June 26, 2019

Archives for March 21, 2012

LexisNexis Tips Series: Making Law Firm Teams More Revenue Focused

Practice-area teams in law firms claim no shortage of philosophies and approaches. Practice groups and client-service teams need to be focused on generating revenue, so to get there, the connection between theory, reality and dollars must be solid. What are some tangible, proactive steps lawyers can take to be more effective leaders and make their teams successful?

Here are a few suggestions by David Freeman, JD, CEO of David Freeman Consulting:

  • Get everyone on the same page. Groups as well as individuals need different styles of leadership to raise personal and team performance. If individuals are going off in different directions, arrange a planning meeting that reinforces common goals and defines steps for getting there. For groups that don’t work well together, collaborative planning and ongoing teambuilding activities can enhance personal connections and collegiality.
  • Consider 1:1 coaching. If you have underperformers in your group, one-on-one coaching and goal setting can be extremely effective. Each lawyer has different aspirations, and personal coaching can support their goals, while also aligning with the needs of the group.
  • Develop a tracking, measurement and reminder system. The biggest gap is not in the planning; it’s in the doing. It’s up to a team leader to keep business development top of mind within the group. Agree on the right activities to measure, and use meetings, e-mails, phone calls, random office drop-ins, and practice assistants to remind people of their commitments.
  • Invest in a software-based tracking system. There are many options in software from free to paid that help teams be accountable to one another.
  • Delegate, delegate, delegate. Leaders often take on more than they should. Effective leaders frequently develop lists of all group roles and responsibilities, determine which tasks they must do, and try to farm the rest to others. Leaders must be allowed time to think strategically, and to help others achieve group and personal goals. As much as possible, they should stay away from the “administrivia.”
  • Open the internal communications pipeline. One of partners’ biggest gripes, especially in larger firms, is not knowing what others do. Leaders should arrange meetings between complementary practice groups to build personal relationships and to learn more about other practices.
  • Get the juices flowing. If your culture permits, stimulate activity by creating contests and rewards. Develop appropriate goals and measures and offer incentives for reaching them. Think, for example, of increasing the number of on-site client visits, meeting with referral sources, or arranging follow-up appointments from attending conferences.
  • Support high performing groups. While you shouldn’t ignore others groups, you should invest heavily in your best performers. Build on their strengths to gain greater competitive advantages, increase revenue, enhance market share, and attract top laterals.
David H. Freeman, JD, CEO of David Freeman Consulting Group, specializes in helping law firms increase revenue through leadership training, business development training and coaching, client service and advanced cross-selling.

About LexisNexis: LexisNexis® (www.lexisnexis.com) is a leading global provider of content-enabled workflow solutions designed specifically for professionals in the legal, risk management, corporate, government, law enforcement, accounting and academic markets. LexisNexis originally pioneered online information with its Lexis® and Nexis® services. A member of Reed Elsevier [NYSE: ENL; NYSE: RUK] (www.reedelsevier.com), LexisNexis serves customers in more than 100 countries with 15,000 employees worldwide.

Colorado Supreme Court: Evidence of Alternative Suspect’s Past Sexual Conduct with Someone Other than the Victim Was of Questionable Relevance and Could Mislead Jury

The Colorado Supreme Court issued its opinion in In Re People v. Salazar on March 19, 2012.

Criminal Defense—Relevant Evidence—Propensity Evidence—Rape Shield Statute—C.R.E. 403.

In this case involving sexual assault on a child, defendant sought to introduce evidence of an alternative suspect, the child’s grandfather. Defendant asserted that the alternative suspect had sexually assaulted his own daughter when she was a child and was present in the home when the incidents for which the defendant was charged allegedly occurred. Thus, defendant argued that the alternative suspect had motive and opportunity to commit the charged offenses and, therefore, evidence of the alternative suspect’s previous sexual conduct was relevant to the identity of the perpetrator in his case. The trial court ruled that the evidence was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice or confusion of the issues.

The Supreme Court determined that, under Court precedent, evidence of an alternative suspect’s past sexual conduct with someone other than the victim was of questionable relevance to the identity of the perpetrator of the charged offense. The Court concluded that, even assuming the relevance of the alternative suspect’s past sexual conduct, the evidence should be excluded under C.R.E. 403, because its probative value was substantially outweighed by the danger of confusing the issues and misleading the jury. Noting that the grandfather never was charged criminally for the alleged abuse of his daughter, and that testimony addressing the grandfather’s alleged abuse of his daughter would shift the focus of the trial from the abuse of the victim to the past abuse of the daughter, the Court held that the trial court abused its discretion in finding the evidence admissible in this case.

Summary and full case available here.

Colorado Supreme Court: Trial Court Must Decide Before Trial if Party Is Immune from Suit Pursuant to Aviation and Transportation Security Act

The Colorado Supreme Court issued its opinion in Air Wisconsin Airlines Corp. v. Hoeper on March 19, 2012.

Defamation—Statutory Immunity—Actual Malice.

The Supreme Court affirmed the court of appeals’ judgment and held that a trial court must decide before trial if a party is immune from suit pursuant to the Aviation and Transportation Security Act (ATSA), 49 U.S.C. § 44941. The Court held that (1) Air Wisconsin Airlines Corporation was not immune from suit for defamation under the ATSA; (2) the record showed clear and convincing evidence to support a finding of actual malice; (3) Air Wisconsin’s statements were not protected as opinion; and (4) the evidence was sufficient to support the jury’s determination that the statements were false.

Summary and full case available here.

Tenth Circuit: Unpublished Opinions, 3/20/12

On Tuesday, March 20, 2012, the Tenth Circuit Court of Appeals issued no published opinions and one unpublished opinion.


Parker v. Standifird

No case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Governor Hickenlooper Signs Several Bills Into Law

Governor Hickenlooper signed the first bill of this legislative session into law on January 30, 2012. Since then, he has signed nearly 60 bills into law.

On Monday, March 19, Governor Hickenlooper signed the following bills:

  • HB 12-1018: Concerning Modifications to Available Affiliation by Social Security Employers with The Fire And Police Pension Association
    • Sponsored by Rep. Jeanne Labuda and Sen. Lois Tochtrop. The bill requires employers eligible to participate in the Fire and Police Pension Association who offer death and disability plans to also participate in the FPPA Social Security supplemental plan.
  • HB 12-1071: Concerning Portable Electronics Insurance
    • Sponsored by Rep. Larry Liston and Sen. Cheri Jahn. The bill allows certain vendors of portable electronics devices to sell insurance on those devices and enacts certain requirements for training and sales commissions.
  • HB 12-1077: Concerning Modifications to the Investment Confidentiality Provisions Related to Police Officers’ and Firefighters’ Pension Plans
    • Sponsored by Rep. Bob Gardner and Sen. Lois Tochtrop. The bill clarifies confidentiality provisions of the Police and Firefighters’ Pension Plans so that potential investors can disclose sensitive information without fear of it becoming a public record.
  • HB 12-1096: Concerning an Extension of the Period for Which the Voluntary Contribution Designation Line Benefiting the Make-A-Wish Foundation Of Colorado Fund Appears on State Individual Income Tax Return Forms
    • Sponsored by Rep. Andy Kerr and Sen. Greg Brophy. The bill extends until 2016 the income tax checkoff for a charitable contribution to the Make-A-Wish Foundation.
  • HB 12-1120: Concerning the Creation of the Division Of Unemployment Insurance in the Department Of Labor And Employment to Administer the Unemployment Insurance Program
    • Sponsored by Rep. Keith Swerdfeger and Sen. Lois Tochtrop. The bill creates a Division of Unemployment Insurance within the Department of Labor and Employment and relocates the existing unemployment insurance program to the new Division.
  • HB 12-1127: Concerning Elimination of an Increase in the Unemployment Insurance Premium Rate for New Employers
    • Sponsored by Rep. Larry Liston and Sen. Suzanne Williams. The bill reduces the unemployment insurance premium rate for new employers.
  • SB 12-029: Concerning the Enactment of Colorado Revised Statutes 2011 as the Positive and Statutory Law of The State Of Colorado
    • Sponsored by Sen. John Morse and Rep. Bob Gardner. The bill enacts the softbound volumes of the Colorado Revised Statutes as the state’s positive and statutory law.
  • SB 12-042: Concerning Bringing Certain Statutory Provisions Related to Child Support Into Compliance with Federal Law
    • Sponsored by Sen. Nancy Spence and Rep. Ken Summers. The bill requires the Department of Human Services to make changes in order to comply with federal law.
  • SB 12-111: Concerning Departmental Reporting of Full-Time Equivalent Employees
    • Sponsored by Sen. Mary Hodge and Rep. Claire Levy. The bill modifies personnel-related reporting requirements for state agencies.
  • SB 12-112: Concerning the Headnote Definition of Full-Time Equivalent Employees Used in the Annual General Appropriation Act
    • Sponsored by Sen. Mary Hodge and Rep. Claire Levy. The bill modifies the definition of full-time employee to account for actual hours worked in a year.
  • SB 12-113: Concerning the Designation in the Annual General Appropriations Act of the Portion to be Redirected to the Counties of the State’s Share of Recoveries for Public Assistance Paid for Family Support Obligations
    • Sponsored by Sen. Kent Lambert and Rep. Cheri Gerou. The bill requires the General Assembly to set the state’s share of public assistance recoveries that are redirected to counties.
  • SB 12-114: Concerning the Crediting of all Disputed Payments Received by the State Pursuant to the Tobacco Litigation Settlement Agreement on Or After July 1, 2008, to the State General Fund
    • Sponsored by Sen. Kent Lambert and Rep. Claire Levy. The bill extends a provision allowing any disputed tobacco litigation settlement payments to be credited to the general fund.
  • SB 12-115: Concerning a Requirement That the Limited Gaming Control Commission Take Into Account the Impact on All Authorized Recipients of Gaming Tax Revenue When Considering Changes in Rules Governing the Taxes On Limited Gaming Activity
    • Sponsored by Sen. Pat Steadman and Rep. Jon Becker. The bill requires the Limited Gaming Control Commission to receive testimony from recipients of gaming revenue whenever a rule is adopted that changes the tax rates or policies.

Governor Hickenlooper signed five bills into law on Friday, March 16:

  • HB 12-1147: Concerning the designation of the Western Tiger Salamander as the state amphibian
    • Sponsored by Rep. Angela Williams and Sen. Joyce Foster. The bill designates the western tiger salamander as the state amphibian.
  • HB 12-1050: Concerning the voluntary contribution designation benefiting the nongame and endangered wildlife fund that appears on the state individual income tax return forms and, in connection therewith, extending the period for the contribution designation
    • Sponsored by Rep. Roger Wilson and Sen. Jeanne Nicholson. The bill extends until 2016 the income tax checkoff contribution for the Nongame and Endangered Wildlife Fund.
  • HB 12-1079: Concerning designation of certain positions in the Department of Public Safety
    • Sponsored by Rep. Mark Barker and Sen. Steve King. Allows executive director of Department of Public Safety to name a deputy executive director and clarifies that deputy executive director and director of Division of Criminal Justice are peace officers.
  • HB 12-1231: Concerning the authority of the Department of Revenue to allow licensed private investigators access to certain motor vehicle records for specified purposes
    • Sponsored by Rep. Su Ryden and Sen. Nancy Spence. The bill requires private investigators to be licensed in order to access certain motor vehicle records.
  • HB 12-1013: Concerning intervention services for middle-grade students
    • Sponsored by Reps. Rhonda Fields and Chris Holbert and Sens. Evie Hudak and Keith King. The bill requires that local school boards consider enacting measures to identify kids at risk of dropping out.

Governor Hickenlooper signed seven bills into law on Thursday, March 15:

  • HB 12-1010: Concerning the reissuance of a lost share certificate of a mutual ditch company
    • Sponsored by Rep. Randy Baumgardner and Sen. Angela Giron. The bill eliminates the three-year waiting period for reissuance of a lost share from a mutual ditch company and adds lienholders to the list of potential recipients of reissued shares.
  • HB 12-1158: Concerning the regulation of producers of materials that may be used in commercial livestock feed, and, in connection therewith, repealing the “Colorado Inedible Meat Rendering and Processing Act of 1967” and relocating some of its provisions to the “Colorado Feed Law.”
    • Sponsored by Rep. Randy Baumgardner and Sens. Angela Giron and Kevin Grantham. The bill repeals the “Colorado Inedible Meat Rendering and Processing Act of 1967” and grants the Commissioner of Agriculture rulemaking authority.
  • HB 12-1054: Concerning simplification of the procurement process for providers who have previously been approved to participate in health care programs administered by the Department of Health Care Policy and Financing
    • Sponsored by Rep. Rhonda Fields and Sen. Betty Boyd. The bill grants DHCPF rulemaking authority to simply procedures for providers to offer health care programs regulated by DHCPF.
  • HB 12-1015: Concerning the procedure for the review of a proposal to regulate an unregulated profession or occupation
    • Sponsored by Rep. Chris Holbert and Sen. Tim Neville. The bill modifies the sunrise review process for new licensing of professions by the Department of Regulatory Agencies.
  • HB 12-1022: Concerning the amount of water that permitted mining operation that construct impermeable areas that eliminate preexisting natural evapotranspiration are required to replace
    • Sponsored by Rep. Jerry Sonnenberg and Sen. Gail Schwartz. Mining operators will not be required to replace historic natural depletion to stream water.
  • HB 12-1139: Concerning pretrial detention of children prosecuted as adults
    • Sponsored by Rep. Claire Levy and Sen. Lucia Guzman. The bill requires that children who are to be prosecuted as adults be detained in a juvenile facility unless otherwise ordered by a judge after careful consideration.
  • SB 12-048: Concerning the creation of the “Colorado Cottage Foods Act” for locally produced home foods sold directly to consumers
    • Sponsored by Sen. Gail Schwartz and Rep. Don Coram. The bill allows local producers of potentially nonhazardous foods to use their own kitchens and sell foods at certain local retailers.

Governor Hickenlooper signed more bills into law on Friday, March 9; Thursday, March 8;  Thursday, March 1; Thursday, Feb. 23; Wednesday, February 15; and Monday, January 30. Additionally, Lt. Governor Joe Garcia signed a bill into law in Gov. Hickenlooper’s absence on Wednesday, March 7.

For a complete list of Governor Hickenlooper’s 2012 legislative decisions click here.

Cyber Insurance: An Efficient Way to Manage Security and Privacy Risk

Practically every company in our modern economy has information security and privacy risk. There is no way to completely eliminate it. Whether it is your firm or your client, most companies of all shapes, sizes, and wealth profiles use information technology and handle sensitive information including personal information and credit card numbers. That means organizations face potential direct losses, lawsuits, and liability due to data, security, and privacy breaches.

The frequency and magnitude of data breaches by hackers has only been increasing. We read about security and privacy breaches practically every day in the newspaper. As the world continues to change at seemingly light-speed and cyber risks increase, the need for risk transfer with cyber insurance is also growing. Relying on a general liability or property policy to provide the coverage is no longer a wise choice (if it ever was), and companies could be well-served to get peace of mind and relative predictability by learning more about cyber policies that are actually designed to address the risk.

CBA-CLE will be hold a program on Thursday, March 29 to address the impact of data breaches and the trend toward cyber insurance. The program presenter, David Navetta, Esq., has written several articles about data security and cyber insurance. Read some of his insights below, and then join us to learn more about protecting sensitive information with cyber insurance, an option that may be of great importance to your clients or law firm.

In the early 2000s, just around the “DotCom Bust,” some insurers began developing a product designed to address the financial loss that might arise out of a data breach. This was a time where most “brick and mortar” companies were just beginning to leverage the economic potential of the Internet. At that time, insurers wanted to target the big “dotcom” companies like Amazon, Yahoo, eBay, Google, etc., and other companies pioneering e-commerce and online retailing. At some point, somebody dubbed this type of insurance “cyber insurance.”

The early cyber policies included liability and property components. The liability coverages addressed claim expenses and liability arising out of a security breach of the insured’s computer systems (some early policies only covered “technical” security breaches, as opposed to policy violation-based security breaches). The property-related components covered business interruption and data asset loss/damage arising out of a data breach (during the holiday season many online retailers suddenly developed a tasted for business interruption coverage after realizing just how negatively their business would be impacted by a denial of service attack).  Additional first party coverages included cyber-extortion coverage and crisis management/PR coverage.

Unfortunately for the carriers, it was not easy to get people to understand the need for this coverage (and that is still a challenge today, but certainly a lesser challenge with all of the security and privacy news constantly streaming). Early on there were very few lawsuits and regulators were just beginning to consider enforcement of relatively new statutes like GLB and HIPAA.

Two things changed that made cyber insurance much more relevant. One was a rather sudden event, and the other more gradual.

First, in 2003, California passed SB1386, the world’s first breach notification law. The reality then (as now) is that companies suffer security breaches each and every day. Prior to SB1386, however, breaches of personal information simply went unreported. With SB1386 and the subsequent passage of breach notice laws in 45 other states (and now coming internationally), the risk profile changed for data breaches. Instead of burying the breaches, companies were required to incur significant direct expenses to investigate security breaches and comply with applicable breach notice laws, including the offering of credit monitoring to affected individuals (which is not legally required by existing breach notice laws, but is optionally provided by many companies or “suggested” by state regulators). As a result, the plaintiffs’ bar now had notice of security breaches and began filing class action lawsuits after big breaches (usually involving high-profile brand name organizations). As such, cyber insurance coverage went from coverage addressing a hypothetical risk of future lawsuits, to a coverage addressing real-life risk (and now we have lawsuits getting deeper into litigation and public settlements of these types of cases). Moreover, shortly after the passage of SB 1386 many cyber insurance policies began covering the direct costs associated with complying with breach notification laws, including attorney fees, forensic investigation expenses, printing and mailing costs, credit monitoring expenses and call center expenses.  Breach notification costs are direct and almost unavoidable after a personal information breach.  Regardless of lawsuit activity, a direct financial rationale for cyber insurance coverage now existed.

The other change that occurred more gradually over time, but which has had a significant impact concerning the frequency and magnitude of data breaches, was organized crime. In the early 2000s, hacking was more of an exercise in annoyance or a used for bragging purposes. Hackers at that time wanted their exploits talked about and know. They wanted credit for hacking into or bringing down a sophisticated company (or better yet a division of the Federal Government or military). As such, when an attack happened it was discovered and remediated, and that would be the end of it.

True criminals, of course, are less interested in such notoriety. In fact, when trying to steal thousands/millions of records to commit identity theft or credit card fraud it is much better to NOT be detected. Lingering on a company’s network taking information for months or years is a much more profitable endeavor. Recognizing that this type of crime is low risk (it can be performed from thousands of miles away in Eastern Europe with almost no chance of getting caught) and high reward, organized crime flooded into the space. And in this context the word “organized” is truly appropriate – these enterprises retain very smart IT-oriented people that use every tool possible to scale and automate their crimes. They leverage the communication tools on the Internet to fence their “goods” creating, for example, wholesale and retail markets for credit cards, or “eBay”-like auction sites to hawk their illicit wares (e.g. valuable information). The change in orientation described above has essentially resulted in a 24/7/365 relentless crime machine constantly attacking and looking for new ways to attack, and always seeming to be one step ahead of those seeking to stop them. That is why we read about security and privacy breaches practically every day in the newspaper.

Fast-forward to present time. Cyber insurance is a much more established market with more carriers entering on a regular basis. There are primary and excess markets available for big risks, and companies of all sizes are looking at cyber more as a mandatory purchase rather than discretionary. As the world continues to change at seemingly light-speed and cyber risks increase (with the advent of hacktivism, social media and the consumerization of IT/BYOD ) the need for cyber is also growing. With competition pushing cyber insurance prices down, and significant security and privacy risk being retained by organizations, risk transfer is becoming very attractive (and from an overall big picture systemic point of view, spreading risk is also attractive). The price may be right, and the peace of mind priceless.

Click here to read the full article. Program registration information below.

CLE Program: Is Your Sensitive Data Secure? Cyber Insurance for Your Firm and Your Clients

This CLE presentation will take place on Thursday, March 29. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.