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November 30, 2006

One Million Dollars a Week for Wrongful Arrest

Though I don't doubt that the FBI wrongly arrested Oregon lawyer Brandon Mayfield after the 2004 Madrid terrorist bombings, his recent $2 million settlement (as reported in this article from 11/30/06) seems excessive. Mayfield was arrested and held for a little over two weeks -- then it was discovered that the FBI misidentified his fingerprint. In addition, according to this account, Mayfield's computer hard drives were seized, and his residence was subject to surveillance because of the erroneous information provided by foreign authorities about his connection to the Madrid bombing. A year after his arrest, the federal government apologized for its conduct.

Mayfield's settlement means that his compensation amounts to $1 million per week. Contrast that with amounts typically paid for wrongful conviction, which, according to this recent article, range from $20,000 to $1 million in some states (other states don't impose limits). And even where amounts for wrongful conviction are large -- for example, as reported at the Northwest Wrongful Convictions Web site, Alejandro Dominguez was awarded $9 million by a jury for wrongful conviction -- he also spent four years in prison.    

Others, however, view Mayfield's settlement amount as justified. This piece from the New York Times discusses the reaction of legal experts:

“You almost never see something like this,” said Peter Neufeld, co-director of the Innocence Project, a legal clinic in New York City. “It’s extraordinary, but the harm caused him was extraordinary. What I really think it speaks to is just how clearly the U.S. government crossed the line when it went after Mayfield.”

Seems to me that spending four years in jail following a wrongful conviction is a far more extraordinary harm than two weeks of wrongful arrest (in fact, Neufeld and Barry Scheck, co-founder of the Innocence Project recently settled a legal malpractice action for $900,000 with a client who had been wrongfully convicted and held for six years. That's six times longer than Mayfield spent in prison and only half as much recovered).

Ultimately, however, Mayfield apparently had leverage that ordinary victims of wrongful conviction do not. Suzanne Spaulding, a former lawyer with the CIA, stated in the NYT article that:

“You’ve got to think that the Justice Department did not want to make that concession [of allowing Mayfield to continue his challenge to the Patriot Act]” she said. “That and the two million dollars are further evidence that they were vulnerable and that he clearly had some significant leverage in these negotiations.”

As I said at the outset, the FBI clearly wronged Mayfield. I'm just not sure that I see that the government's errors entitle Mayfield to $2 million when others, who suffered far worse as the result of government error, recover far less.

November 30, 2006 | Permalink | Comments (5)

Lawyers ISO Hands-On Skills

With the number of trials rapidly declining, a new generation of law firm attorneys are desperate to acquire time in court. And as this  article, Few Chances to Develop Trial Skills (Boston Globe 11/29/06), reports, the Boston Bar Association has taken steps to address this problem. From the article:

Earlier this month, [the Boston Bar Association] expanded its "lawyer-for-the-day" program at Boston Housing Court, in which attorneys give free legal advice to tenants and landlords, to include having lawyers try cases in court. The change is designed not only to help low-income litigants, but also to let trial-starved lawyers connect with a jury, relate to a judge, and develop other trial skills mastered only through real-life practice.

It's not just law firm litigators who take advantage of the program. The article notes that in-house attorneys at insurance companies are also participating to develop skills -- such as thinking fast or coming up with well-crafted questions -- that are transferable  to all aspects of legal practice.

November 30, 2006 | Permalink | Comments (0)

Lawyers Are Unhappy Because It's Our Nature to Cooperate, Not Litigate

Victoria Pynchon of Settle It Now offers an interesting theory on why lawyers are unhappy. Pynchon explains that recent MRI images of students' brains during a collaborative process shows that the act of cooperating with others "makes the brain light up with joy." So when lawyers operate in adversarial situations, as most litigators do, they're acting against against our natural, cooperative instinct. 

Pynchon asks:

What does this mean for hard working litigators? That a creative settlement providing the greatest benefit for the greatest number will not only be good for our clients, it will make all of us, attorney and client alike, lots lots happier. And happy clients are the clients we retain.And as for all that competitive energy? It's still a necessary component of getting your adversary to cooperate.

Pynchon's theory is interesting, but I'm not convinced that formerly adversarial attorneys feel much happier when they're working towards a settlement. Many times, settlement talks are contaminated by distrust and a lawyer's own second guessing (does he really mean that the $50,000 is his bottom line, or is he just saying that -- can I get more?) that create even more stress, which can also breed unhappiness. It seems to me that collaboration brings the kind of joy that Pynchon describes only in situations where lawyers haven't already muddied the relationship with adversarial conflict. 

November 30, 2006 | Permalink | Comments (1)

A New Blawg Search Tool

If you want to find out what topics your colleagues are blogging about or you're searching for fodder for your own blog, there's a new tool that will make your search easier: BlawgSearch. As Larry Bodine of Law Marketing Blog describes here:

This handy new search engine filters out most of the irrelevant searches, so that visitors can find strictly legal blog content.

Bodine also beta tested BlawgSearch, with these results:

In a head-to-head test, I typed "litigation" into the search boxes of BlawgSearch and BlawgSearch found 998 listings, whereas found an anemic 48 listings.  Based on the simplicity of its interface and the powerful reach, BlawgSearch is the best option for I recommend lawyers and marketers.

BlawgSearch was developed by Tim Stanley, who invented and now operates Tim is a legend in the online world.   

November 30, 2006 | Permalink | Comments (1)

Revenge of the Paralegal

What recourse does a paralegal have when her bosses force her to assume the responsibilities of a recently departed receptionist, refuse to hire a replacement and then reprimand her for failing to timely perform her paralegal tasks? Finding another job is one option. Or, like this paralegal described in the Estrin Report, the paralegal could sue her bosses for causing "stomach distress, headaches and disagreeable fits of temper," as described in this complaint.

The Estrin Report asks: 

Does this situation sound familiar to anyone out there? How would you have handled this situation?

What are your thoughts?

November 30, 2006 | Permalink | Comments (1)

November 29, 2006

Restating the Obvious -- Not!

When is an invention so obvious an extension of prior art that it's not entitled to patent protection? The answer to that question isn't obvious at all; indeed, it's the subject that the Supreme Court took up yesterday at oral argument in KSR International v. Teleflex and covered by Tony Mauro in this article, Justices Slam Nation's Patent System (, 11/29/06). The case involves a disputed patent for an adjustable gas pedal for cars issued to Teleflex. KSR challenged the patent, arguing that it was an obvious extension of existing art, not entitled to patent protection. The Federal Circuit rejected KSR's argument and affirmed issuance of the patent under its existing three-part test for obviousness. KSR then sought review at the Supreme Court, challenging the Federal Circuit's test for obviousness as inconsistent with the definition of "invention" used in patent statutes. (For an in-depth discussion of the legal issues before the court, see this post at Patent Baristas.)

KSR contends that under the existing test, virtually any subsequent iteration of an existing design can be deemed "non-obvious" and subject to patent. Teleflex disagreed and argued that if the Supreme Court overrules the Federal Circuit's existing test, then hundreds of existing patents might be subject to challenge. 

A number of Supreme Court justices had harsh words for the Federal Circuit, terming its obviousness test "gobbledygook" (Scalia) and "meaningless" (Roberts). Roberts also suggested that the Federal Circuit test was effectively an employment relief act for patent lawyers, because the test gives patent lawyers more opportunities to seek patents. With comments like these, the outcome of the case seems obvious:  The Supreme Court will either overturn the Federal Circuit's current standard or, at least, refine and clarify it.

For more coverage of yesterday's argument, see this post by Dennis Crouch of Patently O  (who previously posted all of the briefs here) and this post  by Lyle Denniston for SCOTUS Blog.

November 29, 2006 | Permalink | Comments (1)

Law Firms Can't Measure Client Satisfaction If They Don't Track Retention Rates

Back in September, Mark Beese of Leadership for Lawyers blogged about the disconnect between lawyers' perceptions of the quality of service provided to clients versus the clients' actual belief.  As Beese wrote, most lawyers believed that their corporate clients were satisfied with their service, when in fact, a full 70 percent had complaints.

Now, a recent study by LexisNexis, The Large Law Firm Client Retention Study, offers a possible reason for that disconnect between lawyers' perception and clients' reality. According to the study, it turns out that 61 percent of large law firms don't even know what their client retention rate is. The study also suggested that lawyers don't prioritize client retention in large part because lawyers are not compensated for successful client retention:

The study also probed for explanations as to why so many large law firms struggle with implementing pro-active and strategic client retention initiatives. The leading systematic reason identified by study participants was the lack of participation from attorneys and support staff (67%). This non-compliance could be due in part to a misalignment between compensation practices and firms’ client retention initiatives. More than half of firms surveyed (51%) do not compensate their attorneys for client retention and, of the firms that do provide some financial reward system, only 14% compensate based on the firm performance level.

What's most troubling to me about the survey is the finding that lawyers don't feel the need to satisfy clients and retain them unless they're financially rewarded for their efforts. What about our ethical responsibilities to represent clients with competence and respect? What about our fiduciary relationship to our clients? Isn't great client service part of our professional  obligation -- or is  it an  "extra" that we confer only when there's financial motivation to do so?   

November 29, 2006 | Permalink | Comments (1)

Your Blog Can Save You $1 Million

Most lawyers look for ways to make money off their blogs. But Justin Patten of Human Law shares a way that blogs can save money, as much as $1 million. In this post, Patten excerpts this tip from Debbie Weil's Corporate Blogging Book:

"In addition to a dramatic reduction in email volume, Ziff Davis figured costs savings to be more than $1 million(computed on an annual basis). What was projected to be a four-month project was finished in three." "We used to have over 100 group e-mails per day. Now it's rarely one per week, we've saved a month in a four month software project, and everyone is on the same page."  - Tom Jessiman, Ziff Davis General Manager.      

So even if you're not convinced that blogs will generate clients and added revenues, why not try a blog to reduce your in-house email costs?

November 29, 2006 | Permalink | Comments (0)

Biglaw Recruits Black Lawyers, but Why Don't They Stay?

Are the upper ranks at large law firms still the exclusive province of white males? That's been the theme of past articles in the New York Times -- first Timothy O'Brien's article, Why Do So Few Women Reach the Top of Big Law Firms (3/19/06) (and Blog Watch's past coverage here), and now, with Adam Liptak's piece, Lawyers Debate Why Blacks Lag at Major Firms, (NYT, 11/29/06).

Liptak's article focuses on a study by UCLA Law professor Richard Sandler (which we discussed previously here) who purports to explain why minority associates don't succeed at firms. According to Sandler, large firms are desperate to hire minorities to meet diversity requirements. But to meet this need, firms lower their standards and hire minority lawyers with, on average, much lower grades than their white counterparts. Consequently, minority lawyers at large firms struggle more than whites and eventually leave. 

Sandler has his critics, however. Stephen Hanlon, a partner with Holland & Knight, pointed out that minority lawyers (as well as women lawyers) leave for postive reasons:

Female and minority lawyers, he said, are often hired away from law firms by corporate law departments, and that will have an impact over time. “We have trained a very bright generation of women and minority lawyers who have gone to our corporate clients and who now decide whether to hire us,” Mr. Hanlon said.

And professor James Coleman of Duke Law School criticizes Sandler for assuming that grades determine success at law firms:

[Coleman] said Professor Sander was overemphasizing grades at the expense of other qualities like writing skills, temperament and the ability to analyze complex problems.“I don’t think you can do what he is trying to do, which is to use purely objective data to explain what is happening in law firms,” said Professor Coleman, who now teaches law at Duke and is a co-author of a response to Professor Sander called “Is It Really All About the Grades?”

I agree with Coleman. If Sandler could demonstrate that lawyers who succeed at large firms are those who achieved top grades in law school, maybe his study would carry some weight. But unless Sandler can demonstrate a correlation between a law student's grades and his or her ultimate success at a law firm, his study doesn't do much more than find a way to rationalize a situation which isn't defensible.

For more, see the interesting comments on this same story over at Peter Lattman's WSJ Law Blog.

November 29, 2006 | Permalink | Comments (1)

Who Needs Coffee Bars When You Can Globe Trot?

So what if today's law firms are offering their own in-house coffee bars, as Above the Law notes in this post? Wouldn't you rather trot around the globe, observe civil wars and make history? As Rick Georges writes in this post at Future Lawyer, the CIA is touting the latter benefits to distinguish between its Office of General Counsel and ordinary private practice in this clever recruitment ad. Other perks of choosing the CIA over private practice include 10 federal holidays and 13 to 26 vacation days versus 2,600 billable requirements, negotiating treaties rather than drafting memos, all for government pay versus a six-figure salary. 

Who would have thought that the CIA had a sense of humor and a great instinct for marketing? 

November 29, 2006 | Permalink | Comments (0)

November 28, 2006

Weil's Big Deal: Women and Flex Time

Last week, law firm Weil Gotshal announced the election of 20 new partners. Not in itself a big deal, but the announcement included this:

[F]or the first time, the new partnership class was comprised of a majority of women. Further, the firm stated, this election was also marked by the creation of a new partnership category, "flex-time partner," which was created for new partners making a long-term career choice to work on a flexible schedule. Among the newly elected partners were included two flex-time partners.

Big news, or not? At Counsel to Counsel, Stephen Seckler suggests that Weil's announcement means "large firms are finally getting worried about retaining talent." But at Law Blog, Peter Lattman asks, "Is Weil touting something it should be proud of, or should its 'achievement' be a matter of course these days?" Lattman's question elicited a number of comments to his post, as well as one from Morra Aarons at blogher, who writes that the news is, indeed, a big deal:

"Hallelujah. It's a reality, whether or not it should have happened 20 years ago or not. ... I'll take progress in whatever form it comes."

The folks at JD Bliss obviously agree with Aarons. They've named Weil Gotshal a Work Life Winner.

November 28, 2006 | Permalink | Comments (0)

Pepper Adds Spice With Podcasts

At his LawMarketing Blog, Larry Bodine opines that the recently launched Pod Center from the 450-lawyer firm Pepper Hamilton "sets a new standard in podcasting by law firms." The podcasts, he writes, are structured as interviews with attorneys who are experts in the subjects covered. Topics of recent podcasts included private-equity dividend recapitalizations, taxation of online software purchases, criminal background checks by employers and workplace smoking policies. Apart from the topics, Bodine is impressed by the setup:

The Center itself is set up as a blog so that listeners have the option of subscribing to RSS feeds that feature audio only, or audio plus text. Readers can also listen to broadcasts directly from the blog using a convenient "Play" bar.

The firm's marketing manager, Brian Dolan, tells Bodine: "We think the new Podcast Center is an innovative program that positions the firm as cutting edge and tech savvy."

November 28, 2006 | Permalink | Comments (0)

'Second Life' Spawns First-Impression Issues

Real-world legal issues involving private property and IP piracy are beginning to arise from the virtual world known as Second Life, as two recent developments illustrate.

At the Fortune magazine blog Legal Pad, Roger Parloff tells of Anshe Chung, Second Life's first virtual millionaire. This is not Monopoly money, Parloff writes, explaining that Chung's Second Life holdings have made her real-world wealthy, "i.e., someone whose holdings in a make-believe world are legally convertible into genuine U.S. currency worth more than $1 million." (Read her announcement of how she parlayed $10 into $1 million.) How does her achievement raise legal issues? Parloff explains:

Some online game companies have attempted to prohibit, through click-through agreements, the real-world buying and selling of online property created by players, which the companies maintain remains the company's intellectual property. ... Second Life, on the other hand, openly authorizes and facilitates exchanges between its currency and real-world currencies, so that particular legal issue does not arise. Still, you might ask whether [Second Life developer] Linden Lab is courting legal liability if its servers should suddenly go down one day, destroyed, say, in some real-world earthquake, leaving Second Life denizens devoid of "property" or at least expectations in which they've invested so much real time and money.

Meanwhile, in a Business Week article, The Dark Side of Second Life, Catherine Holahan discusses the increasingly vexing problem of piracy within Second Life, in which users copy others' characters, objects and buildings, "potentially eroding the value of people's virtual property." In fact, she writes, piracy is just one aspect of a larger "crime wave" sweeping the virtual world and causing many users to demand "an official system of law and order." The piracy problem, in particular, has Second Life users "plenty worried," she writes:

Andrea Miller, a Las Vegas marketing director who co-owns the Panache clothing store in Second Life, says she is concerned about her creations getting ripped off. She closed her store, which handles about 20,000 Linden dollars a day, in protest of what she believes is a lack of sufficient action by Second Life's creators. "You believe your work will be protected," says Miller. "But it's just not. It's disheartening."

These virtual disputes may lead to real-world lawsuits, Holahan suggests. But there is also pressure on Second Life's developer, Linden Labs, to come up with its own procedures for dispute resolution. The site's creator, Philip Rosedale, told a recent "town meeting": "Longer term, Second Life is going to have to develop its own law or its own standards of behavior."

At ZDNet's IP Telephony blog, Russell Shaw explores this idea further. What if a clothing designer or a musician uses Second Life to demo creations for real-world clients? he asks. What if those creations are hacked or misappropriated "and my ability to use SL as a demo for real-world aspirations and real-world dollars is compromised?" Shouldn't that be actionable in a real court? he wonders. You can take Shaw's poll, or tell us what you think by adding a comment below.

For now, at least one real-world jurist is making himself available to residents in Second Life, if only as a lecturer -- 7th U.S. Circuit Judge Richard A. Posner.


November 28, 2006 | Permalink | Comments (1)

Making Legal History, One Schuss at a Time

Call it one small step for lawyers, one giant slalom for legal podcasting. Evan Schaeffer has, in one fell schuss, made both legal and podcasting history by recording the world's first legal video-podcast made while downhill skiing. No one is likely to argue with Schaeffer's claim that he is the first-ever lawyer and poor skier to take a blue slope while recording a discussion of the Federal Rules of Civil Procedure. He makes the trip with the video camera in his right hand and his podcasting notes and ski poles in his left, narrating the whole time. "Don't watch it for the substance," he writes on his blog. "I was having a hard enough time just keeping myself in an upright position."

Later in the podcast, Shaeffer moves from the FRCP to diet tips. When he first started blogging, he explains, he gained weight, but he has since dropped several pounds through healthier eating and less beer drinking. It is good that Schaeffer told us that he had cut his beer drinking, because otherwise, as we watched this video, we might have wondered about that very question.

Not to one-up Shaeffer, but I can now reveal that J. Craig Williams and I are planning to record an episode of our Coast to Coast podcast while competing in the Iditarod sled dog race through Alaska.

November 28, 2006 | Permalink | Comments (0)

November 27, 2006

More on Why Associates Leave Law Firms

Here at Legal Blog Watch, we've posted on the problem of associate attrition here and here. This week, Wired GC offers another explanation for attrition problem: summer programs, or  the ol' bait and switch. Commenting on this American Lawyer article (11/27/06) about summer law firm programs, Wired GC notes that:

At other firms, things sometimes got too authentic. “Keep summers away from the horrendous partners that are hard to work with and make people cry,” whimpered one summer at fifth-ranked Cozen O’Connor. A clerk at 156th-ranked Cadwalader grumbled about the “torture of working for an associate who is notoriously awful to work with.” Apparently, there’s reality, and there’s reality, summer-style.

Cry?  In my world, this is 100% wrong. Any firm that wants summers to make an intelligent decision should have them work with a curmudgeon or two, not just the stunt Perfect Partner called up from central casting.

Wired GC also suggests that many summer associates gain a sense of entitlement. They want the $150,000-a-year starting salaries, but they also want a work-life balance, with options for part time and telecommuting.   

This recent column by a Harvard 3L, Choose Your Law Firm Carefully (from Harvard Law Record, 11/16/06), offers a student's reasons for declining to return to a firm. Among the student's complaints, the firm had a small summer class (thus cutting down on opportunities to socialize), the firm didn't allow mobility between offices (e.g., an employment offer at the firm's office in one city was not transferable to another branch) and the firm was too cheap to offer a 12-week summer program (instead, limiting it to 10 weeks) or pay for relocation expenses and living expenses during the bar.

Do today's incoming associates expect too much, as GC suggests? Or are they, like the Harvard 3L, simply taking advantage of a sellers' market and negotiating the best deal possible? 

November 27, 2006 | Permalink | Comments (2)

Should the Government Forgive Loans for Public Sector Criminal Lawyers?

Over at MyShingle, I've posted here on this article, Debt Relief May Be In Sight for Lawyers (Chicago Sun Times 11/27/06), which reports on Sen. Dick Durbin's (D-Ill) proposed legislation, The Prosecutors and Defenders Initiative Act. The legislation, originally proposed back in 2003, would provide up to $10,000 a year in loan forgiveness for lawyers who accept, and make a three-year commitment to, employment with prosecutors' or public defenders' offices.

Though I don't dispute that prosecutors and public defenders are underpaid, I wonder whether loan forgiveness will actually help attract or retain qualified lawyers to government ranks. Many of today's lawyers matriculating to prosecutors' and defenders' offices are motivated by the likelihood of gaining real trial experience, which is rarely available at large law firms. These lawyers make calculated career decisions that a salary cut in the early days of their career will pay off handsomely later on when their courtroom experience is in high demand by the private sector (the recent experience of the Enron task force attorneys is evidence of this trend). Does it make sense to forgive loans for attorneys who will have a high-earnings potential down the line? And will an extra $10,000 a year to repay loans matter much when private firms are offering 10 times that amount as signing bonuses?

What's your opinion of loan forgiveness for prosecutor and public defender jobs? 

November 27, 2006 | Permalink | Comments (1)

A Welcome Microsoft Lawsuit

Future Lawyer Rick Georges reports here that it's Microsoft to the rescue in the the war on phishing -- a criminal activity that uses e-mail to fraudulently acquire users' financial information. Phishing has become a serious and costly problem. From this article  at Yahoo news:

The total amount of damages from phishing is expected to be $2.8 billion in 2006 alone, research group Gartner estimates.  Phishers send emails, in which they pretend to be a financial institution or other legitimate organization, asking people to verify personal information such as account numbers and passwords.... Phishing has mushroomed over the last few years, with the number of attempts to trick citizens into handing over their bank account details almost doubling in the first half of 2006 to 157,000, according to a recent report from security software vendor Symantec.

Now, Microsoft has initiated 129 lawsuits in Europe and the Middle East against phishers. Of the lawsuits initiated, 97 are criminal procedures, where Microsoft believes the perpetrators to be criminals. The remainder involve civil actions against teenagers without criminal purpose and seek civil settlements to deter future mischief.

For Georges, the Microsoft action represents a way to crack down on the practice of phishing. But it's also a chance for Georges to praise Microsoft, "whom [he] pummel[s] regularly for stupid decisions."  In the meantime, while we wait for Microsoft to bring phishers to justice, the best cure for phishing is Georges' final words of advice: Never click on a link in an e-mail. 

November 27, 2006 | Permalink | Comments (0)

Lexis Innovator Dies

If asked to identify some of the major milestones of the past century that have changed the nature of legal practice, I'd put the development of computerized legal research systems such as Lexis in my top five. But I never really knew who was responsible for creating Lexis until yesterday, when I read about the death of Donald Wilson, who prepared the business plan for LexisNexis, through Robert Ambrogi's post at Law Sites.

Wilson's obituary in the New York Times describes him as a visionary who, back in 1969, recognized the potential value of computer assisted legal research:

In 1969, Mr. Wilson was asked by the Mead Corporation to assess a venture in computerized legal research that the company was considering. Mr. Wilson told his client that the searching of legal texts would be a useful tool for lawyers, as well as a promising business. He not only recommended that the company pursue the venture but also outlined a marketing plan for persuading law firms to adopt the technology.

The article notes that the turning point for the acceptance of Lexis came in the early 1970s, when Wilson arranged for Supreme Court clerks to use the system, which found more cases than the clerks found using manual research.

So when you sit down at your computer terminal and log on to Lexis or any of the other competing research systems that it helped spawn, give thanks to Wilson for his persistence in pushing lawyers into the computer age and making one aspect of our job substantially easier.

November 27, 2006 | Permalink | Comments (0)

November 22, 2006

Happy Thanksgiving from Legal Blog Watch!

We're taking a couple of days off to recover from turkey overload, but we'll be back on Monday, Nov. 27. Have a safe holiday!

November 22, 2006 | Permalink | Comments (1)

Turkeys Teaching Law

On this day before Thanksgiving, no doubt we are all wondering, What can we learn about law from turkeys? Quite a bit, it turns out. In fact, Meredith R. Miller, assistant professor at Touro Law Center, writes at ContractsProf Blog, "I'd hazard a guess that nearly all contract law concepts can be learned with turkey cases (and one chicken case ... and maybe one cow case)." Miller leaves the chicken and cow cases for another occasion as she points us to two key poultry precedents.

First comes her earlier retelling of the 1919 California case of Jacobsen-Reimbers co. v. Tozai Co. The case involved a turkey supplier who, it might be said, flipped the bird at his customer by failing to deliver on his promise of from 200 to 1,200 "choice dressed turkeys." The question for the court was whether the plaintiff's damages should be calculated using the low or high end of that promise. You will have to read Miller's post to find the answer.

A second turkey case Miller recounts, H&H Poultry Co. v. Whaley, offers the almost Dickensian feature of a wrongdoer by the name of Mr. Gouge. Did he place an enforceable oral order for 24,000 turkeys, or did he not? Mr. Gouge died before he could be deposed, but the court was nevertheless able to reach an outcome of which it was certain. Again, we refer you to Miller to tell how the case turned out.

November 22, 2006 | Permalink | Comments (0)

Giving Thanks for Legal Podcasts

The car is packed. The kids are securely buckled in the back seat. You are ready for that long drive to visit relatives for Thanksgiving. But wait -- did you remember the legal podcasts? What better way to entertain yourself and your family during the long drive than by listening to your favorite lawyers. Burn them onto a CD  or plug in your iTrip and you are ready to go. For your holiday convenience, herewith a round-up of recent programs to download:

And last but not least, from my own podcast Coast to Coast: The NLJ 250 and the Growth of Large Law Firms.

Would you prefer to spend some time over the holidays learning to launch a podcast of your own? Consider the School of Legal Podcasting.

November 22, 2006 | Permalink | Comments (18)

Lawyers on the Mayflower

Actually, there weren't any lawyers on the Mayflower, to our knowledge. But that fact, alone, gives us reason to be thankful. Rick Georges at Futurelawyer counts his blessings and comes up with 10 reasons to be thankful no lawyers were on the Mayflower. We'll give you his bottom two, but you'll have to read his post for the rest:

10. Conducting a trial on a small wooden ship would be difficult.

9. The Seamen's Union would go on strike, and refuse to offload passengers and freight until their lawyers conducted settlement negotiations.

November 22, 2006 | Permalink | Comments (0)

Lawyers Acting Like Turkeys

Many lawyers observe Thanksgiving by giving thanks. Others just behave like turkeys, to wit:

November 22, 2006 | Permalink | Comments (0)

November 21, 2006

Nancy Grace Sued for Suicide

Controversy over CNN's Nancy Grace, which we've posted on previously here, continues. Now, as this AP story (11/21/) reports, relatives of Melinda Duckett have sued Grace, alleging that Grace's badgering of Duckett during a news interview about her son's disappearance, including accusations that Duckett was responsible, lead to Duckett's suicide the next day. The family's attorney argues that Grace misrepresented her intentions when inviting Duckett to appear on the show. Though Grace had suggested that Duckett's appearance would raise awareness about her son, Grace "took on the role of a law enforcement official" during the interview by grilling Duckett about her evasiveness regarding her son's disappearance. The article notes, however, that law enforcement officials have since named Duckett as the prime suspect.

Though the suit against Grace may seem far-fetched, it's not the first time that a TV personality has been sued for allegedly playing a role in a death. Back in 1995, talk show host Jenny Jones faced a similar suit, after a gay man, Scott Amedure, confessed his love for a straight friend, Jonathan Schmitz, on the show. Three days after the show was taped (it never aired), Schmitz, humiliated by the incident, killed Amedure. Schmitz was sentenced to prison, but Amedure's family sued the show for failing to screen the mental stablity of guests. Amedure won at trial, but the verdict was vacated on appeal.


November 21, 2006 | Permalink | Comments (1)

Get a Test Jury Online

Bob Ambrogi has good news for everyday litigants with this post: You don't have to be an Enron defendant to afford a mock jury. As Ambrogi writes, a new Web site, TrialJuries, "will allow lawyers to submit their cases and have them 'decided' by online jurors similar to those who would serve on an actual jury at trial." To use the site, a lawyer can submit a written statement of each side's case or an audio or video argument. Mock jurors review the submissions and answer the verdict and feedback questions. When their review is done, the lawyer receives the verdict and can review the comments and feedback.

The cost to submit a case to TrialJuries using text only is $1,500. For audio, the cost is $2,000, and for video it is $2,500.

November 21, 2006 | Permalink | Comments (1)

Paralegal Dupes a Law Firm

This post from the Estrin Report blog highlights this recent article, Anderson Kill Discovers "Associate" Is Not A Lawyer (, 11/20/06). According to the article, Brian Valery had worked as a paralegal at Anderson since 1996 and told his employers that he was attending Fordham Law's night program to advance his career. In 2004, Valery told the firm that he'd passed the Bar, and apparently, he was hired on as an associate. It wasn't until 2005, when Valery moved for pro hac vice admission in Connecticut, representing that he was a member in good standing of the New York Bar, that grievance officials caught on to his deception and informed the firm.

Apparently, Anderson has policies in place to check the status of newly admitted attorneys. But Valery slipped under the radar because of his ongoing employment relationship with the firm. In that regard, it's not hard to feel sorry for Anderson Kill. The firm trusted a longtime employee and took him at his word. Now, the firm faces the embarrassment of informing clients that Valery wasn't really an attorney as well as potential repercussions (such as increased premiums) from its legal malpractice carrier. We read so much about the unreasonableness of large firms -- how they don't care about employee morale or act in their best interest. Here's a firm that apparently did care enough about an employee to support him in his effort to become an attorney -- and look at the outcome. 

November 21, 2006 | Permalink | Comments (4)

Thanksgiving Comes Early for Some New Orleans Defendants

Five hundred criminal defendants in New Orleans will have something to be thankful for this Thanksgiving:  the dismissal of their respective cases. As New York Times reporter Luanne White reports in this article, In New Orleans, Rust in the Wheels of Justice (11/21/06), in the aftermath of Katrina, "as many as 500 defendants, mostly in drug, theft and assault cases, have been freed because of problems with evidence, including difficulty in finding the witnesses who have moved away."

In many cases, evidence has been lost or contaminated through water damage or mold. DNA samples were held without refrigeration for several months, which may ruin their usefulness. One Tulane law professor, Pamela Metzger has urged public defense lawyers to challenge the condition of the evidence in their cases. 

But the loss of evidence can cut both ways. As the article notes: 

Katherine Mattes, another Tulane law professor, said the lost or damaged evidence could also make it harder for innocent people to shake off charges filed against them. She said, for instance, that a rusted gun might no longer fire, making it impossible to conduct new ballistic tests that might show it could not have been used in a murder. “What people say when you describe all the evidence problems is how terrible it will be if we have people who committed crimes and can’t be prosecuted,” she said. “But it also can work the other way."

November 21, 2006 | Permalink | Comments (0)

November 20, 2006

Farewell Web 2.0, Welcome Version 3.0

I recently finished writing a three part series for Law Technology News (free registration required) surveying Web 2.0 resources for lawyers. Thank goodness I got that out of the way. Web 2.0, after all, is so yesterday, as Justin Patten notes today at his blog Human Law. Emerging to take its place is Web 3.0, fueled by a growing collection of Silicon Valley start-ups. As The New York Times reports:

"Their goal is to add a layer of meaning on top of the existing Web that would make it less of a catalog and more of a guide -- and even provide the foundation for systems that can reason in a human fashion. That level of artificial intelligence, with machines doing the thinking instead of simply following commands, has eluded researchers for more than half a century."

One Web 3.0 artificial-intelligence system named Cyc is already capable of answering sophisticated, natural-language questions such as, "Which American city would be most vulnerable to an anthrax attack during summer?" If that is the case, might Web 3.0 deliver AI applications to answer simple legal queries? I don't know the answer to that question, but Cyc might.

November 20, 2006 | Permalink | Comments (2)

Conflicts Checking, Reconsidered

Conflicts checking a prosaic topic? Bruce MacEwen thinks not. As he explains at this blog, Adam Smith, Esq., the legal landscape is littered with uncaught-conflicts horror stories, starting with the recent high-profile U.K. case involving two Freshfields partners. Elsewhere, an Am Law 25 partner tells MacEwen of his frustration over losing a client thanks to his firm's three-day delay checking conflicts. Three big-firm CIOs report to MacEwen that conflicts checking is among the most complex tasks firms face. So if avoiding conflicts matters so much and firms manage the process so poorly, what is to be done?

"One answer," MacEwen writes, "is to enhance the power of 'enterprise search,' which means the ability to search across all the various databases inside a firm -- finance and billing, document management, human resources, marketing, client contact systems, etc. -- from one unified interface." At least two companies now sell products to do this, he notes. Another option is to look to outside providers that search across both internal and external data sources.

All well and good. But MacEwen believes the most critical conflicts question is a strategic one: "Is this client/matter one we want?" It is a critical question for senior firm management, he says -- and no one wants to get the answer wrong.

November 20, 2006 | Permalink | Comments (0)

Law Profs Chronicle Tenure Search

"She Said, He Said." No, it is not a 1950s off-Broadway romp or a 1970s tell-all. It is an article in The Chronicle of Higher Education written by a husband-and-wife duo of visiting assistant law professors at an anonymous Midwest university as they set out in search of tenure-track employment. Their firsthand account, On the Market, uses the "she said, he said" format as both tell how they got to where they are and where they hope to go from there. A postscript suggests that this will be the first in a series "chronicling their search this academic year for tenure-track positions."

The two are pseudonymously identified as Kelly and D.B. Fisher (not to be confused with D.B. Cooper). We start with Kelly, who tells us confessionally:

"My husband, D.B., got me into law school. Then he got me a one-year stint as a visiting assistant professor of law. He has worked his magic so artistically that both times it seemed almost accidental, but I am certain he knows what he's doing."

D.B. seems less certain of his prestidigitational prowess:

"I am the practical one, most of the time, at least in my mind. To others, namely Kelly, I am the naysayer, the pessimist. That makes it all the more odd that I would want to pursue an academic career, which is one of the most competitive areas around. Despite the odds against me, I guess I just know what I want to do, and with whom."

No matter what comes of their search, D.B. adds, "the pursuit should be fun." But for at least one reader, hearing about the Fisher's pursuit was "like fingernails on a chalkboard." Ann Bartow writes at Feminist Law Professors that she is all for law professors pairing up romantically. In fact, she says, "some of my favorite people in legal education are part of 'two law prof' couples." But Kelly's ode to her husband's influence on her career is too much for Bartow:

"Will he teach her classes, and write her scholarship for her as well? Ugh, as if the female components of heterosexual faculty couples didn’t have enough to overcome already."

To learn the answer to Bartow's question, we'll have to await the next installment of "She Said, He Said."

November 20, 2006 | Permalink | Comments (0)

Holiday Gift Guide for Lawyers

Many legal blogs provide practical advice, but what could be more practical than helping lawyers with their holiday gift-getting? At Reid My Blog!, Reid Trautz performs an enormous service on behalf of time-stressed legal professionals everywhere with his 2006 Holiday Gift Guide for Lawyers. He writes:

"I’ve spent time all year gathering ideas, ripping pages from catalogs, and bookmarking websites, then whittling it down to the most unique, clever, and thoughtful gifts for even the hardest-to-please attorney. Enjoy!"

Proving himself an astute professional shopper for legal professionals, Trautz tops off his list with the Margaritaville Frozen Concoction Maker. Other items on his list range from the practical to the indulgent -- and of course includes devices for keeping time.

To Trautz's list, I would add just one caveat: If you are looking for the perfect gift for your favorite Supreme Court justice, you are well advised not to send cookies.

November 20, 2006 | Permalink | Comments (1)

Transgendered Blawg Review

Today is Transgender Day of Remembrance, a memorial to victims of transgender hatred or violence. Befitting the day, Blawg Review #84 is hosted by Jen Burke at her blog, Transcending Gender. Burke's Blawg Review is a two-fer. True to Blawg Review mission, she provides a wrap-up of interesting recent posts from the legal blogosphere. Many of the submissions that she received, she writes, "related to sex, relationships, and the legal implications of different family situations." Thus, she covers such topics as law and the cost of sex, the failure of intimate-violence prevention and de facto divorce. Burke also reviews posts on more bread-and-butter topics, such as blogging ethics, management and technology and work-life balance.

But the two-fer I mentioned comes in the first half of Burke's Blawg Review, where she provides an overview of key issues and top Web resources in the area of transgender law. She discusses topics such as gender violence and gender discrimination and provides pointers to sites such as the Transgender Law & Policy Institute, the National Center for Transgender Equality and the Transgender Law Center. Burke makes a convincing case for transgender law as an important and emerging field of practice.

November 20, 2006 | Permalink | Comments (0)

November 17, 2006

Profile of a Silicon Valley Lawyer Rockstar

Fortune magazine's Roger Parloff profiles lawyer-rockstar Larry Sonsini in this article, Scandals rock Silicon Valley's top legal ace (11/17/06) and poses the question:

From Apple to Netscape to HP to YouTube, Larry Sonsini has been the most important lawyer in the most important industry for 30 years. But is he too close to the companies he represents?

As the article describes, Sonsini earned his reputation not so much by practicing law but by helping to build today's dominant high-tech industry. Describing his early partnership with John Wilson (the first name partner in Wilson, Sonsini, Goodrich and Rosati), Sonsini explained:

So we started to develop the recipe for how to build companies," Sonsini recalls. The recipe required entrepreneurialism, capital and infrastructure, and Wilson's law firm was part of the infrastructure. "I was becoming a piece of the recipe," Sonsini says.What I was learning very early on," he continues, "was that I could build an enterprise too. In fact, I had to." Wilson and Sonsini both wanted to continue to represent their clients as they grew, rather than handing them off to larger firms when they went public.To do that, they'd need additional expertise, and Sonsini was put in charge of figuring out which new specialists the firm neede and then recruiting them.

Making himself indispensable to start-ups partly explains Sonsini's success. But Sonsini's financial success, and that of his firm, is also attributable to their investment in the start-up companies that they advised. In the late 1970s, Wilson Sonsini created a fund to spread the risk of investment and minimize conflicts. But as the article explains, many contend that investing in clients either through direct investment or a fund still gives rise to potential conflicts:

In 1978 Wilson Sonsini set up WS Investments, a fund designed to manage both problems. Each partner's pay would automatically be docked to create the fund - the deductions were mandatory - and each would, in turn, have a stake in the proceeds.  Small investments in private companies could then be made when arose - typically $25,000 to $50,000, according to Sonsini...This way, each partner's stake in the fate of any one client would be diluted and all partners got a piece of the action....

Nevertheless, many East Coast lawyers and other critics condemn it because of the lingering potential for conflicts."I don't buy the argument that the incentive with regard to any particular company is diluted, because so many issues - like backdating, expensing options, etc. - apply across the entire sector," says corporate-governance watchdog Nell Minow, co-founder of the Corporate Library research firm.

Should Sonsini have flatly banned such investing? "During the days of building the Valley," he says, "when we were all working together as entrepreneurs and trying to build industries, I don't

Today, with a number of his clients coming under fire, Sonsini is in the news again, subject to questioning about whether his advice to clients was clouded by his closely aligned interests. Our economy and our world are so different now than they were back in the late 1970s when Sonsini started out. Would we be in the same place if Sonsini took a conventional approach, if he billed clients that couldn't afford his fees of $600 an hour instead of taking a stake?   

In many cases, as lawyers grow in stature and reputation, they become careless or overconfident or arrogant, which can lead to ethics run-ins and, sometimes, the destruction of their careers. With Sonsini, however, I didn't get the impression that he's changed at all from his days in the late '70s when he built his companies. Instead, times have changed, Sonsini's infant companies have gone public and the practices that were considered acceptable  have changed, now that those companies are regulated by the SEC and owe a fiduciary duty to thousands of investors and shareholders. And as Sonsini himself concedes, he too is still learning:

I'm just beginning to be the best lawyer I can be, and why would I get off the train now? If you're going to be a top business lawyer in this country, you've got to take a lot of years. You don't develop the judgment except over a long period of time.

November 17, 2006 | Permalink | Comments (0)

Craigslist Not Bound By Fair Housing Law in Online Ads

Back in June, Legal Blog Watch posted about a pending lawsuit against Craigslist, a popular online ad board. The Chicago Lawyers Committee for Civil Rights filed suit against Craigslist, alleging that it had published more than 100 ads in the Chicago area that violated Fair Housing Law.   

But as the Chicago Tribune reports, Craigslist is not liable for housing ads (11/15/06). According to the article, federal Judge Amy St. Eve found that Craigslist is shielded from liability under the Communications Decency Act of 1996. Explains the article:

the CDA says that a provider of an "interactive computer service" can't be treated as a publisher of information it gets from others.  Craigslist is indeed an interactive computer service, a conduit of  information provided by others, Judge Amy St. Eve said in a written opinion that effectively dismisses the case. Thus, under the 1996 communications law, Craigslist can't be treated as a publisher, she wrote in the decision, which was filed Tuesday and then circulated Wednesday by attorneys involved in the case.

The Chicago Lawyers' Committee plans to appeal St. Eve's ruling. However, the article notes that at least two appellate courts that have found that the CDA affords broad immunity to online fora.   

Craigslist CEO Jim Buckmaster posted this commentary on the suit:

While craigslist takes fair housing issues very seriously, and we want to do everything we can to assist our users in promoting fair housing for everyone, the 100 ads cited were a little surprising. Some were roommate ads involving constitutionally protected speech and the right to free association, such as "prefer christian roommate", or were ads containing incidental and harmless remarks such as "near St Gertrude's church," and "Buddhist temple nearby." Others simply celebrated the diversity and tolerance of the local community ("vibrant southwest Hispanic neighborhood offering great classical Mexican culture, restaurants, and businesses"), or sought to appeal to some groups without excluding anyone ("Great apartment for graduate students, married couple, or small family"). And for a few it is difficult to determine what protected classification is at issue ("wants one nice quiet person")....

Though possibly well-intentioned, this lawsuit ignores the essential nature of craigslist, demanding that we cease treating our users with trust and respect, and instead impose inappropriate, mistake-prone, and generally counter-productive centralized controls (such as manual review by our staff of the nearly 2 million free housing ads of unlimited length posted each month, a volume of ads greater than that received by all US newspapers combined), controls which would actually be less effective in catching discriminatory ads than what we have in place currently, and which would vastly reduce the number of legitimate non-discriminatory ads that the site could process.

Perhaps years ago, suits like that of the Chicago Lawyers Committee opened up doors for victims of discrimination. But now, with the Internet, protected groups have more opportunities than ever to search for -- and seek out -- housing. Moreover, because of Craigslist, information about affordable housing, as well as housing where protected classes are welcome -- are more widely disseminated than ever before. That's a goal that civil rights groups ought to support.

November 17, 2006 | Permalink | Comments (0)

A GC's View on Mergers

With the recent announcement of the Gardner Carton/Drinker Biddle merger, the Wired GC offers some additional commentary on the recent string of law firm mergers, which Legal Blog Watch covered just two weeks ago. Wired GC questioned Gardner Carton's reason for the merger, which is to achieve new growth for the firm. But Wired GC doesn't view mergers as a way to achieve growth, at least not in the short term. He writes:

Merger = growth?  In my book, no.

A law firm merger can lead to growth, but in the short term it likely leads to some retrenchment due to conflicts or partners who are now tempted to take a headhunter’s call.And then there is the post-merger reality common in the corporate world, but rarely mentioned in the legal press: restructuring.

Wired GC doesn't oppose mergers, however. Rather, he agrees with Drinker Biddle's reasons for the merger: to allow the firm to provide legal services more efficiently. It's efficiency, not law firm growth, that in the end will give clients a reason to celebrate.

November 17, 2006 | Permalink | Comments (0)

November 16, 2006

Outsourcing Legal Secretaries

As early as 1991, Ron Friedmann thought technology should lead law firms to rethink secretarial roles, he writes at his Strategic Legal Technology blog. In 2003, he wrote an article for Legal Times, The Future of Legal Secretaries, in which he suggested that firms test the concept of secretarial teams in order to save money and improve client service. Now, in a new whitepaper, he presents his case for why law firms should consider outsourcing secretarial and document production tasks.

It should be noted that Friedmann wrote the whitepaper on the dime of an outsourcing company. But his arguments are compelling -- with cost a big one. Consider that secretaries and document processing are typically a firm's third biggest expense after associate salaries and rent. Friedmann estimates that the direct cost of a secretary in a major urban area, factoring in salary, benefits and taxes, is $85,000. That does not include overhead. But, he says, firms use only 80 percent of that secretary's time on the job. Throw in HR issues, variations in workloads and the sometimes poor fit between skills and tasks, and outsourcing begins to look compelling.

Friedmann's overarching point is that law firms should at least consider outsourcing as an option. "Outsourcing may be wrong," he says, "but decide that consciously, not by interia."

November 16, 2006 | Permalink | Comments (1)

Bidding for Bobbleheads

An eBay bidder with the username of leonroyer bought himself a Justice Kennedy bobblehead doll yesterday for $300. He was the only bidder to match the seller's $300 minimum bid. But another Justice Kennedy bobblehead remains up for auction. As of this writing, bidding had reached only $20.50, but five days remain in the auction and, as anyone who's ever bid on eBay knows full well, the greatest flurry of activity comes near the end.

As Howard Bashman notes at How Appealing, this recent flurry of bobblehead bidding is fueled in part by the arrival of Justice Kennedy in the bobblehead collection of The Green Bag, where he joins his honorable bobbled colleagues Antonin Scalia, Sandra Day O'Connor, John Paul Stevens and William Rehnquist. The Green Bag, if you are unfamiliar with it, is what I once described as "an entertaining, eclectic law journal." It introduced its first Supreme Court bobblehead in 2003 as a gift for subscribers. Since then, demand for these limited-edition bobbleheads has grown so fervent that one law professor has written a scholarly article on the federal income tax consequences of the phenomenon, and students at George Mason University School of Law have set up a bobblehead redemption center.

Back on eBay, Justice Kennedy is not the only bobblehead to be found. Bidding on a Justice Stevens bobblehead is already over $200, with eight days left to go.

November 16, 2006 | Permalink | Comments (0)

Hanging a Shingle in 'Second Life'

I noticed recently that a U.S. government agency has opened a branch office in the virtual community known as Second Life. Nedra Weinreich writes at her blog Spare Change that John Anderton, a new-media specialist with the U.S. Centers for Disease Control and Prevention, was able to convince his CDC superiors to let him establish an agency outpost there. He staffs it under the guise of the female avatar Hygeia Philo and has already staged his first virtual health fair.

Meanwhile, Kevin O'Keefe at LexBlog noted the forays into Second Life by established businesses such as computer maker Dell and PR firm Edelman. Sure to be next to set up shop there, O'Keefe suggests, are law firms. And why not? As he writes:

"It has grown explosively and today is inhabited by over 1.3 million people from around the globe. Its Marketplace currently supports millions of dollars (real U.S. dollars) in monthly transactions."

As we noted here in September, Harvard Law School now offers courses in Second Life. It certainly makes sense that these virtual law students might someday hang a shingle in the same community where they once studied. Only question is, which bar exam do they take?

November 16, 2006 | Permalink | Comments (0)

NLJ 250 Podcast: Does Size Matter?

The big keep getting bigger. The nation's largest 250 law firms grew by 4 percent in 2006, according to this year's NLJ 250, the National Law Journal's annual ranking of the largest U.S. firms based on number of lawyers. The largest of the lot, Baker & McKenzie, has more than 3,500 lawyers. So is bigger better? Does size matter?

On this week's legal-affairs podcast Coast to Coast, we take a closer look at the numbers and their meaning. Joining my co-host J. Craig Williams and me to discuss the survey are:

Listen to the show:

More information about this week's program is available here. Coast to Coast is produced by the Legal Talk Network and sponsored by

November 16, 2006 | Permalink | Comments (0)

November 15, 2006

Big Stick Marketing

Larry Bodine of LawMarketing Blog has a brand-new marketing plan for law firms: Big Stick Marketing. Bodine writes that law firms themselves are often the major impediment to the successful implementation of a marketing plan by failing to hold lawyers accountable for marketing. Bodine emphasizes:

To have a business development program, it is aboslutely essential that lawyers be held accountable.  See "Increasing Marketing Effectiveness At Professional Firms," a 2006 research study conducted by Suzanne Lowe and me. Accountability makes business development count; without it, biz dev is an optional activity.Yet many partners are unwilling to include The Big Stick in their business development programs.  They don't want to be the ones to hurt another partner's feelings.  Some want to avoid responsibility and don't want to be measured themselves. But this is not the way to run a business.

Bodine also has advice for firms that want to engage in a Big Stick Marketing program. He references the experience of lawyer Patrick Lamb:

"We review marketing plans, because it’s something measurable. Every partner has a certain number of base points (a guaranteed income) plus discretionary points. We took a certain amount of points of the base points and put them at risk – 4-7 points – and it’s proven to be enough of an incentive. If a partner has not done anything, they do not participate in the bonus points; they are losing $30,000 to $40,000. This year, if they don’t qualify to get at least half of the credit, the gate to the discretionary bonus is closed, and it becomes a six-figure monetary loss."

And if partners don't participate, the Big Stick comes down, and they're asked to leave.

November 15, 2006 | Permalink | Comments (0)

A Window Into Legal Pre-Paid Services

This New York Times article, Why Short Sellers Want to Crash the Tupperware Party (11/13/06), offers an interesting window into how Pre-Paid Legal services plans are sold. Contrary to what you might think, Pre-Paid Legal services plans aren't sold by individual attorneys or law firms but through multilevel marketing schemes used by Avon, Tupperware, diet pill vendors and knife salesmen. Recently, the Federal Trade Commission (FTC) issued new rules to regulate these companies' hiring practices, requiring them to disclose their salesforces' average earnings as well as the amount of time a sales rep typically lasts with the company (most don't stay on more than a few months).   

The article details Pre-Paid Legal's sales techniques:

To understand short sellers’ enthusiasm, consider Pre-Paid Legal, a public company that sells legal insurance through multilevel partnerships. For about $26 a month, Pre-Paid Legal lets customers consult an affiliate lawyer on legal matters like speeding tickets or writing a will. In 2005, the company’s nearly 500,000 sales representatives brought in revenue exceeding $423 million.  But like many multilevel marketing companies, Pre-Paid Legal suffers from high turnover. In 2005, the company replaced at least 50 percent of its active sales force, according to filings with the Securities and Exchange Commission.  Industrywide, multilevel marketing companies typically replace almost all of their sales representatives every year.

Clearly, if individual lawyers tried to use the same marketing techniques as Pre-Paid Legal, the bar would crack down on them. Perhaps that's why Pre-Paid Legal has few competitors in the way of lawyers or law firms who develop and market pre-paid plans. And if these regulations will impact Pre-Paid Legal, as observers predict, perhaps there will be opportunities for lawyers to capture the markets that Pre-Paid Legal once served.

November 15, 2006 | Permalink | Comments (27)

How Not to Get Sacked When Filing a Lawsuit

Engaging in a little bit of Monday morning quarterbacking, Wired GC offers some advice to fellow GCs on how to avoid having your image sacked when filing a lawsuit. Wired GC gleans these lessons from this story from the New York Times (11/12/06) about University of Alabama's lawsuit against sport artist Daniel A. Moore. This picture, “The Sack,” depicts a famous hit on Notre Dame quarterback Steve Beuerlein by Alabama player Cornelius Bennett in 1986. The university alleges that Mr. Moore’s paintings violate trademark rights, including the use of crimson and white. But while University of Alabama has strong grounds for protecting its copyright interests, it is losing ground in the court of public opinion.

From Wired GC's perspective, here's what went wrong. First, Alabama never talked to Mr. Moore (an Alabama alum himself); rather, they simply faxed him the lawsuit, drawing criticism from other Alabama alumni and faculty. And university spokespeople would not comment on the lawsuit. 

As for lessons that GCs can learn, Wired GC writes:

The first is just because you can, doesn’t mean you should. The second is that methods matter, and are largely what the court of public opinion rules on. Finally, there’s the reality of the “no comment” in the Internet Age. If you want spokespeople to try that handoff to “the lawyers,” fine. Just don’t be surprised when your little lawsuit shows up on page one of a major newspaper, and on its website.  It’s the kind of PR a university just can’t buy.

November 15, 2006 | Permalink | Comments (0)

An Example of a Frivolous Appeal

At Crime and Federalism, Mike Cernovich gives us a textbook example of a frivolous appeal, courtesy of  Judge Alex Kozinski of the 9th Circuit. In Frunz v. City of Tacoma, the City of Tacoma appealed a verdict awarding $100,000 to Susan Frunz after Tacoma police broke into her house without a warrant, pointed a gun at Frunz and then slammed her and her guests to the floor and cuffed their hands behind their backs until Frunz could prove that she owned the home. Kozinski wrote:

Only the most misguided optimism would cause defendants, and those who are paying for their defense, to appeal the verdict under these circumstances. Surely, the citizens of Tacoma would not want to be treated in their own homes the way the jury found officers Stril, Morris and Alred treated Frunz and her guests. A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury’s collective wisdom.10

FN10 Defendants and their counsel shall show cause within 14 days why they should not be assessed double costs and attorney’s fees for filing a frivolous appeal.

Mike Cernovich comments that city defendants are the "frequent flyers" of verdicts in civil rights actions, in part because rulings like Kozinski's are rare: Cernovich can't recall  a case where an appellant was assessed double costs for filing a civil appeal. And because appeals are so common, lawyers who serve municipalities are under pressure to file appeals to keep the client or avoid censure by the bar. Cernovich argues that given the present legal system, lawyers shouldn't be censured for frivolous filings until the bar stops censuring lawyers for failing to carry out their clients' wishes. In this case, however, I can't imagine that any grievance committee would have blamed a lawyer for withdrawing from a case rather than filing an appeal that stood no chance of winning.

November 15, 2006 | Permalink | Comments (4)

November 14, 2006

Five-Minute Marketing for Lawyers

No time in your busy day for marketing, you say? Professional marketer Michelle Golden of the blog Golden Practices says all you need is five minutes a day. "Can you find 5 minutes in your day, today, for marketing?" she writes. "Really. That's all it takes." To prove her point, she is beginning to compile a series of "5-Minute Marketing" tips that she will publish on her blog. Here are the first of them, all easily done in five minutes:

  • Write a note to a friend, acquaintance, colleague, or prospect.
  • Call and invite someone to lunch. Even if they can't go, spend a few minutes catching up.
  • Scan the "promotions" section of your local business journal and send a note of congratulations to someone you recognize.
  • Look through yesterday’s work records and pick one item you can follow up with a client about.
  • Call someone whose project you'll be starting in the next two weeks and tell them you're looking forward to seeing or working with them again.

Marketer Tom Kane, at The Legal Marketing Blog, points to Golden's post with approval, adding his own variation on the theme. "The time to market," Kane says, "is when you don't have time for it."

November 14, 2006 | Permalink | Comments (8)

The Case for 'Disability Diversity'

What can law firms do to promote hiring and retention of lawyers with disabilities? A report published yesterday by the Commission on Mental and Physical Disability Law of the American Bar Association recommends a series of "best practices" legal employers should follow. The report of the National Conference on the Employment of Lawyers with Disabilities provides a comprehensive overview of the current state of disabled lawyers and sets out the case for "disability diversity" within the legal profession. It then offers a set of steps law firms should take to promote the numbers of lawyers with disabilities within their ranks. Among them:

  • Form a committee to communicate the business case for diversity.
  • Have senior partners take the lead.
  • Conduct an internal audit.
  • Develop a clear plan for diversity and "promote it loudly."
  • Mandate top-down training.
  • Provide reasonable accomodations.

The report suggests that the legal profession lags behind in making itself open to lawyers with disabilities. "We have taken significant steps in making our profession more open to women, to persons of color, and to those who come from racially and ethnically diverse backgrounds," it says. "We must now take similar first steps on behalf of lawyers with disabilities."

The full, 79-page report can be downloaded here in PDF format.

November 14, 2006 | Permalink | Comments (1)

Probability and Women Law Clerks

Just seven of the 37 Supreme Court law clerks this year are women -- a 50 percent drop from preceding years. In a New York Times article reporting this, two justices portrayed the percentage as the result of "a random variation in the applicant pool." Does statistical reasoning bear that out? Two professors -- David H. Kaye of Arizona State University College of Law and Joseph L. Gastwirth, professor of statistics at The George Washington University -- set out to find out. In a preview of their findings published Oct. 30 in the National Law Journal, the authors wrote that, "for all the raised eyebrows," random variation could well explain this year's decline. Now, they have published their full report, "Where Have All the Women Gone? 'Random Variation' in the Supreme Court Clerkship Lottery." The abstract tells more:

"This essay applies standard statistical reasoning to answer two questions - what do the numbers prove, and how strongly do they prove it? We show that this year's decline in women is not at all improbable. Likewise, if the percentage of women applying for these clerkships is in the range of what one Justice suggested, then the small proportion of women is about what one would expect.

"The situation seems different, however, when one examines statistics on each Justice. Some Justices hire considerably fewer women than would be expected by chance, while others hire somewhat more. There are many possible explanations for this pattern. We marshal data to assess the plausibility of some of them, but in the end, the available records do not allow a definitive conclusion. To assure public confidence in the Justices' assurances of gender neutrality, we recommend that the Court make statistics on the characteristics of those who apply for and receive clerkships publicly available."

Alan Childress, writing at Legal Profession Blog, praises the report, but argues that, statistics aside, the problem is that the candidate pool is skewed to begin with:

"If the Justices are not going to look for hiring factors other than those 'tried and true,' or find new feeder judges--or else at least impress upon their current sources the importance of their being more diverse in hiring--then all the statistical 'neutrality' of the Scotus hires for matching the 'available pool' (or more accurately, the study suggests, for falling within an expected range in that pool, if only at the shallow end) is wholly meaningless.  The Court can do better, and should."

Kaye, Gastwirth and Childress all agree on one point: The Supreme Court should publicly disclose data about the applicant pool and let the public determine whether the drop in women clerks is a statistical blip.

November 14, 2006 | Permalink | Comments (1)

Best of the Blogs Awards

A blog devoted to increasing transparency in government and helping citizens learn more about Congress received this year's top honor in the annual Deutsche Welle Best of the Blogs awards -- the BOBs. Named as best by the judges was the Sunlight Foundation blog. The judging panel described it as the epicenter of the Sunlight Foundation in its mission to "reduce corruption and produce greater transparency and accountability in government." Among the other prize winners, no exclusively legal blogs were to be found, but the winners are all worth a look. Check out for yourself the full list of jury award winners and user prize winners. Not to mention that one of the competition's judges is Lisa Stone, former editor of Legal Blog Watch.

November 14, 2006 | Permalink | Comments (0)

Sex, Power, Blogs -- and Lawyers

The case of Steinbuch v. Cutler has all the makings of a cyberlaw classic, says Eric Goldman at his Technology & Marketing Law Blog: "It's got sex, power, politics, blogs, and sex." Not to mention a high-profile lawyer as plaintiff. As if these ingredients were not enough for a cyberlaw potboiler, the case now has a notorious blogger for a defendant -- Ana Marie Cox, formerly known as D.C. gossip blogger Wonkette and now a Washington editor for Time magazine. For those who may not recall the lurid details of the "Washingtonienne" case, Goldman offers this refresher:

"Jessica Cutler was an intern on the Hill and engaged in multiple simultaneous relationships. She then commenced an affair with Robert Steinbuch, a staff counsel for the Senate Judiciary Committee. She documented some of the affair's lurid details on a 'private blog' that allegedly was just for a few of her closest friends. Although she never used Robert Steinbuch's name in full, she relayed enough details that his identity was deducible by others. Then, the details on this 'private blog' became very public when picked up by Wonkette, one of the largest blogs around. Ultimately, Steinbuch sued Cutler for invasion of privacy and emotional distress."

Since filing the original complaint and surviving Cutler's motion to dismiss, Steinbuch -- now a law professor -- sought leave of court to amend his complaint to add Cox as a defendant. In a ruling Oct. 30, U.S. District Judge Paul L. Friedman granted the motion, but did so with reservations. Those reservations are well founded, says Goldman, who believes that Cox should be protected from liability under 47 U.S.C. 230:

"Cox's behavior should be preempted by 47 USC 230 (a statute not cited by the court in this ruling). Pursuant to 47 USC 230, Cox cannot be liable for linking from Wonkette to Cutler's blog, nor should Cox be liable for quoting the blog if the words were written by Cutler."

At the blog Internet Cases, Evan D. Brown says that the case could prove to be an example of "linker beware." Noting, as did Goldman, that the judge was "troubled by plaintiff's approach to this case," Brown says time will tell whether Cox remains a defendant.

"But the practical question to be extracted from this case is, will the specter of being sued just for linking to another site slow down the wheels of the gossip mill?"

Somehow I doubt that will happen.

November 14, 2006 | Permalink | Comments (0)

November 13, 2006

Blawg Review #83

Rick Hasen's Election Law Blog hosts Blawg Review # 83. This week, we're treated to a round-up of election-law-related news. But there's also a Blawg Review bonus. Over at the Blawg Review site, there's a special Veterans Day remembrance collection of posts of interest to, or that honor, our nation's veterans. Look for the next issue of Blawg Review at Transcending Gender.

November 13, 2006 | Permalink | Comments (0)

Do Calif.'s ADA Laws Lead to Increased Access or Litigation Abuse?

This past weekend, the Sacramento Bee carried a lengthy article, Visionary law's litigious legacy (11/12/06), on how California's implementation of the federal Americans with Disabilities Act (ADA) has lead to litigation over ADA violations, which end in payouts to individual plaintiffs and lawyers rather than access for the disabled. What makes the California system unique is that in contrast with the federal ADA statute, California allows for attorney fees and fines for violations:

Under the federal ADA, private plaintiffs are entitled only to injunctive relief -- that the problems be fixed -- plus attorneys' fees. Under California's Unruh Civil Rights Act, plaintiffs can collect a minimum of $4,000 in damages per violation beyond attorneys' fees. A related state code, the Disabled Persons Act, allows a plaintiff to recover three times the actual damages, or a minimum of $1,000, with attorneys' fees awarded to the prevailing party at the judge's discretion.

As a result, rather than ask businesses to correct an ADA violation to allow for access, many lawyers approach noncompliant businesses seeking a payout to avoid filing a lawsuit. And rather than risk litigation and payment of the fine, many businesses comply. Says Kevin Maher of the American Hotel and Lodging Association:

"What's happening is that a few attorneys are kind of gaming the system. They see an opportunity to work toward these out-of-court settlements and are just filing these lawsuits by the handful, and hope businesses will settle and go away."

Others disagree.  From the article:

Many disabled citizens reject that charge, arguing vehemently that businesses have had more than enough time to comply with the law. This, they say, involves nothing less than their civil rights."If they obeyed the law, there wouldn't be any lawsuits," said Laura Williams, president of Californians for Disability Rights, the state's oldest and largest advocacy group for the disabled.

What's particularly disturbing about the ADA litigation is that it is dominated by a handful of plaintiffs and their lawyers, who file multiple suits. For example, the article notes:

Nearly 80 percent of the access suits filed in federal court last year were handled by just 10 lawyers or law firms. Together they dominate the ADA litigation in the nation's most populous state -- home to an estimated 2.5 million people with physical disabilities.  California's two busiest access lawyers in the federal courts both practice in the Eastern District, based in Sacramento. Scott N. Johnson, a 44-year-old quadriplegic attorney from Carmichael, and Lynn Hubbard III, a 66-year-old attorney based in Chico, filed 277 lawsuits between them in 2005[...]

The same names pop up so frequently on court documents that even judges remark on it. Sherie White, a 40-year-old quadriplegic woman from Corning, has been the plaintiff in 60 suits since 2003; Gypsie Jones, a 34-year-old Anderson woman who broke her back in a car accident 17 years ago, is named in 162. Ron Wilson, 70, is behind at least 60 suits in and around Dixon as part of a virtual one-man crusade to bring businesses into compliance.

Not surprisingly, with so much litigation, it hasn't taken long for a client to sue his attorney. Phil Di Prima initially hired an attorney to bring suits on his behalf, but after winning money, he found that he still could not gain access to facilities. So he sued his attorney, accusing him of failing to ensure that properties were fixed, of falsely claiming that Di Prima suffered injuries and of failing to apprise Di Prima of settlement offers. 

Perhaps DiPrima's approach makes the most sense and offers the best solution to abuses of the ADA. As clients reclaim control of their ADA cases and make them about access, rather than money, California's problems with ADA abuse may correct themselves.

November 13, 2006 | Permalink | Comments (1)

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