Author Archives: Reuben Guttman

Cosying up to NGOs is just one of the corporate tricks used by big business to distract from problems.

The Washington Capitals recently faced off in a National Hockey League contest against the New York Rangers. Amidst the fanfare of a stadium packed with more than 20,000 fans, during breaks in the action the jumbotron hanging above centre ice flashed season highlights. Curiously, the highlights included not just slick passing and scoring plays but fights. Why was this curious? Well, the National Hockey League at least hints that it is trying to crack down on fighting. But how serious is the NHL when team highlight reels tout fighting? It turns out that the League’s rules outline various penalties for fighting, but nowhere – at least I cannot find it – do the rules say that the league does not condone fighting or that fighting is not part of hockey. The truth is that while the NHL packs its arenas with people who want to see fights, it struggles from a public relations perspective to guard against criticism that hockey is a violent sport; hence the purported rules that create the illusion of addressing these concerns. Remember the old joke, “I went to a fight and a hockey game broke out.” As an aside, this is a shame because ice hockey – without the fights – is quite glorious.

Masters of illusion

The point is that professional hockey is a business. These days big business is the master of illusion; focusing attention on benevolent activity as a distraction from conduct that is problematic from a legal or public relations vantage point. Take the case of Wal-Mart and the Walton family which created the company and owns the majority of its shares. The Walton Family Foundation has given millions to the Environmental Defense Fund, a US based environmental NGO, which in turn has praised Wal-Mart for being a “green company.” At the same time Wal-Mart is winning accolades for its greenness, it is being pursued by the United States Department of Justice and various State Attorneys Generals for violations of the US Clean Water Act. Embracing NGOs that perhaps were at one time corporate critics is just one facet of the illusion game.

What about companies that tout job safety but continue to place workers at peril? Do they really favour safe workplaces or do they just want to focus attention away from that which is problematic? Or what about the big pharmaceutical companies which have, in recent years, pleaded guilty to violations of the US Food Drug and Cosmetics Act for marketing derelictions? No doubt each of these companies had internal compliance programmes and explicit rules proscribing that which lead to guilty pleas. In almost all cases employees were made to sit through training sessions where the rules were purportedly taught. Yet, at the end of the day, were these programmes really meant to deter wrongful conduct or were they really designed to focus attention away from wrongful activity? Were they just a clever means of convincing employees that scrutiny of corporate conduct is pointless because wrongdoing is not possible for a company with rules that proscribe bad acts?

The illusion game is big business and no doubt there are consultants who have given serious thought to that which I write about here. Cozying up to NGO’s, touting compliance programmes, ethics rules, and training seem to be tricks of the trade. All of this presents a challenge to regulators. Think of the safety and health investigator questioning employees about a mining disaster:

Mr. Smith, have there been safety issues in the workplace?
Oh, no; our employer has workplace signs that say “safety first.”

The tragedy of the illusion game is that at the end of the day there is a price to be paid. Remember Enron, Tyco, and Worldcom? They could do no wrong because they all had internal compliance programmes. As I watched the hockey game my mind drifted to Reggie Flemming, a one-time New Yorker Ranger forward who passed on a few years back. As a player, Flemming was known as an enforcer because of his fighting prowess. Flemming once joked that he spent so much time in the penalty box that he had his mail delivered there. Unfortunately Flemming’s final years were spent in a nursing home. After his death at age 73 doctors at Boston University studied his brain and found that he had Chronic Traumatic Encephalopathy; a brain disease associated with boxers.

Of course, the NHL has rules about fighting, so I suppose that if players fight they do so at their own peril. No doubt like other corporate masters of illusion, the NHL likes it this way.

A few years back, a colleague from Beijing made his first journey to the United States to present a paper we wrote together for an academic conference in San Francisco. I frankly do not remember much about the paper or the conference – what I do remember is our lunch break. We took that time to walk over to San Francisco’s UC Hastings College of the Law Library. “What are all of these books?” my colleague asked me. I told him about the doctrine of stare decisis or adherence to precedent, how we publish judicial opinions, and the importance of those opinions to our common law tradition. He seemed a bit perplexed. I remembered that China has laws but no judicial precedent interpreting the laws or precedent establishing common law in the absence of statute.

It is, of course, such judicial precedent that creates expectations and obligations in our common law system. Guided by the doctrine of stare decisis, judicial authors including Learned Hand, Benjamin Cardozo, Roger Traynor, and others wrote opinions that used age-old logic to address the conflicts of their time. Their opinions did not change the law as much as they explained its application to newer problems. Writing an opinion, in some respects, is akin to a mathematician showing his work. The legal opinions essential to our common law tradition allow us to understand the answer, even if we do not agree with it. And, if the process leading to the answer is flawed, it is easier to spot the flaw and correct the result. Of course, through the doctrine of stare decisis, jurists make an art of reading the law and applying it to contemporary fact patterns. Emory Law Professor Frank Vandall’s book, A History of Civil Litigation: Political and Economic Perspectives (Oxford University Press: 2011), masterfully portrays the elegance of our common law tradition through a history of the evolution of products liability law.

To illustrate the importance of transparency, our next stop was the United States Federal Courthouse. “We have to make an appointment,” my colleague told me, strongly hinting that we risked getting arrested. I told him that our court system is open for all to watch. Keeping the courts open, I explained, is integral to maintaining confidence in the results, even where people disagreed with the outcome. We visited the Clerk’s office where the person at the counter partially allayed my colleague’s fears by saying, “Honey, you can look at any file you want.” Next, we walked into a courtroom where there was a live trial. I vividly recall that convincing my colleague to enter the courtroom was about as difficult as giving our cat a bath.

I think that, after our visits, my colleague got at least an inkling of our system. The openness of our courts and the transparency of the common law tradition are the mechanisms that safeguard – and sometimes recalibrate – our system of checks and balances. Just as the judicial branch can review the conduct of the executive branch, the legislative branch can engage in corrective or balancing legislation. Yet, the legislative branch can only perform its balancing when the work of the judicial branch is an open book. A vivid example of this balancing act is the Ledbetter case and the subsequent Lilly Ledbetter Fair Pay Act of 2009.

I was pleased that my colleague appreciated our legal system, but I have a confession: I did not have the heart to tell him that it has become an endangered species. Through opinions by the Supreme Court in American Express Co. v. Italian Colors Restaurant and AT&T Mobility LLC v. Concepcion, we are doing to the judiciary what we have done to many inherently governmental functions; we are privatizing it. Litigants who would otherwise have the right to a hearing before a publicly appointed judge are being told that their case must be heard by a private judge, an arbitrator. The hearings are not as a matter of right open to the public and there are – more often than not – no written opinions. And, even if an arbitrator does “show his work” through an opinion, reviewing courts will not upset the opinion for factual or even legal error or plain neglect for precedent.

They say arbitration is more efficient and less costly than traditional legal proceedings. Who knows whether this is true. Yet, one thing does seem clear; its imposition is not without externalities, including the impact on our common law tradition and our system of checks and balances.

In the span of a lifetime there are things that come and go and we often find ourselves saying, “Remember when?” More often than not we say that about things we really do not miss. Remember the slide rule or the Betamax? They were replaced with better products. Can we say the same about our common law tradition?

An unattractive jury and a stirring tale of conflict, emotion, sex and violence are some of the essential ingredients for success in a trial, according to seasoned US trial lawyer Dick Harpootlian. He shares some tips with Reuben Guttman.

South Carolina has sandy beaches, Fort Sumter, where the shot that began the Civil War was fired, and the quaint port city of Charleston. Oh yes; it has one more thing: Dick Harpootlian. With an undergraduate degree from South Carolina’s Clemson University and a law degree from the University of South Carolina, the 64 year old trial lawyer has the trappings of a son of the south.

Yet, the truth is that Harpootlian is a minority in his own state; he is a socially liberal Democrat who has served off and on as Chairman of the State Democratic Party. As a student at Clemson University in the 1960s, he recruited Jane Fonda to speak after her visit to Vietnam. He also participated in Dr.Martin Luther King’s funeral procession in Atlanta in the summer of 1968.

After a stint as District Attorney for the state capital, Columbia, Harpootlian, who has been in private practice for the past 20 years, has become one of South Carolina’s most feared courtroom litigators and political strategists.

While Harpootlian is well known in South Carolina, it was Barack Obama who put him on the national map; some say the same could be said about Harpootlian helping put Obama where he is today. Back in early 2008, candidate Obama came into the South Carolina Primary needing to win after a loss to Hillary Clinton in New Hampshire. Harpootlian was essential in engineering Obama’s primary win that paved the way to a Democratic Party nomination.

Authors John Heilemann and Mark Halperin in their book Game Change, the story of Obama’s 2008 election victory, describe Harpootlian as “a media magnet, glib and hard edged, a perfect combination of down home grit and steely sophistication.”

With his post 2008 election national prominence, Harpootlian has been a regular commentator on Fox news and has made at least one appearance on the Colbert Report. Stephen Colbert is a South Carolina buddy. His appearances have been provocative and entertaining.

An hour with Harpootlian is a day of anecdotes, analogies, and humor. A walk across the Mall in Washington surrounded by massive buildings housing government agencies with Harpootlian prompts a running monologue about government waste and inefficiency.

Visit him in Columbia, South Carolina, where an antebellum mansion is his office, and you are greeted by a brass sculpture of three large monkeys – “see no evil, hear no evil, and speak no evil” – on a metal bench. “My wife wouldn’t let me bring them home,” says Harpootlian.

As a private practitioner Harpootlian has represented a cross section of South Carolina’s population taking on civil rights cases, death penalty defense cases, and some of the largest banks in the nation.

Among the many cases that Harpootlian has tried is the successful prosecution of “Pee Wee” Gaskins – the most notorious serial killer in South Carolina history. It took weeks for Harpootlian, District Attorney for Columbia at the time, to pick a jury because of Gaskins’ notoriety.

As for his tips on courtroom practice, Harpootlian shared the following in his own — at times provocative — words:

Tip #1: Pick a jury not based only on your client’s profile, but also yours. If the jury hates you they usually won’t like your client. This has caused me to gravitate towards unattractive people on juries. They don’t feel threatened by me and aren’t disdainful like attractive people.

Tip #2: Never suffer a misstatement of the facts by opposing counsel in opening statement. Since his or her back is towards you during this process, I call it the “kidney punch” objection. Most attorneys have a difficult time recovering from the objection, especially if it happens more than once. If they have a prepared opening they never seem to get back to it. Don’t let them frame the case based on lies.

Tip #3: Prior to trial I almost always only depose experts to get their opinion and the materials they used to formulate the opinion. In most of my cases, expert depositions take less than five minutes. Why educate them before trial? Save the good stuff for the jury.

Tip #4: Own the courtroom. One of my frequent opponents when I was the DA paid me the most eloquent compliment. She said, “Harpootlian is like a dog marking his territory in the courtroom. He pisses in every corner and invades your space as frequently as he can. It makes the opposing attorney anxious.” Anxiety is your friend.

Tip #5: Throw away the script. There is nothing more boring nor unproductive than to follow a script checking off the points you want to make to prove the elements of your case. The jury wants a narrative, a story; an entertaining yarn full of conflict, emotion, sex, violence, yelling weeping, etc. . . . you get the idea. That means you have to have a general idea of what you want but let the examination flow naturally. Set the witness up to confirm fact A and fact C then box them in to B. The jury will understand where you are going. Remember these are unattractive people who watch a lot of TV and read most of their evenings. They have lots of imagination.

A wide range of speakers with a wide range of views characterises the IBA. Reuben Guttman of Guttman, Buschner & Brooks PLLC reflects on the week that was.

BOSTON, MASS – From Associate Justice of the United States Supreme Court Stephen G. Breyer to Lord Phillips of Worth Matravers, there was no shortage of legal stars at last week’s 2013 International Bar Association convention. Panelists included Zachery Douglas of Oxford and George Berman of Columbia University, both world leaders in the field of international investment arbitration, and Harvard professor and former UN Secretary-General’s Special Representative on business and human rights, John Ruggie.

Ruggie made the point that with panels ranging from anti-corruption measures to corporate social responsibility and human trafficking, much of the 2013 International Bar Association convention is about what he calls “the externalities of globalization.” At a plenary question and answer session with questions posed by Chris Jochnick of Oxfam America in Washington, DC, Ruggie stressed the complexity of the problem, noting that “it is easier to produce theoretical solutions that impress yourself as opposed to practical solutions.”

Touching on the impact of multi-national corporations that manufacture through supply chains, Ruggie addressed the question of whether a global corporation can legitimately disclaim responsibility for human rights abuses at the lowest levels of the supply chain. “It does not make a difference how many layers you have,” said Ruggie, “if you caused the problem, you are responsible for it.” Ruggie added that “the idea that you have no responsibility for what goes on at the bottom [of the supply chain] is no longer acceptable.”

While educational opportunities, such as Ruggie’s discussion in the plenary session, are prevalent at the IBA 2013 convention, there is the potential to be subject to what Americans call an infomercial. For example, at a session on corporate social responsibility, an attorney for a large oil company, which has been the subject of both criminal and civil prosecution, read from a text extolling the social responsibility of his employer. While one panelist indicated that some corporations make a “liability calculus” in determining the risks posed by non-legal compliance, this oil industry representative denied such calculus is ever made.

Panelists and IBA members, of course, represent different nations, cultures, and economic constituencies. Opportunities to learn are ample but part of the learning is understanding that panelists and members arrive with their own agendas.

In 2014, the IBA Convention will be held in Tokyo, Japan.

In addition to his work with the UN, Ruggie recently published Just Business: Multinational Corporations and Human Rights (Norton 2013).