Conrad Murray Trial

4 11 2011

The “jury is out” in the Conrad Murray case.  They will likely return a verdict by the end of today or Monday. 

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.

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Increase Your Bottom Line–Revenues Part 3

1 11 2011

In “Increase Your Bottom Line—Revenues part 1” we explained that, generally speaking, the two ways to increase your revenues (ie. your top line; we are not talking about profit here) are:

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.





Is Dictation a Lost Legal Skill?

20 10 2011

In the “olden days” of law, which don’t go back so far, lawyers used dictation to write briefs, correspondence, etc.  They would talk into a tape recorder and then their paralegal or secretary would listen to the tape and transcribe everything.  The lawyer would then go through a printout with a (usually red) pen and give it back to the typist who would make the revisions.  This would go on until the document was complete.

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.





What Is Reasonable Doubt?

5 10 2011

Beyond a Reasonable Doubt – if you don’t know the phrase from school, you know it from TV crime shows, along with another important one – Innocent Until Proven Guilty. You could easily repeat those phrases back to me, and you could probably tell me a little bit about what they mean. But how well do you understand them? This is an important question, because, while legal scholars have written countless articles and books about the burden of proof in a criminal case, it is ordinary Americans who apply these concepts in courtrooms across the country every day.

In order to find a criminal defendant guilty, you must determine that his guilt was established at trial “beyond a reasonable doubt.” No matter what the defendant is accused of, he is innocent until his guilt is established to that degree, and it is each juror’s responsibility to view the defendant as innocent until he is proven guilty even if that takes a great effort. The burden of proof in a criminal case is very high, and it is designed so that it is more likely for a jury to find a guilty person innocent than an innocent person guilty. A criminal defendant has his or her freedom at stake, and a conviction should not be taken lightly.

In civil cases, as opposed to criminal cases, jurors use lower standards of proof – proof by a “Preponderance of the Evidence” or proof by “Clear and Convincing Evidence.” There is a preponderance of the evidence where one side has more evidence in its favor than the other one does, so that the scales tip slightly to one side. Clear and convincing evidence is present where the evidence establishes a high probability that something is true. Beyond a reasonable doubt, therefore, requires that the evidence prove more than a high probability of guilt.

Even if you think the defendant committed the crime charged, you may not be able to find him or her guilty beyond a reasonable doubt. If, in light of all the evidence, there is a reasonable alternative explanation, even if that reasonable explanation is much less likely than guilt, you have reasonable doubt and the defendant is not guilty.

But how do you decide if your doubt is reasonable? The certainty required for conviction is often described as a “moral certainty” that the defendant is guilty. This moral certainty must exist in every juror, and it is a subjective test, so each juror must make an individual decision as to whether he or she has reasonable doubt. Although the jury deliberates together, the verdict is not a group decision, and each juror has a duty to vote in accordance with his or her own belief as to the existence or absence of reasonable doubt.

Juries often confuse this analysis, simply because it doesn’t come naturally. Presented with a crime, a jury’s natural inclination is to determine what happened, and punish the person responsible. They often become mired in details when, in a proper, beyond a reasonable doubt analysis, the case would immediately fail.

Many of us have lost sight of the seriousness of a criminal conviction and the extent to which all of our rights depend on the high burden of proof in a criminal trial. Our legal system is designed so that the ultimate decision in a criminal case rests on the shoulders of twelve impartial jurors, not on the shoulders of law enforcement, defense attorneys, prosecutors, or victims. It is not the jury’s job to ensure that a criminal doesn’t end up back on the streets, and it is not the jury’s job to avenge or comfort a victim or a victim’s family. It is the jury’s job to ensure that a person who might not be guilty is never convicted.





Work For Hire: Good or Evil?

20 09 2011

When negotiating an entertainment related contract, anything can happen (I’d love to spend this blog post telling you all the crazy stories that came to mind when I wrote that line, but that wouldn’t be very informative and might get me sued for defamation).  One thing that almost always happens, however, is an argument regarding copyright ownership, and that argument usually centers around the inclusion of a Work for Hire clause.

The words Work for Hire seem to be almost universally hated. Artists see it as a disadvantage no matter what the situation, and they can hardly be blamed. A Work for Hire clause or agreement requires one party to give up rights to intellectual property, and no one likes to give things up. And the numerous articles and blog posts imploring artists not the sign Work for Hire agreements would give anyone the impression that there is never a good reason to do so. Clients on the business end of the entertainment industry also express discomfort with the Work for Hire. Knowing it is likely to cause a problem, they often ask me to “say it some other way” or “make it friendlier.”

Unfortunately, a Work for Hire clause can’t be stated another way, or made much friendlier, because it only works if it jumps off the page, yelling “I’m a Work for Hire and you’re giving up your rights.” That’s a good thing, because it prevents people from being tricked into signing away their rights. The main problem with the Work for Hire clause, in my opinion, is misunderstanding.

The reason the Work for Hire clause is often necessary is that, without a Work for Hire clause, collaborators on a project become equal owners, with equal rights to sell and otherwise encumber the whole project, and equal rights to collect money from the project. This happens whenever two or more authors prepare something with the intention that their contributions be merged into inseparable or interdependent parts of a whole.

This arrangement is fine if you are truly collaborating with a partner or several partners, and you intend to share equally in the final project. Many collaborations, however, are not set up that way. Often, one or more parties gets paid up front for their work on a project, while the person or entity that hired them takes a risk on its eventual success. An unequal division of rights, in that situation, may be more fair than a 50/50 split. The same goes for situations where one party will be solely responsible for selling a project. Without the Work for Hire, there is no guarantee of exclusivity.

The lesson to take away from this (very abbreviated) explanation of the Work for Hire clause, is that whether to include it (or whether to sign it) turns on your intentions with regard to the final product. If you intend to be an equal owner, no Work for Hire is necessary. But, if you intend to have anything other than a 50/50 division of rights, the Work for Hire is the only way to make your arrangement enforceable. That can be to the benefit of both parties. The point, as in all contract negotiations, is to understand and accept the contract terms before you sign the contract.





The Great Contract Fairy in the Sky

13 09 2011

We write a lot of contracts.  We review a lot of contracts.  There is a common misperception about contracts that should be cleared up.

Often, the misperception appears when a client asks us for “X” type of contract.  Maybe it’s a “Service Agreement,” or a “Writer’s Agreement,” or something else.  We then ask for details.  Invariably, we are asked to produce “just a simple, standard form.” 

The impression most people seem to have is that lawyers have a connection to the Great Contract Fairy in the Sky and just pick up the phone and say “can you send down a Writer’s Agreement?  Thanks.”  Sometimes a person will just do a search for the type of contract, and send us what they found to review.

But there is almost never a standard agreement.  While there is a lot of “boilerplate” that can be copied from past agreements, even that is not standard!  For instance, do you want faxed signatures to be treated as originals?  Do you want the contract to be binding as of the last signature date or some specified date? What do you want your remedies to be in case of breach?

It is not a matter of knowing which form to use or having access to the right one.  It’s a matter of putting on paper the expectations and obligations of each side.  You can certainly use something that you find online, or draft yourself.  But you will then be bound to that.





Securities Law–a primer

7 09 2011

Every entrepreneur needs to know a little securities law.  Why?  Because when you form your business and want to sell shares to investors, these laws apply to you.  Also, when you form your business and want to invest money in your own company for your own shares, these laws apply to you.

What do you need to know?

1)  Don’t do anything without knowing what you are doing.  To learn what to do, either read a lot about the subject or speak to a lawyer.

2)  The general rule, stated simply, is that the issuance of any securities (most commonly stock) requires registration unless there is an exemption.  Registration is a big and expensive process.  Luckily, there are quite a few exemptions.

3)  If you want to avoid registration (which you want to do if you’re a new company), you need to fit one or more exemptions, both on a Federal level and on a State level.  Some of these require filing forms (such as Form D if you fit one of the Regulation D exemptions on a Federal level), others don’t.  It is very likely that you will need to file a form either on a Federal or a State level, possibly both.

4)  There are deadlines on when you need to file the forms, and they are not long (e.g. 15 days after becoming required to issue the shares).  It is best not to miss these deadlines.

5)  Your company should follow the correct company procedures (e.g. meetings, voting, resolutions) to issue the shares.

6)  None of the exemptions protect you from fraud and disclosure requirements.  You cannot withhold information that an investor might want to know when deciding whether or not to invest in your company.