IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Our Ref: DCC USA TC-0201535
`
`............................................................--x
`
`DC COMICS,
`
`-against-
`
`Opposer,
`
`Opposition No. 125,404
`
`PAN AMERICAN GRAIN MFG. CO. INC.,
`
`Applicant
`............................................................
`
`NOTICE OF RELIANCE
`
`llllllllllllllllllllllllllllllllllllllllllllllllll
`03-01-2004
`U‘5_ Patent. -m,o1cjTM Man ‘Rant D1. #22
`
`NOTICE is hereby given that Opposer DC Comics, hereby makes of record, offers into
`
`evidence, and notifies Applicant of its reliance on the following:
`
`A.
`
`Pursuant to Rule 2.122(d) of the Trademark Rules of Practice, copies of federal
`
`trademark registrations for KRYPTONITE, Nos. 1,239,506 and 2,656,768, owned by Opposer,
`
`from the United States Patent and Trademark Office showing the current status and current titles
`
`to the registrations are annexed hereto as Exhibit 1.
`
`B.
`
`Pursuant to Rule 2.122(e) of the Trademark Rules of Practice, a copy of
`
`Applicant’s response to the office action mailed October 29, 1997 in connection with its
`
`application Serial No. 75/291,464 for the mark KRIPTONITA, produced by Applicant in its
`
`document production, annexed hereto as Exhibit 2. The response to office action will be relied
`
`upon for Applicant’s admission therein that the term “Kriptonita” is a coined term that has been
`
`used as the Spanish language equivalent of “Kryptonite” in connection with the Superman
`
`character.
`
`

`
`
`
`C.
`
`Pursuant to Rule 2.122(6) of the Trademark Rules of Practice, copies of articles
`
`published in newspapers and magazines of general circulation, obtained from the NEXIS
`
`database, annexed hereto as Exhibit 3. The articles will be relied upon to show that the public
`
`overwhelmingly associates Kryptonite with Superman.
`
`D.
`
`Pursuant to Rule 2. l20(j)(3)(i) of the Trademark Rules of Practice, copies of
`
`Applicant’s responses to Opposer’s First Set of Interrogatories, Nos. 2, 3, 4, 9, 11, 13 and 14.
`
`Dated: March 1, 2004
`
`New York, New York
`
`“Express Mail" mailing label No.
`
`Date of Deposit:
`March 1 2004
`I hereby certify that this paper or fee is being deposited with the
`United States Postal Service “Express Mail Post Office to
`Addtessee" service under 37 CFR 1.10 on the date indicated above
`and is addressed to the Assistant Commissioner for Trademarks.
`2900Crystal Drive, Arlington, Virginia 22202-3513
`_
`(Printed name of person mailing paper of fee)
`.-
`
`Em
`
`Respectfully submitted,
`
`FROSS ZELNICK LEI-IRMAN
`
`& ZISSU, P.C.
`
`
`. "ck T. Perkins
`
`essica Mann
`
`866 United Nations Plaza
`
`New York, New York 10017‘
`
`(212) 813-5900
`
`Attorneysfor Opposer
`DC Comics
`
`

`
`
`
`CERTIFICATE OF MAILING
`
`A copy of the foregoing Notice of Reliance was mailed by express mail this 1st day of March,
`
`2004 to Jay A. Bondell, Esq., Schweitzer Cornman Gross & Bondell LLP, 292 Madison Avc.,
`
`19"‘ Floor, New York, NY 10017, counsel for Applicant Pan American Grain Mfg. C0,, Inc.
`
`Jessica Mann
`
`\\unp1\vol2\fim1docs\jmann\DCC\I(riptonitaVdocs\04OI 23-0201535-not-notice of reliance-jgmdoc
`
`

`
`
`
`EXHIBIT 1
`
`

`
`~°-§2.'«§_zg,‘g':)
`'- ::uIuIu_uuI.nmI.mun|IIIuII|IuI:unIgIn_ __
`
`
`
`E®@_m4¥@)W&@MJ 1.?-B_§§lfl'i!‘I§J l 3
`
`UNITED STATES DEPARTMENT OF COMMERCE
`
`United States Patent and Trademark Office
`
`February 02, 2004
`
`
`
`THE ATTACHED U.S. TRADEMARK REGISTRATION 1,239,500 IS
`CERTIFIEDTO BE A TRUE COPY WHICH IS IN FULL FORCE AND
`:1 EFFECT WITH NOTATIONS OF ALL STATUTORY ACTIONS TAKEN
`R THEREON AS DISCLOSED BY THE RECORDS OF THE UNITED STATES
`
`PATENT AND TRADEMARK OFFICE.
`
`Q’;
`
`‘
`
`
`
`
`
`_
`
`—
`
`REGISTERED FOR A TERM OF 20 YEARS FROM May 24, 1983
`Ist RENEWAL FOR A TERM OF 10 YEARS FROM May 24, 2003
`SECTION 3 & 15
`SAID RECORDS SHOW TITLE TO BE IN:
`DC COMICS COMPOSED OF WARNER COMMUNICATIONS INC. AND
`E. C. PUBLICATIONS, INC.
`A . .
`_ ORK PARTNERSHIP
`
`5*’
`
`
`
`
`anWEI-.IAiIv\l!I'III'III!I‘|-‘III
`
`A“_-1-.__M_1v-w;-*1"'3-'-A- -Ian
`
`IIIIlII'IJ_n_
`
`
`
`1;
`
`
`=3:
`
` ..u---nu-u-q-u::.-..u--
`
`_i
`
`I By Authority of the
`COMMISSIONER OF PATENTS AND TRADEMARKS
`
`
`
`Certifying Officer
`
`M. K. HA KI
`
`

`
`
`
`. Cl.: 25
`
`Prior U.S. Cl.: 39
`
`United States Patent and Trademark Offiee
`
`Reg. No. 1,239,506
`Registered May 24,1933
`
`TRADEMARK
`
`Principal Register
`
`KRYPTONITE
`
`DC Comics Inc. (New York corporation)
`75 Rockefeller Plz.
`New York, N.Y. 10019
`‘
`
`For: CLOTHING-—NAMELY, T-SHIRTS.
`CLASS 25 (U.S. C1. 39).
`First use Jun. 15, 1979; in commerce Jun. 15, I979.
`Owner of U.S. Reg. No. 1,107,333.
`
`in
`
`Ser. No. 242,400, filed Dec. 10, 1979.
`
`RICHARD A. STRASER, Examining Attorney
`
`

`
`
`
`fl®;“_%E®Wfl_@MJ 1_%R_.1_¥.S.1‘_2E'il_3SJ ;5 I
`
`UNITED STATES DEPARTMENT OF COMMERCE
`
`United States Patent and Trademark Office
`
`February 02, 2004
`
`
`
`
`
`
`
`
`
`THE ATTACHED U.S. TRADEMARK REGISTRATION 2,656,768 IS
`CERTIFIED TO BE A TRUE COPY WHICH IS IN FULL FORCE AND
`EFFECT WITH NOTATIONS OF ALL STATUTORY ACTIONS TAKEN
`THEREON AS DISCLOSED BY THE RECORDS OF THE UNITED STATES
`PATENT AND TRADEMARK OFFICE.
`
`
`
`v
`
`»..__5._-\
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`r
`'3II
`,1‘
`
`
`...I-
`-4.-A-3‘f_,‘l
`
`
`_4_._""-
`
`-4,!-'
`:‘_‘~e'
`
`
`
`
`
`
`REGISTERED FOR A TERM OF 10 YEARS FROM December 03, 2002
`
`
`
`
`
`
`SAID RECORDS SHOW TITLE TO BE IN:
`DC COMICS COMPOSED OF WARNER COMMUNICATIONS INC. AND
`
`E.C. PUBLICATIONS, INC.
`
`A NEW YORK PARTNERSHIP
`
`By Authority of the
`OMMISSIONER OF PATENTS AND TRADEMARKS
`
`
`
`
`
`Certifying Officer
`
`M. K. H
`
`KI S
`
`
`
`
`
`
`

`
`
`
`Int. CL: 28
`
`Prior U.S. Cls.: 22, 23, 38, and 50
`
`Reg. No. 2,656,768
`United States Patent and Trademark Office Regktezed Dec. 3, 2002
`
`
`
`TRADEMARK
`PRINCIPAL REGISTER
`
`KRYPTONITE
`
`DC COMICS (PARTNERSHIP)
`1700 BROADWAY
`
`NEW vonx. NY 1oo19
`
`FOR: TOYS AND SPORTING GOODS. INCLUD-
`ING GAMES AND PLAYTHINGS — NAMELY AC-
`TION FIGURES AND ACCESSORIES THEREFOR.
`IN CLASS 28 (U.S. C13. 22, 23. 38 AND 50).
`
`FIRST uss 1o-31-2001; IN COMMERCE 1631-2110:.
`
`owman or us. REG. Nos 1,101,333. 1.231.933.
`AND l,239.506.
`
`SN 75-489.954, FILED S-22-1998.
`
`PAUL F. GAST, EXAMINING ATTORNEY
`
`

`
`
`
`EXHIBIT 2
`
`

`
`
`
`IN’ THE UNITED STATES PATENT AND T
`
`RADEMARK OFFICE
`
`;.n re: Trademark Application of:
`Iqmlicant
`:
`Pan American Grain Mfg. Co.
`Mark
`KRIPTONITA
`:
`Ser. No.
`75/291,464
`:
`Filed
`: May 13, 1997
`Trademark Attorney
`Darlene D. Bullock
`Law Office
`Our File
`
`101
`0477—o0IT
`
`:
`
`:
`
`Inc.
`
`NO FEE
`Box Responses:
`Assistant Commissioner
`2900 Crystal Drive
`Arlington, VA. 22202-3513
`
`In response to the ofifice action mailed October 29, 1997, please amend the
`above identified application as follows:
`
`Rewrite the identification of goods to read:
`
`-— PREPARED ALCOHOLIC FRUIT COCKTAIL,
`
`in Class 033.-—
`
`REMARKS
`
`Applicant has reviewed the comments of
`requests reconsideration.
`
`the Examiner,
`
`and respectfuly
`
`ant has amended the identification of goods as suggested by the
`Applic
`tion now be accepted.
`It is requested that this identifica
`- Examiner.
`
`Applicant wishes to advise the Ex
`geographical significance,
`significance in the relevant market or
`of which the applicant is aware.
`in Spanish or other foreign languarge,
`d as the Spanish equivalent 0
`the word “KRIPTONITA" has in fact been use
`character Superman.
`e which weakens the comic book
`“KRYPTONITE“,
`the substanc
`meaning in the Spanish lexicon.
`it does not have any "real"
`However ,
`e action is earnestly
`e above remarks further and favorabl
`
`aminer that the word KRIPTONITA has no
`or any meaning
`However,
`
`f the word
`
`In View of
`
`th
`
`solicited.
`
`Very respectfully,
`
`Meyer A. Gross
`Registration No. 22,036
`Attorney for Applicant
`Schweitzer Cornman Gross
`
`

`
`
`
`& Bondell LLP
`Suite 2200
`230 Park Avenue,
`10169-0059
`New York, NY
`(212) 9B6—3377
`Fax:
`(212) 986-6126
`
`Tel:
`
`M.AGr/ 1 am
`Enclosures
`
`Certificate Under 37 C.F.R. 1.Bga;
`I hereby certify that
`this correspondence is
`being deposited with the U.S. Posta1 Service
`as First Class Mail
`in an envelope addressed to:
`Assistant Conmissioner for Trademarks,
`2900 Crystal Drive, Arlington, VA 22202-35f3,
`on August 15, 2002
`
`Sender
`
`:
`
`Laura Hartncci
`
`-47-
`
`

`
`
`
`UNITED ‘S-. ATES DEPARTMENT OF COl...'\/IERCE
`Patent and Trademark Office
`
`
`
`?_'.Ir_:=..
`
`Ir'v.=:.
`
`PAPER NO.
`
`.‘"-‘ea-J":
`
`"
`
`'AP‘Pi_TEANT
`’
`‘ SERIAL No.
`r'—‘«rn»a-.r i-:aam IE4:-"air". T111’-5:
`?E:'.Zl<1rE-cl
`.':"‘l—*T"l’"_"'.’.'l'7_'7;“’:"..'_}
`'9"‘*’.
`—-————-——-
`£1
`MARK
`:=:iF:IF'T::INIT:1\
`law
`5
`«No
`‘*‘*AnonEss
`
`' ‘I
`MEYER A ensues
`SEIHNEITZER cosNnaN.a§;nc=_E_-_s:g1a;: BCINDELL L.i.F'
`23:2:
`F-rrli-"oz: ave Mf‘lEs‘3:'Z'-:E[[B__COtut1
`New \rc::I~*.e: NY
`ssmlifiila-a.COM2
`l
`
`1-; on Fitino \
`
`
`
`__
`tc
`ADDR-E33}
`‘‘':;:‘;..::':;::;°“°*
`
`2900 Crystal Drive
`Arlington, VA 12202-3513
`
`
`
`Ifno fees are enclosed, the address should include the
`words ‘Box
`as - No Fee.‘
`
`Please provide in all oorrespondencc:
`1. Filing Date, serial number, m:..".; and
`Applicants name.
`2. Mailing date of this Office action.
`3. Examining AtI.orney‘s name and
`Law Office number.
`4. Your tel
`hone number and ZIP code.
`
`
`q.-'gj.'
`
`
`
`MAlLlNG DATE
`1 El / .3 Ir .3 7
`
`
`
`.
`
`U.S. DEPT. OF COMM. PAT. & TM OFFICE
`
`_ - .3
`1-
`‘H177 U I‘ 1T " M‘
`
`.
`
`-
`
`_
`b_
`
`' [omPTO-15:25(sou)
`
`
`
`ITBIN 6
`THIS OFFICE ACTION MUST BE RECEIVED
`MONTHS FROM THE DATE OF THIS ACTION IN ORDER TO AVOID ABANDONMENT.
`For your convenience and to ensure proper handling ofyour response, a label has been enclosed.
`Please attach it to the upper right corner ofyour response.
`lffthe label is not enclosed, print or type
`the Trademark Law Ofijce No., Serial No., and Mark in the upper right corner ofyour response.
`
`RE‘: Serial Number: 751991464
`
`‘
`li
`I
`
`2
`
`{
`
`The identification of goods is unacceptable as indefinite. The applicant may adopt the following
`identification, ifaccurate: prepared alcoholic fruit cocktail, inclass 33. TMEP section 804.
`Please note that, while an application may be amended to clarify or limit the identification,
`37 can Section 2.71Cb); TIVIEP section 304.09.
`additions to the identification are not permitted.
`to include any goods that are not within the scope of goods
`Therefore, the applicant may not amend
`set forth in the present identification.
`The applicant must indicate whether KRJPTONITA has any significance in the relevant trade, any
`i/
`'——'1' geographical significance or any meaning in a foreign language. 37 C.F.R. Section 2.6103).
`
`

`
`
`
`75/291464
`
`'
`
`-2-
`
`\_ _The examining attorney has searched the Office records and has found no similar registered or
`..—--~-'.;- pending mark which would bar registration under Trademark Act Section 2(d), 15 U.S.C. Section
`105I2(d). TMEP section 1105.01.
`
` ca 101
`
`(703) 3089101 ext. 145
`
`-49-
`
`

`
`
`
`EXHIBIT 3
`
`

`
`
`
`Copyright 2001 Knight Ridder/Tribune News Service
`Knight Ridder/Tribune News Service
`
`The Dallas Morning News
`
`May 30, 2001, Wednesday
`
`SECTION: LIFESTYLE
`
`KR-ACC—N0: K6570
`
`LENGTH: 1108 words
`
`I-EADLINE: Cook did.n't missed a day of school in 39 years
`
`BYLINE: By James Ragland
`
`BODY:
`
`_ DALLAS _ Since 1962, Eula Holyfield hasn't missed a day of school.
`
`No, she's not trapped in fifth grade.
`
`someone you may not miss unless she's not there. Of course,
`She's the cook,
`that has never been a problem for Holyfield. She works hard and shows up for
`work on time, day in and day out. "That‘s what they pay me to do," she says in
`her trademark staccato. "With the Lord's help,
`I get up and come to work every
`day. It
`
`Every day, come rain or shine, hell or high water. Week in and week out,
`month after month,
`for 39 straight years.
`
`"I had no intentions of staying this long," she says. "I just kept going."
`
`And going and going.
`
`It's not as if she's had an easy job, either. Not unless you think preparing
`lunch every day for more than 500 finicky grade-schoolers is easy. Personally,
`I'd rather take a calculus quiz.
`
`But it added up to a wonderful career for Holyfield, who served her last mass
`meal Friday, at Stonewall Jackson Elementary in Dallas.
`
`"It's time to go," she says.
`
`"Time to move on."
`
`Oh,
`
`come on. You've come this far, why not go for 40 years? I ask.
`
`I mean,
`If she had had a pie, I think she would have slammed it into my face.
`who needs some smart aleck telling her when to retire? I can almost see the
`wheels turning inside her head:
`"Have you been standing on your feet for 39
`years? No. Have you been cooking, washing dishes and cleaning up for 35 straight
`years ? No. "
`
`

`
`
`
`The Dallas Morning News May 30, 2001, Wednesday
`
`She's too nice to say that. Instead, she just smiles and says, “It doesn't
`bother me."
`
`That's the way she rolls. She tells you she's going to do something, and she
`does it. No need to talk it to death.
`
`"she doesn't talk a whole lot," says Lisa strahand, who has taught at
`Stonewall for 16 years and got to know Holyfield. "She's very low-key."
`
`Strahand has long been impressed with how Eolyfield gets along with
`everybody,
`from students and teachers to janitors and principals. of course,
`amen you control the kitchen as Holyfield does, you're bound to have folks
`kissing up to you from time to time.
`
`"Holyfield has always been cordial to me, and sometimes she would make
`special breakfasts for me _ scrambled-egg sandwiches,“ strahand says.
`"They are
`good. But I haven't had one in years because I've tried to diet."
`
`James Chatmon isn't dieting, and he hates to see his longtime friend go. He's
`the lead custodian and facilities supervisor at Stonewall, and he's worked with
`Holyfield for 24 years. He still eats breakfast and lunch much of the time, but
`he says the advent of prepackaged meals means there's been far too little of
`Holyfield's home-style cooking in recent years. "The food was much better a long
`time ago, when a lot of it was made from scratch," he says.
`
`Holyfield fondly recalls those first few years of cooking. "In those days,
`you had to make it from scratch,“ she says, rattling off some of her
`specialties. "You'd cook real cahbages. Cock your own fish. Cock your own pinto
`beans."
`
`The kids‘ favorites are pizza, hamburgers and burritos. of course, since the
`dawn of cafeteria food, kids always have treated anything green, especially
`spinach,
`like kryptonite.
`"They don't like spinach even now," she says.
`"Some of
`them like broccoli,
`some don't.“
`
`Holyfield takes it all in stride. She's a seasoned veteran, and she never
`planned to be a cook, anyway. She applied for a job with the Dallas school
`district, and she was sent over to Sam Houston Elementary to wash dishes.
`the cook retired, and I went to cooking," she says.
`
`“Then
`
`I'm sure she received lots of training. “Not really,“ she says.
`of course,
`"They just threw me in there." She stayed there a few years before landing at
`stonewall as the cafeteria manager about three decades ago. She‘s seen a bunch
`of folks come and go, and sometimes kids return to the school and give her a big
`hug. she likes that a lot.
`
`In her own way, she's teaching the kids about perseverance, humility and a
`remarkable work ethic. “She is a wonderful employee," says Stonewall's
`principal, Olivia Henderson, who's been at the school for 11 years.
`"Of course,
`her strength is that she's here every day and on time and has a very positive
`attitude. And she's been doing it for 39 years _ I can't even imagine.“
`
`If the school is open, Holyfield is there. Except in the summer, which was
`the only time she would get a little sick over the years. "I didn't get sick
`
`

`
`
`
`The Dallas Morning News May 30, 2001, Wednesday
`
`much or have many problems, really," she says. "If I got
`in the summer."
`
`the flu, it was usually
`
`she was ready to go. She'd wake up each
`But when school started each fall,
`"When you've been doing it this
`morning at 4 without the aid of an alarm clock.
`long, you don't need one," she says matter—of—factly.
`
`to downtown,
`She lives in West Dallas, and she boards a DART bus at 5:40 a.m.
`where she catches the northbound train to the Mockingbird Lane station near
`Central Expressway. Stonewall is a few hundred yards east on Mockingbird, near
`Greenville Avenue. Holyfield walks, or Mr. Chatmon picks her up about 6:30 a.m.
`sometimes, he or one of his workers drops her off at the train station at the
`end of their workday, between 2:30 and 3 p.m.
`
`the faculty and staff at Stonewall sent a limousine to
`one day last week,
`pick her up from her house and take-her home. They had a reception for her. And
`they presented her a mantle clock proclaiming May 22 as "Holyfield Day" and
`wishing her a happy retirement.
`
`Holyfield won't say how old she is _'"I don't want that in the paper," she
`says _ but she's been married for decades to Theron Holyfield, who,
`like her,
`has been with his employer for more than 30 years _ although he can't match her
`attendance record. They have three grown children, and she's active in her
`Baptist church.
`
`She says she has no grand retirement plans, other than maybe visiting her
`hometown of Homer, La. one of her children lives in Dallas, another lives in
`Illinois, and one lives in California, so she'll be able to visit them more
`often. “I'm just going to take it easy and travel some,“ she says.
`
`I ask her whether she has any other plans or hobbies she wants to pursue.
`
`"Cooking," she says. "I like baking doughnuts."
`
`Her colleagues say she deserves a sweet ending, especially after serving for
`so long as a perfect model of endurance. “I don't see how anybody could not miss
`a day's work for nearly 40 years," Strahand says. "That's just absolutely
`amazing."
`
`(James Ragland is a columnist for The Dallas Morning News. Write to him at
`The Dallas Morning News, Communications Center, Dallas, TX, 75265. or send
`e-mail to jragland(AT)dallas news.com}
`
`(c) 2001, The Dallas Morning News.
`
`Visit The Dallas Morning News on the World Wide Web at
`http://www.dallasnews.com/
`
`JOURNAL-CODE: DA
`
`LOAD-DATE: May 30, 2001
`
`

`
`
`
`Copyright 2001 New York Law Publishing Company
`
`New York Law Journal
`
`May 11. 2001 Friday
`
`SECTION: THE BACK PAGE; News for Associates and Young Lawyers; Small-Firm Life;
`Sg. 16
`'
`
`LENGTH: 1359 words
`
`HEADLINE: Rookie Mistakes can Be Minimized
`
`BYLINE: By Laura Gentile; Laura Gentile is managing partner of Gentile &
`Associates in Manhattan and teaches at CUNY School of Law at Queens College.
`
`BODY:
`
`A personal highlight video of rookie mistakes one would like to erase lingers
`in the mind of every individual who has started a law firm. Rookie mistakes
`result from a lack of perspective and are rooted in fear:
`the fear of not being
`good enough and the fear of losing business. The fear of losing business causes
`the rookie to take cases that she ought not, resulting in a cascade of negative
`consequences.
`the least of which is loss of the business anyway. The fear of
`being not good enough prevents the rookie from learning from her mistakes and
`also inhibits her from getting paid a fair wage for her work.
`
`Doctrine of Infallibility
`
`The quintessential rookie mistake, of course, is not allowing yourself the
`right to make mistakes. If you are convinced that the doctrine of infallibility
`applies to you.
`then when you make that first mistake, your eyes will roll back,
`your head will spin 360 degrees and you will speak in ancient,
`indecipherable
`languages. In short. you will not be able to deal with the mistake. If you work
`for yourself. you must be able to trust your own judgment. Reliable judgment is
`the product of unemotional analysis of mistakes and an unflinching readiness to
`evaluate your own performance. Examine unsatisfactory outcomes with the cold eye
`of a pathologist. Sometimes the mistake was entirely your own,
`so own it.
`Indeed, you must stand on your right to make mistakes in order to learn your
`strengths and weaknesses.
`
`Consider what happened to one young attorney: The rookie thought her client
`was the salt of the earth because he reminded her of all the hard-working guys
`she grew up with. The jury of six women awarded this plaintiff a grand total of
`$ 20,000 for his surgically fused vertebrae after finding the defendant 100
`percent liable. What was the rookie mistake?
`
`The mistake was her misjudgment of how a Manhattan jury would perceive this
`plaintiff from the outer boroughs. After the trial,
`the jurors explained "your
`guy reminded us of Joey Buttafuco and his kids did not even look like him -- we
`didn't trust him any farther than we could throw him." The slicked-back hair and
`black shirt open at the collar just did not work on this side of the Staten
`
`

`
`
`
`New York Law Journal, May 11, 2001
`
`Island Ferry. That was the lawyer's mistake in failing to ensure compatibility
`between the jury and the plaintiff: Do not blame either the plaintiff or the
`jury for that error.
`
`Staff Mistakes
`
`You must understand that your staff will also make mistakes. If your staff is
`afraid to tell you about the mistake they make or the mistake they have
`discovered,
`then it will be buried,
`instead of exposed and corrected. You now
`have a time bomb in your file, which will tick away until the staff member is
`long gone. and will explode when you open the file at the time of trial or some
`similarly inconvenient moment.
`
`when you discover the mistake made by your staff member, do not throw any
`heavy items, do not twist or shout or foam at the mouth. Expressing your sense
`of frustration at the situation in a hostile manner will hurt you in the long
`run, so don't do it. To the extent possible,
`the staff member should make the
`correction himself
`(an attorney must have all contact with the client on the
`matter, if it gets to that.)
`
`Distribute appropriately corrective memos to the staff, with language that
`conveys the seriousness of the issue without identifying the staff member who
`made the mistake. If you determine that the loss of confidence is so great that
`the staff member cannot remain with the firm, be sure that the process of firing
`the employee does not deter other staff members from reporting errors to you.
`
`
`
`When you take a case that you should not have taken, or you make a mistake on
`a case,
`the file will have a tendency to turn to Kryptonite. As you recall,
`Kryptonite is that eerie green rock that rendered Superman weak and helpless --
`he shrank from it. The file with the problem becomes like Kryptonite and
`Super-Attorney becomes helpless in the face of the Kryptonite file. Fear causes
`the file to remain unopened and the problem grows. Recognize when this is
`starting to happen: Face it head on and open the file, pull out the Kryptonite
`and eliminate it. As a last resort, call on your pal Jimmy Olsen or Lois Lane to
`open the file and deal with the Kryptonite for you. Failure to do this will
`ultimately cause you fatal wounds in the form of a subpoena to the Disciplinary
`Committee.
`
`On this issue. never fail to return a client's telephone call within 24
`hours, no matter what. If you have not done what you were supposed to do, deal
`with the client about that and give the client a realistic assessment of when
`the work will be complete. Prosecutors at the Disciplinary Committee repeatedly
`warn small-firm practitioners that the most common source of prosecution begins
`with the chronically ignored client phone calls.
`
`Taking Bad Cases
`
`Early in your career working for yourself, you will be tempted to take cases
`that lack merit, because you want to make the referral source happy. Don't do
`it. You will not be able to get the results you want,
`the file will turn to
`Kryptonite, you will alienate both the client and the referral source.
`
`Over time, you will learn that it is possible to turn down a case and keep
`the referral source and even the rejected client for future business. To reject
`
`

`
`
`
`New York Law Journal, May 11, 2001
`
`a case and keep the source you must take the time to talk to the potential
`client, understand the client's needs and explain to the client clearly,
`honestly, and directly the reason why you are turning the case down. Generally
`the reason is money. Explain the realities to the client, comiserate with the
`client, but don't take a losing case.
`
`Keep the self—help pamphlets from the Small Claims Court in your office and
`"mail them off to the clients that you turn down, explaining that it would cost
`them more to retain you than they could recover from their $ 400 dispute. Keep
`handy the number of the Attorney General's Consumer Fraud Division
`(800-771-7755) and the complaint department of the New York State Department of
`Education (800-663-6114) for complaints against doctors and hospitals.
`
`When you turn down a case, call the referral and explain the reason why you
`turned the case down. Do not take a case thinking the case will get better. Do
`not take a case thinking that you will think about it for a while. A client and
`a referral source may be disappointed when you turn a case down_initially, but
`that does not compare to the anger when you turn it down after sitting on the
`case for seven months.
`
`Similarly, don't take a case that is lucrative, but you are unprepared to
`handle._Assess the time, skill and financial resources required for the case. If
`you are not prepared, call up the best attorney you know to handle the matter
`and give the case to her. You cannot keep every penny that comes through the
`door.
`
`Retainer Agreement
`
`In addition. make sure your retainer agreement is clear about what work you
`are performing and what work you are not. If you spoke with the client about
`several matters and are agreeing to represent the client in only some of them,
`be sure to state in unmistakable terms that you are only performing the work
`outlined in the retainer.
`
`Clients who are unwilling to pay a consultation fee or are unwilling to pay a
`retainer will be unwilling to pay fees later. To the extent that someone asks
`you to work for free. he is asking you for a donation. Consider whether you
`prefer to donate to your cousin who is buying a new co-op in Queens and wants to
`save a buck on the closing costs or whether you prefer to donate to Housing
`Works,
`the ACLU or Meals on Wheels. Consider whether your cousin donates his
`time by working for free for his employer. If,
`in the end, you decide to reduce
`or waive your fee, be sure to provide your client with the written statement of
`the actual cost of your services, as well as the special rate for cousins.
`
`Final Word
`
`Keep breathing. Learn from your mistakes. Your most useful tool is reliable
`judgment and the ability to look at your practice with a cold eye. Do this and
`the highlight film from your rookie days will be one you will be willing to
`share with your friends.
`
`GRAPHIC: Photo, Photograph of the author.
`
`LOAD—DATE: May 22, 2001
`
`

`
`
`
`Pittsburgh Post-Gazette March 29. 2001, Thursday,
`
`"This is a tremendous move forward of people," said Lisa Valenti, president
`of the U.S.-Cuba Sister Cities Association, which is headquartered here.
`In
`spite of the 13.5. blockade of Cuba that has persisted for 40 years,
`relationships have long been forged between scholars, doctors, sociologists,
`artists and government officials, she said.
`
`“The hope is that we can all benefit from our partnerships once the blockade
`is lifted," said Frank McGlynn, of the local Sister Cities Project.
`
`The Cubans and U.S. hosts expressed confidence that the blockade would soon
`cease.
`
`“People here are willing to do business with Cuba because they need it," said.
`Rafael Rivero, director of the Matanzas Chamber of Commerce, adding that Cu.ba
`needs it,
`too. "For instance, an aspirin bought from the U.s. would be much
`cheaper than the aspirin we have to buy from Europe."
`
`
`Rivero, who was born in New York City but returned with his parents to Cuba
`when he was 12, said delegation visits between the two countries motivate
`"When I
`change. Like U.S. children once scared by the word ‘communist,’ he said,
`was a kid,
`I was scared of vampires and Spiderman, and when I saw a green rock,
`I thought,
`'1<.ryptonite!'
`"
`-_
`
`"I've lived both sides, and I get the sense that something is already
`changing," he said.
`
`For Fernandes, a native of Sydney who now lives in Chicago, her brief visit
`to Pittsburgh re—established the kind of connection that's at the heart of this
`week's cross—cultura1 visit.
`
`"Three years ago, I went to Cuba because I have a good friend in Havana, " she
`said. "I wanted to go to Matanzas, so she took me to meet a friend of hers
`{Drake}. I stayed with his family for a week. I didn't speak Spanish and Agustin
`didn't speak English, but he showed me around, and we connected on a different
`level.
`I learned more about Cuba in that week than I did in three months in
`Havana . "
`
`I thought she was Cuban," said Drake. who is a bronze and
`"When I met her,
`ceramic sculptor.
`“And now, she's like my daughter. I love her very much.“
`
`GRAPHIC: PHOTO, PHOTO: Annie O'Neill/Post-Gazette: Embracing an old friend/It
`had; been a long while since Sujatha Fernandes, of Australia, had seen her
`friend,,- Agustin Drake, of Matanzas, Cuba. So when she learned that a Cuban
`delegation; would be traveling to the Prick Fine Arts Building in Oakland,
`Fernandes, who;
`is visiting her boyfriend in Pittsburgh,
`took a chance. She went
`to the; reception with the hope that someone there would know her friend and be.-
`willing to take a letter home to him. She found much more. She found Drake;
`himself. The reunion was just one of the special moments in what organizers,-
`hope is a step toward U.S.—Cuban friendship, a longtime goal of Pitt's Center;
`for Latin American Studies.
`(Photo, Page-B-1)
`
`LOAD-DATE: March 29, 2001
`
`

`
`
`
`Copyright 2001 The Miami Hurricane via U-Wire
`
`University Wire
`
`March 1, 2001
`
`LENGTH: 2173 words
`
`HEADLINE: U. Miami students speak out on marijuana use on campus
`
`BYLINE: By Patrice Grell & Brian Petit, The Miami Hurricane
`
`SOURCE : U. Miami
`
`IJATELINE: Coral Gables, Fla.
`
`BODY :
`
`Just about everyone who goes to the University of Miami knows someone who
`uses, or has at least tried it. And more and more, it seems to be everywhere.
`
`The flower of the female cannabis sativa plant, dried and smoked: marijuana.
`
`Listen to the radio, and one can hear Snoop Dogg rapping about smoking "that
`sticky icky," or hear Erykah Badu giving a shout out to her "nickel—bag ladies."
`
`Turn on the TV and one sees another hydroponics—lah bust on Channel 7, or the
`cast of Fox's That
`'70s Show sitting in a circle and laughing as
`suspicious-looking smoke wafts around their heads.
`
`Celebrities from Woody Harrelson to Matthew Mcconaughey and Whitney Houston
`have admitted to taking a "toke" or two, keeping marijuana use present in the
`public forum. And even ex-President Bill Clinton was recently quoted in Rolling
`Stone magazine regarding marijuana's legal status.
`
`"I think that most small amounts of marijuana have been decriminalized in
`some places, and should be," Clinton said.
`
`the
`Having played a prominent role in American society in the '60s and '70s,
`drug's exact status is still in question and a growing legalization lobby vies
`to gain acceptance and understanding for it.
`
`But how prominent is marijuana use today?
`
`Dr. Bryan Page, chairman of the Department of Anthropology and a UM professor
`of 23 years, has studied general marijuana use through years of research and
`provided an academic perspective on the subject.
`
`"What's happened is, a lot of the children of the 'Age of Aquarius‘ have had
`children, and those children are coming to school, and they have very different
`attitudes about marijuana," said Page.
`"So, even though the institutional
`atmosphere is far more repressive than it was in the 1970s, we still have
`
`

`
`
`
`

`
`
`
`University Win-. March 1, 2001
`
`equally high prevalence of use."
`
`For the purpose of this series, The Hurricane has focused on drug use among
`UM students. Through the course of several interviews, The Hurricane has found
`that there exists almost as many opinions on marijuana use as there are people
`walking this campus.
`
`What was asked of those interviewed?
`
`to simply be honest about their views
`Using the protection of assumed names,
`on marijuana and its use on and around this palm-treed campus.
`
`"It's made them slower, and it made them dumber."
`
`Some of the students interviewed said they had never smoked and probably
`never will. The first question to all the sources was:
`"Have you ever smoked
`marijuana?"
`
`"No. I've wondered what it was like, but I guess the consequences outweighed
`my desires. It didn't seem worth it. Now,
`I don't have the desire to anymore."
`
`"Bill," freshman. 13
`
`..
`
`"I've never wanted to. It's just not for me." "Julie," senior, 22
`
`“Nope. I've seen what it's done to some of my friends back in high school. It
`made them slower and it made them dumber. Their reflexes were down." Eric,
`senior, age unknown
`
`"A nice, warm feeling."
`
`Those students that do smoke were asked about the moment that started it all.
`
`"I was 14. Fourteen! It was just me and my friend, we wanted to get high. We
`were just curious. We didn't look at it like a science experiment. We had gotten
`drunk before an