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The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means Everything . . .in Business (and in Life) Diamond Diamond Platinum Platinum Signature Signature Unconventional Dispute Resolution Stacey W. Goff Executive Vice President, General Counsel & Secretary CenturyLink JW Marriott San Antonio Hill Country Resort November 19, 2010 Presented by Robert M. Manley, Principal McKool Smith P.C.

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Page 1: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

The Importance of How - Values Driven Leadership

Dov Seidman

Founder, Chairman and CEO of LRN

Author, How Why HOW We Do Anything

Means Everything . . .in Business (and in Life)

DiamondDiamond

PlatinumPlatinum

SignatureSignature

Unconventional Dispute Resolution

Stacey W. GoffExecutive Vice President, General Counsel

& Secretary CenturyLink

JW Marriott San Antonio Hill Country ResortNovember 19, 2010

Presented byRobert M. Manley, PrincipalMcKool Smith P.C.

Page 2: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

What do you buy?What do you buy?

Page 3: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Who is Talking About U.D.R.?

“Value Challenge:Reconnecting Value to Costs”

“Building a Different Law Firm”

“Alternative Billing Practice Beyond the Billable Hour”

"Evolution of the New Lawyer"

Page 4: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

U.D.R. 101

1. Early [Case] Assessment2. Redefine the Conflict3. Design Procedures/Structures4. Align Client/Counsel Incentives5. Relationship dba Trust 6. Conventional Wisdom: Overcoming it7. BATNA?

Page 5: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

ECA: What?The Facts

Complaint, claims, defenses, counterclaims A timeline, relevant facts, witnesses and key datesWitness interview summariesThe 10 best and worst documentsCurrent significant unknowable factsEvidentiary/documentary issuesLikely trial themesDocument map

The LawClaim and defense elements and burdens of proofJury chargeAppellate Court’s relevant rulingsPast verdicts in similar cases

The Forum and OppositionCourt evaluation and report from recent trial or hearingOpposing party and counsel evaluationA memo outlining extra-judicial dynamics

Page 6: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Early Case Assessment: How?

Best Practices• Written Objectives• Tiger Team• Concentrated Effort • Specific Deadline• Joint Buy-in• Joint Presentation

Page 7: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Redefine the Conflict

Page 8: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Design ProceduresNon-Binding ArbitrationEarly Discovery ExchangeUnilateral PresentationSummary Jury TrialCompetitive Mock TrialShared Focus StudyRetired JudgeCourt Conducted MediationCourt’s MediatorCouncil of Wise Wo/MenStay for Specific DiscoveryMediator’s ProposalTwo Witness Saturday TrialPost-Dispute Arbitration

Page 9: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Define Structures

High/LowHigh/Low BaseballBifurcationInitial & Contingent Payment Time LimitsFee LimitsDiscovery Limits Rule 68 OfferMix and Match

Page 10: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Align Client/Counsel IncentivesContingentHybridVolume DiscountReduced Rate with

Target BonusMonthly RetainerFlat Fee CaseFlat Fee ComponentsDecreasing RateEarly Resolution BonusMix and Match

Page 11: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

The RelationshipTeam ContinuityRelationship ManagersLegacy Work ProductSystematic FeedbackLitigation Prevention

ConsultingFree Information FlowConflict WaiversRecommendations Defined ObjectivesAccountability

Page 12: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Conventional Wisdom

“Worldly wisdom teaches that it is better for the reputation to fail conventionally

than to succeed unconventionally.”

John Maynard Keynes

Page 13: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

But Be Prepared for BATNA

Page 14: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

The McKool Smith Method: Trial Preparation

Catalog the EvidenceFact memo: every relevant fact known about the caseProof outline: trial proof and evidence prepared during discoveryExhibit indices: by issue, number & chronology

Publish and Refine StrategiesJury scriptsPrepare opposition’s caseJury test, evaluate results, and retest

Team Coordination Action list/accountabilityTeam meetingsMonthly/weekly status reports

Page 15: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Most TOP 100 Verdicts2008

$250 million: Medtronic Vascular Inc. v. Boston Scientific

$59 million: Pioneer Corp. v. Samsung SDI Co. Ltd.

$28.1 million: Adderley v. National Football League Players Assoc.

$21 million: Anascape Ltd. v. Nintendo of America Inc2009

$290 million: i4i Limited Partnership v. Microsoft

$19 million: Opti, Inc. v. Apple, Inc.

$138 million: Versata Software v. SAP America, Inc.

$20 million: City of San Antonio v. Hotels.com

2010 [?]

$105.5 million: VernetX v. Microsoft … so far

Page 16: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

Questions?

Page 17: Unconventional Dispute Resolution Diamond for...The Importance of How - Values Driven Leadership Dov Seidman Founder, Chairman and CEO of LRN Author, How Why HOW We Do Anything Means

The Importance of How - Values Driven Leadership

Dov Seidman

Founder, Chairman and CEO of LRN

Author, How Why HOW We Do Anything

Means Everything . . .in Business (and in Life)

DiamondDiamond

PlatinumPlatinum

SignatureSignature

Robert M. Manley

McKool Smith P.C.300 Crescent Court, Suite 1500

Dallas, Texas 75149Tel: 214.978.4000

[email protected]

CenturyLink100 CenturyTel Drive

Monroe, LA 71203 Tel: 318.388.9539

[email protected]

Stacey W. Goff

Unconventional Dispute Resolution