Tuesday, 25 November 2014

Pringle Criminal

pringle criminal

From BBC News 07/11/14:

A man has been ordered to pay almost £500 in fines and costs for dropping a snack lid on the ground in Bristol.

Gareth Daniel, 31, of Humberstan Walk, was seen by a PCSO dropping a Pringles lid in Lawrence Weston, in April.

Bristol magistrates heard he failed to pay a £75 fixed penalty notice, so a final warning was sent. He was taken to court and the fine was raised to £200.

Mr Daniel must also pay costs totalling £298.75. The council said it "would not tolerate littering on any scale".

Well said that man. Littering is a slippery slope towards certain ruin and it represents so much of what’s wrong with modern society.

Incidentally, don’t you think I’ve done well to avoid any references to ‘popping and stopping’? I suspect Pringles have got a more twenty first century slogan now – probably with a wretched smartphone app to boot.

And talking of litter, whatever happened to the humble litter pick? As a primary school kid in 1990s, I remember them being all the rage – a term rarely went by when we weren’t picking up empty crisp packets from the surrounding hedgerows or the nearby beach.

I’m not sure quite what we learnt by wandering around with bin liners, but to this day, I know that if I ever see a spent hypodermic needle on the ground, I must leave it alone and tell a teacher.

Not an entirely wasted exercise then.

And I’m sure clearing up the mess of others did wonders for our moral fibre. It was good preparation for life as a lawyer too.

Monday, 17 November 2014

Wine Fraud: An Escalating Problem

Guest Post Wine Fraud
Wine fraud has been a problem for about as long as wine has been produced and enjoyed. Even Pliny the Elder, the Ancient Roman philosopher, complained about it – there was so much fraudulent wine that even the nobles couldn’t be sure what they were drinking. And the problem has only got worse as time has gone by. But what exactly is wine fraud, and can it be combatted?

What Is Wine Fraud?

There are a few different varieties of wine fraud, but they all involve the same outcome: the customer ends up paying well over the odds for a wine of a much poorer quality than they’d expected.

Sometimes, the wine is adulterated – cheap products like fruit juices, chemicals and sweeteners can be added to the wine to help improve the substandard colour or flavour. Some instances of wine fraud are even simpler than that: the label of a cheap wine will be steamed off, and replaced with the label of a much more expensive variety.

There have even been a few cases in which an entire auction consignment of rare fine wines has turned out to be entirely fraudulent, costing people a massive amount of money for a few bottles of a wine that’s barely worth drinking. Wine Spectator magazine estimates that more than 5% of auctioned wine is counterfeit.

Notable Cases of Wine Fraud

Just this year, there have been two massive wine fraud cases. In September, a probe into an elaborate fraud operation uncovered well over 200,000 bottles’ worth of fake Brunello di Montalcino. A wine connoisseur had obtained fake labels of the Tuscan wine and managed to falsify certification in the area’s wine database, and was selling low-quality wine to local producers, passing it off as the coveted Brunello.

Luca Albertario, the chief of Siena police, stated that it was “the biggest fraud ever carried out in the food sector.” 220,000 bottles of poor wine was confiscated before it could go on the market; it wine would have sold for around £4m. The US – the world’s biggest importer of Brunello – stopped all imports of the wine until they were satisfied that good quality controls were in place.

In August, Rudy Kurniawan – one of the world’s top oenologists – was jailed for ten years and ordered to pay almost $30m in restitution. Kurniawan had sold more than $20m of fake wine over a decade or so, most of which was to just seven clients.

His deception was discovered in 2012, when a consignment of his (worth $3m) was rejected by the wine inspector at Hart Davis Hart auction house. Allan Frischman noticed some inaccuracies on the labels, and Kurniawan’s lies came to light. He had been blending cheap recent wines with substandard vintages, and passing them off as more prestigious varieties. For more on this, an authoritative independent wine merchant, Yapp Brothers provided more details of this within their ‘what is a fair sentence for wine fraud?’ post.

What Can Be Done to Combat Wine Fraud?

There are a number of ways to tell whether a wine is the genuine article or not, without having to open the bottle. Most of these methods involve looking for inconsistencies – the wrong kind of glass, a foil capsule instead of a wax one, labels using an incorrect font – but there are other ways being developed.

For wines currently being produced, some producers have started engraving serial numbers on the glass, or tightening the reins on their distribution processes. For older varieties, stable isotope analysis is being employed.

Sunday, 9 November 2014

Billing is killing

Literally. overworked lawyerFrom Roll on Friday 03/10/14:

A report by the Law Institute of Victoria (LIV) has revealed the key causes of stress and mental illness prevalent amongst lawyers are their working conditions, in particular, intolerable billing targets or working 80-hour-weeks.

Oh, you do surprise me.

The work, work, work culture that seems to have crept in to so many areas of legal practice today is stupidly short-sighted and symptomatic of so much that’s wrong with modern life and society as a whole. Work is important, clients’ needs are important, but none of it is worth making yourself ill over. But, when you’re trapped working in a firm which doesn’t take that view, life isn’t that simple.

I consider myself incredibly lucky that I’m in a firm which recognises there’s more to life that work. But by taking a more reasonable and a pragmatic approach, I think the firm gets more out of us. Let’s face it: fee earners working 80 hour weeks aren’t exactly going to be on sparkling form.  Believe it or not, lawyers are human – not billing machines.

The head of the LIV, Geoff Bowyer, said that many cases go untreated because lawyers fear stress or trauma will be interpreted as a sign of weakness which would impact on their career progression. He told Lawyers Weekly, “we need to ensure that by proper education and awareness it’s OK to put a call out there for help as opposed to just trying to soldier on”.

The findings coincide with an earlier report by the University of Sydney’s Brain and Mind Research Institute in 2009 which revealed that more than 50% of lawyers have depression during their working-life.

The other 50% didn’t want to admit to it then.

Sunday, 2 November 2014

Passive aggressive lawyer tactics

passive aggressive lawyers

Over the last few years, I’ve noticed some really super passive aggressive tricks commonly used by lawyers in communications with ‘the other side’. Used in the right way, these tricks can send the blood pressure of your fellow professionals sky high. Better still, the recipient might be sufficiently provoked to come back with a return serve of barely-disguised nastiness. Those kind of ‘back-and-forths’ can be looked back on fondly in the autumn of your career, or, if you’ve got a real corker, printed, framed and proudly displayed on your office wall.

Here are some of my favourites:

Snarky and patronising comment balloons. Yeah, I know we’re all guilty of those from time to time. Prefacing comments with the words “of course”, “obviously” or “clearly” are particularly prone to enrage. However, just because I complain about it, doesn’t mean to say I’m not also guilty. Ahem.

Eschewing email attachments and insist on sending a hard-copy travelling draft.  Heck, why let technology help you out when you can struggle along the old fashioned way?

Being overly formal in an email. “I refer to our previous correspondence in this matter and look forward to hearing from you thereon.” Lovely. I guess they missed the lesson on using plain English wherever possible in modern legal practice.

Deliberately downsampling documents so they’re borderline illegible (and insist on being unable to obtain clearer copies). I’ve also had a solicitor tell me his client can only send a photograph of the document. I countered this by sending him photo negatives of our client’s document. (Just kidding.)

Tuesday, 28 October 2014

Law firms should use more videos and less text (apparently)

On their websites, that is.

law firm video

From the Solicitors Journal 13/10/14:

Websites of the UK's top 200 law firms are forgetting the 'user experience'

The country's top firms are ignoring the significant power of video to attract clients, a new report has suggested.

According to mmadigital, only 28 per cent of content is read on an average web page, compared to video which typically holds the attention of a viewer for two minutes.

Hmmm. Are potential clients really going to sit and watch a video on a law firm’s website and be swayed by that? That’s not a rhetorical question – I really don’t know. Maybe they are. But it seems a trifle strange to me.

Unsophisticated would-be clients will just use Google to find a law firm in their area (or a national centre churning out legal services factory style) and be principally concerned with obtaining the lowest price – ringing around if necessary. Medium sized businesses looking to instruct a firm may do a bit of their own research, but tend to be heavily swayed by past experience and the recommendations of others. Large, corporate clients aren’t going to choose to instruct a firm by looking at a firm’s website. Those kind of gigs are won through nepotism, networking and a lot of schmoozing (and sometimes a mixture of all three). So who is likely to choose a solicitor by watching videos on the web?

It’s a mystery.

Firms with video on their websites are 50 times more likely to appear on the first page of Google.

Oh cripes. Time to get embedding those videos folks!

Monday, 6 October 2014

Law firm abandons desk phones…

The end of the world will follow shortly after.

lawyer headsetA solicitor speaking to a client in a soon-to-be-realised dystopia

From Roll On Friday 28/09/14:

“CMS Cameron McKenna is getting rid of landlines in its London office.

Next year the firm's City staff are moving to new premises on Cannon Street, where they will use a mobile phone and a headset to connect to a Microsoft product called Lync, freeing themselves from the tyranny of wires.”

Oh let the good Lord help us.  A law firm embracing technology.  That never ends well.

Ok - now I’ve got that customary knee-jerk reaction out of the way, I accept that this isn’t exactly ground-breaking news.  However, it does make me nervous about the encroachment of technology into the work-life balance of people generally, but particularly lawyers.

Granted - getting rid of a desk phone isn’t going to kill anyone.  I can’t imagine there are many lawyers who don’t currently have a work-issued mobile phone either.  But what scares me is that tying a person to a mobile phone might be just one step away from senior partners and clients daring to think that fee earners are on round-the-clock call for them personally.  

Oh wait - they already think that, don’t they?

By the by, I’ve never really got on with phone headsets.  The nearest I got to embracing one was a short stint using a Bluetooth ear thing about three or four years ago.  I quickly abandoned it after a couple of days’ use.  I’m not sure which influenced that decision more: finding the thing hard to operate, or the fact it risked making me feel like a taxi driver!

Maybe what also alarms me about this story is that I hate the thought of lawyers sat at their desks with headsets on, clucking away like a warehouse full of battery hens. It’s bad enough when colleagues choose to pace about in the office talking on their mobile (apparently pacing helps some people to think).  I don’t like having to contend with any kind of phone at work, quite frankly, but having a deskphone with a receiver you can slam down occasionally works wonders for stress management.  Whipping your headset off and lobbing it at your nearest colleague the wall just isn’t the same thing.  

As I see it, lawyers shouldn’t be relegated to legally trained call centre operatives - even in a world where clients are ‘users of legal services’ and solicitors are just an increasingly unpopular grade of fee earner.

Ditching the deskphone could be a slippery slope, folks.  And that scares me.

Tuesday, 23 September 2014

How to use commas

 How to use commas

I was reading recently about an interesting US case which concerned, amongst other things, the use of a comma in a contract.  It formed part of the volcano of litigation that has erupted following the Deepwater Horizon disaster.

Although the case concerned US law, the principle that punctuation can have a material bearing on the interpretation of legal documents applies as readily in England and Wales as it does on t’other side of the pond.

The case turned on whether a comma was missing from a clause in the contract. The clause had a markedly different meaning with the comma missing compared to when the comma was added.

With the comma missing, the clause read:

“[…] as additional insureds in each of [Transocean's] policies, except Worker's Compensation for liabilities assumed by [Transocean] under the terms of this Contract."

With it added, the clause read:

“[…] as additional insureds in each of [Transocean's] policies, except Worker's Compensation, for liabilities assumed by [Transocean] under the terms of this Contract."

It’s a great illustration of the fact that, sometimes, use of punctuation can be absolutely critical. In this case, it was critical to the tune of $750,000,000!

That got me thinking even further (it does happen occasionally!). My recent post on the written communication skills of young lawyers focused on, amongst other things, poor sentence structure in the writing of lawyers to be. A big part of that poor sentence structure is the misuse of commas.

So how difficult is it to educate yourself about how to use commas correctly?  Not very difficult, as it turns out.

Two seconds on Google turned up a very useful guide produced by the University of Bristol.

Here are a few excerpts from their guide on commas.

The comma is a much misused and often over used piece of punctuation.

Here, here!

1. To separate the elements in a list of three or more items

The potion included peanuts, pop-tarts, bran flakes and coleslaw.

There appears to be some debate about whether or not to include a comma to separate the last two items in the series. [Use of a comma in this situation is known as an Oxford comma. Conventionally, it is normal] to omit the comma before the final 'and' unless there is a danger that the last two items in the series will merge and become indistinguishable without the comma.

His favourite puddings were black forest gateau, apple strudel, and jelly and ice cream.

Using an Oxford comma after the word ‘crumble’ is the sentence above is advisable so as to indicate that the jelly and ice cream is a single item.

2. Before certain conjunctions

A comma should be used before these conjunctions: and, but, for, nor, yet, or, so to separate two independent clauses. They are called co-ordinating conjunctions.

She was a fantastic cook, but she would never be as good as her mother-in-law.

He hated his neighbours, so he never invited them round.

A common mistake is to put the comma after the conjunction.

3. To separate introductory elements in a sentence

Use a comma to separate introductory elements in a sentence from the main part of that sentence.

Given the appalling weather conditions, Jonny was lucky to make it home alive.

As the night drew to a close, the revellers wandered home.

4. To separate parenthetical elements in a sentence (i.e. to serve as brackets)

A comma is used to set off parenthetical elements in a sentence. The parenthetical element is part of the sentence that can be removed without changing the essential meaning of the sentence.

Sarah, the most intelligent pupil in the class, was always late for school.

The pyramids, one of the wonders of the ancient world, lie just outside Cairo.

If you are using a comma to do this, it is important that the aside is opened and closed with a comma. A common mistake is to omit the second comma.

Eagled-eyed readers will have no doubt noticed that the case of the missing comma, mentioned above, concerns a comma used in just this situation. (The use of commas in my previous sentence is another example of it, of course.) Permission to roll your eyes: granted.

Be right back

Paul Rylance, in the excellent Writing and Drafting in Legal Practice, provides another example of the pitfalls of poor comma use:

“A counter-notice must be given to the landlord, who may, or may not, be the immediate landlord who served notice terminating the tenancy and must be given within two months of the landlord’s notice.”

So, is it the “immediate landlord who served the notice” or just the “immediate landlord”?  It should have been the latter.

A better handling of it would have been to use brackets – as shown below:

“A counter-notice must be given to the landlord (who may, or may not, be the immediate landlord) who served notice terminating the tenancy and must be given within two months of the landlord’s notice.”

Personally, I’m not sure you really need the commas within the brackets after “may” and “not”, but I’ll defer to Paul’s better judgement on this one.

5. To separate direct speech or quoted elements from the rest of the sentence

Commas are used to separate direct speech or quoted elements from the rest of a sentence. Use a comma to separate the quoted material from the rest of the sentence.

"That house there," he whispered, "is where I grew up."

6. Commas are used to separate elements in a sentence that express contrast

He was first attracted by her charming personality, not her stunning looks.

She is intelligent, not pretty.

He thought the building was enormous, but ugly.

I think commas used in this situation are ripe for abuse. Providing both clauses of the sentence are very short and it’s genuine contrast that’s being expressed, I think it’s fine. However, it doesn’t take much for these situations to slip firmly into semi-colon territory.

7. Commas are used for typographical reasons to separate dates and years, towns and counties etc.

His home was in Streatham, East London.

My father was born on March 13, 1949.

8. Commas are used to separate several adjectives

The old, ramshackle, dilapidated house had a charm of its own.

That rather dull-looking, badly-dressed, clumsy man is actually a university professor.

Rylance identifies some other instances where commas should be used:

[9.] In reported speech, to mark a person addressed. For instance, “thank you, your honour”.

[10.]  Usually after a phrase that begins with a present participle (-ing). For instance, “standing to address the court, he began his speech”.
[11.]  To mark off words and phrases such as “therefore”, “however”, “of course” and “for instance”. Depending on where in the sentence the comma appears, use of a comma in these circumstances can be very similar to a pair of parenthesises or to separate an introductory phrase from the rest of the sentence.

I believe that the comma is probably the most abused piece of punctuation in English and it’s a problem which seems to be getting worse, not better.

The comma can be a particularly difficult piece of punctuation to get to grips with. I think there are a number of reasons for this.

First, there are a multitude of ways in which commas can be correctly used (with some similarity between those categories in certain instances).

Secondly, there’s a degree of discretion as to where commas can be used correctly. Rylance notes the existence of a ‘catch-all’ category for using commas:

“[…] to insert a pause into a sentence so as to break it up into articulate phrases or clauses. The test […] is to read the whole sentence, noting where the voice naturally pauses.”

For the record, that absolutely shouldn’t be taken as carte blanche for whacking in commas hither and thither, just because your voice might pause naturally there.

Thirdly, there are a number of conflicting authorities on correct comma usage. Those authorities are probably best treated as guides rather than absolute rules; providing you don’t stray too far from them, you should be fine.

I think most people’s writing can benefit from some careful consideration of proper punctuation from time to time (mine included).  And you might just find that reflecting on your use of commas when you’re at a loss in the office on a quiet afternoon is time very well spent.  It’s just a pity you can’t get CPD points for it!