Claims lawyer Mark Scruggs describes two situations recently involving the same factual scenario, both of which resulted in claims that we resolved by settlement. In each case, the lawyer was hired to form a corporation. He checked with the Secretary of State to make sure the corporate name was available, but he did not do a trademark search, nor did he advise the client of the risk of foregoing a trademark search. Under the common law of trademarks, if a company operates under a particular mark within a particular territory, and the mark is “distinctive,” that company has the right to preclude others from using that mark, or any confusingly similar mark, within that territory. This right is independent of and separate from the right to a particular corporate name.

Checking with the Secretary of State to make sure the corporate name is available is probably not sufficient to fully protect your client. Confirming through the Secretary of State’s office that the corporate name is available will not tell you anything about potential trademark infringement. When asked by a client to help secure rights in a particular name or trademark, consider advising the client that he should also work with trademark counsel to conduct a search to be sure the name is available. The search should include not only prior registrations or applications, but also information about who is actually using the mark in the marketplace. If the client wants to proceed without a trademark search, you should at a minimum advise the client in writing of the risk that he is taking.

For other risk management advice from Mark, follow him on Twitter at MarkScruggsEsq.

Fact or Fiction

In our March “Ask The Risk Man” column, we included a question and answer stating that the name of the airplane in which Buddy Holly died was “American Pie.” According to an observant reader, this story is an urban legend. See http://www.snopes.com/music/artists/americanpie.asp. While the reader pointed out my mistake with an electronic wink, ;), he made a great point. It’s the simple things that trip us. We wouldn’t have written an article about a statute of limitations deadline without double-checking the rule, however, this simple story was written without any fact checking.

This example mirrors what our claims attorneys see. Many times, lawyers get into trouble not for failing to know the law, but letting the little things slip. The lawyer knows the statute of limitations deadline, but fails to put the date into her calendar system. She knows the client has called three times today, but keeps thinking she’ll return the call when she has better news for the client.

The obvious answer seems to be don’t make mistakes. If only it were that easy. How about a concept that might really be simple – a checklist? Can you take tasks that you perform and condense them into a checklist that would provide a quick safety review? For my newsletter, the checklist might look this:

• Proof all articles for content and grammar.
• Have another set of eyes proof articles.
• Double-check cases or statutes cited.
• Fact-check human interest or law office management articles.
• Post articles to website and proof again.
• Hit the send button to deliver e-newsletter to insureds.

What might your checklist look like? Here’s a sample checklist for filing and serving a complaint:

• Check the statute of limitations and enter into docket system.
• Check the elements for each cause of action.
• Confirm names of parties bringing suit against.
• Summons prepared, along with any local forms required.
• Checks requested for filing and service fees.
• File complaint and receive file-stamped copy from court for file and client.
• Prepare complaint for service.
• Proof of Service filed with court.
• Calendar deadline to confirm service or issue A&P summons.
• Monitor service of process.

We live with information overload and a checklist is a quick and simple way to confirm the necessary steps happen without having to rely on our memory. However, if you do find you’ve made a mistake; don’t hesitate to call our claims lawyers. They are a great resource for talking through potential problems, as well as assisting with claims repair. And before publishing your story, check out www.snopes.com to determine whether it’s fact or fiction.

Can we balance our work and life in such a way that they maintain distinct parameters? Do we want to?

I was having lunch with a friend recently who said “I don’t feel guilty updating my Facebook page with personal information during the day as I look at that as an integration of my work and life. When I get home and I’m on Facebook, I may be responding to work inquiries such as reviewing the requests of members to join our Association Facebook page. I don’t necessarily stop work at 5:00 p.m. and start life”.

I admire this philosophy and I think it’s a healthy one. So often, we’ve been taught to “balance” our work and life by making sure they have distinct parameters. But if you’re a mom with a sick child and a partner in a busy law firm, you know those parameters are not always easy to define. And isn’t that the beauty of technology – I don’t have to be sitting in my office in order to communicate with clients and others? I can be at home while my sick child is napping and I’m working on my laptop writing a brief.

The smart phone is certainly an incentive to meld our work and life. I can easily check work email at 10:00 p.m. while I’m checking my weather app to decide what to wear to work the next day. Perhaps I spend 15 minutes reading and replying, or maybe 15 seconds checking to see how many new emails are in the box, the point is that I’m engaged in work and thinking about what I do there beyond the hours of 8:30 and 5:00.

However, as an employer, this same technology has brought to light an issue around whether or not a business is required to pay overtime to nonexempt employees for time spent checking work email or other work-related matters using devices such as smart phones, PDAs or laptops after normal working hours. A suit has been filed in the Eastern District of Wisconsin against a commercial real estate firm alleging they required employees to carry BlackBerrys to keep in touch after hours. A 2008 study by the Pew Internet & American Life Project focused on Internet use. The findings show that 50 percent of e-mail users said they check work-related e-mail on weekends and 22 percent check e-mail “often” during the weekend.

To avoid problems with overtime issues, just one of several unintended consequences of employees working 24/7, you may want to write some guidelines for your office about what is expected on the part of the employer and the employee as relates to technology and its uses outside the office. Check out our sample Social Media / Technology policies on our website www.lawyersmutualnc.com for some suggestions.