoot the messenger.” There’s a new variant in the Government Accountability Office’s ongoing investigation of the Department of Homeland Security.
According to the Associated Press, the GAO feels that DHS lawyers are frustrating efforts to root out alleged waste, fraud and mismanagement:
“They’re not very responsive. They don’t give information quickly,” said David Walker, head of the GAO.
“Every document we seek to review has to be reviewed (first) by the general counsel’s office,” Walker added. He said the department’s general counsel wants to “sit in on every interview,” which he deemed inappropriate.
Walker said when there are more lawyers than other staff involved, “you’ve got problems.”
“I agree wholeheartedly,” said Inspector General Richard Skinner. “It’s not a denial of information, but it’s very cumbersome to obtain information.”
Skinner also said that having a supervisor or attorney present when his office interviews an employee “sets a chilling effect” and tells the employee he’s presumed not to be a team player.
Is the GAO really that naive?
Without knowing anything about the specifics of this investigation or the pace of DHS’s response, the notion that an in-house legal department should permit government interviews of employees without counsel present is mind-boggling. Or that there is something wrong with legal review of documents before they are produced.
Anyone who has dealt with regulatory document requests knows that they sometimes require a semi-trailer truck with Bates-stamped contents to be fully responsive.
I imagine DHS Secretary Michael Chertoff (himself a former prosecutor, Judge and Assistant Attorney General) doesn’t want to appear before Congress down the road and have new Majority counsel serve up documents he hasn’t seen and witness transcripts he hasn’t been briefed on. Having been on the other side of that table, Secretary Chertoff definitely knows who is having more fun.
One small note: until last month, the DHS GC was Phil Perry, son-in-law of Vice President Dick Cheney.
I’m sure he enjoyed riding shotgun on this investigation.
Fax a Lawsuit, Roll Tide
November 14, 2006 | Filed Under Tactics, In the News
It’s college football week on The Wired GC. Let’s blow the whistle and kick things off.
First, a trip to the SEC. That’s this one, not that one.
Sometimes legal methods have to be reviewed as much as legal rights.
The New York Times featured a lead article over the weekend about the University of Alabama’s lawsuit against sport artist Daniel A. Moore. This picture, “The Sack,” depicts a famous hit on Notre Dame quarterback Steve Beuerlein by Alabama player Cornelius Bennett in 1986.
The university alleges that Mr. Moore’s paintings violate trademark rights, including the use of crimson and white (note: crimson is one thing, but when an artist can’t use white, hmmmm).
So far so good; a university needs to police and protect its marks.
But Alabama didn’t just talk about this with Mr. Moore, who has quite a following among ‘Bama faithful. In fact, Mr. Moore is an Alabama alum, painting football memories for decades. He has two daughters attending the university, and one who has graduated.
No, according to the Times they called a “Konica Flare on 3,” which is also known as serving lawsuit papers by fax. This always looks bad when recounted in the press. It helped earn this sort of response by one of ‘Bama’s own:
“This lawsuit is the equivalent of the Catholic Church suing Michelangelo for painting the Sistine Chapel,” said Keith Dunnavant, an Alabama alumnus and the author of “Coach: The Life of Paul ‘Bear’ Bryant.”
The Times notes that the university declined requests for interviews, supposedly on “advice of counsel.” Perhaps they should have consulted a certain emeritus faculty member first on how to review options before running with a lawsuit:
James Glen Stovall, who taught journalism at the university for 25 years, said only one sort of person would support the suit. “I can see why, if you’re sitting in a roomful of lawyers, you might come to that conclusion,” Mr. Stovall said. “But no one outside of that room would say: ‘Hey, that’s a good idea. Let’s sue Daniel Moore.’ ”
Ouch.
And in Professor Stovall’s remarks, there are at least three insights for GCs. The first is just because you can, doesn’t mean you should. The second is that methods matter, and are largely what the court of public opinion rules on. Finally, there’s the reality of the “no comment” in the Internet Age. If you want spokespeople to try that handoff to “the lawyers,” fine. Just don’t be surprised when your little lawsuit shows up on page one of a major newspaper, and on its website.
It’s the kind of PR a university just can’t buy.
And surely this lawsuit would find its way into the Alabama student newspaper and student life. (They can only write so many articles about dorm food and freeing Tibet). There has been a petition circulated on campus supporting Mr. Moore that has garnered over 2,000 signatures. (The student writer actually does a great job of digging into the story; showing it has shades of grey in addition to crimson and white).
Now if that grey was in paintings involving the Ohio State Buckeyes, all bets are off. (Does it go with scarlet or clarett?)
Let it Be
May 22, 2006 | Filed Under Tactics, In the News
But not if you are Apple CEO Steve Jobs.
A very interesting story from MacJournals recounts the long-running dispute and litigation between the licensing arm for the Beatles, Apple Corps, and Apple Computer. Jobs won the most recent round in the England and Wales High Court.
Conventional wisdom was that Apple Computer would be a loser. But the Judge sided with that sometimes bad Apple, albeit for different reasons than those they put forth.
The article reprints a key provision from a 1991 licensing agreement, which the Judge used to construe the plain meaning of a key phrase as giving Apple Computer room to include music-related products under the “Apple” banner.
This result serves as a handy reminder to all litigators: the case really begins when agreements are signed; your transactional lawyers need to be talking to you early in the process.
Neither side thinks the dispute is over. No Garden of Eden in Apple-land. Yet.
Listen Up
March 22, 2006 | Filed Under Tactics, Managing
We are often told to listen more. You know, the “you have two ears and one mouth” bromide.
But as managers, we can’t listen unless people first feel free to talk to us about important things. Many people won’t talk, even when encouraged to do so. Why is this?
According to HBS Working Knowledge, a prime reason is fear. More precisely, a fear of speaking up to internal authorities.
This summary of research by Harvard Business School professor Amy Edmondson and Penn State professor James Detert makes for fascinating reading; here’s a sample:
Turning to the modern economy, most of us depend on hierarchical organizations and their agents (i.e., bosses) to meet many of our basic needs for economic support and human relationships. Thus, fear of offending those above us is both natural and widespread. One way we can get in trouble with those above us is to speak up in ways perceived as challenging of authority or critical of cherished programs. Given the exaggerated and real reasons to fear offending authorities, it isn’t surprising that people clam up when the signals seem unfavorable.
How does a manager work to create a better environment to encourage people to speak up (what the authors call “upward voice”)? According to the authors, there are two things. One is allaying a concern that one taking on significant risk of personal harm (e.g., embarrassment, loss of material resources). The other is to listen and follow up on things said so next time a person does not feel that time is being wasted by talking.
Have you ever been in a meeting where you had something important to say, but didn’t?
Exactly.
So, apparently, have your direct reports. Maybe even today.
Bearing Witness
March 15, 2006 | Filed Under Tactics, In the News
It’s not every day that a mistake on the job can result in life-changing consequences.
TSA in-house lawyer Carla J. Martin is squarely in the news over alleged improper coaching of witnesses in the Zacarias Moussaoui sentencing prosecution. This supposedly occured after Judge Leonie M. Brinkema issued an order last month barring contact with witnesses, essentially sequestering them so their testimony would not be corrupted. In fairness to Ms. Martin, there was also allegedly improper contact by others working on the government’s case.
The witnesses in question were aviation officials who could testify for the government about what they would have done had Mr. Moussaoui told the truth about pre-9/11 planning when he was arrested. Such testimony is considered essential in obtaining the death penalty against Mr. Moussaoui, who earlier pleaded guilty to government charges.
Ms. Martin, and her lawyer, have declined comment. Ms. Martin’s mother, Jean Martin Lay, didn’t get the memo and spoke to the New York Times:
“She was so devastated,” Ms. Lay said in a telephone interview from her home in Knoxville, Tenn. “She said she just didn’t hear the judge.”
Ms. Lay said her daughter was in the courtroom when Judge Brinkema issued the order on handling witnesses, but was probably concentrating on something else “instead of being mindful.”
Being mindful. That is something essential for every lawyer to do every day.
More on the proceedings from SCOTUSblog; there’s also good audio from NPR. Some think life without parole is a more appropriate punishment anyway.
Ms. Martin was forced to run the press gauntlet in heels as she left the courtroom:
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