When you are going to court, you need to come up with a theory describing your case. Advocate your beliefs, stick to the point and use the law to prove your theory. Your theory should basically explain what happened or how you or your client was wronged. Explain why you should receive the verdict that you’re after. You will need to state the facts, explain what happened, state the law that supports your advocacy, and ask for the verdict that you deserve.

Your case theory should contain and clearly state the outcome that you believe to be fair and just. You should explain your cause, whether or not you are defending or acting, and offer up ways to prove your theory. Stick to the point as much as possible. Your case will be strongest if you can point out one major issue as opposed to a borage of facts that could be argued. Try not to cloud the major issue at hand with useless arguments, emotions or improvable theories. Make sure that every argument and fact that you present supports that first theory that you are trying to get across.

The case theory should be supported by some sort of evidence. Only present evidence that supports your theory argument. Start with the most relevant, strongest piece of evidence and go from there. Present facts that support your theory in order of most pertinent to the weakest argument. As you go, you will need to be prepared to explain the weaker points. Have an explanation ready and offer it up before it is asked for. Encourage listeners to see your points about why certain weaker facts or pieces of evidence should still be considered in making a final decision. Offering a weak defense or cause for action without immediately acknowledging its weakness and explaining yourself can cause distrust and a lack of respect. These can be case killers.

You don’t want to get emotional during a trial or advocacy. Your case theory should be presented in a way that doesn’t demonstrate a depression, anger or lax attitude. Be confident and sure of yourself, but remain professional and formal. You can, however, use emotional arguments or defenses to play on the personal emotions of the judge or jury. Presenting an emotional theory can be very effective when supported by appropriate and relevant facts and evidence.

Lastly, you can help advocate your case by recognizing that there are two sides to every story. Point out your opponent’s strengths and weaknesses. Try to communicate that you understand where they are coming from, but based on the facts and evidence that you are presenting, their theories should be disproved. Seeming one-sided can put off a jury and confuse them about who to trust. Not pointing out the other side’s arguments can make it look like you are trying to hide from the facts that they are presenting. Use endearing or character building terms to describe your client or cause. Be sure not to put down the opposition, this tactic can seem petty and childish. Use generic terms when speaking about the opposite side.

In conclusion, you should be as precise as possible. Present only the strongest arguments and evidence. Keep your case theory in mind and bring up how each point proves the theory throughout your advocacy. Concentrate on why your theory is strong and not how your opponent is wrong. How you present yourself and your case can be as important as the facts and evidence themselves.
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“Cloud computing” has become a very hot topic. For the uninitiated, “cloud computing” generally refers to providing access to computer software through an Internet browser, with the software and data stored at a remote location at a “data center” or “server farm,” instead of on the computer’s hard drive or on a server located on the user’s premises. This is also referred to “software as a service.”

Proponents of this approach claim many benefits, including lower costs, less need for on-site support and “scalability.” “Scalability” means that the number of licenses and available resources can easily be adjusted as the need increases. Access can typically be provided to any computer with a browser and an Internet connection, but can be controlled through password protection and other measures. Proponents also argue that the cloud makes it easier to manage and push down software upgrades. Software as a service is usually provided on a fee for service approach that may result in cost savings compared to the traditional local area network. Think of it as somewhat like renting as opposed to owning.

Cloud computing is not a technology of the future, but is here today. Google, for example, uses this approach to provide its suite of business applications intended to compete with Microsoft Office. Google applications are provided free or at very little cost. Salesforce.com is one of the best known providers, providing customer relationship management (“CRM”) software to a growing list of companies. IBM and Microsoft are also entering the playing field.

There appears to be little doubt that cloud computing is here to stay, and that it may indeed represent the future of information technology. There are many advantages and potential advantages to the cloud computing model.

That said, from a legal perspective, cloud computing raises a host of issues. Having spoken recently to several cloud computing vendors, there are some rather obvious questions. Perhaps the most obvious question is, “What happens if you lose my data?” The answers I was provided focused on technical and not legal issues, such as the back-up procedures provided.

Technical issues are important, and there are certainly technical issues that a potential customer may want to consider, such as maintaining a back-up on site, or a back-up through a separate vendor. These approaches might provide some real practical protection in the event of a catastrophic failure or bankruptcy at the primary provider. Other technical issues might focus on what happens when the relationship ends, whether happily or not. Is there another vendor that can provide the software and host the data? Will data have to be converted to a different format? If the customer decides to switch back to a local area network, will the terminals that have been used for cloud computing (which, I am told, can be very basic “low powered” machines) be of any use, or will a completely new network need to be installed?

Although technical solutions are a good thing, over twenty-five years of litigation experience have taught me that disasters do happen, even with fail-safe plans in place, and even with parties acting in complete good faith. And, I suppose, it is natural for a lawyer to focus on legal rights and remedies rather than technical solutions.

From a legal standpoint, cloud computing appears to raise a host of essentially contractual issues to be addressed by the parties’ contract or licensing arrangements. There are also potential regulatory issues (ranging from privacy to export control issues), potential e-discovery issues, and certainly other issues that have not yet crossed my mind.

As businesses and their lawyers become more experienced with cloud computing issues, it is likely that a consensus will emerge as to how cloud computing issues will be addressed. Hopefully, purveyors of cloud computing services will be flexible and reasonable in addressing legitimate business concerns. However, given the prevalence of “standard” licensing in the software field (often on a shrinkwrap or clickwrap basis) and efforts to limit liability under any circumstances, there is some cause for pessimism.

All that said, here is a list of issues that one might wish to consider asking a vendor or otherwise considering in entering into a possible cloud computing arrangement:
What contractual obligation will you assume to protect my data? This could include reference to particular steps and procedures, including back-up obligations. The contract or license may specify a standard of care that the provider must meet. What contractual obligation will you assume regarding uptime, if any? Will you provide any type of uptime warranty? Even if such a warranty is subject to a limited remedy, it probably would provide considerable incentive for the provider to limit downtime. Most providers seem savvy enough to disclaim any interest in your data and will freely say — in a sales setting anyway — that “your data is your data.” Well, that’s good, but how do I physically get my data back at the end of the contract or if you go bankrupt? What remedy limitations, if any, are in your terms? Are consequential damages excluded? Are total damages capped (such as to a return of fees paid)? Even if contractual obligations are assumed, if remedies are severely limited, the provider may be shielded from liability. Where is my data going to be stored? Are you willing to agree that all my data will be kept in this location under specified conditions and at agreed security levels? This could be important for regulatory reasons, but also for reasons associated with meeting general customer confidentiality obligations or complying with privacy policies. Have you inserted a forum selection clause into the terms? Many providers want to insist on litigating on their home turf (which often, it seems, is California), but that is rarely a happy instance for a customer. How do I get out of this arrangement if you do not perform and what is my exit strategy? What rights do I have upon termination? What obligations do you have to assist in transitioning to a new vendor or back to a self-managed platform?

If you are considering going to the cloud, you should consider involving your business and technology lawyer early in the process. As stated, there are probably many other legal issues that have not even occurred to me. It is clear, however, that lawyers need to begin considering these issues, because cloud computing is clearly not going away.
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Securities laws are not to be trifled with. Among other things, if you violate them, your investors can ask for their money back from your company and from those who control the company.

Yet founders are sometimes careless in complying with securities laws.

Here are some very high-level guidelines for complying:

1. The broad rule is this: either you register the shares to be offered or you find an exemption from registration for the type of offering your company will make. It has to be one or the other.

Registration at the federal level is a public offering. No early-stage startup does that.

At the state level, registration is still a formal and expensive process. Few early-stage startups do that either.

Therefore, the key securities law concern for any stock issuance by an early-stage startup is to make sure that the offering fits within an exemption to the registration requirements.

2. You must not only find an exemption under which you can make the offering, but you must find an exemption that applies to each purchase and sale of the stock that is made under the offering.

You will need a federal (SEC) exemption. The easy one is the intra-state offering exemption, which applies where all purchasers in the offering reside in your company’s home state. Beyond that, the question is fundamentally whether your offering is a private placement under either Section 4(2) or under Regulation D, the former of which is subject to murky legal standards and the latter of which defines “safe harbors” that essentially take away the murkiness. Finally, Rule 701 exempts qualified issuances under employee incentive plans.

You will also need a state exemption for each state in which any of your purchasers resides. The securities laws of each of the respective 50 states are known as “blue sky” laws. Whenever your company sells stock, you need to do “blue sky compliance” for each state involved in the offering.

3. Federal and state securities law exemptions are tricky and complex. Use a good business lawyer to guide you through the process. With skilled guidance, the process is neither too involved nor too expensive for most early-stage offerings.

So where do founders go wrong in this area?

Founders will sometimes use counsel for an initial offering and will complete that offering with proper securities law compliance owing to counsel’s guidance. So far so good.

Where founders get into trouble is where they thereafter assume they have learned the blueprint for an offering and do the next one themselves, without attorney help and without bothering with securities law compliance. Focusing solely on the buy-sell aspect of the stock sales, they forget the accompanying details that make those sales legal in the first place. This will normally not happen when they inform counsel of their plans. It happens when they don’t bother with that step.

Another way that founders get into trouble is by getting ensnared by the doctrine of “integration.”

Most states have some variation on what California calls a limited-offering exemption, which is basically an offering and sale of stock to a limited number of people who have a pre-existing relationship with the company or its founders. As long as the offering is limited to the number of purchasers authorized by the exemption, there normally is no problem.

Problems arise when founders complete their offering and then later have second and third offerings of a similar type within comparatively short time periods. This is what I call the rolling-offering problem.

Under securities laws, such offerings can be “integrated” with one another, i.e., treated as if they were not separate offerings but rather one continuous offering. If they are so integrated, then a sale of stock to 25 persons in one offering can be combined with another sale to 15 other persons, with the result being that the company is deemed to have sold stock to 40 persons in a single offering. If the applicable exemption says that, in order to be exempt, the offering must be limited to 35 persons, then integration will blow the exemption.

The common problem in both these examples is that founders assume they don’t need to consult with their business attorney once they think they know the “blueprint” for a stock offering. They then run wild and unsupervised in making their stock sales. And they get themselves into trouble.

What are the penalties?

The main one is rescission. If stock is sold that is neither properly registered nor exempt, then each purchaser can rescind the sale and get his money back either from the issuer or from those who control the issuer. A very dangerous and potentially expensive remedy for founders who play too loosely with securities laws. This is not just corporate liability. It is personal liability.

The rescission remedy can also be problematic if stock issued initially to founders or other key people is issued in violation of securities laws. Of course, no one cares if such early-stage purchasers rescind and ask that their trivial cash purchase price be returned. But what if the purchase price included assignments of IP into the company? Rescission enables such purchasers to rescind and to demand that all items of value transferred into the company be returned to them. Again, a very dangerous and potentially expensive problem for your startup if it results in a cloud hanging over the company’s key IP.

How to prevent these problems?

Three key things to keep in mind: (1) remember that no equity can be issued without securities law compliance, ever — don’t ever treat stock, stock options, warrants, etc. as if they were items of candy that you can simply hand out to any willing recipient; (2) do use competent securities law counsel to assist with your stock offerings, whether to founders, bridge or seed investors, angel investors, or VC investors; and (3) whenever possible, limit your stock sales to “accredited” investors. Accredited investors can be individuals or entities and there are detailed rules defining who they are. In general, for individuals, it is either high-income individuals or those having a net worth of at least $1 million. See your business attorney for details.

Why is it important to deal with accredited investors only, if at all possible? Because they normally don’t count toward the number of purchasers to whom you may sell stock in qualifying for most exemptions. Thus, in our example above of the rolling offering, you would not have a problem with the offerings being integrated if your investors were all accredited. In such a case, you would not exceed the numerical limit because the accredited investors wouldn’t count toward that number.

In addition, with accredited investors, you will normally have a much easier time generally complying with disclosure and other requirements that are part of the exemption process than you will have in dealing with less sophisticated investors.

Don’t trifle with securities laws. Work closely with a good business lawyer to ensure compliance. If you don’t, it will likely cost you far more to untangle problems than any money you might have saved in trying to skimp on the lawyer costs. Don’t be penny-wise and pound-foolish in this important area.
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Insurance fraud, also called false insurance claims refers to false claims that have been filed with the intention of defrauding an insurance provider or user. Insurance fraud may be committed against insurance companies or insurance policy holders. According to government estimates, fraudulent insurance claims account for 10% or about $30 billion every year of the expenses incurred by the insurance industry.

Common insurance frauds include inflating actual claims, known as padding, submitting claims for false injuries or fraudulent claims of damage, submitting tweaked facts and submitting claims over staged accidents. Some types of frauds are more rampant in some states. For instance, the sale of unauthorized health insurance is a common fraudulent practice in Texas. In this case, unlicensed companies sell false insurance policies even though these do not meet the state’s minimum financial requirements. The company continues to collect premiums and doles out insignificant amounts of money from time to time. However, when there is an emergency and a really heavy claim is made, the company simply vanishes from the scene.

Some of the common kinds of insurance frauds in existence include:

Medical claim Automobile collision Worker’s compensation Frauds against seniors Fire
 
The rampant nature of insurance frauds in the US has led to the formation of fraud bureaus in 41 states. Some states even have two bureaus. Many of these bureaus have law enforcement powers.  

Any person or company accused of insurance fraud charges must retain the services of an efficient insurance fraud lawyer. There are two essential components of fraud; the intention to deceive and fraudulent measures that induce a company to pay more. In such cases, timely action is important as companies or false claimants usually cover up their actions if given enough time. In many cases, by the time the case comes to the insurance fraud defense lawyer, the company or claimant has had enough time and opportunity to cook up information that can cloud the issue.

Your insurance fraud lawyer must have vast experience practicing in the field of insurance frauds. Frauds may take on various forms and it is vital that you select a defense lawyer who specializes in the area of concern to you. Some fraud schemes are so elaborate and complex that they easily implicate people who had no active part in the fraud. To take on a well-funded and well-prepared prosecution, you need an aggressive and knowledgeable defense attorney.
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Going through a divorce can be stressful at the best of times, and it is important to ensure that each party receives fair treatment as part of the divorce proceedings. Pennsylvania divorce law is designed to ensure that you have a certain degree of protection when it comes to divorce proceedings, and that you receive fair treatment when it comes to the allocation of joint assets. However, understanding Pennsylvania divorce law isn’t always easy, and particularly at an already stressful and confusing time.

You can, however, hire the services of a specialist divorce lawyer in Pennsylvania, and these lawyers are experts in the area of Pennsylvania divorce law. By hiring a lawyer you will benefit from expertise and experience in this area, and your lawyer will ensure that you come out of the divorce as unscathed as possible in terms of finances and assets. These lawyers use their expert knowledge of Pennsylvania divorce law to work on behalf of their clients and get the most favourable outcome possible at the end of the divorce proceedings.

A divorce can be very messy, and often the animosity between the couple can cloud their judgment and decisions. The lawyers working on behalf of each party, however, will be able to clearly and professionally assess the situation, and each lawyer will fight for his or her client to ensure that the client is not ‘taken for a ride’ or treated unfairly through the proceedings. By using specialist divorce lawyers you will come out of the divorce safe in the knowledge that everything has been dealt with in the proper legal manner, and that all matters are now settled once and for all.

The cost of hiring a specialist divorce lawyer can be quite high, and at an already financially difficult time this can simply add to the stress. One way to avoid the additional worry is to have a prepaid legal services plan in place. These plans are available for a small monthly premium, and with a prepaid services plan you can rest assured that you will have ease access to an expert divorce lawyer should the need arise.
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Today CIO’s and CISO’s are faced with the challenge of attaining or maintaining security controls in order to comply with industry standards, regulations or legislation such as PCI DSS, SOX404, Basel II, and/or Data Protection Act. Alternatively they may ‘just’ be attempting to find evidence in compliance with a set of internal risk policies aligned to ISO27001. In a normal business environment complying with regulation is demanding enough, but in a post-credit crunch world of budget cuts the hill is likely to get steeper – more will be needed from less.  Downward cost pressure accelerates the need to leverage value-added technical innovations like virtualisation and cloud computing, whilst at the same time maintaining or improving compliance levels.   

This article is the first of three in a series to provide advice aimed at helping organizations to structure their compliance program in such a way as to address their immediate needs, and provide the flexibility that organizational and technological change demands without losing control of future compliance levels.  

COMPLIANCE AND THE FINISHING LINE  

With the plethora of regulation that face businesses these days it’s often difficult to grasp the exact meaning of the actual state of ‘compliance’. This is largely due to the manner in which many standards and laws are worded, combined with technological evolution, making it difficult to know when you have reached a state of being compliant. Faced with this conundrum you turn to your auditors and discover that being compliant often means ‘giving the auditors comfort’ (and auditors rarely feel comfortable!). Worse still, the Board always wants to know the answer to the question “How compliant are we?” and expects some kind of quantitative answer. Without clear baseline standards to measure yourself against it is impossible to answer this question. Therefore, managing the detail is key but difficult.  

MAKING THE PAIN STOP  

Reaching and staying compliant with any regulation can be a painfully slow process, littered with missed milestones, endless repetitive meetings and frustrated or disappointed senior executives. What started out as cozy Friday morning chats around the CIO’s table rapidly turns into a nightmare of spiraling project costs, complex spreadsheets, questionnaires, status reports and worse still, remediation activity that seems burn capital, yet does not seem to improve the compliance ‘score’.   All of which lead to perpetual conversations with the internal auditors about what, exactly, constitutes ‘evidence’ and what the external auditors do or don’t care about.  So is there a better way?  
 
STRUCTURING THE PROBLEM  

Unlike many traditional technology projects whose scope and ambition diminish over time, compliance initiatives move in the opposite direction. What starts as a small and simple problem becomes bigger and more complex once the true workload required to bridge the gap becomes clear, and in most cases it is something that a single department cannot execute in isolation. It demands a multidisciplinary approach to manage a portfolio of projects and initiatives. Therefore, the first thing that the CIO/CISO should do is appoint a senior program/project manager to oversee the changes necessary, providing the mandate and budget necessary to deliver the desired results.  

However, this is just the first step in regard to building structure, as with this In many cases the Compliance Program Manager may have an audit or accounting background, sometimes a project management background, sometimes a general business background, and often an entirely different background altogether. Therefore, it is advisable to consider supplementing the skills of this key individual with some additional knowledge both in terms of content and process did by implementing a purpose-built compliance solution.  

SELECTING A COMPLIANCE SOLUTION  

In order to reduce the likelihood of ‘death by spreadsheet’ any mid-sized or large business that is about to embark on any serious compliance activity should consider automating the effort of management and governance as much as possible. Such solutions do not make individual issue remediation efforts any easier, but it will make management and governance of the compliance process far more structured and transparent. Several commercial software solutions exist to help in this regard and organizations should select and implement the one that best fits the requirements.   
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