September, 2010

Dear Young Lawyers Section (YLS) Members:

Welcome to the re-launch of the Young Lawyers Section’s e-newsletter: Electronically In-Touch.  My thanks to Nilesh Ameen, Esq. for becoming editor of this electronic publication.

The word “opportunity” is frequently used by young lawyers. Every new attorney is looking for an “opportunity” to become more successful. One way to develop your resume is to write an article for a New York State Bar Association (NYSBA) publication. The Young Lawyers Section offers you two publications to write for; one print (Perspective) and one electronic (EIT.) Please consider writing an article for either (or both) of these publications. 

Another “opportunity” was the NYSBA Trial Lawyers Section’s Summer Meeting at the Equinox in Manchester, VT. The Trial Lawyers Section offered a reduced-price fee to attend this meeting for attorneys practicing less than five years.

If you did not go, here are the top five things you missed:

5. An opportunity to see beautiful Manchester, Vermont.
4. An opportunity to learn from some of the top trial lawyers in New York State.
3. An opportunity to get involved in the Trial Lawyers Section.
2. An opportunity to eat amazing food (I highly recommend the Kobe Beef Sliders) and
1. An opportunity to network with some very enthusiastic and collegial attorneys.

The Sections want young lawyers to become more involved in their groups. Many are willing to give us discounts to attend their meetings. Some of the meetings are expensive and do require time out of the office. However, networking is very important to our development. I have accounts on social networking websites, however they are purely for casual interaction. It is very important to meet and speak to colleagues face-to-face instead of a virtual conversation. Networking, pressing the flesh, schmoozing; whatever you call it, it is invaluable to your development to make personal contacts. You never know when you will need to call someone to give you a tip on how to handle a unique matter or help you find a job. 

You also meet a number of judges at these meetings. There is nothing better than being able to talk to a judge to find out their pet peeves at trial before you appear in court with them and hit every single nerve. All of the judges I have met at these programs have been more than willing to sit and talk with me about the practice of law and the view from the bench. It has given me more insight to the way a judge thinks than anything else I have done.

The Continuing Legal Education (CLE) at these programs is top-notch. Many Sections, such as Commercial and Federal Litigation Section, have offered a track dedicated to introducing new practitioners to their area of the law. NYSBA’s CLE department does a fantastic job of putting on programs throughout the state, however where the Section meetings really shine is by their topics focusing on the nuances of their practice areas.

Do not forget that the YLS is also having its Fall Meeting on October 21st and 22nd in Albany at the NYSBA headquarters. James Barnes, YLS Chair-elect, is putting the finishing touches on what will be a great program you will not want to miss.

Please mark your calendars for our Annual Meeting 1/2 day program to be held on January 26, 2011, and for our two-day Bridge-the-Gap Program that will be held on January 27-28, 2011.

Lastly, the Young Lawyers Trial Academy will again be held at Cornell Law School in Ithaca, New York from Wednesday, March 23 – Sunday, March 27, 2011. The Trial Academy is the cure for the inexperienced attorney because it provides an opportunity to become familiar with the courtroom, its procedures and decorum. It involves hands-on practice of matters at the heart of trying cases, including voir dire, opening statements, direct and cross examination and closing arguments. Mark your calendars!

Knock knock.

Respectfully submitted,

Phil Fortino, Esq.
YLS Chairperson

Dear Young Lawyers Section Members:

Welcome to the re-launch edition of Electronically-In-Touch! As the new editor, I truly hope you enjoy the articles presented in this issue, which contains an introduction to and brief biographies of the Young Lawyers Section officers, an article on cutting-edge trial presentation techniques by Ron Kurzman, Esq. of Magna Legal Services, and a timely article on Popsicles and trademark law by Vanessa Kaster, Esq..

Electronically-In-Touch is the monthly electronic newsletter of the NYSBA Young Lawyers Section (YLS). It is a member driven publication, encouraging YLS members to write articles, and as such we would welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to me at nilameen@aol.com, no later than the 10th of the month.

Nilesh Ameen, Esq.
Editor, Electronically-In-Touch

Meet your 2010-2011 Young Lawyers Section Officers

Chairperson – Philip G. Fortino, Esq., is a 1998 graduate of Western New England College School of Law.  In 2000, he was admitted to the New York State Bar.  He is a former Associate of the Law Offices of Franklin A. Josef, where he handled criminal and civil litigation matters, landlord/tenant, family law and collection cases as well as shareholder derivative actions.  In 2005, he took a staff counsel position with NYCM Insurance and continues to be employed there to date.  He handles a number of automobile property damage cases, no-fault insurance matters and automobile subrogation. 

He is a past Alternate 5th Judicial District Representative, Secretary, Treasurer and Vice-Chair of the Young Lawyers Section. This past January, he was the program chairperson for the sold-out two-day YLS Bridging-the-Gap program. He is a past-chairperson of the Onondaga County Bar Association’s New Lawyers Section as well as the creator and program chair for the OCBA’s Litigation at Lunch series. Besides being a member of the New York State Bar Association Young Lawyers Section he is a member of NYSBA’s Torts, Insurance and Compensation Law and Trial Lawyers Sections. He also is a member of the County Bar Associations in Oneida and Onondaga as well as the New York State Academy of Trial Lawyers. 

His proudest moment as an attorney came when he made the motion for his then girlfriend (now wife) Elizabeth (Snyder) Fortino, Esq. and her immediate family to be admitted to practice in the United States Supreme Court and was asked to set up a joke for Chief Justice John Roberts.

Chairperson-elect – James R. Barnes, Esq., joined Burke & Casserly, P.C., as an associate attorney in 2005. He focuses his practice in elder law, trusts and estates, corporation and business succession planning and real estate. James is admitted to practice law in New York State and is also a member of the Bar of the United States Supreme Court.

James is a member of the New York State Bar Association, in addition to its Trusts and Estates, Elder Law and Young Lawyers Sections. He is an active member of the Young Lawyers Section, serving in many leadership capacities and on several committees. James currently serves as Chair-Elect of the Young Lawyers Section (one of four officer positions) and previously served as Treasurer and Secretary. He is also a member of the Albany County Bar Association, and currently serves as co-Chair of its Young Lawyers Committee.

James received his Juris Doctorate from Wake Forest University School of Law in 2004, where he studied as an A.J. Fletcher Law Scholar. While at Wake Forest, he became an active member of the Phi Alpha Delta National Law School Fraternity, serving for two years as the chapter’s Vice-President. James pursued his undergraduate education at the State University of New York at Binghamton. In 2001, he received his Bachelor of Arts, summa cum laude, double majoring in Philosophy, Politics and Law, and in Music. At Binghamton, he became a member of the Phi Beta Kappa, Golden Key and Phi Eta Sigma National Honor Societies. James lives with his wife, Monica, in Latham.

Treasurer – Michael L. Fox is an associate with the firm's litigation team, concentrating in federal and state general and commercial civil litigation.

Michael received his Juris Doctor degree in 2003 from Columbia University School of Law, in New York City, where he was a Harlan Fiske Stone Scholar and an Articles Editor on the Columbia Business Law Review.

Michael is admitted to practice in New York State, as well as in the Southern, Eastern and Northern Districts of New York, the Second Circuit U.S. Court of Appeals, and the United States Supreme Court. He previously worked as an associate in the litigation department of Stroock & Stroock & Lavan LLP, in Manhattan. Michael also clerked for the Honorable Lawrence E. Kahn, United States District Judge, Northern District of New York, in Albany.

Michael, a native of Orange County, is very active with the American Bar Association and New York State Bar Association. He is currently the New York Young Lawyer Delegate to the ABA House of Delegates, and a Delegate to the NYSBA House of Delegates. He is also the Treasurer of the Young Lawyers Section of NYSBA and past Secretary. Michael served as Program Co-Chair for the 2009 Young Lawyers Section two-day Bridge-the-Gap CLE during the NYSBA Annual Meeting. In addition, he is a Past Chair of the Committee on Community Service & Pro Bono of the Young Lawyers Section.

Secretary - Dana Syracuse practices in all areas of commercial litigation in New York City with a focus on employment law, real estate law, contract and lease disputes. Mr. Syracuse is a graduate of New York University (2001) and Brooklyn Law School (2004). Mr. Syracuse currently serves as Secretary of the Young Lawyers Section.

Litigation/Trial Techniques

Real Science:
Why Graphics Are Needed at Trial

By: Ron Kurzman, Litigation Consultant

By simplest definition, the job of an attorney is to educate his or her audience. However, how the attorney goes about this task and how he or she chooses to impart their knowledge to the jury, can mean the difference between a winning case and a resounding defeat. It's not enough for a lawyer to deliver the facts through a singular method. It's not enough to stand before the collected court and recite a 20 minute speech and to allow those very important words to hang alone in the air. The key to having the information remain relevant long after the jury goes into deliberation is to analyze how the population as a whole learns. That is, to see how we - from the womb to the grave - process the world around us. After all, the only way for information to have impact is for it to be remembered.

According to a report on developing effective presentations by the U.S. Department of Labor (OSHA Office of Training and Education), "approximately 83% of human learning occurs visually, and the remaining 17% through the other senses - 11% through hearing, 3.5% through smell, 1% through taste, and 1.5% through touch." [1] But those statistics, impressive as they are, only account for the immediate breakdown and storage of information. They do not address how long that same information will remain relevant and retrievable. There is a big difference between learning something new and retaining it. During the initial attempts by researchers to quantify these results and others like it into an effective educational delivery system, both on the lower elementary level as well as one of higher learning, they realized combining these methods of communication could yield higher results, especially when dealing with memory. An oral presentation only had a 10% retention rate three days after it was given. A visual one registered 35%. But when the presenter combined both, the audience, on average, retained 65% of the information.

This heightened cognitive recall occurs because of the way the brain processes information, a theory that would later be referred to as dual coding. Allan Urho Paivio, an emeritus professor of psychology at the University of Western Ontario, developed this cognitive model of distinctive mental patterns as a means to explain the extraordinary rate in which participants in a study could recall a series of photos they were shown. According to his theory, verbal and non-verbal retention are stored and organized along distinct channels in the mind. On their own, each has its limitations. Each is seen as having a differentiated mental coding in which only certain details can be effectively recorded. But when one is used to support the other, when a singular image illustrates a spoken point, the audience has an easier time remembering because an internal cognitive connection is made. The information can now be retrieved via multiple pathways. Essentially, the individual creates a mental model in which the simplified information (the image) serves as a visual cue to prime the memory to recall the more complicated facts (the spoken information).

That is why one must be careful not to dismiss the use of multimedia presentations in the courtroom as unnecessary theatrics, as mere technological flash and glitz. An attorney must see the evidence being presented from the viewpoint of his or her audience; from the jury members who haven't been immersed in the documents for months prior to the trial, who may not have an intricate understanding of the legal system. A proper presentation in which your key facts are illustrated is needed by and, even more importantly, expected by your audience. Most informational outlets have followed suit. On average, of the articles listed on the home page of CNN.com, at least one third are now video only, with the occasional link to an accompanying text based translation following at the bottom of the page. The same goes for MSNBC and Google News. It's a matter of supply and demand, of the generated content now matching the sensory driven behavior of today’s user who relies on constructing mental models from multiple stimuli.

In a 1983 study of recognition information, Stoneman & Brody "found that children in visual or audiovisual conditions recognized more products in commercials than children in an auditory only condition." In a similar test, Read and Barnsley "showed adults pictures and text from the elementary school books they used 20 to 30 years ago. Recognition accuracy rates for pictures and text were better than chance, with pictures alone being recognized more accurately than text alone." [5] From the perspective that adopts the dual-coding coda, concrete words will help us generate associated images, and in relation, pictures alone help us to generate associated words. The combination of oratory and mental images establishes multiple paths by which the information can be retrieved from memory.

Evidence is the key to any trial and making that evidence digestible is the key to garnering the favor of the judge or jury. An image of a document with the most crucial parts highlighted will only serve to make the argument it represents more memorable. A timeline in which each specific, color-coordinated date animates to show its placement within the greater continuity as well as its location to the other points along the chronological line will only help the audience remember how the events transpired. This can all be attributed to the visual emphasis. Where a string of words has to use semantic cues to its structure over the course of sentence, a visual representation can use squares, arrows, checkmarks, space, color, typefaces, and the relative distance between its individual elements to communicate relational information.

It is without question that our society has become more reliant on visual stimuli to inform, educate and persuade.  Moreover, it is clear that science supports the concept that pairing the spoken word with visuals allows the presenter to be more effective.  Therefore, it is imperative to incorporate visual graphics into your case to assure maximum impact at trial.  

Ron Kurzman, Esq., is a Partner and Litigation Consultant at Magna Legal Services, LLC.  He is an expert in assisting counsel in developing trial strategy for large, complex matters, based on behavioral research and jury analysis. As a litigation and trial consultant his activities include the development of trial strategy and tactics, jury selection and voir dire, implementing shadow juries, witness communication training, ordering of evidence, opening /closing statements, development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques. He works with members of the trial team to develop themes and case strategies that will be persuasive to juries, judges and arbitration panels. 

Ron Kurzman, Esq.,
Partner / Litigation Consultant
Magna Legal Services
Direct  646-448-9990
Cell  917-855-1277
rkurzman@magnals.com
www.MagnaLS.com
www.JuryConfirm.com
www.GraphicsForTrial.com

Sourced and Unsourced Reference Material
1] http://www.osha.gov/doc/outreachtraining/htmlfiles/traintec.html
2] http://www.lifecircles-inc.com/Learningtheories/IP/paivio.html
3] http://law.bepress.com/cgi/viewcontent.cgi?article=4699&context=expresso
4] http://www.abanet.org/lpm/lpt/articles/tch05071.shtml
5] "Multimedia Information and Learning" by Lawrence J. Najjar, School of Psychology, Georgia Institute of Technology, 1996 Journal of Educational Multimedia and Hypermedia, 5, 129-150. http://mime1.gtri.gatech.edu/MiME/papers/multimedia_and_learning.html

Trademark Law

Is Unilever’s Popsicle trademark melting away?

By Vanessa Kaster, Esq

Whether or not you are using the word ‘popsicle’ this summer might seem like a silly question...but it’s no laughing matter for Unilever (ironically, ‘Good Humor’ is the name of Unilever’s subsidiary through which it acquired rights to the Popsicle brand and trademark).  These days Unilever is working overtime to protect its trademark ‘Popsicle’ from losing its distinctive trademark status before it slips too far into the public’s summer vocabulary.

In the United States, trademark protection vests words and phrases which are registered as trademarks with special status that gives their owners a significant amount of control over their use.  Controlling the use of a trademark can be a delicate balance between growing a brand to become a household name and losing a trademark if it becomes so popular that it becomes a generic term.  Entrepreneurs’ dreams probably never include the reality that their most creative and successful trademarks can easily be lost by becoming so popular that they become generic. 

When a trademark becomes generic, this means that the trademarked term has become synonymous with the product or service that it identifies. This happens when the public starts using the trademark term as a noun to identify all products or services with the same or similar characteristics regardless of the production source.  Grammatically, the correct way to use and protect a trademark is for the trademark to be used as an adjective and not a noun or a verb.  For example if someone says, “I want a Popsicle ice pop”, the trademark is being used correctly as an adjective.  On the other hand if someone says, “I want a Popsicle”, the trademark is being used as a noun which is a generic use.  

The threat of the public’s use of a trademark as a generic word is often an unforeseen downside to having an innovative and popular product.  Popsicle is an example of a trademark which is teetering between being a famous, household brand of Unilever and a generic word which the public uses to describe all frozen treats on a stick.

The word Popsicle originated as a trademark.  In fact, the word Popsicle did not exist until the grandfather of all Popsicles, Frank Epperson, created the word Popsicle back in the early 1920s as the name and trademark for his frozen treats on a stick.  According to the Popsicle brand website, when Frank Epperson was 11-years-old, he left a “mixture of powdered soda, water and a stirring stick in a cup on his porch.   It was a cold night, and Epperson awoke the next morning to find a frozen pop.”  Initially Frank called his frozen treat an ‘Epsicle’, but as he aged and the frozen treat gained in popularity the name changed to “Pop’s sicle” and then eventually to Popsicle.  This story of the creation of the word Popsicle is important since it shows that it is a made-up word.  Generally, trademarks derived from made-up words are the strongest trademarks because they have no meaning except as a brand and consequently are excellent source indicators.

Ironically some of the strongest trademarks of this ‘made-up word’ variety, which are also known as fanciful trademarks, are also the most vulnerable to becoming generic terms.  Public over use and misuse has led to the demise of many famous trademarks.  For example, the words videotape, escalator, cellophane, linoleum and margarine are a few examples of distinctive trademarks that have become generic terms due to long term misuse by the public. It’s unlikely that the public had any idea what it was doing.  It was merely the erosive effect of lazy speech patterns.  Lazy speech patterns, however, can destroy a trademark when the trademark term is consistently used to identify all products or services with the same or similar characteristics regardless of the production source.   Once a trademark becomes generic, then the trademark owner no longer has exclusive use of the trademarked term upon which their brand is based and competitors companies can begin to freely use the generic term to promote, market and advertise their own competing products.

What can Unilever do to preserve its trademark status for Popsicle?  Gorilla-style vocabulary warfare is called for to try to get the public to associate Popsicle as only one of many different varieties of ‘ice pops’, and not as a synonym for ice pop.  It seems that Unilever is taking this task very seriously and has recently requested that an artisan ice pop shop in Brooklyn stop using Popsicle as part of their trade name on their website and in their blog postings.  Similarly, running an internet search on the term “Popsicle” brings up many official references to the term being a registered trademark which is undoubtedly a testament to Unilever’s efforts to establish “Popsicle ice pop” as the preferred use of the trademark.  Equally interesting is that Popsicle is also listed as a trade name in the 1983 publication of the American Heritage Dictionary and in an earlier 1973 Standard College Dictionary, published by Funk & Wagnalls.

Whether Unilever will succeed in preserving their Popsicle trademark will depend on how successful they are in convincing the public to start saying “Popsicle ice pop” and stop using Popsicle as a noun to refer to all frozen treats on a stick.  Unilever seems to be putting forth a huge effort to save their Popsicle trademark from becoming generic, whether this will be enough to trump the lazy speech of summer vacationers remains to be seen.  Listen closely the next time you are at the snack bar to what people are saying when they order their favorite frozen treats.  Undoubtedly, Unilever wants them to be ordering “Popsicle ice pops”.

Vanessa Kaster, Esq. is an intellectual property attorney with a focus on trademark, copyright and licensing. She has an LL.M in International Intellectual Property from Queen Mary University of London and pre-law school business experience at Bloomberg LP.

Referenced articles and websites:

http://www.popsicle.com/The-Popsicle-Story.aspx

http://www.inta.org

http://www.theatlantic.com/food/archive/2010/07/dont-use-the-p-word-a-popsicle-showdown/59412/

http://www.bloomberg.com/news/2010-06-02/bayer-patent-lawsuit-over-yaz-hp-nissan-unilever-intellectual-property.html

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