A Time for Thanks!

This time of the year is recognized as when we give thanks, appreciation, and gratitude. We are especially thankful for all of our clients and those who put their trust in us to bring them the justice they need and deserve. Your trust in us is not taken for granted nor unnoticed. We know you have many choices when seeking legal counsel, and we are so proud you continue to choose us as your representatives.

As this year comes to a close, we affirm and renew our promise to provide you with the best legal representation! We hope you enjoy this month’s newsletter, and I invite you to contact us with topics you would be interested in reading about in the future!

The Power of Listening

By Dan Mestaz

The Power of Listening for Litigation. . . or Anything Else

A mentor once asked me what I believed to be the most important skill for a litigator… I responded with “be a great storyteller”. He said something like “voice and presence” while adding that my voice was “good” but not “great” (Gee, thanks!). I have mused on that question over the years, ping-ponging around with different answers, such as writing skills, good judgment, attention to detail, and being decisive. All of those are important. But I have settled on the one thing that I believe to be most important because it permeates everything else: the ability to listen.

Litigation is Dynamic Human Interaction – and Humans Want to be Heard

The first duty of love is to listen. -Shell Fischer (quoting unknown others)

Most people have very little understanding of commercial litigation. Even my sophisticated clients – savvy entrepreneurs and tech companies – tend to get it wrong until they are in the midst of it. A common mistake is viewing it like science or engineering: “The law says X. Comparing X to the facts of the harm done to me, I win! Easy-peasy, right?” Not so much. Litigation presents human problems, not math problems. See Elon Musk’s Twitter debacle.

Litigation is a dynamic, messy process, involving many different people and personalities, all with different beliefs, prejudices, and values. Different people perceive things differently and their world view accommodates new information differently. Two or more people can testify truthfully about the exact same thing, yet describe totally contradictory facts (see Rashomon, an Akira Kurosawa movie). And there are a wide variety of witnesses – interested (and biased) clients, client-friendly witnesses, opponents and adverse witnesses, expert witnesses, and third party or disinterested witnesses who may have seen or heard something. Meanwhile judges, other lawyers, and juries are also human, and they impact the case in different but very important ways. For example, they can hear the exact same testimony or argument and come to wildly different conclusions about the facts or the law. Juries bring their personal experiences to deliberations too!

As humans, they all have one thing in common: All want to be heard. But few, if any, want to be persuaded or convinced of anything. American politics is a good example of this.

Parenting exemplifies this phenomenon. If my teen shares a school related problem, I have learned that trying to persuade her of a solution – to “fix it” – is a one-way path to irritation and exasperated sighs because it seems like I am trying to get her to “do” something, when she really just wants me to understand. So I learned to listen to understand but not to fix – to follow up with clarifications until I am in the place to honestly agree that, “yeah, that does stink”. With that understanding, I realize why my knee-jerk fixes would not have been helpful. She feels better, and then she figures the problem out for herself! And that is mostly because I was there to listen instead of loading her up with “helpful” suggestions.

That is a good lesson for parents… and litigators just the same.

Understand What You Have – and Cultivate What You Need – By Listening

Most people do not listen with the intent to understand; they listen with the intent to reply. -Stephen R. Covey

Trial lawyers love to talk, hold forth, tell a great story. But often they are not great listeners. That is a flaw that should be corrected.

Commercial trial lawyers use three ingredients to convince strangers that their client should recover money for a wrong or is not responsible for an alleged wrong: (i) documents, (ii) testimony, and (iii) the lawyer’s own words. Thus, lawyers better know the evidence they have – (i) and (ii) – before presenting or discussing it. Documents, generally, are static. They are what they are and cannot be changed. Witness testimony, however, is wildly dynamic.

First, it does not occur in a vacuum, rather, it is a dialogue where the lawyer is part of the show. Asking a question one way may yield one answer, while asking the exact same thing another way, or after set-up questions, may yield a different answer. The lawyer’s demeanor – confident or unsure? confrontational or friendly? – also makes a difference!

Second, testimony usually follows earlier interactions, such as interviews or a deposition, which has an impact. For example, a lawyer might intimidate a key witness early, so they might appear defensive later, or one lawyer’s rapport with a witness may lead to favorable testimony for their client. Not surprisingly, witness testimony is often unpredictable—fraught with both danger and promise.

Of course, communication, including testimony, is not just words. Non-verbal communication, such as confidence and body language, is more important. Really listening to someone, therefore, requires human connection and emotional intelligence – the ability to recognize and interpret another’s feelings and emotions. To read the room or take stock of another’s energy. That may sound New Agey, but lawyers often discount it at their peril.

Litigators, therefore, should first engage with their client—or a witness, judge, or jury, etc.—as a human being. Learn the judge’s concerns before writing five pages on something he or she already agrees with . . . or giving short shrift to something they really care about. Pick up on juror body language. Do not try to prove facts A, B, and C by dragging specific words out of a client or witness before understanding what they truly feel, believe, and recall. Engagement, empathy, and non-verbal clues are essential. A client, for example, may say something helpful now—because that is what the lawyer wants—only to fall apart later on cross-examination. Only by listening—truly listening—will the lawyer know what he or she really has to work with in the case. Of course, that will also reveal what is lacking, which may be a gap that the lawyer can plug with other testimony or documents.

In my criminal defense days, my client had a good self-defense case against drive-by shooting charges. The police report said that, at the time of the shooting, he was part of a two-car caravan of boisterous young men. The client insisted he did not know the other car. The denial was plausible. I could have gone with that. But something seemed off in his body language and tone when discussing it. He seemed untruthful, and thus more likely to be found guilty, as well as distrusting of me, his court appointed lawyer. So I came back again and again, listening to understand. I did not get worked up or call him a liar. That built trust, and, eventually, he opened up. The other car was driven by a good friend, an undocumented immigrant for whom the client did not want to cause trouble. That was it. Sure enough, the prosecutor tried to make hay of the other car at trial. But I was ready for it. I had prepped the client and some of his friends. They admitted to being out together in two cars. They went from cagey and defensive to open and relaxed. He was acquitted. Patient listening saved that young man from 30 years in prison.

Surface level understanding, on the other hand, tends to yield nasty surprises. Just as important, when lawyers know what they have, even if it is bad news, they can advise the client on the value of the case for settlement purposes, instead of, say, running headlong into battle with high hopes and low ammunition.

Adjust and Adapt to the (Human) Evidence

Be like water making its way through cracks. Do not be assertive, but adjust to the object, and you shall find a way around or through it. – Bruce Lee

Once the lawyer understands his client and other witnesses – because he or she has really listened to them – the lawyer is equipped to ask questions in a way that yields the best results, while avoiding topics or trigger words that are the equivalent of stepping on the face-smashing side of a rake. The lawyer finds out what each witness can do for the client, avoids what they cannot do, and minimizes or neuters the damaging things that the other side will bring out. In short, the lawyer adapts to each witness.

I have made mistakes in this regard, particularly as a young lawyer. I had a habit of plowing ahead, forcefully and aggressively, trying to get the witness to agree with me. I probably looked like an uptight bully, while the judge or jury empathized with the witness instead of my client.

Instead, through effective listening, I have learned how to uncover and present the helpful facts that I do not need to drag out of anyone. Of course, aggressive cross-examination is sometimes necessary, but it has become the exception. It is better elicit what is both true and helpful in a way that appears effortless, rather than forcing square peg evidence into the round holes of rigid, preconceived ideas.

After a trial verdict, judges sometimes allow the lawyers to meet with the jurors. After a few wins, I got similar responses from each jury. They told my aggressive but losing opponent: “Wow, you were really good. Really impressive cross-examination.” Then they turned to me, and with much less enthusiasm, said: “You were good too, but you had the facts on your side.” Indeed, I had used the power of listening to uncover and provide the jury with the facts that helped my client – so they felt like they reached their own verdict based on the evidence instead of feeling pushed into it. The jurors – just human beings – made themselves heard.

Recent Developments In Copyright Law

By Matthew Hersh

Hi everyone. This will be a short article because everything in the copyright world is still in the shadow of the Goldsmith v. Warhol case, which was argued in October. But here’s a few other things going on in the world of copyright that might be of interest to Arizona lawyers:

Supreme Court

The big news of course is the Warhol case. A decision could come at any time and whatever happens, it’s likely to add some measure of clarity—though how much, you can never know—to the murky fair use doctrine that creators have been living with for decades. I’d guess December or January for a decision, as the Court tends to like to clear some of the less politically contentious cases in the early part of the year. But there’s no way to predict, of course. The Court has its own timetable.

I have my own perspectives based on the argument, which I’ll keep in my pocket for now. (OK, just for fun, I guess 7-2 for affirmance, with Sotomayor and Kagan dissenting or maybe concurring on narrower grounds. But predicting the Supreme Court is a fool’s game.) Anyway, here’s a good summary that my colleague Thomas Long of the Intellectual Property Law Daily wrote after the argument.

Ninth Circuit

McGlucken v. Pub Ocean Ltd., August 3, 2022: Here’s a pretty straightforward fair use case in which a digital publisher posted on its web page someone else’s photos of a lake that briefly formed on a desert floor. The Ninth Circuit found that the fair use defense did not apply because the photos were reproduced for the same purpose, to colorfully illustrate a natural phenomenon, as the original use. I wrote about the case here.

WB Music Corp. v. Royce International Broadcasting Corp., August 31, 2022: Not a lot of deep copyright doctrine but it’s a fun one because it involves Ed Stolz, a radio station owner in southern California area who is famous for his battles with ASCAP and other owners of intellection property owners. (If you hail from LA you might remember when he tried to name one of his stations “K-Rock”—a straight theft from legendary alternative rock station KROQ.) Anyway, he lost a ton of lawsuits to ASCAP and was forced to put his stations into receivership. The Ninth Circuit said he couldn’t get out until he paid off the receiver for his work and resolved a bunch of other debts as well. I wrote about the decision here.

APL Microscopic, LLC v. Steenblock, October 3, 2022: Here’s one that will be welcome to copyright plaintiffs. A photographer brought a lawsuit against a doctor who has allegedly used his posted without permission on his Facebook and Instagram. There were some serious doubts that the doctor actually controlled those media pages, so the district court dismissed the case on the pleadings. The Ninth Circuit revived the case. Yes, the facts in the case might be weak, the court said. But it was plausible, and that was enough. Harkening back to longstanding Supreme Court doctrine, the court emphasized, “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” I wrote about the case here.

District Court of Arizona

Wolf Designs LLC v. Five 18 Designs LLC, October 18, 2022: Here’s a case that reminds us all to pay attention to the statute of limitations. The designer of custom “vehicle wraps” claimed that a competitor copied its designs and stole its customers. The designer learned of the alleged infringement in early 2018 but waited until late 2021 to file his complaint—too late under three-year statute of limitations. To be sure, the designer argued, the competitor kept selling the allegedly infringing works well after 2018. But that didn’t matter, the court held. Each of the sales constituted a continuing set of alleged infringements beginning outside of the limitations period, and that was enough to bar the entire claim. My colleague George Basharis of the Intellectual Property Law Daily wrote about the case here.

Other interesting cases I recently covered for the Intellectual Property Law Daily

“Memoir author dealt a losing hand in infringement claim against ‘Empire’ producers” (Eggleston v. Twentieth Century Fox Film Corp., August 16, 2022)
“Pandora’s royalty policies are no joke to comedian George Lopez” (Lopez v. Pandora Media, LLC, August 23, 2022)
“Confusion over difference between collective and group registration found to be an honest mistake” (Oliver v. Meow Wolf, Inc., August 25, 2022)
“State law claims based on typeface are not preempted by copyright act” (Brand Design Co., Inc. v. Rite Aid Corp., August 26, 2022)
“So far, so good on copyright small claims tribunal, Register tells Senate panel” (Congressional hearing, September 7, 2022)
“An interactive website accessible in Illinois is not enough, on its own, to give a Chicago court jurisdiction” (BMN Entertainment, LLC v. Je’Caryous Johnson Entertainment LLC, September 7, 2022)
“Shake Shack Shakedown? Venerable burger chain pushes back over typeface dispute” (Shake Shack Enterprises, LLC v. Brand Design Company, Inc., September 9, 2022)
“Artist gave art collective an irrevocable license to display her work” (Oliver v. Meow Wolf, Inc., September 13, 2022)
“Live performances before copyright registration preclude statutory damages for later album release” (Karzo v. Matador Records, Inc., September 14, 2022)
“Sony wins partial victory over Bang Energy for its social media campaign” (Sony Music Entertainment v. Vital Pharmaceuticals, Inc., September 14, 2022)
“Does an NBA video game ‘transform’ a player’s tattoo? A jury will have to decide” (Hayden v. 2k Games, Inc., September 20, 2022)
“Copyright Register need not reconsider registration of a line of Beanie Babies” (TY Inc. v. Target Corp., September 21, 2022)
“Dismissal of infringement action over Mayweather-McGregor fight was based on a misreading of the record” (Joe Hand Promotions, Inc. v. Griffith, September 21, 2022)
“‘Prodigal Son’ was illicit offspring of popular series of novels, a new complaint asserts” (Lyga v. Warner Bros. Television, September 21, 2022)
“Attorney fees can be awarded in declaratory judgment action” (Horror Inc. v. Miller, September 26, 2022)
“Ruling over oil industry newsletter deals another blow to Second Circuit limitations doctrine” (Energy Intelligence Group, Inc. v. Kirby Inland Marine, LP, September 28, 2022)
“Let’s get it on: Marvin Gaye–Ed Sheeran clash edges closer to trial” (Structured Asset Sales, LLC v. Sheeran, September 29, 2022)
“Well-known broadcaster’s claims are stymied by Copyright Act preemption” (Melendez v. Sirius XM Radio, Inc., October 4, 2022)
“Concert bootleg recordings are eligible for compulsory licensing” (ABKCO Music, Inc. v. Sagan, October 6, 2022)
“AirBNB’s photo caching service may mean cash in hand for photographer” (Ayiomamitis v. Airbnb, Inc., October 10, 2022)
“Cash-for-royalties deal can’t be terminated under the Copyright Act” (Merrill v. Hyman, October 20, 2022)
“Court of appeals may be the final frontier for copyright claim over space-based show” (Funrise Inc. v. Space Race, LLC, October 20, 2022)
“Ninth Circuit ‘server test’ comes to the rescue of Facebook” (Logan v. Meta Platforms, Inc., October 25, 2022)

Trademark Update

Jack Daniels, an Arizona manufacturer, and “poop-themed dog toys” make their way to the Supreme Court

A trademark case with Arizona roots will be heard by the Supreme Court. The case involves a Phoenix-based dog toy marketer, a venerable Tennessee distillery, and the important legal question of how to balance free speech principles with trademark law protections.

The case arose when a company operating as MyDogToy.com put out a dog toy called the Silly Squeaker Liquor Bottle. The dog toy (you can see it here) is an obvious takeoff of the classic Jack Daniels bottle, except that the label reads Bad Spaniels and the words “Old No. 7 Tennessee Sour Mash Whiskey” are replaced with “The Old No. 2 on your Tennessee carpet.” Not surprisingly, Jack Daniels did not see the humor. The whiskey maker saw it as naked trademark infringement; the dog toy maker saw it as free speech. Inevitably, the parties wound up in court. Judge McNamee of the Phoenix federal bench ruled for Jack Daniels, but the Ninth Circuit reversed. Jack Daniels petitioned the Supreme Court to review. And on November 21, the Court agreed to hear the case.

The case is high stakes for manufacturers and parodists everywhere. A longstanding doctrine of trademark law, embodied in the famous case of Rogers v. Grimaldi, carves out certain limits to trademark protection where free expression is at stake. In that case, actress Ginger Rogers claimed that use of “Ginger and Fred” as a movie title violated the Lanham Act by creating the false impression that she had sponsored the movie. The Second Circuit found that the “expressive element” of a movie title required more protection than the labeling of ordinary commercial products. But that was a movie title – classic expressive conduct. How should that apply to a parodist who is simply trying to sell a product? The courts have disagreed. And now the high court will step in.

You can see the docket of the case, with all of the briefs that have submitted so far, here.

Congratulations Matt Hersh!

We are excited to announce that Matthew Hersh has joined the firm earlier in the year in an ‘of counsel’ role, is now fully admitted to the State Bar of Arizona, as of October 24, 2022.

Matt is a skilled litigator, experienced in both the trial and appellate level, at representing copyright owners, telecommunications companies, and other corporate entities.

Turkey Dinner Gone Wrong

While enjoying a turkey dinner in the fall of 1938, Helen Silva choked on a small bone. With another patron’s help, she was able to eject it, but feeling mistreated, she sued the diner for injuries (including embarrassment and $36 in medical costs). She was attempting to enjoy a meal of turkey, dressing, and veggies, but unfortunately, a small bone found its way to her windpipe.

The court ruled that the bone was not foreign to the dish being served and, therefore, liability rested with the entrée’s producer. Even so, the bone in question was judged to be expected and anticipated, and the original judgment of $500 to the plaintiff was reversed! If you eat a holiday meal away from home, be careful!

Mestaz Law is a commercial litigation firm serving businesses, business owners, business executives, and entrepreneurs.