This is a bad bet.  The bankruptcy will result in an auctioning of trademarks (including the mark “Twinkie”), as well as the recipe.  It is almost certain that a private equity firm or a competitor will purchase both, and continue to make and market Twinkies.  The consumer won’t recognize the difference.  There may be a slight collector’s premium for “Hostess branded Twinkies.”  Although that premium is unknown, it is not going to be as large as a premium based on a complete cessation of all Twinkies.

A lawyer is not a magician or a mind reader.  Your lawyer needs to know all of the information available to you in order to best represent your interests.  For instance, if you were in a car accident and you noticed that the other driver was on the phone, keeping this information from your lawyer could substantially harm your case.

A good lawyer will listen to you and ask you questions.  A good client will tell their lawyer everything about their case.

So, a good place to start is to write down everything you can remember about what led up to the lawsuit.  Or, in the case of a contract, all of the terms that you would like.  Then sit down with your lawyer and go through the list.  The more you provide ahead of time, the better.  For each fact, try to answer the question “how do I know this”?

THE RISK: By signing an agreement with such a clause, you are agreeing to the forum provided. If the jurisdiction selected in the contract is not your state of residence, you risk the time and expense required to fight a lawsuit in a distant state (or even country!). This can cause you great inconvenience. If a distant jurisdiction is listed in the forum selection clause, it is important to specify what law will apply to the contract. This is usually included in a Governing Law Clause (discussed in the previous installment).

THE REWARD: You can structure this clause in a way that is convenient for you, ensuring that a dispute will be resolved in your state of residence. If you are entering into a contract with an individual or entity located outside the United States, this clause can place the contract firmly under United States jurisdiction, and allow you to resolve disputes in the US. You can also use this clause to state the method of service in case of a dispute, which is valuable when your potential adversary is not local.

If you are entering into a contract with another party who resides in your state, the contract will probably be governed under the laws of your mutual home state. In some cases, however, you will enter into a contract with a party from another state, or with a company that has offices across the country, or even with a foreign party that wishes to govern the contract under the laws of another country. Those parties may wish to have the law governed under the laws of a state you do not live in. Some considerations when deciding whether to agree to that arrangement:

- Is there a forum selection clause which requires me to resolve disputes in another place? If so, am I willing to take on the inconvenience and expense?

- Do the laws of the other place differ from the laws of my state in a way that negatively affects my rights?

- Are the laws of the other place more favorable, or more appropriate, for the resolution of a dispute under this type of contract?

In order to answer those questions, you should consult with a lawyer who practices in the other place, and you should consult with your regular lawyer regarding the enforceability of the governing law clause.

Next installment – the Forum Selection Clause

Of course, this isn’t the case. Every word in a contract is important, because those words govern your relationship with the other party. But there are certain clauses that appear in almost all contracts, and are often referred to as boilerplate. Understanding these clauses is important. Boilerplate clauses can be included, left out, and varied to meet your individual needs, just like any other contract terms. This is the first in a series of blog posts, where we will explain, one at a time, several of these clauses so you have a better understanding of them the next time you find yourself staring at a long, boring contract.

First up: The Entire Agreement Clause:

The entire agreement clause is a good place to start, because you will almost always find this clause in a contract. It usually goes something like this:

“This Agreement constitutes the entire and final agreement between the Parties and supersedes any and all prior oral or written agreements or discussions. This Agreement may not be modified in any respect except in a writing which states the modification and is signed by both Parties hereto.”

The entire agreement clause is included in the contract so that neither party can say, after signing the contract, that it agreed to terms which are different from those in the contract. This is good for you, as a party to a contract, because it makes your obligations certain. Before you sign a contract that includes a clause like this, you must make absolutely sure that everything you agreed to is in that document, because anything that you agreed to in negotiations or in another document evaporates the moment you put your signature on that piece of paper. Of course, ensuring that your entire agreement is included in your contract is something you should always do before signing.

There are situations, however, where the standard “entire agreement” clause is not appropriate. For example, some contracts depend on other, outside documents which contain certain terms of the agreement. In that case, those documents should be incorporated into the contract, and to be safe, they should be specifically excluded from the entire agreement clause so that they remain in effect after you sign the contract. In other cases, the parties are involved in multiple, unrelated contractual relationships. In that situation, the entire agreement clause should reflect the fact that it is the entire agreement with respect to the subject matter in the contract, and that it does not affect other agreements between the parties.

Another thing to look out for is the second part of the entire agreement clause, which usually states that your contract can only be modified in a writing signed by both parties. This term is not essential to the entire agreement clause, but often appears there. If this sentence is not included in the entire agreement clause, check for it in the rest of the contract and consider including it if it isn’t already there; it protects you from uncertainty if one party wants to change the terms of the agreement. If it is included, make sure that you and the other party intend to abide by it. Do you want to require a signed writing to change the terms? That’s the safest option, but some arrangements require for more flexibility. You can use whatever procedure you want to, but if you plan to allow less formal contract modifications (for example, by email), you should include that in this clause.

Next Installment: Governing Law

Another issue that may arise after you file your trademark application is a trademark Opposition. An Opposition may be filed against you by another party who believes it may be damaged by your registration of the mark. This often occurs if your mark is similar to another mark, but the similarity was not picked up by your examining attorney.

The first rule of trademark Opposition is: Don’t Panic! Just because someone says your mark is confusingly similar to theirs, doesn’t mean it is. Many trademark owners hire aggressive law firms to protect their rights, and these firms oppose any mark that is even slightly related to their client’s mark, even if they are unlikely to win on the merits. Because so many trademark applicants default on Oppositions, these firms succeed in spite of the fact that they often have no case.

Your best option is to hire an attorney who regularly fights trademark Oppositions. That attorney will be able to analyze your case and determine the most cost effective way to proceed. You may, after consultation with an attorney, decide to abandon your mark. You also may decide to fight the Opposition.

Opposition Procedure:

• If you choose to fight the Opposition, either on your own or with the assistance of an attorney, the first step is for you to file an answer. The answer looks a lot like the answer you would file in a lawsuit. It tells your side of the story and includes any affirmative defenses you may have.
• Thirty days after the answer is due, the parties must participate in a pre-discovery conference, where they discuss the case. Subjects covered in the pre-discovery conference include the possibility of settlement and the issues surrounding discovery. You may conduct this conference on your own with the opposing party, or you may have a Trademark Trial and Appeal Board representative participate in the conference with you.
• The next step is for each party to exchange initial disclosures, which disclose the identities of individuals with discoverable information that you may use to support a claim or defense, and copies or descriptions of documents and tangible things that you may use to support a claim or defense. You can’t seek discovery or move for summary judgment until after you make your initial disclosures.
• Discovery begins after the initial disclosures, and it is very similar to the discovery conducted in a regular lawsuit. The discovery devices available in a civil action are all available in an opposition, and the motions available in a civil action are generally available.
• Thirty days before the close of discovery, the parties must make expert disclosures, and fifteen days before your testimony period, you must make additional, pre-trial disclosures.
• There is no live trial in a trademark Opposition. Each party has a period in which they are permitted to submit trial evidence, and the opposer has an opportunity to submit rebuttal evidence. Briefs are filed after the evidence is submitted, and a written decision is provided within three to six months.
• The loser can file a request for reconsideration, or an appeal in a U.S. District Court.

That fear causes problems to get out of control and makes everything more complicated and expensive in the long run.  Without exaggeration, it can mean the difference between five hours of work and five hundred.

In a criminal case, the burden is on the prosecution to prove guilt “beyond a reasonable doubt.”  We wrote on this subject previously.  In June, we explained how the Casey Anthony case was a perfect example of the prosecution failing to meet its burden due to a lack of evidence.  In the Casey Anthony case, she was charged with FIRST DEGREE murder.  Conrad Murray on the other hand is charged with INVOLUNTARY manslaughter.  These two charges are very different, and the evidence required is thus very different.

It is easy to confuse the evidence required with the burden of proof.  To prove its case against Conrad Murray, the prosecution must show that Dr. Murray caused Michael Jackson’s death by committing a crime that posed a high risk of death or great bodily injury because of the way in which it was committed, or that Dr. Murray committed a lawful act, but acted with criminal negligence.  The prosecution must point to specific acts which meet those requirements, and must prove that beyond a reasonable doubt.

In Casey Anthony’s case, the prosecution had to show intent to kill, not just criminal negligence.

So, did the prosecution here prove its case?  Did Dr. Murray act with criminal negligence?

Most of the prosecution’s closing involved emotions, and not facts demonstrating criminal negligence.  In fact, the prosecution even said that they do not need to point to facts since the Defendant’s version would still mean that he “should be held responsible.”  The prosecution needed to point to actual criminal negligence on the part of the defense, and explain why those acts rise to the level of criminal negligence.  He had those facts, but only glossed over those points in favor of the emotional arguments and the actions Dr. Murray allegedly took out of concern for himself.

Here are facts that the prosecution argued which could give rise to criminal negligence (keep in mind, I have only read the closing argument and not all of the testimony during the trial):

1. Dr. Murray knew that Michael Jackson liked to administer his own Propofol and should never have left Michael Jackson in a room full of drugs since it was foreseeable that Michael Jackson might give himself drugs that would kill him.
2. Propofol should never be given in a bedroom.

In order for the prosecution to win, the prosecution either had to focus on those two points and point to the evidence proving one of those, which they didn’t, or has to hope that the emotional argument persuades the jury.  We will soon see.

1) Increase the number of sales (i.e. if you sell 100 widgets a month, sell 200 a month), or

2) Increase the price per sale (i.e. if you sell your widgets at $1 per widget, sell them instead at $2 per widget).

In “Increase Your Bottom Line – Revenues part 2” we explained the two broad methods of increasing your revenues:

1)  Sell to new customers, or

2)  Sell more to existing customers.

We then touched upon the idea of return on investment.

One thing that we see a lot of businesses miss is an opportunity to easily sell more to existing customers.  To do this, you have to know your customer well and identify their need, but if you keep your vision broad, it is often an easier method of increasing revenues than finding new customers.

Amazon is a perfect example of this.  When they first went online, in 1995, they sold only books.  Now, they sell virtually everything.  The idea is simple – people are already coming to us to buy books, we can give them the option of buying music as well.  This has the additional benefit of bringing in new customers too.  They did it again with the Kindle – people are already buying physical books from us, if we give them a method to buy electronic books, maybe we will sell more (there is a tradeoff though, because for every electronic book sold, that is one less physical book).

Note the return on investment concept coming into play here – to expand into music, an investment must be made, but it is a relatively small investment to sell something that Amazon’s existing customers already buy.

Recently, I spoke with an attorney, who is not that old, who still uses this method.  For a number of years, he has been using digital recorders instead of cassettes, and outsourcing the typing.  Instead of his paralegal/secretary doing the typing, he would email the sound recording to a service, which would transcribe it and then email it back as a Word document.  He could then make revisions himself (often on a printout with a pen which he would then give to his paralegal/secretary).

For many lawyers, this method makes sense since they do not type as fast as a trained typist, and they have practice “thinking through speaking.”

For those of us who grew up with computers, this is neither a natural method of thinking, nor efficient.  My smartphone has a voice recorder, so I recently experimented with writing a letter this way.  I found dictation extremely uncomfortable.  Without the ability to quickly glance at what I “wrote” previously, and quickly make edits, I was lost.  For me, doing my own typing and editing is invaluable.  For my clients, it is a huge money saver – my end work product is much faster than if I dictated and had somebody else type, and my hourly rate is lower because I don’t have to cover the costs of a typist.

But I can see how dictation could be a valuable legal skill.  For instance, every motion is spoken instead of written.  This gives the attorney practice making the arguments that he or she will make in court.  By revising the motion multiple times from start to finish, the attorney also gets very familiar with the brief.  I don’t know if this leads to more victories or just costs more, but it is certainly a skill which newer lawyers will not have.