Running out of Names only a Symptom for Craft Brewers

Here's a link to my post about craft beer and branding

A Mediator and Jury Duty

I arrived at the courthouse at 8:20am. Jury selection began around 8:45 and at about 9:05 my jury number was called and I proceeded to meet the clerk in the hallway with the other called potential jurors; there were about 30 of us.  As we assembled the clerk informed us that this case was "unusual" and they walked to the designated court room.

In the court room we were handed a questionnaire to complete. It asked questions relating to the nature of the case, which was a medical malpractice suit.  The allegation was that a radiological doctor saw a spot on the plaintiff's liver during a scan, but said nothing about it.  Four years later the plaintiff was diagnosed with liver (and skin) cancer with a terminal prognosis.  The case would ask the jurors if the actions by the doctor were negligent and if that earlier scan would have prevented the terminal prognosis.  Pretty heavy stuff.

After we filled out the questionnaire we were excused to the hallway as the attorneys waded through our responses. This is the first of several opportunities the attorneys and judge have to excuse jurors. Some jurors indicated that they knew the plaintiff or defendant or legal counsel and were excused. At about 11:45 we re-entered the courtroom (a good 2 hours of waiting in the hall). I was one of 17 to sit in the juror box (seven would be decided as actual jurors) to be questioned by the judge and counsel.  The rest sat in the "spectator" section.  But as soon as we sat down, we were excused to lunch.

At 1:00pm we reconvened in the hallway, and at 1:15 entered the courtroom and sat in our assigned chairs. The judge spent 15 minutes explaining the role of juries and then asked eliminating questions: do we know the parties, attorneys or witnesses (a witness list of 40 names was provided).  He then informed us that he and counsel had done their best to streamline this case to make it as quick as possible: Two weeks. Yikes.

We were sworn to an oath (thankfully, no Bible) and were asked if we had extreme hardships.  Several hands flew up, including mine. While prepared to serve the average during of trials (3 days) and perhaps a week, two weeks away from my business and income would be difficult.  Others presented similar requests to mine, but seemed more "hardship" than mine.

The judge did not dismiss any hardship request from jury. His reason was logical: Each trial deserves a cross-section of the peer community.  Fair enough. The only one dismissed was a lady who didn't comprehend English to a satisfactory level. Now it was time for the plaintiff's attorney to question us.

Here is where it gets dicey. At this time the prospective jury pool represents a nice cross-section of the community…aside the fact that most were white, like 22 of the 23 left. Yet, it seemed that this was the time to whittle that cross-section down a bit further, and the prosecutor wasted no time. He reminded to answer honestly as he evoked the Founding Fathers and the Constitution.  They, the Founding Fathers, fought bravely for our Right to a fair trial by a jury of our peers.  Let the appeals to emotion begin!

He proceeded to tell us his job: to persuade us to find for his client. For truth…

As if we didn't understand what "terminal illness" meant, he spelled it out for us. How could we possibly not find for the plaintiff?  He went down the line of jurors and asked each one questions framed from our responses on the questionnaire:

·        Does your being a doctor influence your partiality?

·        Your friend died last week of liver cancer, would that affect your decision?

·        You had a biopsy that was "lost" by the medical staff, would that affect your impartiality?

·        …and so on

Ostensibly the prosecutor was vetting for an impartial jury. He stated the case in one sentence:  "Could any one of you (us) not blame the doctor who did not follow the standard protocol in medical procedures?"  Of course, it must be that simple.

He asked the group if anyone had a problem with lawsuits.  My hand shot up, and I was told he would get to the mediator later (it was good natured and people chuckled).  Once he got to me, my questions were few, mostly because I was second to last to be questioned and the 45 minutes allotted for the prosecutor was ending.

After a break, it was the defense's turn.

The defense attorney started asking us as at random. I think she had specific questions of the two doctors and the lady who had 2 grandchildren in Chicago (and how she would react to them getting cancer). Ugh.  After that, she abandoned the randomness and went down the line in opposite direction from the prosecutor. I was second.

"Why do I have a problem with lawsuits" was her first question. With others, she asked for a little bit about them. Not me. So, I answered honestly and openly: Some lawsuits are appropriate, but most are not. "They are win/loss, black/white, zero-sum contests that reward who wins a debate and does not determine the right or best solution. Whether the defense or prosecution wins, it won't cure the defendant nor explore possibilities why this situation happened".  As a mediator, I told her, it was my job to address the problem(s) and interests of parties, and to represent the process. She tried to praise my job by saying, "that's great and since you strive for compromise…"  I stopped her there and corrected her, "collaboration. Compromise is a lose/lose outcome".  The jurors chuckled and she moved on.

I was asked if I had a problem with attorneys.  I said not personally or professionally, but that some tactics frustrate me.  Had I become partial to one side or the other based on tactics used already? Yes, I said. The prosecutor appealed to emotion several times. I saw this as a manipulative tactic and a signal of weakness of facts on the part of his case. She (defense attorney) asked if I could keep emotion out of my decision, and I say I could if counsel could keep it out of their presentations.  I told her that my partiality was to facts, not to persuasion.

This case was about money: How much should the plaintiff receive to cover expenses and loss of income. This is understandable and I wondered how much of that money (if awarded) would the plaintiff receive after court and attorney fees.

We took a break. When we came back, the judge dismissed the two doctors on grounds of…not sure.

While the judge may have wanted a good cross-section of our community, it was foggy that he did not and clear that counsel certainly did not want it. The quest in finding an "impartial" jury is glamorous, but is ultimately a canard and charade. Counsel wants jurors partial to their side. Each side was allowed to dismiss 5 jurors. It looked like a fantasy football draft session. Each side huddled with their party and clients. The bailiff passed back and forth between parties a sheet with the jurors' names. Each side would cross one name off, pass it to the other side, and so on.

The jury was selected: 4 women (the plaintiff and defendant are women) and 2 men (one who's daughter in law has breast cancer). I was one of the last to be dismissed.

My perception the current court system was not improved by this experience. I think the judicial system in the U.S. is the best, but is being manipulated by a litigious society spurred along by legal counsel.  This case should not take two weeks.  Forty witnesses are not needed; show of force and scare tactics are the motivations for this volume witnesses (38 of the 40 were doctors).  The jury consists of no one with medical experience or knowledge, this is left up to the witnesses. I would assume some witnesses will be brought in to counter other witnesses.  This is doctor versus doctor, with the people deciding who is right having no clue. So if the jury has no clue or tools to determine which medical professionals are right, all they are left with is emotion and their own partiality.

I feel sorry for both parties and the jury.

The Magic Hat / West Sixth Trademark Dispute: Settlement

The good news is that Magic Hat and West Sixth breweries agreed on a settlement to their intense, and public, dispute.  A joint press release stated that the parties have come to a mutually agreeable solution to the trademark problem.  Here it is in its entirety

"Official Statement
West Sixth & Magic Hat

The parties have a mutual interest in assuring that consumers perceive their products as distinct.

The parties have mutually resolved the issues addressed in the lawsuit in a manner that eliminates potential confusion about product origin and resolves the lawsuit in a mutually acceptable way.

To the extent West Sixth in any way represented that Magic Hat filed a frivolous lawsuit, that Magic Hat initiated litigation improperly, that Magic Hat was unresponsive in negotiating a resolution, that Cerveceria Costa Rica was itself involved in the dispute or its resolution, that Magic Hat claimed ownership of the numeral 6, that Magic Hat sued West Sixth after West Sixth had already acceded to its demands, that Magic Hat has no Vermont presence, or that Magic Hat sought to recover for or enjoin West Sixth from truthful public statements, such representations are retracted. West Sixth regrets that it in any manner communicated any inaccuracies, and hereby corrects those errors.

Both Magic Hat and West Sixth have agreed that this joint statement will be the last public communication from either side regarding the resolved dispute.

Each wishes the other good fortune and continued success."

So, there it is.  It seems the mediation worked, and the slight change to West Sixth's label was the removal of a compass / star image.  That's it...as far as labeling goes.  But what takes up the bulk of this joint message is public relations mending.  Why is the biggest paragraph essentially an apology from West Sixth about its public comments during the dispute?  After all this time and threats of litigation, what comes out is a simple (relatively) label edit and a long, drawn out "regret". Does this seem odd?

In fact, no, it doesn't. At least not to those in the field of conflict management. To them, they see this paragraph of apology as addressing the main issue for Magic Hat: public image and possibly hurt feelings.  While the label dispute was the main issue, as soon as it hit the social media stream it became a side dish.

They're not alone. Even more recently the international, conglomerate brewer, giant corporation AB-InBev reportedly issued a cease and desist to extremely tiny, ma-and-pop brewery Belleville Brewing in the UK.  Now, Ab-InBev is the type of large corporation that can weather a flame war of public image on the social networks, so they probably aren't worried about this dispute's affect on their image. And as far as image goes, this can help Belleville...assuming it survives the legal costs. This dispute is a bit different from other brewing trademark cases because of the disparity of sizes between the disputants. This is not true with most other cases, where disparity in size may exist, but not to this extreme.

The fact is, most breweries involved in trademark (or other) disputes cannot afford negative press, litigation or drastic label changes. One may suggest that breweries refrain from hitting the social media airways that flame the dispute.  Yet social media is a weapon, and powerful enough to counter, or at least dissuade, the use of legal maneuvering. Plus, anything filed through the courts is public domain anyway, so the dispute is not reserved to privacy. This does not mean that relying on social media is effective or efficient. It creates an uncontrollable firestorm; a Pandora's box of back-and-forth. It can get ugly.

With Magic Hat and West Sixth, at least the label dispute is resolved and the public firestorm over (well, maybe not. Supporters of both sides, and fed-up neutrals, may still vent and foam over this mess). Both companies can go about making beer, and making a living.  That's the important part. Hopefully this situation serves as a lesson to other breweries in similar situations.  Hopefully.

Mediation Between Magic Hat and West Sixth Breweries

Magic Hat and West Sixth breweries go to mediation!   Well, sort of...

It is refreshing to see that the two parties in a trademark dispute are opting for mediation, according to reports.  Lawsuits and court processes are expensive, drawn out, unpredictable and uncontrollable by the parties. Mediation offers an alternative process that is quicker, less expensive, and retains control of the process to the parties. Unpredictability remains, but this is usually a good aspect allowing for the discovery of hidden or latent problems, and/or the creation of unique solutions. Hopefully, Magic Hat and West Sixth will benefit from this mediation, and I applaud them for their efforts.

What troubles me is the selection of a magistrate judge to serve as mediator.  Now, I do not know who this judge is, so I don’t want to…judge, but for the most part, judges are not mediators.  Sure, they can “mediate” according to their definition of mediation, but this falls short of the processes used by experienced mediators.  A common mistake is to assume that those in the legal profession (attorneys, judges, etc) are also seasoned mediators.  This is not true most of the time.  To be sure, some mediators are, or were attorneys and have changed professions. Yet, the experience gained in the court system does not translate well to mediation.

The primary distinction between mediation and litigation is the focus of advocacy.  Whereas the attorney advocates for her/his client and for a winning judgment, a mediator advocates for the mediation process and helps parties come to an agreeable resolution. The goal is not to prove right/wrong, legal/illegal, or decide who put forward a better argument; it is to overcome the dispute through a resolution that both parties agree on, and, for the most part, create.

Perhaps attorneys and judges realize this, and they probably do. Their challenge is to reach such resolution by using the most effective techniques during mediation. While facts and figures work well in the courts, they have little bearing in most mediations. Again, mediation is about resolving a dispute on agreeable terms by both parties, and not what the data influences. After years of argumentation, adjudication, and client advocacy, it is difficult for anybody to transfer to process-focused methods. This is not to say that some once-legal-minded mediators cannot effectively mediate, but merely to point out the fact that mediation skills are not easy to grasp and practice. Becoming a skilled and effective mediator takes time; it is a full time practice.

My fear is that the mediation West Sixth and Magic Hat will, reportedly, undertake may be more of an arbitration and less of a mediation.  That is, the mediator will hear the arguments and decide on a resolution for the parties, instead of the parties coming up with one with the assistance of the mediator. I could be wrong.  But if this mediation does not work, it will give Mediation in general a bad rap. And that will hurt everybody who becomes involved in a dispute, and that’s all of us.

What's the Matter with Craft Beer? Cracks in the Foundation

The Craft Beer industry is taking off; sales are rising, approaching 10% of overall beer sales, which interestingly have dropped. Craft Beer is growing, even through Recession. No doubt this is time for rejoicing for craft beer, craft beer geeks and tap rooms. But there are fractures in the foundation that are coming to light. How these are managed can either fix the cracks, or expound them.

It is important to note that craft brewing is a business and must take on certain business responsibilities. One is establishing and protecting a brand. For the most part a brand is a name. To differentiate beers consumers (for the most part) identify with names: Sam Adams (by Boston Beer Company), Budweiser (AB-InBev), Coors (MillerCoors).  If Boston Beer Company labeled one of their beers "Bud", AB-InBev would see this as trademark infringement (and so, too, would a judge).  This blatant example illustrates why trademark laws are in place.

However, in the business world of trademark infringement the devil is in the details. While "Bud" is an obvious example, Righteous is not, nor is Seven Seas. In these cases the breweries involved are geographically separate, their markets do not overlap. Ostensibly the struggle is to keep other craft breweries from copying each other, stealing names and taking advantage of others' successes.

While some of this might be true, we must look at the business side: protecting trademark.  For if a company does not protect its trademark, then it could lose it, if not now then later. So a brewery on the west coast must keep an eye out for similar beer names/labels emerging on the east coast, not for fear of theft of customers, but of losing trademark. If that happens, then larger companies that are closer can start using that same name/label, and no infringement of trademark can be claimed.  

So, to take "Bud" as an example (which was actually contested in court), if Boston Beer Company started using "Bud" to label a product, and AB-InBev did not claim infringement, then anybody could start using "Bud"…even MillerCoors. Brand recognition would be out the window as would fair competition.

While this may sound easy to avoid, it certainly is not. Trademark infringement disputes are going to happen. In a growing industry full of small companies, it is inevitable that names/labels will fly under the radar, only to appear in the form of cease and desist (CD) letters.

And this is how management of these disputes can either fix the cracks, or widen them. Sometimes the business decision is not best for the business, especially in a personal industry like Craft Beer, and with the explosion of social media.  Trademark protection is necessary, but it's not as black and white as a CD letter.