Creative Representation | Expert Litigation

Dine & Dash Arbitration Style: What Happens When One Side Doesn’t Pay the Arbitrator – by co-author Charles G. Miller

Ever since Congress enacted the Federal Arbitration Act, it has been the national policy of the United States to favor arbitration. Southland Corp. v. Keating, 465 U.S. 1, 10 (1984). Where an agreement contains an arbitration clause, there is little a party can do to resist or avoid arbitration; however, this strong presumption of arbitration may have a small kink that is allowing parties to end up in court, despite the presence of a valid arbitration clause. The Ninth Circuit's recent decision in Tillman v. Tillman, 825 F.3d 1069 (9th Cir. 2016), has caused some to question if there is a new way for parties to avoid the power of an arbitration clause: simply refuse to pay a party's share of the arbitrator's fees.

Catch the Conscience! – Scripting a Winning Opening Statement – by Benjamin K. Riley

The opening statement is your first and perhaps best opportunity to convince the jury that your client should win. The jurors know very little about the case, are anxious to get started, and give you their full attention. Their impression of you will probably be set by the time you finish your opening. Opening is the time to establish the jurors’ expectations, start to develop a bond with them, and whet their appetite for your case.

Business as Usual: Email Evidence and the Business Records Exception in the Ninth Circuit – by Jayne Laiprasert

At a time when businesses are increasingly utilizing more ephemeral methods of communication such as chat, text, and instant messaging, email has become the standard form of business communication.

Antitrust Agencies’ “Guidance for Human Resource Professionals” Threatens Criminal Prosecution – by John F. McLean

On October 20, 2016, the Department of Justice’s (DOJ) Antitrust Division and the Federal Trade Commission (FTC) published their “ANTITRUST GUIDANCE FOR HUMAN RESOURCE PROFESSIONALS” (“GUIDANCE”). The GUIDANCE is “intended to alert human resource (HR) professionals and others involved in hiring and compensation decisions to potential violations of the antitrust laws.” The DOJ and FTC have brought a wide variety of civil cases involving employer agreements.

Northern District of California Amends Patent Local Rules to Focus Upon Damages – by W. Paul Schuck

Northern District of California Amends Patent Local Rules to Focus on Damages

The Line Between Bio and Technology: While Supreme Court Remains Silent, Federal Circuit Provides More Positive Guidance Regarding Patentability of Biotechnology – by W. Paul Schuck and Sony B. Barari

Bartko Zankel Bunzel Report - The Line Between Bio and Technology

BZB Alert! President signs “Defend Trade Secrets Act of 2016” – by Benjamin K. Riley

For many years, litigants have had original federal court jurisdiction for Patent, Trademark and Copyright cases, but the fourth major area of Intellectual Property law — Trade Secrets — has been governed by state law with no federal court jurisdiction. No longer. On May 11, 2016, President Obama signed the “Defend Trade Secrets Act of 2016” to “provide a single, national standard for trade secret misappropriation with clear rules and predictability” in federal court.

“Trade Secret Damages,” Chapter 9, Calculating and Proving Damages – by co-author Benjamin K. Riley

The law of trade secrets protects information that provides independent economic value because others do not generally know that information. The holder of a trade secret seeks to capitalize on the business advantage that derives from ownership of the trade secret and prevent use of the trade secret by competitors. Moreover, the trade secret owner must make reasonable efforts to maintain the secrecy of the trade secrets or risk loss of the trade secret protection.

Injunction Relief in Lanham Act Cases Post-Herb Reed – by C. Griffith Towle

Motions for preliminary injunctive relief are routinely sought in cases involving claims for trademark infringement. For many years, once a moving party established a likelihood of success on the merits, irreparable harm was presumed and an injunction would usually be issued. This all changed with the Ninth Circuit's holding in Herb Reed Enter., LLC v. Florida Entm't Mgmt., Inc., 736 F.3d 1239 (9th Cir. 2013).

How Not to Regret Your Direct: Exploring the Human Story – by Benjamin K. Riley

How often do we look back and wonder whether we could have done things better, worked harder, been clearer, obtained a better result? Especially with those trial skills we don’t often get to practice. Presenting a powerful and persuasive direct examination is one of the most challenging parts of a trial. In our discovery and pretrial work, we get to practice argument and deposition-style cross-examination, but rarely do we get the chance to prepare a witness thoroughly and then present him or her to a judge or jury. And how hard it is for most litigators to step back after all the hard preparation and let the witness be the star! To avoid regret after direct examination, listen to the witness, get to know the witness, and weave your examination around his or her human story—the interesting and unique aspects of the witness that best highlight and teach about the issues in the case.