Law Office of Alicia Porter

There was an interesting article about the volume of patent litigation that is increasing recently. Click here for the link!

While at the AIPLA mid winter institute, there were a lot of issues and strategies involving litigation discussed. These issues can shape the litigation strategy that affects a small business owner.

Some of the considerations to consider are the cost of discovery (the cost of providing to the other sides copies of documentation proving that your company worked on the project and the dates, development strategies to prove that the idea was yours, and the modifications your company made to the concept in question to get the idea to work). Discovery can be quite expensive, as it can include emails of correspondence between people working on the project, retrieval of electronic discovery and other methods of data retrieval, and can cost as much as the actual litigation itself.

Another consideration is the strategy of hiring a special master to hear the case in lieu of a judge. The cost is born by the parties, so it is an additional cost, but it can be more cost effective overall as litigation proceeds.

Another consideration is preservation of data. Immediately, a business owner needs to stop any and all deletion programs on their email for correspondence between employees and others. All data on all computer drives should be backed up and stored at a separate location. Failure to immediately institute a “stop deletion” program by a company can have disastrous consequences, as a the data may not be recoverable and the court may look poorly at you for deliberately hiding correspondence. Settlement awards may also reflect the lack of saving data. The Third Circuit took the approach in one case that since a party failed to stop deleting email, the other party was entitled to review all emails, and see the attorney’s notes. This was a serious penalty, but by the same token the court viewed the company’s failure to preserve data when in litigation to be an egregious error.

Similarly, a company will want to preserve instant messages and voice mails, and have those storage sites backed up, as they may be subject to spoilage. In larger cases, a person may have to be retained to institute a key employee person by person search.

When litigation commences, it is always important to have a settlement strategy in mind. At one point or another in the proceedings, the court will invariably ask if it can be settled outside of the court’s hearing, (or the court may order the parties into a settlement conference). It is always important to know what that settlement strategy is before ever entering the courtroom.

A lot of times, clients come to appointments, and say that they want estate planning information. In order to best prepare for the meeting, here are some questions that clients may want to consider before the appointment, so that they can get the most effective use out of their time with their attorney. (Please note, this is just a sampling of some of the issues that may come up).

What are the types of documents you are seeking? Do you want a will? A power of attorney for medical care? A medical scenarios directive? A general power of attorney? A trust so that your estate can avoid probate? A financial plan? Burial directions? Information on donating your body to science? A special needs trust for a disabled spouse, should something happen to you? A partnership agreement that has provisions for your business in case you or your partners dies? To find out what your tax options are for your estate? Do you want to set up a trust to support one of your favorite charities? Do you want to set up an educational trust for all of your grandchildren? Do you want to figure out a strategy on how to manage a trust that you are currently the beneficiary? Do you intend to adopt children, and want to know what your options are? Alternatively, have you had difficulty conceiving, but need to make provisions for eggs, embryos and sperm that may be frozen while you are trying to conceive? Are you in a same gender relationship, and want to plan with your partner? Do you want to consider videotaping a statement for the benefit of the court should there be a need to protect your children from a particular family member? Are there people in your family that you know will cause problems when you die, and you want to minimize the hassles for your family? Do you want to set up a care and maintenance trust on behalf of your beloved pet?

Knowing what you want to do before you come to see an attorney can help you and the attorney both formulate a plan that best meets your estate planning needs.

The last thing anyone wants to think about when they are going on a trip is Advanced Medical Directives.

Let’s be realistic – who wants to plan for a fun vacation out of frigid north going to Mexico, Hawaii, Argentina, anywhere that isn’t as cold as the -40 that is common in a Fairbanks winter or the -2 plus nasty windchill that is common in Anchorage, Bethel, or Barrow? Why think about the worst case scenario when you are going to a happy place for some warmth?

The reality is that car accidents and travel accidents can occur while enjoying a vacation. I advise clients to take along an Advanced Medical Care Directive with them, as well as a list of their medications and allergies, not because there needs to be a fear factor in planning for a trip, but because it can really be a helpful tool if something does happen. Nothing is worse than having to go to court for an emergency petition if there is a problem.

Alternatively, if you are going to an area where you will be staying a long time (being a winter snow bird in Arizona, perhaps? ) then it is a good idea to have the local hospital’s advanced care medical directive done for that particular state. Sometimes situations can crop up where one hospital won’t honor another hospital’s form for an advanced health care directive, and if the patient isn’t able to execute a new document, things can get garbled quickly. It is just easier to download the hospital’s form (if available) and have a copy that is properly executed with you for the hospitals in the area you intend to stay for a month or more. For clients that like to visit with each of their children in different areas of a state for a month at a time, I suggest to them that they have the forms filled out and on file at each of the hospitals (and keep a copy for themselves) so that if they have a medical crisis at one child’s home, the local hospital can immediately step in without trying to ascertain who has the appropriate authority to make the necessary health care decisions.