Your Most Intimate Partner May Soon Be Google

by David A. Tracy

If you are using a web-based service for free, you are not a customer.  You are the product.

Web sites that provide a service gather information about you.  They use that information to get advertisers who buy the ads you see on your computer screen.  The more information you provide, the more targeted internet advertising you will receive.  And, the more money your “free” service provider will make.

Making a profit selling ads to place on your computer screen is not inherently evil.  But data mining, text analytics and predictive computer modeling become more sophisticated by the week.  At what point does analytics become an invasion of privacy?  Does gathering this type of data need to be regulated?  How do we balance the value of a service against the risk of exploitation by a service provider?   These are the questions that pit electronic privacy advocates against increasingly powerful commercial interests.

The number one provider on most lists discussing this balance (or imbalance) of interests is Facebook.  Last  week Google became number two on the list, with a bullet.  Google announced it was combining more than 70 privacy policies for various products into one policy.   The new privacy policy grants Google the right to combine your personal information across its various products.  This means your search results on Google-owned services will be further filtered by your use of other Google products.  This includes what you watch on YouTube, what you read on Google News, your posts on Google+, your GMail data, your Android phone apps, images you’ve posted to Picasa, and many other Google products.  The changes take effect March 1st.

Google and others say this change will enhance your browsing experience.  Privacy advocates and competitors are crying foul.  They claim Google’s plan to aggregate its information about you through its many platforms and applications violates antitrust laws and consent decrees already in place.  Expect hearings before the Federal Trade Commission and U. S. Congress.

If you have been using Google products privately in ways you have not shared with your spouse (or your lawyer), your Google, YouTube or other search results could unexpectedly call you out.  Google may soon know more about your preferences than your family.

The new privacy policy has no opt-out provision.  However, there is nothing to prevent you from creating multiple email accounts and associating them with different Google services.  This fix is inefficient, and possibly ineffective over time, but it is your only tool for the moment.

Google and other data vendors will continue to shape and control private web content in ever-more invasive ways. When balancing profit and altruism, expect content providers to tip the scales in favor of profit.  We must remain ever vigilant to protect our private information from misuse or abuse, and remain alert to monopolistic practices in the electronic marketplace.  Resistance is not futile.  We will not be unwillingly assimilated.


Updating our privacy policies and terms of service, The Official Google Blog, January 24, 2012

Confessions of a Google junkie (or Privacy, What Privacy), ZDNet, January 27, 2012

Et tu, Google? Jim Calloway’s Law Practice Tips Blog, January 27, 2012

Google’s watching you:  the good, the bad, the ugly, Lexician, January 25, 2012

Privacy Alert: Google to Share User Data Across Its Services, Consumer Reports, January 25, 2012

EPIC to FTC: Google Search Plus may violate privacy, antitrust rules, Cnet news, January 12, 2012

Google’s Privacy Policy Changes: Revolution? Evolution? Or Confusion?  Lauren Weinstein’s Blog, January 28, 2012

Garth Brooks Verdict Highlights Risk and Reward in Litigation

Photo credit: KOTV, Tulsa

Country music superstar Garth Brooks’ victory in an Oklahoma state court should serve as a cautionary tale for anyone involved in legal action.  Most litigation carries the possibility for  reward, but at great risk.  Balancing the opportunity of risk and reward is how most cases settle, as this one should have.

On Tuesday, Brooks received a verdict for $1,000,000.00 in actual and punitive damages from the hospital in his boyhood hometown.  In 2005, Brooks donated $500,000.00 to Integris Canadian Valley Hospital in Yukon, Oklahoma.  Brooks claimed an oral agreement  that the hospital would name a women’s clinic after his late mother.  When the hospital indicated it would use the money for another purpose, Brooks asked them to return the gift.  The hospital countered that there was no written agreement, there was no meeting of the minds to make an oral agreement, and the donation was anonymous and unrestricted.

The hospital hoped to convince a jury that Brooks had turned his back on his hometown.  They wanted to paint an image of Brooks as someone who used his money to control others – and that he changed the conditions for his donation after the fact.  If the jury could be convinced that Brooks should not have entered into such a loose arrangement for such a large sum of money, then the gift should not be returned.  The hospital hoped to be perceived as a healing community victimized by a peevish popular culture figure with an outsized ego.

For his part, Brooks promoted the notion that he was motivated merely to help others while honoring his deceased mother.   The hospital took advantage of his good nature.  Brooks hoped to be perceived as a man whose handshake was as good as a written contract, and the hospital reneged.

Integris took the risk that they could convince a jury not to trust one of Oklahoma’s most popular native sons.  In the end, Brooks proved himself to be the classic sympathetic plaintiff.  Brooks’ storehouse of goodwill, and his testimony in support of his case, carried the day.

Despite the outcome, there can still be downside for Brooks’ brand.  He risks causing some fans to think less of him because of unfavorable testimony presented by the hospital.  Some fans may be disappointed with him just for bringing the lawsuit.  Of course, standing successfully on principle could actually enhance the Brooks brand.  Think Oprah Winfrey versus the beef producers in Texas several years ago.

Here’s the lesson for anyone thinking of taking a case to court – never buy into your own hype.  Sometimes it can seem neither side prevails, given the beating to all parties’ personal or professional reputation.  The financial and emotional toll can also be quite high, win or lose.  In litigation, there’s a time to take a stand, and a time to find a way.  Good lawyers recognize the difference.  Sometimes their clients do not.

Consent Decree Confuses Collection of Divorce Judgment

hourglassThe Supreme Court of Oklahoma decides a case in which timing affects a party’s right to collect a property division judgment, and interest, in a consent decree.  The case, Dilbeck v. Dilbeck,  had a wild ride through the system.  Three levels of courts decided the case in three different ways.  Ultimately, failure to timely act cost the receiving party part of the judgment she sought.

The time line is crucial to the outcome of the case.

July 25, 2001 – the parties enter into a consent decree of divorce.  Husband is to pay a property division judgment to wife in installments as follows:
$9,000 previously paid in December, 2000;
$6,000 to be paid June 1, 2001;
$23,295.67 to be paid on December 1, 2001;
$23,295.67 to be paid on December 1, 2002; and
$23,295.67 to be paid on December 1, 2003.

The decree provided that the judgment would “not accumulate interest as long as paid in full according to the schedule outlined above. In the event any payment is missed, the entire amount will accumulate interest at the judgment rate.”

Husband did not pay the final payments.

June 13, 2008 – Wife asks the court to grant her judgment, with interest, on the unpaid portion of the judgment.

Husband claims the “entire amount” came due when he failed to make a payment in December 2001.  Under husband’s theory, the 5-year statute of limitations expired by December 2006.  Wife claims the statute of limitations did not start to run until the date of the last payment in December 2003.  Having commenced her action within 5 years of the last installment date, wife claims to be entitled to the full balance due, plus interest.

The trial court agreed with wife.  She received judgment for all unpaid installments and interest on each installment.  Husband appealed.

The Court of Civil Appeals agreed with husband.  It read the decree to treat the missed payment as grounds for  “acceleration,” making the whole judgment due in 2001 when husband first defaulted.  Wife’s 2008 collection effort came too late, according to the intermediate court.

The Supreme Court of Oklahoma focused on the language of the consent decree. The Court interpreted the decree to read that husband’s failure to make a payment resulted in interest being added to the judgment amount.  No interest came due prior to his failure to pay an installment.  There was no “acceleration” of the entire judgment.

The Supreme Court of Oklahoma finally determined wife’s right to pursue the judgment accrued on each payment when it came due.  The statute of limitations began to run on each installment from the date set for payment.  Wife was entitled to judgment and interest on the last installment only.

What is collaborative law?

Collaborative attorneys assist in negotiating solutions to your legal problem and will not take the case to court. Since collaborative law rejects the backdrop of litigation, a substitute dispute resolution model is put in its place. This new model calls for face-to-face conferences  during which the parties and their collaborative attorneys:

  • Identify interests, goals and objectives of both participants;
  • Gather information necessary to the decision-making process;
  • Develop multiple settlement options
  • Evaluate all these options, and;
  • Negotiate a final settlement which best meets the needs of both parties.

Parties to a collaborative case sign a written participation agreement. The agreement includes a promise to make full disclosure of assets, liabilities, and facts which may affect their classification or value. Failure to make full disclosure can be grounds to set aside any agreement reached as a result. If experts are needed (such as child specialists, financial planners or appraisers), they are hired by joint decision, and the cost is discussed in advance.

If either party to the dispute decides to take the case to court, both collaborative counsel must withdraw. If your collaborative counsel cannot successfully assist you in creating a settlement acceptable to both sides, he or she loses a client. You must hire a new attorney to represent you in court. Experts hired collaboratively cannot be used in court absent written agreement by the parties.

This disqualification requirement is what adjusts the mind set of the participants and fuels the engine of collaboration. The collaborative process is not just attorneys who have agreed to act in a civilized manner. The collaborative process shifts the conversation away from what a judge might do, and focuses instead on the interests and goals of the parties. This alters the state of mind of everyone involved. Clients now find it in their interest to work together to obtain the best possible outcome for both parties given their circumstances. If the lawyers and the parties know they can fall back on a court-imposed solution, it actually stifles their creativity.

Your collaborative lawyer is a settlement specialist. Your collaborative lawyer’s role is to provide you with legal advice and negotiation assistance, and to make sure the collaborative process is honored. The long-term benefit of collaborative decision making, particularly in families with children, cannot be overstated.

Collaborative law practice does not make a difficult situation simple. It’s still hard work for lawyer and client. In most cases, handling your case collaboratively will produce the best possible outcome for both sides with the least emotional turmoil. Certainly, not every case should be handled collaboratively. For example, cases involving ongoing domestic abuse, and cases requiring forensic accounting (discovery of hidden assets or income), would not likely be candidates for collaborative case management. In most other cases, though, it should be considered as one possible means of handling your legal situation.

Collaborative law has quickly gained acceptance as a dispute resolution model, particularly in family law. There are collaborative law groups in almost every state in the USA, and in more than 20 countries around the world. Collaborative law is a growing movement because it is a logical alternative to litigation. To quote Stu Webb, the founder of collaborative law, “Collaborative law is a simple concept. Collaborative law is a profound concept. That’s the best kind of concept: simple and profound.”

If you are not receiving advice regarding the collaborative law practice option, you are not being presented with the full range of possible solutions to your legal problem.

Mediate Early and Often

For more than 20 years, I told my clients that the best way to settle a case was to be prepared to try it. Settlement efforts and mediation came only after a complete discovery process. Discovery is an umbrella term for a series of procedural devices lawyers use to learn information that might be used as evidence in a trial.  Discovery can be a labor-intensive and emotionally draining process.

I now advocate for early mediation to regulate discovery as well as settlement. An early neutral intervention can help parties target their information-gathering and focus on settlement from the beginning of the case.  This avoids a shotgun approach to discovery that can lead to frustration, anger, wasted time and energy, and impasse.

We often spend time in mediation undoing the damage we have done to the relationship of the parties by turning over every stone in every case. Settlement occurs in more than 90% of cases.  It makes sense to steer the parties toward resolution from the beginning, rather than veering from a path toward trial in the later stages of the pretrial process.

We can use mediation or settlement conferences to target discovery.  Parties will better understand the need for requested information.  This will encourage full mutual disclosure of relevant information, and help avoid unnecessary and over broad information requests.  Attorneys can serve client interests more efficiently and effectively.

This problem-solving approach isn’t appropriate in all cases, but fits the needs of many clients. It’s in the nature of attorneys to be competitive, but it’s not about the lawyers. It’s about what the client needs and wants. We need to explain the options to the client and develop a case management strategy in consultation with them. Most clients would focus on early settlement if they felt they were going to have the information they needed, competent advice on the law, and assistance in negotiation.

The courthouse door is always open to clients whose cases, for whatever reason, can’t settle. We don’t always have to drag clients kicking and screaming to the courthouse steps to test the settlement waters. If we don’t treat every case like a trial in waiting, it will enhance our collective professional reputation.

Please share your thoughts or experiences on mediation or settlement in the comment section below.

Thanks to Randy Kessler, Kessler & Solomiany LLC, and the  KS Family Law Blog, for inspiring this piece.

Value of “Goodwill” Excluded in Law Practice Divorce Valuation

How do you value a small business when one of the partners is getting a divorce?  A shareholder agreement carried the day to reduce the value of a law practice in a court opinion released this week.  The Oklahoma Court of Civil Appeals in Kingery v. Kingery excluded goodwill as an asset to be divided, even though the husband had paid for goodwill when buying into the business.

The husband, attorney K, bought an interest in the WAK&H law firm.  The seller, founding member attorney W, included $200,000 in “practice acquisition” in the sale value.  During the divorce proceedings, the valuation experts hired by both husband and wife considered the “practice acquisition” to represent goodwill value of an existing business.  Husband’s expert witness valued attorney K’s interest in the law firm at either $96,818 or $133,486, depending on whether good will value was included.  Wife’s expert witness agreed with the higher number.  That is the value the trial court adopted.

The Court of Civil Appeals disagreed.  Husband and his partners had a Shareholders’ Agreement.  That agreement included a formula for valuing shares of the corporation.  That formula did not include goodwill value. Husband could only sell his shares to the corporation.  The court assigned a lower value to husband’s interest in the law firm, $98,818, based on the valuation formula of the Shareholders’ Agreement.

The valuation adopted by the appellate court appears to be an adjusted book value.  This type of valuation considers hard assets, such as furnishings, fixtures, and equipment, cash on hand and accounts receivable.  The court noted that husband could only recoup or realize his share of the law firm’s goodwill by continuing to render professional services.  The personal nature of goodwill, coupled with the Shareholders’ Agreement, caused the court on appeal to decide against including goodwill value as part of this marital estate.

The court did not assign a value to more than 400 open contingent fee cases in valuing husband’s law firm.  This is consistent with existing case law.

The appellate court did affirm that salary and bonus paid immediately after the couple separated should be included in the marital estate.  The income represented payment for services rendered while the couple was still a couple.  The appellate court did send this issue back to the trial court to consider further the issue of taxes due on the bonus, and whether the bonus payment should affect the value placed on the business.  In other words, did the salary and bonus payments get counted twice, and does it matter?

No To Child Support Judgment in Small Claims Court

One man’s effort to give effect to his private child support arrangement fails for lack of jurisdiction in Oklahoma’s Small Claims Court.

The father in Parsons v. Klingamon had been ordered in District Court to pay $250.00 per month in child support to the mother.  The 1996 decree did not provide for health insurance as the child was Native American and had access to free medical care.  Father claims that in 2007 he and Mother agreed to a private arrangement for him to pay her $150.00 per month in child support.  Father would also buy health insurance for the child (Mom and Dad were both unhappy with tribal health care).

In 2009, Mother asked the Oklahoma Department of Human Services (DHS) to collect the unpaid portion of court-ordered child support.  Father objected to a DHS assignment of income, claiming he was current under the private agreement.  While a DHS administrative case was pending, Father filed a small claims case against Mother.  He sought $2,500.00 “for child support payments” he claimed had been wrongfully withheld from his pay for child support.

The small claims judge granted Father a judgment.  The trial court considered this to be a dispute between two parties to a third party beneficiary contract.  The court granted judgment on a theory that Mother was being unjustly enriched by the DHS withholding.

DHS entered the case and filed a motion to vacate, citing 3 legal grounds for their claim that the small claims court could not enter the judgment it did.  The trial court declined to vacate.  On appeal, the Oklahoma Court of Civil Appeals makes it clear that only the District Court, not the Small Claims Court, has jurisdiction over matters relating to child support.  Despite the efforts of the small claims judge to cast this case as a contract matter, it was a child support case.  The trial court had exceeded its jurisdiction.  Judgment reversed.

The appellate court noted Father still has recourse in administrative and district court.  The opinion did not pass on the merits of Father’s claims.