Rees Morrison’s Morsels #163: posts longa, morsels breva

In litigation, loser pays in Germany and Australia: This blog has noted that the UK and Germany have loser-pays rules for litigants. According to the Economist, Dec. 10, 2011, that is the norm also in Canada (See my post of July 1, 2009: loser-pays jurisdictions with 6 references; June 2, 2011 #4: FRCP 68 look-alike in Britain; and July 18, 2011: Australia has loser-pay rules.).


Some states bar in-house counsel from providing pro bono assistance
. Met. Corp. Counsel, Dec. 2011 at 38, has a column by Amar Sarwal of the Association of Corporate Counsel. He refers to efforts to promote pro bono services by in-house lawyers, then adds “Unfortunately, some states forbid in-house counsel from offering this kind of assistance.” Apparently Hawaii, Iowa and Minnesota are among those benighted states (See my post of Jan. 16, 2009: lack of pro bono opportunities for inside counsel.).


Acedia, also known as the “noonday demon.
” The essay in the NYT Book Rev., Dec. 25, 2011 at 31, charmingly writes about the decline in attention at mid-day. A lawyer’s breakdown in concentration around lunch could be psychological (distractions), physical (hypoglycemia, lack of sleep), or ethical (lazy, poor work habits). Whichever the cause, the solution is a change of pace, a choice of a management task to accomplish, some discipline and some knowledge about the acedia effect.

Close to one-half of U.S. companies surveyed did not file a single lawsuit in 2010. Among the 200 or so U.S. companies covered by the Eighth Annual Litigation Trends Survey Report of Fulbright & Jaworski (at 15), 48 percent of them did not initiate a single dispute (litigation) during 2010 and 81 percent did not initiate an arbitration. Five years before, Fulbright had reported that half as many companies chose to stay totally out of the court house (See my post of Oct. 27, 2005: one quarter of companies did not sue during the year.). The movement to avoid litigation appears afoot (See my post of Dec. 20, 2011: secular decline in trials, although nothing said about lawsuits.).

Does benchmarking not deliver a sustainable advantage. The website of IACCM refers to benchmarking and adds a caustic comment. A company can benchmark “Against external organisations (but that is unlikely to offer any sustainable advantage).” I think the point is that if the industry bar keeps rising, your advantage disappears over time. I disagree that benchmarking should therefore be cast aside. Not all your competitors will learn from benchmarks and progress. Second, the discipline of gathering and thinking about metrics keeps reaping benefits, which is a sustainable advantage.

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