Wednesday, December 12, 2012

Summary of Knox v. SEIU

My summary of Knox v. SEIU at SCOTUSblog.com: Knox knocks unions on mid-year assessment for non-members.

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Source: http://www.lawmemo.com/blog/2012/06/summary_of_knox.html

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2011 Intellectual Property Year in Review and Outlook for 2012 - Part II: Trademarks

Attorney Peter Lando, host of IP Counsel and partner at the firm of Lando & Anastasi, LLP, welcomes John Welch, Of Counsel with Lando & Anastasi, to discuss important trademark cases and issues of 2011 that may continue well into the new year. Peter and John discuss the high profile trademark battle between designers, Christian Louboutin and Yves St. Laurent, over a trademark for the color red for shoe soles; the trademark "bullying" report from the U.S. Commerce Department; recent happenings regarding fraud at the USPTO; the latest cases interpreting the trademark statute on dilution by blurring; and the effect of the recent launch of generic TLD’s on trademark owners.

Source: http://legaltalknetwork.com/podcasts/ip-counsel/2012/02/2011-intellectual-property-year-in-review-and-outlook-for-2012-part-ii-trademarks/

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Blawging Blowback: Sarcasm Edition

When Ken White and Ron Coleman stepped in to defend conservative blogger and Los Angeles County prosecutor Patrick Frey of Patterico's Pontifications from a frivolous and censorious attack on free speech, it was a mitzvah, especially since no conservative lawyers were willing to take up pro bono arms on behalf of their good buddy. 

But as Ken reveals, his earlier words came back to bite him:

A Note About Sarcasm

I'm only going to address one minor issue in the briefs and the tentative ruling, because it involves me and this blog. In March, well before Ms. Naffe sued and I appeared in this case, I wrote a post about Ms. Naffe's threats against Mr. Frey. In that post, referring to Mr. Frey's point-by-point questioning of Ms. Naffe's accusations against James O'Keefe, I dropped this line:

The defense attorney in me is tempted to say that this is the most thorough consideration of exculpatory evidence that I have ever seen from a Los Angeles County Deputy District Attorney, but that would be uncouth, so I will not, and you should definitely forget that I brought it up.

I thought that this was self-evidently a joke, a friendly swipe by a snarky criminal defense lawyer talking about a prosecutor. I was rather surprised to see both Ms. Naffe's counsel and — in response – the judge seem to take it literally. Such are the hazards of sarcasm. Or maybe I should say, as I always do to my wife, kids, law partners, and anyone who will sit still, that nobody understands me.

Self-evidence is rarely, well, self-evident. More to the point, anyone who writes stuff on the internet should realize that the words are there for others to read.  This is true whether one asks a question that's ridiculously unethical, incredibly stupid or just addresses more mundane issues of the practice of criminal defense. 

Write about a particular subject and someone will see it and use it against you. Write about a general subject and someone will try to use it to extrapolate something to be used against you. Or against all criminal defense lawyers, assuming they can get away with it.

On a few occasions, I've walked into court or a conference where someone, whether judge or prosecutor, will make an off-hand remark designed to make sure I know that they've read SJ.  Given the number of posts here, there is a fair to middling chance that I've written something about them, about the issue, about their office, that wasn't entirely flattering.  They want me to know that they know, so I know that they know that I know that they know.  As if I didn't already know.

This is a risk that goes along with being a blawger. While all the angry IANAL commenters writing their simplistic yet hateful thoughts about cops, prosecutors and judges do so under cover of darkness, lawyers who actually take a stand and write substantive posts on the internet are fully exposed.  We're here for all the world to see, and for all our adversaries to use against us at their leisure.  And the people hiding under rocks are fearful of exposure?  We are in the direct line of fire.

I'm well aware of this. I'm sure that Ken is well aware of this as well, particularly since he went from pseudonymous Ken to former federal prosecutor turned criminal defense lawyer Ken White.  He's a very smart guy, so there is no doubt when he came out that he appreciated the consequences.

Some blawgers try to use this to their advantage, writing self-aggrandizing posts about themselves and their cases, laying out their arguments or angst online.  It rarely works, particularly when their one-sided arguments fail to carry the day, and often shows them to be reckless in revealing client confidences. It's a risky game to play, and no one has yet to pull it off without disgracing themselves amongst their peers.

So blawgers who have made the choice to offer seriously (in the substantive sense, even if humor or sarcasm is the delivery mechanism) commentary on issues of consequences have put their butts on the line.  Readers may not think about this part of the fabulous life of blawgers. You may love or hate what we say, but you don't really care that we have to walk into court later that day and have a judge peer over the bench furious about our less than enthusiastic thoughts of his recent opinion.  You applaud? The judge, not so much.

One might hope that judges and prosecutors are all big boys and girls who are smart enough and tough enough to take some criticism.  After all, the nature of what we do invites challenge. It's called an adversary system for a reason, right?  And in fairness, we can revile a judge's decision one day, and applaud his decision the next.  It's not personal (Godfather moment. Relish it.).

Well, that's not always the way it works out.  Like the 7th grader who inadvertently farts in history class and suffers the nickname "Stinky" until graduation, people tend to remember the things we write that bother them, and it lingers.  It's not so much that grudges are held as that fair disagreement or criticism is a slap that continues to sting. Well, maybe it is that grudges are held.

Ken, who occasionally makes his point by using sarcasm, faces this problem.  So too, I suspect, other serious criminal law blawgers, like Bennett, Tannebaum, Matt Brown and Murray Newman.  So do I. That's the risk of what we do.  We can either write tepid, pointless, worthless garbage, and be embraced by the Happysphere, or hit hard and get hit hard in return.

On the bright side, there are also readers who respect what we say, and our fortitude in saying so.  On the whole, we make a lot more friends in high places than enemies, because we have the opportunity to say what a lot of people (even lawpofs, who often hold shockingly strong opinions you would never discern from their public writings) are thinking but, because of their positions or fear of ramifications, would never say aloud.  We do it for them.  And if the price of doing so is the occasional blowback, it's a price we're willing to pay.









© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2012/12/11/blawging-blowback-sarcasm-edition.aspx?ref=rss

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UN rights expert condemns China 'retaliation' against activist's relative

[JURIST] The UN Special Rapporteur on human rights defenders [official website] on Friday urged China to end retaliatory efforts [press release] against Chen Guangcheng [BBC profile; JURIST news archive], a blind human rights lawyer who successfully fled the communist country earlier this year, by immediately releasing the activist's nephew. According to the Office of the High Commissioner for Human Rights (OHCHR) [official website], Chen's nephew, Chen Kegui, was arrested when local officials raided his family's home without a warrant, just...

Source: http://jurist.org/paperchase/2012/12/un-rights-expert-condemns-retaliation-against-activists-relative.php

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IP Industries: Part Two

Professor David L. Lange, Melvin Shimm Professor of Law at Duke University Law School, concludes his two-part discussion on IP Industries. Learn more about Professor Lange at http://www.law.duke.edu/fac/lange.

Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/06/ip-industries-part-two/

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Find Now, Read Later

We can find almost anything on the Internet, but retrieving the results at a later date isn’t as easy. Are there ways to “harvest” the web so we can find and read relevant research at a later time? Kennedy-Mighell Report hosts Dennis Kennedy and Tom Mighell, answer this question by sharing ways to save and keep track of web research, the resources for reading web findings later or offline, and whether techniques like capturing a blog post on a Kindle or iPad really help us with the problem of information overload.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/07/find-now-read-later/

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Claims College for Litigation Managers

The Claims and Litigation Management Alliance (CLM) is a national organization with over 20,000 members in the claims and litigation management profession. In 2013, CLM will launch the first national resource for continuing education called Claims College. On this Ringler Radio podcast, host Larry Cohen hears from guest, Adam Potter, Executive Director for CLM about Claims College, the faculty of senior level industry leaders and curriculum for Claims Management, Professional Lines and Workers' Compensation.

Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/12/claims-college-for-litigation-managers/

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Tuesday, December 11, 2012

Medicare Set-Aside Professional Administration

On Ringler Radio, host Larry Cohen welcomes colleague and co‑host, Brian J. Fillion and guests, Sandra O'Sullivan, President of Ametros Financial Corporation and Tom Ash, Chief Executive Officer of Ametros Financial, to discuss the professional administration of Medicare Set-Aside funds and Medicare Set-Aside trusts. Sandra and Tom talk about the benefits of Professional Administration, managing the fund as a professional administrator and how professional administration works in a structured settlement.

Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/03/medicare-set-aside-professional-administration/

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2012 Legal Tech Surveys Say . . .

We hear a lot of stories about lawyers using (and not using) technology. It’s always been difficult to get good data on what is actually happening in the ground. The release of results from two major annual surveys about the use of technology by lawyers gives us some data to assess trends and draw conclusions. In this episode of The Kennedy-Mighell Report, Dennis Kennedy and Tom Mighell take a look at highlights of the 2012 ILTA / Inside Legal Technology Purchase Survey and the 2012 Legal Technology Survey Report from the ABA’s Legal Technology Resource Center, the trends the surveys show, and some practical implications of the survey results.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/10/2012-legal-tech-surveys-say/

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Securing Electronic Law Firm Data for Big and Small Firms

Law firms are increasingly being targeted by hackers seeking to access confidential business and personal information. On The Un-Billable Hour, host Attorney Rodney Dowell, Executive Director at Lawyers Concerned for Lawyers and Director of LCL’s Massachusetts Law Office Management Assistance Program welcomes Digital Detectives co-hosts Sharon D. Nelson, Esq., President of Sensei Enterprises, Inc. and John W. Simek, Vice President of Sensei Enterprises, to discuss a variety of issues including: computer security, why attorneys are targeted and malpractice and ethics risks related to having inadequate security.

Source: http://legaltalknetwork.com/podcasts/un-billable-hour/2012/01/securing-electronic-law-firm-data-for-big-and-small-firms/

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California Court of Appeal Refuses to Enforce Non-Compete Against Selling Shareholder

By Jennifer Redmond and Jonathan Sokolowski

In Fillpoint, LLC, v. Maas, Case No. G045057, 2012 Cal. App. LEXIS 914 (Cal. App. Aug. 24, 2012), the California Court of Appeal for the Fourth District recently refused to enforce a covenant not to compete against the former employee and selling shareholder of a video game company. The Court determined that half of a two-part noncompete agreement entered into in the context of the sale of a business was unenforceable, despite the exception for such covenants found in California Business and Professions Code Section 16601 (“Section 16601”). This case answers what had previously been an open question under California law: whether an acquiring company can obtain a non-compete that begins to run upon termination of employment (as opposed to or in addition to a non-compete that begins to run upon closing) from a shareholder who becomes an employee of the buyer. See Hilb, Rogal & Hamilton Ins. Servs. v. Robb, 33 Cal. App. 4th 1812 (1995) (enforcing a noncompete agreement against a selling shareholder that commenced at termination of employment, without any discussion or analysis of whether using termination of employment as the trigger for a noncompete violates Section 16601).

In Fillpoint, Michael Maas, an employee of Crave Entertainment Group, Inc. (“Crave”), executed a stock purchase agreement (“SPA”) when he sold all of his stock in Crave to Handleman Company (“Handleman”) as part of Handleman’s acquisition of Crave. The SPA contained a three-year non-compete which was set to begin running at the SPA’s closing date. At the same time and in connection with Handleman’s acquisition of Crave, Maas also entered into an employment agreement with Crave containing one-year non-compete, customer non-solicit, and employee non-solicit covenants, all of which would begin to run upon the termination of his employment. Maas’ employment agreement was contemplated by the SPA, which included an integration clause referencing the form employment agreement. Additionally, Maas’ employment agreement referred back to the SPA and stated that the SPA would prevail in the event of any conflict between the agreements.

Maas eventually resigned his employment three years after the acquisition of Crave and, about six months later, began working for a competitor of Crave. Fillpoint, LLC (“Fillpoint”), which had acquired Crave from Handleman, brought suit against Maas for breach of his employment agreement. At trial, Maas moved for nonsuit after Fillpoint’s opening statement, and the Superior Court concluded, among other things, that (1) the covenants in the SPA and the employment agreement were separate and (2) the covenants not to compete and not to solicit in the employment agreement were unenforceable under California’s general rule against such covenants (Business and Professions Code Section 16600).

On appeal, the Court of Appeal held that the trial court erred in its conclusion that the covenants in the SPA and the employment agreement were separate. The Court of Appeal held that the agreements “must be read together as an integrated agreement” because (1) of the cross references between the SPA and employment agreement and (2) the two agreements were entered into between the same parties and around the same time, and were part of a single transaction.

Despite winning this battle, Fillpoint lost the war. The Court of Appeal held that reading the agreements together does not mean that the covenants contained in the employment agreement are enforceable. Instead, the covenants must fit within Section 16601’s exception to the general rule that non-competes are unenforceable. More specifically, Section 16601 permits the enforcement of covenants not to compete to protect the goodwill of a business in connection with the sale of such business. The purpose behind this exception is to prevent a seller from engaging in competition which would diminish the value of the assets being sold. The Court of Appeal determined that the SPA’s non-compete was intended to protect the goodwill of Crave as it prevented Maas from engaging in a competing business, or from setting up, or helping another to set up, a competing business, during the three-year period immediately following Handleman’s acquisition of Crave. In contrast, the covenants contained in the employment agreement were triggered upon Maas’ termination and, for one year following his termination, would prohibit him from, among other things, selling competitive products to anyone who was a customer or a potential customer of Crave during the two years preceding his termination, working for a competing business, or employing or soliciting for employment any of Crave’s employees. The court determined that such covenants were intended to restrict Maas’ right to pursue his profession in the future and, thus, did not meet Section 16601’s limited exception. For these reasons, the court held that the covenants in the employment agreement could not “be reconciled with California’s strong public policy permitting employees the right to pursue a lawful occupation of their own choice” and were unenforceable.

Source:
http://www.corporatesecuritieslawblog.com/securities-litigation-california-court-of-appeal-refuses-to-enforce-noncompete-against-selling-shareholder.html

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A Radical or Rational SCOTUS Session?

After one of the most historic United States Supreme Court sessions in years, emotions ran high and charges of radicalism ran amuck as the Justices handed down rulings on immigration enforcement, national healthcare, campaign finance law, stolen valor and more. But in the end, did SCOTUS simply uphold the law of the land? Lawyer2Lawyer co-hosts and attorneys, Bob Ambrogi and Craig Williams, get the legal facts behind the decisions from New York University School of Law Professor Roderick Hills, Jr. and Temple University Beasley School of Law Professor Jan Ting.

Source: http://legaltalknetwork.com/podcasts/lawyer-2-lawyer/2012/07/a-radical-or-rational-scotus-session/

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Um. Sorry?

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You make a mistake. You own up, suffer the consequences, and move on. Or, like this doc, you don't own up, but you don't fight it, and you suffer very few consequences. As reported by The Middletown Press (Middletown, Connecticut), from a decision by the Medical Examining Board:

Fined Brian M. Connolly, an anesthesiologist, $5,000 for performing a nerve block on the right leg of a patient who was having knee replacement on the left leg at New Milford Hospital in July 2011. Connolly, who works for New Milford Anesthesia Associates P.C., didn’t admit guilt, but agreed not to contest the charges and to pay the fine. This will be reported to the NPDB.
Seriously? You don't make the guy admit guilt? Like it would be hard to prove? And $5,000? The Juice does not approve. Here's the source.

Source: http://rss.justia.com/~r/LegalJuiceCom/~3/gFwyBi3kVIo/post_540.html

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Ultrabook Benefits for Attorneys

The big story at the 2012 Consumer Electronics Show was "ultrabooks." This new category of computer stole the thunder, at least for a few days, from tablet computers. Should lawyers be considering ultrabooks in 2012? In this episode, Dennis Kennedy and Tom Mighell take a look at the new world of ultrabooks, whether tablet computers like the iPad are taking over the computer market, and what it all means for traditional notebook computers and desktop PCs.After you listen, be sure to check out Tom & Dennis’ co-blog and book by the same name, The Lawyers Guide to Collaboration Tools and Technologies.

Source: http://legaltalknetwork.com/podcasts/kennedy-mighell-report/2012/01/ultrabook-benefits-for-attorneys/

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Um. Sorry?

left%20from%20right.jpg

You make a mistake. You own up, suffer the consequences, and move on. Or, like this doc, you don't own up, but you don't fight it, and you suffer very few consequences. As reported by The Middletown Press (Middletown, Connecticut), from a decision by the Medical Examining Board:

Fined Brian M. Connolly, an anesthesiologist, $5,000 for performing a nerve block on the right leg of a patient who was having knee replacement on the left leg at New Milford Hospital in July 2011. Connolly, who works for New Milford Anesthesia Associates P.C., didn’t admit guilt, but agreed not to contest the charges and to pay the fine. This will be reported to the NPDB.
Seriously? You don't make the guy admit guilt? Like it would be hard to prove? And $5,000? The Juice does not approve. Here's the source.

Source: http://rss.justia.com/~r/LegalJuiceCom/~3/gFwyBi3kVIo/post_540.html

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Monday, December 10, 2012

Liberty, Equality? No, Fraternity

Via Leo Mulvihill out of Fishtown, Philadelphia, a team of six narcotics cops has been broken up and transferred to lower profile assignments by Philly Police Commissioner Charles H. Ramsey.  And the Fraternal Order of Police (Lodge 5, to be exact) isn't pleased.

John McNesby, president of the Fraternal Order of Police Lodge 5, said that the transfers were based on "unfounded accusations" by the District Attorney's Office and that the allegations should have been investigated first.

"When you've got an aggressive group of officers, you're going to have people who aren't happy," McNesby said. "These guys took a lot of guns off the streets, took a lot of drugs off the streets. They did a lot of good work for the city."

The people who weren't happy turned out to be the district attorney and judges who didn't think nearly as well of these officers as their union president.  As Leo (irony duly noted) explains it:

Besides, it’s not like they ever threatened anyone’s life while in the line of duty, right?

When the officers caught up to him, Conolly said, he got out of the car with hands raised, but [the officers] threw him to the ground and choked, kicked, and punched him as he yelled for help. [Officer] Liciardello, he said, put a gun to the back of [Connolly's] head and told him, “We are the cops. If you don’t shut up, I will put a . . . bullet in your head.”

The article finishes with this gem:

McNesby has maintained the innocence of those officers.”It’s a sad day,” he said, “when you have the criminals in the city dictating where cops are going to be working.”

No, John. It’s a sad day when police feel and act like they’re above the law they’re sworn to uphold.

Ah, kids. So trusting. So believing. Aren't they cute as the dickens?  On the one hand, you have police officers who take guns and drugs off the streets. So they sometimes put a little something in their own pocket for a rainy day? So they get a little rough with the bad guys on the street? It's a hard world out there when you're saving society from the criminals, you know.



Sure, back-benchers see it all neat and clean, platitudes and oaths galore, but somebody has to do the dirty work to keep us safe at night.  And that's why they have the FOP.

McNesby's comments reflect the basic question that's been posed forever. Either we believe our beloved cops or we believe the criminals. Which side are you on? 

While we now have the occasional video which shows cops gone bad, where for decades before it was the perps word against the cops, and the perps rarely won a pissing match because few judges wanted to be in McNesby's crosshairs for being on the wrong side of the question, not every bust offers a Youtube moment.  And when there is no video, we go right back to the old ways, playing the odds and awaiting the union president's retort, next time you're in trouble, call a criminal. Hah! That'll show 'em.

But, you say, that's not what happened this time.  The district attorney and police commissioner didn't side with the cops, didn't sweep it under the rug, didn't squint their eyes and conclude the accusations were unfounded.  Well, yeah. Kinda. Maybe.

You see, these six cops didn't get canned. They didn't get prosecuted. They didn't get booted off the force and lose their pensions.  They were transferred.

Bradley S. Bridge, a veteran lawyer in the Philadelphia Public Defender's Office, said the officers were "among the most troubled in the department."

"Transferring them out of a place where they have intense, high-profile interactions with people, and where there is little oversight of their actions, is an important and significant move," Bridge said. "We have had numerous clients who have complained about their interactions with these officers, who have maintained that these officers have testified falsely against them. And this is a recognition that those complaints are valid. This reflects that the problems are so significant that the department had to do something."

Ouch. Harsh. They made the cowboys change horses. That'll learn 'em for lying and beating folks and kicking 'em in the head.

And John McNesby goes full bore, because that's his job as union president, covering his people when they get fired prosecuted transferred for being tough cops in a tough world.  Time to break out the champagne in Philly.  No, not the citizens who applaud the firm action by the police chief and district attorney, but the guys in the party room at FOP Lodge 5.  They got away with it again, and nobody noticed.


 



© 2012 Simple Justice NY LLC. This feed is for personal, non-commercial & Newstex use only. The use of this feed on any other website is a copyright violation. If this feed is not via RSS reader or Newstex, it infringes the copyright.

Source: http://blog.simplejustice.us/2012/12/06/liberty-equality-no-fraternity.aspx?ref=rss

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What is Parody?

Our Intellectual Property Podcast Series continues this week with Gordon Firemark, a Los Angeles-based entertainment attorney, discusssing parody. Learn more about Suffolk's nationally ranked IP Concentration at http://bit.ly/xRWIht.

Source: http://legaltalknetwork.com/podcasts/suffolk-law/2012/01/what-is-parody/

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Is A Recess Appointment Valid If The Senate Says It's Not Really Gone?

President Obama and Senate Republicans have different views when it comes to what counts as "recess." A federal appeals court is now weighing the question in a case challenging three of Obama's appointments.

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Source: http://www.npr.org/blogs/itsallpolitics/2012/12/05/166519881/is-a-recess-appointment-valid-if-the-senate-says-its-not-really-gone?ft=1&f=1070

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Death Of Florida Teenager Echoes Trayvon Martin

In Jacksonville, Fla., the shooting of an unarmed African-American teenager has raised yet another outcry against the state's Stand Your Ground law. A task force convened by Gov. Rick Scott has concluded that the law doesn't need changing.

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Source: http://www.npr.org/2012/12/07/166755927/death-of-florida-teenager-echoes-trayvon-martin?ft=1&f=1070

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Inside the Gerry Spence Trial Lawyers College

Structured settlement brokers have the pleasure of working side by side trial attorneys to help structure the best settlements for the injured and the less fortunate and many of these lawyers credit their success to special training that they received at the Gerry Spence Trial Lawyers College. On Ringler Radio, host Larry Cohen welcomes colleague and co‑host, Bill Wright from the Atlanta office of Ringler Associates and guest Attorney Joseph A. Fried, of Fried Rogers Goldberg, to talk about his experience and how he applies what he has learned to his law practice.

Source: http://legaltalknetwork.com/podcasts/ringler-radio/2012/01/inside-the-gerry-spence-trial-lawyers-college/

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