The Sheraton Grand at Wild Horse Pass will be the site for the 2016 State Bar of Arizona Convention.

The Sheraton Grand at Wild Horse Pass will be the site for the 2016 State Bar of Arizona Convention.

Today, another in a series of posts describing legal seminars at the upcoming State Bar Convention. (All the detail is here. And the complete Convention brochure is here.)

What follows are questions I asked seminar chairs, followed by their responses.

Today, I share the responses of those presenting on the morning of Thursday, June 16.

Click on the seminar title to read more detail as published in the Convention brochure.

Thursday, June 16, 8:45 a.m. – noon

T-23: ADR Talks

Chair: Steven P. Kramer

 

T-23 Steven P. Kramer

Steven P. Kramer

Who should attend this seminar?

Any practitioner involved in resolving disputes. Lawyers seeking pointers on planning, participating in and maximizing the benefits of mediation will be informed, entertained and come away with new insights. Practitioners who participate in mediation and arbitration will also learn about recent cases and legislative developments.

What is the one main takeaway a lawyer will gain by attending this seminar?

Lawyers and clients can derive great benefit from devoting careful attention to planning and preparing themselves for mediation. During mediation, there are effective approaches, tools, practices and strategies lawyers can and should employ that will make mediations more productive, meaningful and successful for their clients.

How is this seminar timely? (That is: Why do attorneys need to learn more about this topic right now? What’s going on now in the world or in law practice that makes this topic important?)

Mediation is becoming an increasingly prominent method of reaching resolution in the contexts of litigation, family law, employment and commercial disputes. Settlement conferences, rather than a step in the litigation process, can be a practitioner’s best opportunity to reach a desired result. Skillful mediation techniques and strategies are becoming a vital part of a lawyer’s arsenal.

What is the most common misconception about this issue? In other words, what do lawyers think they know, but don’t?

Misconception: The skills lawyers use to “control” the litigation process, such as the ability to take over and dominate a courtroom, serves their clients well in mediation.

Reality: This approach is often counter-productive. Mediation is not about the advocate, but about the parties. An advocate’s most important role in mediation is that of counselor and advisor. The more deeply both sides become invested in the process, the better the chance that the process will lead them to an agreement they both can accept. Attempts to intimidate, cut down or dominate the other side often cause opponents to communicate less freely, shut down or withdraw.

T-24:  Preparing for Cyber Armageddon:  Practical Tools for Law Firm Data Security, Privacy and Cyber Liability

Chair: Pat Fowler

 

T-24 Pat Fowler

Patrick Fowler

Who should attend this seminar?

This seminar should be useful to any lawyer whose practice involves using computers, mobile devices, the Internet and any form of digital technology, either in their professional capacity or in their personal life.  In other words, basically everyone.  Our speakers will include experts in cybersecurity, information technology, data breach response and cyber liability insurance.

What is the one main takeaway a lawyer will gain by attending this seminar?

Cybersecurity (including steps to reduce the risk of a breach, and a plan for quickly and effectively responding once it happens) is not something that you should put off until next month. It’s like failing to brush your teeth—ignore it long enough and bad things will happen.

How is this seminar timely? (That is: Why do attorneys need to learn more about this topic right now? What’s going on now in the world or in law practice that makes this topic important?)

Lawyers and law firms are being targeted by hackers more frequently because they are perceived as relatively easy targets. Cyber attacks on law firms can result in hackers accessing and releasing confidential and privileged client communications and records, or perhaps a ransomware attack that can lead to the total loss of all of the data on the lawyer’s computer. A data breach can result in devastating damage to a small business’ brand and reputation and can lead to the failure of that organization.

What is the most common misconception about this issue? In other words, what do lawyers think they know, but don’t?

A common misperception is that “my firm is too small for a hacker to bother with, so I don’t need to worry about it.” In fact, hackers target small businesses like small law firms because they know they don’t devote sufficient attention and resources to cyber security, and often provide the hackers with access credentials that the law firms uses to access client servers, like for electronic billing or for data rooms.

Thursday, June 16, 10:30 a.m. – noon

T-26: Supreme Advocate: Arizona Solicitors General Speak Frankly About Appeals, Politics, Mistakes and Triumphs

Co-chairs: Christina Cabanillas, Kelly Y. Schwab

Who should attend this seminar?

Anyone who wishes to know more about the roles and duties of the Arizona Solicitor General and U.S. Solicitor General, how they form legal positions and interact with the legislative and judicial branches, and how they approach litigating high-profile, hotly-debated, or other cases before Arizona and federal courts, including the United States Supreme Court.  In other words, what the heck do they do?

What is the one main takeaway a lawyer will gain by attending this seminar?

How invisible but essential a Solicitor General’s Office can be, both in Arizona, other states, and federally.

How is this seminar timely? (That is: Why do attorneys need to learn more about this topic right now? What’s going on now in the world or in law practice that makes this topic important?)

We can barely count how many cases dealing with controversial or cutting-edge subjects seem to come up in Arizona.  Understanding how the Arizona Solicitor General’s Office develops and forms legal positions and how it chooses what cases to appeal or what laws it should (or should not) defend against particular challenges is very topical.

What is the most common misconception about this issue? In other words, what do lawyers think they know, but don’t?

Some may think that the Solicitor General’s Office chooses to advocate legal positions based on the political affiliation of the Attorney General or executive branch head (governor or president).  The panelists can address this issue at the seminar.

T-28: Arizona’s Water Glass: Half Full or Half Empty? An In-Depth Discussion of CAP’s Colorado River Supply

Chair: Bill Ralls

 

T-28 Bill Ralls

Bill Ralls

Who should attend this seminar?

All business, real property, environmental, administrative and regulatory attorneys and members of the State Bar of Arizona whose clients depend upon the availability of water to sustain future development in Arizona.

What is the main takeaway a lawyer will gain by attending this seminar?

There will be a future reduction in the water delivered to Arizona from the Colorado River, probably as early as 2018, With Colorado River water shortages on the horizon and limited groundwater, our interactive panel will analyze the priorities of water use under the Law of the Colorado River and state water policies to achieve sustainable development in Arizona.

How is this seminar timely?

State, federal and regional water officials are now developing water plans to meet the reductions in water supplies, and it is timely for all water stakeholders in Arizona to be involved in the development of water priorities and policies. Also this includes involvement of attorneys in state regulation of groundwater by the Arizona Department of Water Resources, particularly proposed changes in water regulation in rural areas to protect diminishing groundwater.

What is going on now in the world of law practice that makes this topic important?

Important active litigation in Arizona courts challenging state water regulators, including the federal Bureau of Land Management challenge to the ADWR for the approval of groundwater withdrawals which may impact the San Pedro River, one of the last free flowing rivers of Arizona, and the court challenge of the Residential Utility Consumers Office to the Arizona Corporation Commission rate ruling to recognize water improvements in rates between formal rate cases for customers of privately owned water companies.

What is the most common misconception about this issue?

The view that the common law of water determines water rights in Arizona. Since the landmark decision of the U.S. Supreme Court in Arizona v. California in 1963, which recognized the federal statutory allocation of Colorado River water, and continuing with the historic 1980 Arizona Groundwater Management, which established state administrative management of groundwater in Arizona, increasingly the state and federal regulators determine water rights.

A record-number of legal seminars are on offer at the 2016 State Bar of Arizona Convention.

A record-number of legal seminars are on offer at the 2016 State Bar of Arizona Convention.

Mary O'Grady

Today, we learned that the U.S. Supreme Court had ruled to uphold Arizona’s legal sanctions against employers in the immigration context. Yesterday, a former Arizona Solicitor General gave insight into that case and into the broader topic of arguing your case at the nation’s highest court.

Mary O’Grady spoke to a luncheon group assembled in downtown Phoenix as part of the monthly gathering of the Arizona Women Lawyers Association. Now a partner at Osborn Maledon, O’Grady described the heady experience of preparing a case and advocating it to the Justices. Her Wednesday presentation demonstrated the personal and professional challenges that a lawyer faces in that chamber.

Years ago, the first case that she reviewed as a new Solicitor General was a challenge to the state’s law on same-sex marriage. That special action in the Court of Appeals was a snapshot of the approach her office took to matters, controversial or not.

“Policy issues weren’t our deal,” O’Grady said. “And I never asked assistant AGs ‘Who feels strongly about this case?’ Our job is a legal one.”

That’s not to say that she never heard from AGs who felt they could not advocate a position due to moral or philosophical beliefs. Those concerns would be aired and usually granted.

O’Grady laughed as she described the SG’s Office as “a public defender for laws.”

“Our job is to give our laws the best defense possible, and to help the judges do the best possible job.”

She acknowledged that parties sometimes get very nervous at the prospect of having the Attorney General’s Office (in which the SG is housed) handle “their case.” Those parties sometimes seek to intervene, primarily to tell the court that “they can’t trust the Attorney General’s Office.”

But that sometimes has served cases well, she said. Positions like that may lead the court to see the state’s position as more middle of the road and not a “zealot.” And hearing from those passionate advocates on both sides helps the AG see the matter clearly, “without blind spots.”

O’Grady marched the audience through a case’s progress up through the courts, at each step describing the challenges the SG faces.

Politics and media coverage are most intense at the district court level. There, she and others in her office developed “an art form” of exiting the courthouse with minimal contact with media, protestors and other possible interrogators.

By the time your case is headed to the U.S. Supreme Court, an advocate can anticipate a unique experience: the polite telephone call from NPR’s Nina Totenberg.

“That conversation is really almost a moot court in itself,” O’Grady said.

At all levels of the case, though, one thing is constant: Even in a packed and contentious courtroom, once the case starts, the lawyers on both sides just go to work, “and the noise stops, as it should be.”

O’Grady described the progress of the employer-sanctions law challenge in more detail.

As it prepares its Supreme Court case, the state always hopes that the United States Solicitor General will stake out a position that aligns with the state. In employer-sanctions, though, the USSG took no position. Finally, the U.S. Supreme Court said it wanted to hear from the USSG on the question.

That led to an appearance before the USSG, then Elena Kagan, and her chief deputy, Neal Katyal (now the Interim SG). One by one, the Arizona advocates and any others that Kagan’s office invited filed into the USSG’s conference room and presented their positions. Months later, they learned that the USSG would not support the Arizona position (though the Supreme Court did support it today).

Among that substantive step in the process and others—like a multitude of moot courts in Arizona and in Washington—O’Grady described some of the more mundane obstacles an advocate faces.

One of those obstacles is “managing reserve seats” for the Supreme Court argument. Keeping a wide variety of family members happy with a guaranteed seat is hard enough, she said. But it is unnerving to hear on the eve of what may be your career’s biggest argument that “Russell Pearce doesn’t have a seat, and he needs one.” Shuffling and reorganizing had to ensue.

“As I prepared for the argument,” O’Grady mused, “I had a bad thought. I knew Russell Pearce would be in the front row, and I couldn’t help but think about Kanye West yanking the microphone away from Taylor Swift.” As it turned out, all went well on that score.

Other challenges included having a colleague reassure her by saying, “Don’t worry, Mary, everyone I talk to believes we’ll lose 8-0!” (They won, 5-3.)

She also had to beseech her politically opinionated sister to not speak to the assembled luminaries about controversial topics—or anything—as she sat feet away from them in the Court.

Ultimately, O’Grady was peppered with 40 questions in her 30 minutes. And then it was done.

She finished her talk to the AWLA with two personal observations, which resonated with the woman lawyers in the room (aside from Court of Appeals Judge Donn Kessler and this correspondent, no other men were present).

O’Grady pointed out that moot court required her to spend about a week in Washington DC in the time leading up to the argument. “And as a working mom, I liked going to DC and checking into a hotel alone for a week!”

Finally, she smiled as she told the group about her daughter’s reaction to seeing her mom argue before the Justices. As they left the Court, the young girl’s sole comment was “Where’s lunch?” But her subsequent Facebook post was far more evocative:

“Just left court, Mom did great. She showed Justice Breyer who’s boss.”

More information on the Arizona Women Lawyers Association is here. And, no, you don’t have to be a woman to join.