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March 31, 2010

New Blog Focuses on Contract Standards and Drafting Automation

It's an honor to welcome to the blogosphere the Contract Analysis and Contract Standards blog.

One week and three posts into its existence, the blog, authored by Kingsley Martin, president of kiiac LLC, has gathered some good information, and raised some interesting questions, bearing on the prospects of lawyers using technology to automate drafting of contracts and other documents.

Not surprisingly, Martin's company (pronounced "kayak") would love for you to buy its software to help your firm do just that. And in an extensive Q&A at the Adams Drafting blog, Martin goes into great detail about how his software works.

But the blog itself, so far, seems to be a bit more than shameless self-promotion, actually getting into some discussion about how to define what are "market" or "standard" provisions or terms in agreements, and the benefits of "hierarchical modularity" in building and maintaining repositories of templates.

It's not the only blog focused on document assembly issues (and not the only one run by someone who'd like to sell you something) -- see, for instance, Bashablog and the Exari blog -- but based on very early returns, it appears as though Martin will attempt to contribute legitimate thoughts on the issues, rather than merely run a continuous advertisement for his company. For that, he earns my respect and my commitment to stop by every once in a while to check it out.

And, as my father would say, that and $2.25 will get you on the subway.

March 31, 2010 | Permalink | Comments (2)

Peeps Eviction Lawsuit Delayed

The timing was too deliciously good to stick. The courtroom showdown over a Colorado woman who was evicted from her apartment for refusing to pay rent after her display of Easter decorations, including the cutest damned snacks in the world, Marshmallow Peeps, was removed by her landlord, has been continued until June.

The trial had initially been slated to start yesterday, and, as reported at Lowering the Bar, has some serious entertainment value potential, including witnesses who intend to testify about the artistic merit of Peeps displays. Can that really be denied, though?

The Peeps controversy got some hilarious coverage on "The Colbert Report," back in September. And also some scarily serious coverage on the Lynn v. Sekulow blog.

If there's no settlement, and if any LBW readers want to fund the trip, I will gladly head out to Colorado in June to liveblog the trial.

March 31, 2010 | Permalink | Comments (4)

BitTorrent Users: Prepare to Be Spam-igated


THR, Esq. is reporting on a wave of new lawsuits targeting users of the file-sharing service BitTorrent, accusing them of illegally downloading copyrighted movies.

THR reports that 20,000 individual users have already been named in these suits, and that another suit naming an additional 30,000 is coming down the pike. This litigation is reportedly being spearheaded by a venture called the U.S. Copyright Group, fueled by some spiffy German technology that can monitor illegal downloads in real time.

The sample complaint linked to by THR was filed by Dunlap, Grubb & Weaver, which looks to be the alter ego of U.S. Copyright Group (they share a D.C. address). Thomas Dunlap, a partner at the firm, spoke with THR, and was purty darned candid about the motivation for the lawsuits:

"We're creating a revenue stream and monetizing the equivalent of an alternative distribution channel," says Weaver.

Not surprisingly, Fred von Lohmann (congrats, by the way, Fred), on the Electronic Frontier Foundation's blog, cites this "spam-igation" as further evidence that copyright law has become a breeding ground for "trolls intent on shaking down individuals for fast settlements a thousand at a time."

That sure sounds like an accurate description of the business model based on THR's article. The U.S. Copyright Group is apparently going on its own promotional roadshow soon. To Cannes, to pitch its services to other film producers. Sure beats reviewing documents in a warehouse in Allentown.

March 31, 2010 | Permalink | Comments (2)

WestlawNext Update: $3,400/Hour Legal Research Has Arrived

We (and everybody else) have previously reported on the beginnings of the rollout of WestlawNext. Part of the marketing initiative was to conduct "roadshows," where the Thomson Reuters folks could get a bunch of lawyers and/or academic users in a room and demonstrate why their new product was the proverbial greatest thing since sliced bread.

The roadshows held earlier this month, as reported by Mark Giangrande at the Law Librarian Blog, began with an announcement that no questions about pricing would be entertained. However, in the past couple of weeks, some pricing information has come to light. And it's an eye-opener. Well, the kind of eye-opener that makes you want to close them real tight again and hope the whole thing was a dream.

This post by Greg Lambert at 3 Geeks and a Law Blog reveals that certain categories of documents -- specifically, "50 State Surveys" -- can cost $3,400 per hour to view online. No, you did not read that wrong. $3,400. Appellate briefs come in a close second at $3,300. Those numbers, of course, don't appear in the pricing document that Lambert links to, which uses the much more reasonable sounding figures of $56.67 and $55 per minute.

Once the $3,400 figure hit the blawgs, there was some righteous indignation, not just about the astronomical figure, but about the continuation of the "used car sales" negotiating tactics employed by TR, a detailed example of which was posted by Lisa Solomon. Last week, Lambert got his hands on another document discussing pricing, this one a "simple chart to answer all your questions" (sarcasm in original), one page of which is shown below:


According to Joe Hodnicki, also of the Law Librarian Blog, the chart, blown up, would make "an excellent posterboard display for a project on collective psychopathy," in light of its 24 scenarios with footnoted caveats, in an atmosphere of overwhelming expressions of preference for fixed-price plans.

The $3,400/hour number is arguably hyperbole. Any well-instructed user who understands the concept of the hourly pricing model should know better than to leisurely browse a document online looking for the relevant passage. It's click-print-back to results list, lickety split, right?

Except if you're on some sort of hybrid plan where certain databases or functions are hourly and others are transaction-based, which I know existed back in my day. Then, all bets are off. Give the chart to your first-year associates and let them figure it out. By the time they get out their abacuses and calculate the most cost-efficient route to that Illinois Appellate Court brief, it'll likely be after 8:30, and they can order in some dinner.

March 31, 2010 | Permalink | Comments (6)

March 30, 2010

Tuesday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

1) Question: I am a government official and I have to attend a committee meeting in a minute. On the other hand, my pretend cows on the online game Farmville require milking RIGHT NOW! Do you think I can multi-task here?

er: Milk those pixelated cows at your own risk, sir. Many governments frown on this, and you may end up unemployed. (BBC News, Down on the Farmville) (via Jonathan Turley)

2) Question: I am about to install a TV antenna. A few quick questions: Should I do so drunk, pregnant or both? Should I try to eat the antenna? Should I throw the antenna at my spouse?


Answer: No, no and no. Read the instructions! (Consumerist, These Antenna Installation Instructions Are Surprisingly Specific)

3) Question: Why is there aquarium sand in my Jell-O box instead of pudding mix?

Answer: We are sorry to report that your pudding appears to be collateral damage in arguably the weakest and least lucrative fraud effort in U.S. history. (CBS News, Cops Say Couple Tampered With Pudding Mix for Refunds)

March 30, 2010 | Permalink | Comments (8)

Blonde Justice on the Most Random of Victim Statements

Blondejustice This week on the Blonde Justice blog (which I now recall I started following because I liked its name and its tagline, borrowed from Jay-Z's "H to the Izzo"), the anonymous Blonde Justice writes about an odd victim statement she witnessed in criminal court.

The defendant had been arrested for vehicular homicide after hitting a young woman. He had already pleaded guilty and was before the court for sentencing. The law permits a "victim statement" in such hearings, Blonde Justice writes, but here the victim had died and her family did not come to court. Instead of submitting letters from the family or simply making her own speech about the loss the victim's family had suffered, however, the prosecutor instead stated that she "would like to read something the victim had written prior to her death," which went something like this:

I like milkshakes, chocolate milkshakes are my favorite.
I took piano lessons in fourth grade, but I never got very good.
I want to paint my bedroom red.
If I ever get a tattoo, it will be a butterfly on my ankle.
I'll do anything for a chocolate chip cookie.
I have been to Disney Land twice.

According to Blonde Justice, the prosecutor had found a "Random Things About Me" list from the victim's Facebook or MySpace page that ran a hundred or so items long, and was rattling them all off to a very confused judge. The 60-something judge patiently listened until the prosecutor got to statements that the victim "preferred men with shaved or waxed chests" and that her "favorite class at the gym is stripper aerobics," at which point he angrily stopped the prosecutor and said he'd heard enough.

Blonde Justice says the lesson learned here is that maybe 10 random items are enough, and you need to "know your audience." I'd also add a variant of the maxim, “don’t say anything online that you wouldn’t want plastered on a billboard with your face on it.” Lawyers: Not everything people write online is intended to be shared with the world in court.

March 30, 2010 | Permalink | Comments (3)

Bitter Lawyer Talks to WSJ Law Blog's Ashby Jones

Ashby-Jones-colhed I'm a regular reader of the works of Ashby Jones, the head writer at the The Wall Street Journal Law Blog, and was pleased to see a nice profile of him on Bitter Lawyer last week. It also struck me that I could achieve a historic level of "legal blog navel gazing" if I could have Legal Blog Watch write about Bitter Lawyer writing about the Law Blog's Jones, and that was an opportunity I could not pass up.

In an interview published last Thursday, Bitter Lawyer provided some interesting details on Jones, who has been at the helm of the Law Blog for just over a year. Some of the highlights:

Jones attended University of Michigan law school and, after clerking for a nonagenarian judge on the 2nd U.S. Circuit Court of Appeals, went to work for BigLaw's Perkins Coie in Seattle. He practiced there for two years as a litigator, but after living through many awful document reviews he realized he wasn't enjoying himself and began looking for other alternatives. He decided to try journalism, and found a job at a small legal paper in Seattle. After a year at the paper, Jones was able to land a job in New York working at The American Lawyer in 2000.

Jones joined the WSJ in 2005, and was slated to edit a new online section devoted to law. Initially, he edited the Law Blog's original writer, Peter Lattman, and also wrote for the paper and for the Law Blog. In 2009, Jones took over as lead writer of the Law Blog.

His typical day will sound familiar to active law bloggers. He gets up early to scour news and identify fodder for the blog, then cranks out posts over the course of the morning. He finds it both exhilarating and exhausting, and says he is incredibly busy day-to-day. Jones says the jobs of lawyer and blog editor have their own pressures, but he particularly enjoys that when he goes home now, he doesn't have "stuff hanging over me and can wake up starting anew."

Read the entire Bitter Lawyer interview with Ashby Jones here.

March 30, 2010 | Permalink | Comments (3)

Allow the Awesomeness of This Supreme Court Citation Video to Wash Over You

I'm not sure there's too much to say about the academic work below, other than the fact that if you were a Ph.D. candidate at the University of Michigan, you, too, could be making videos about the "Development of Structure in the Citation Network of the United States Supreme Court" from 1800-1830. But you are not such a candidate now, are you? So you will continue to miss out on all of the fun, and can only sit back with the rest of us to admire this awesomeness from the Computational Legal Studies blog ("now in HD!"). Tron it ain't, but see if visualizing 200-year-old Supreme Court jurisprudence as an expanding Hoberman sphere does it for you, even without the 3-D glasses:

The Development of Structure in the Citation Network of the United States Supreme Court — Now in HD! from Computational Legal Studies on Vimeo.

March 30, 2010 | Permalink | Comments (1)

March 29, 2010

Craigslist Apartment with 'Four Spacious Bedrooms' Isn't Just Laughable, But Illegal

Courtesy of Mark Edwards, at the PropertyProf Blog, comes the revelation that a bunch of your friends are criminals. Because everybody knows someone who lives in New York and has three "really cool roommates." Unfortunately, The New York Times broke the news yesterday that more than three unrelated people sharing an apartment in the city is a no-no.

Well, maybe it's only worthy of a single "no," since the law is admittedly rarely enforced, despite the prevalence of the practice. I mean, who could fault someone for wanting to share this place with three perfect strangers?

An erstwhile New Yorker myself, I knew countless people who, at some point in their lives, found themselves in a similar living situation (though the closest I came was when one of my 1L roommates moved his girlfriend into our already far too tiny dorm room for a few months). It is, like the dude in the Times article said, "part of New York culture."

According to Jerilyn Perine, a former city housing commissioner quoted by the Times, New York City's roommates rule dates to the 1950s, "when the city balked at the number of sketchy single-room-occupancy buildings and their often equally sketchy inhabitants, and wanted boarding house brownstones to be converted back to family homes." (That process of conversion has its own problems. "A Meaningful Life," writer L.J. Davis' fictional 1971 chronicle of renovating a dilapidated Brooklyn brownstone -- kicking out its dozens of prior inhabitants in the process -- paints a grim picture of what we're talking about here.)

Edwards, a professor at William Mitchell College of Law who is guest blogging at PropertyProf, worries about the specter of selective enforcement. Are we worrying about a trivial legal issue to gin up material for an academic issue to write about at length? All I'm saying is let's all agree this is another one for the list of silly laws that they should just strike from the books before the next printing (which may result in your bedside lamp being a bit shorter) and just move on.

March 29, 2010 | Permalink | Comments (10)

N.D. California U.S. Attorney Nominee Has a Wayback Female Predecessor

It was big news when Quinn Emanuel decided to put Kathleen Sullivan's name on the proverbial door (and, quite possibly, an actual door; I haven't been in one of their offices in many years). I, for one, was surprised to discover that Sullivan was the first female name partner at an Am Law 100 firm.

A female U.S. Attorney is, thankfully, not necessarily news. But, I had a definite "Hmm. You don't say!" moment when I read the International Law Grrls' post about the new nominee to head up the Northern District of California's office. As I, and they, said, not such a big whoop that President Obama tapped a woman, Orrick partner Melinda Haag, for the spot.

The local news coverage of the nomination revealed that Haag, if confirmed, would not be the first woman to serve as the chief federal prosecutor in San Francisco. But the eyebrows went up a bit upon discovering when that trail had been blazed. Because it was back in the day when first priority might have been to enforce the Sedition Act.

Yes, the one prior female U.S. Attorney for N.D. Cal. was Annette Abbott Adams, who served from 1918-1920. How 'bout that? She couldn't necessarily vote, but was running an office full of gunners who could send your ass to the Pen for operating a speakeasy. Bravo, Annette, and bravo Woodrow Wilson for the appointment. Raise your hand if you love history.

March 29, 2010 | Permalink | Comments (2)

On Tap at SCOTUS Tomorrow: Crack, Booker and Resentencing

Tomorrow's Supreme Court calendar probably has this guy already in line with a couple of PowerBars and an empty milk jug.

One of the most anticipated cases to come up this term, at least to those interested in criminal law and sentencing, will be argued at 10 a.m. The case is Dillon v. United States, and at issue is the question of whether the federal sentencing guidelines are binding or only advisory when defendants who were originally sentenced before the decision in United States v. Booker are resentenced pursuant to 18 U.S.C. 3582(c)(2), after the guidelines applicable to the offense in question are changed.

The case is so rich with pregaming potential that even our friends at the Sentencing Law and Policy Blog didn't know what to write about it. Luckily Talk Left wasn't silent. And there's good local press from the Pittsburgh Post-Gazette to read up on before the argument.

Having glanced at the opinion below and the briefs (all available here from SCOTUSWiki), I believe it would be relatively easy for the Court to affirm. But, as noted by SL&P when cert was granted, this defendant has as good a set of facts as a defendant could hope for, and after being presented with countless similar cases, the Court agreed to take this one. So maybe we'll get a little surprise. Readers, feel free to play the Tenth Justice in the comments.

March 29, 2010 | Permalink | Comments (1)

March 26, 2010

Friday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

Zorrom&m 1) Question: I am a spheroidal, candy-coated piece of chocolate. If I wear a mask and carry a sword, have I violated Zorro's trademarks?

er: Zorro Productions seems to think so. We'll find out in court, I guess. (THR, Esq., Zorro Sues Over Masked M&Ms Character)

2) Question: I saw your earlier post about laws against putting permanent tattoos on your children, thanks for the heads up on that! Related question: Is it okay for me to bring my 13-year-old with me when I climb Mount Everest?

Answer: Hmmm, tough question. Can a 13-year-old "consent" to climb Mount Everest? (Legal Profession Blog, 13 Year Old Climbing Everest? More Than Just Bad Parental Judgment?)

3) Question: I am a speed vigilante. No, I am not a policeman or anything, but I do own a black Ford Crown Victoria that I have equipped with lights and a siren. Now I can just flip the lights and siren on, pull people over as needed, and admonish them to slow down. Win-win, right? Fun for me, safer community for all?

Answer: No, no, no. You cannot create your own police car. And eventually, you are going to pull over an off-duty police officer who will not be amused. (AP, AZ Man Convicted of Pulling Over Off-Duty Officer)

March 26, 2010 | Permalink | Comments (3)

Philly Woman Looking for World Series Tickets Convicted for Attempted Prostitution

In the end, it was a good thing, "just one of those things that brings people closer together," Jack LaVoy said.

That's not the usual spin that a husband would put on his wife being convicted for "attempted prostitution" in an all-out effort to obtain Phillies' World Series tickets, but I guess we'll have to take his word for it.


As previously discussed here, during the Fall Classic between the Yankees and Phillies last October, Susan Finkelstein was arrested for allegedly offering undercover police sex for tickets. Earlier this week, a jury of seven women and five men found her not guilty of prostitution, but guilty of attempted prostitution. She faces a maximum one-year sentence on the third-degree misdemeanor.

Her attorney called the conviction "a half a stair step above a traffic ticket" (and I guess a half a stair step below actual prostitution? One and a half stair steps?). He maintains that Finkelstein is "goofy. She's eccentric. She got nuts with an epidemic case of Phillies Fever. But she's not a prostitute."

March 26, 2010 | Permalink | Comments (3)

Robo-Warranty Call Culprits Now Feeling the Pain from FTC

I am greatly enjoying watching the government and private attorneys rain down on some of the companies that have personally crossed my path with their obnoxious ways. Check!  Annoying-as-hell company that kept calling my cell phone a couple years ago to tell me that "The factory warranty on your car expires soon! We can help!"? Check!!

Donotcall According to this post on the Law and Disorder blog, these "warranty" callers misrepresented that they were affiliated with car companies or local dealers and that they were offering legitimate extended warranty products. They also reportedly ignored the "Do Not Call" laws and dialed "just about everyone in the country -- over and over -- including 911 operators." Some warranty robo-dialers supposedly just started with the phone number 111-111-1111, went up by one number each call until they hit 999-999-9999, and then started over!

In 2009, the Federal Trade Commission brought numerous cases in this area, which are now starting to reach conclusions. This week, the FTC settled a case against James Dunne, head of a company called Voice Touch Inc. that connected telemarketing companies with the actual dialing companies that marketed these "warranties" to people. To make a long story short, Dunne's second home in Florida, a Lexus sedan and a Porsche 911 are all being liquidated now, and he has agreed to pay back the proceeds from these sales, plus $655,000. Law and Disorder reports that Dunne also agreed to be barred from working in telemarketing and to assist the FTC in its ongoing case against other companies and individuals.

March 26, 2010 | Permalink | Comments (0)

Anti-Law School Blogs Seek to Keep Others from Making 'Same Mistake We Did'

It has taken me a while to realize the scope of this, but I now see that there is a good-sized army of young lawyers who have taken to the blogosphere with a common mission: to alert any wannabe lawyers out there to the futility of such a decision. As the Big Debt, Small Law blog puts it, it is the beginning of a "quiet rebellion:"

We prefer not be crammed elbow to elbow in document review gulags for less money than an ex-con gets paid to stamp holes in sheet metal. We prefer not to run around toilet courts and haggle over $500 whiplash cases for 45 K a year and no health benefits. Our sole purpose is to dissuade, deter and prevent more hapless lemmings from repeating the mistake of law school. Law has no rewards. Instead of pots of gold, you'll find only piles of sh*t.

Nolawyers BDSL is hardly alone in this. Exposing the Law School Scam states a similar mission: to expose the "dramatic oversupply of lawyers, and how that oversupply has been caused by bogus employment and income/salary statistics used by most law schools to induce applicants to apply to law school." A typical post this week on ELSS noted that while employers are running ads on Craigslist offering plumbers $50 just to go interview, "job ads for lawyers want you to work for free" or perhaps $10 per hour. "Lawyering is not where the demand is," ELSS advises. "We are trying to help you, to keep you from making the same mistake we did."

Some other members of the growing "scamblogger" coalition, which seeks to deter you from going to law school:

March 26, 2010 | Permalink | Comments (40)

March 25, 2010

Intrastate Fights Over Healthcare Legal Challenge

The blawgs have, obviously, been chock full o' stories on the passage of the health care bill and the lawsuits challenging its constitutionality that began rolling in literally within minutes of the President's signing it into law. Here's a link to the WSJ Law Blog post on the suit by several state attorneys general, as just an example.

But there hasn't been a lot of focus on the internal political rifts that seem to be muddying the waters in at least a couple of states as to whether they wish to participate in the challenge. In Nevada, the attorney general is resisting the governor's demands to hop on the bandwagon. And in Michigan, vice versa.

In both cases, the question is the same. Is the governor the client, and the AG ultimately subject to his or her demands? Or does the AG, as the state's chief legal officer, have some room to exercise independent judgment.

In Nevada, AG Catherine Cortez Masto, responding to Governor Jim Gibbons, played the old Rule 11 card -- "I ain't signing it if I don't believe it." And in Michigan, Governor Jennifer Granholm used AG Mike Cox's own prior words against him, quoting him as having previously said to the press: "And any case where the state of Michigan is being sued or a state agency is being sued, she's the boss, she's the client. Unless it is clearly unconstitutional, I am obligated to do what she [Governor Granholm] says."

Should be interesting to watch this play out as the legal wrangling continues.

UPDATE:The governor of Washington, Chris Gregoire, is also none too pleased with her state AG's decision to join the suit. Maybe she should attend his presentation tomorrow at Washington State University, where he'll be explaining it as part of the "Coffee & Politics" lecture series.

March 25, 2010 | Permalink | Comments (5)

From the 'Really, You Couldn't Wait?' Files

The combination of modern technology and moving vehicles has resulted in some new laws being passed and enforced. You got your texting bans, your hands-free phone requirements, now even calls to ban the police themselves, as well as EMS and fire department personnel, from using onboard computers.

Most of these activities, though, are only a problem when it's the driver who's engaged in them. How could a passenger's use of gadgets present an issue?

Here's how. You could be watching the "Hot and Saucy Pizza Girls" DVD in the backseat. And a state trooper could just happen to be driving in the lane next to you and notice this. If this happens, at least in New York, you'll apparently be charged with Public Display of Offensive Sexual Material.

It's just a misdemeanor, so I wouldn't worry about jail time. And you'll have your supporters who, misunderstanding the statute, argue that it's more properly applied to "horny couples deciding to bang in a store front." That sounds more like Public Lewdness to me. But, really, you couldn't wait?

First journalist to get an interview with the driver of the vehicle -- drinks are on me.

March 25, 2010 | Permalink | Comments (0)

Mardi Gras Indians Seeking Copyright Protection For Outfits

Kip Currier's Copyright Blog linked to -- or, rather, reprinted in full (irony?) -- a New York Times article about Mardi Gras Indians who have decided they're tired of finding images of themselves, clad in their traditional elaborate outfits, on calendars, posters, coffee mugs and other assorted tchotchkes, without getting any cash.

So, with the help of attorney Ashlye M. Keaton, they've been registering copyrights in their flashy suits. The experts quoted in the Times article seem lukewarm, at best, about the potential merits of any copyright infringement claims against people who use photos of the Indians all decked out.

Clothing is generally considered a "useful article" not subject to copyright protection. The suits manufactured and worn by the Indians, though, certainly challenge the traditional notion of clothing.

And here I thought a mushroom jacket was the epitome of style.

You can't deny the fact that an incredible amount of effort must go into designing and producing these costumes. But, where photos are concerned, is a copyright properly vested (pun sort of intended) in the outfit, or in the photo itself?  Should the Indians be entitled to a piece of any profits derived from commercial use of images in which they're featured?

March 25, 2010 | Permalink | Comments (1)

Defense Department Announces Interim 'Don't Ask, Don't Tell' Revisions

Defense Secretary Robert Gates is holding a press conference today to announce revisions to the U.S. military's "Don't Ask, Don't Tell" policy. These revisions are a stopgap measure while the Pentagon continues a study on the repeal of the ban on openly gay service members, which can only be accomplished by Congressional action.

The new rules will require that a high-ranking officer -- a General or Admiral -- must be involved in initiating any action against a soldier suspected of violating the ban, and will increase the evidentiary burden in those cases.

On Tuesday, the Center for American Progress issued a report arguing that a full repeal should not be all that hard to accomplish. Of course, there are still military higher-ups who apparently believe that allowing openly gay soldiers might result in large-scale genocide. So speeding up the process might not be feasible.

It's been almost two years since the 9th Circuit's decision in Witt v. Department of the Air Force, where the panel held that DADT dismissals were subject to intermediate scrutiny. Gay rights advocates are of the opinion that the decision has had little to no effect on the standards actually applied by the military.

March 25, 2010 | Permalink | Comments (0)

March 24, 2010

Wednesday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

911 1) Question: I think I've come up with a way to beat the system. I just got arrested after an altercation with a taxi driver and they've given me one phone call. What if I use it to call the "9-1-1" emergency line and tell them I'm trapped inside the detention center? Brilliant, right?

No, ma'am. That will only lead to further charges. Please call someone else. (Naperville Sun, 'Trapped' by Police, Woman Calls 911) (via Legal Juice)

2) Question: I saw your earlier post about the costs and benefits of "flipping off" the police, but I feel like my "middle finger" case is much more nuanced. Are there any scholarly reference materials on the subject to which you can refer me?

Answer: Of course! (Ira P. Robbins, Digitus Impudicus: The Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403 (2008)) (via The Volokh Conspiracy)

3) Question: Quick question before I head out of state in my brand new 2010 Camaro filled with my new wardrobe, new laptop and a giant wad of cash: If I see a mysterious $230,000 show up in my checking account, I can spend that, right?

Answer: No can do! (Anchorage Daily News, Fisherman's $230,000 Windfall Earns a Trip to Jail) (via Consumerist)

March 24, 2010 | Permalink | Comments (1)

Video: Carolyn Elefant on the Impact of Blogs on Solo and Small Firm Lawyers

Back in December, I helped mark the 7th birthday of the My Shingle blog with this video interview of its founder (and Legal Blog Watch alumna), Carolyn Elefant. In it, Carolyn reflected on her relatively long tenure in the legal blogosphere and the many things she has learned along the way.

This week, Carolyn published this post with a video from a related presentation she delivered in December as part of Northwestern Law's Fourth Annual Judicial Symposium on Civil Justice Issues, where she appeared alongside bloggers Mark Herrmann and Eugene Volokh.

Carolyn's remarks in the video focus on the impact blogging has had in the world of solo and small firm practitioners, an area that she says was under the radar of most legal media when she started out. She comments on some of the trends she's seeing in this area, and the role that blogging can play in improving the quality of legal services that solo and small firm lawyers provide to clients. Check out the video below:

March 24, 2010 | Permalink | Comments (2)

Octogenarian Sisters Square Off Over Question Ripe for Contracts 101

Powerball I've been keeping an eye on the Law and Magic blog (because, well, it's a blog about law and magic!), and learned in this post about the crazy story of two octogenarian sisters from Connecticut who squared off against each other yesterday in New Britain Superior Court. Here are the facts as reported by the Associated Press, which will surely appear as a question in a law school Contracts 101 exam sometime soon.

Rose Bakaysa and her younger sister Theresa Sokaitis were two of nine siblings, and had always shared a special bond. As they hit their 70s and 80s, a big part of their connection centered around their dream of "jackpot riches." They shared lottery ticket purchases and went to casinos together. For years, however, lady luck avoided these gals.

Then, in 1995, Sokaitis won $165,000 playing poker at Foxwoods casino while her sister was on the slots nearby. Sokaitis testified this week that she intended to split it evenly with Bakaysa and ultimately gave her about $64,000. This big haul led the sisters to draft a written, notarized contract in which they agreed to split all future winnings equally between them.

Nine years later, in 2004, the sisters had an argument over a loan of a couple hundred dollars. "I don't want to be your partner anymore!" Sokaitis shouted. Bakaysa tore up her copy of the contract.

All of this was a prelude to 2005, when Bakaysa and her brother Tony won a $500,000 Powerball jackpot. Bakaysa gave $10,000 of her share to Sokaitis' daughter, after which Sokaitis called her sister to say that she, too, deserved a share of the money. Sokaitis testified that she said, "I have a contract," but Bakaysa replied that she had torn up her own copy and Sokaitis would not "get a dime." Sokaitis' lawsuit followed.

As if the facts above weren't great enough for a contracts exam question, the case is further complicated by the fact that (a) brother Troy, not Bakaysa, bought the winning ticket, and (b) Connecticut law makes gambling contracts illegal (which led the lower court to dismiss Sokaitis' lawsuit seeking her share). The Connecticut Supreme Court subsequently ruled that the sisters' agreement wasn't covered by that law because it involved legal activities, and said the case could proceed to trial. The AP reports that a ruling is expected in the next few months.

In short, this case has just about everything. But I do have one question for the Law & Magic blog: Where's the "magic?"

March 24, 2010 | Permalink | Comments (0)

Enter the U.S. Supreme Court Tweet Contest

Via this post on Bob Ambrogi's LawSites, I discovered a creative contest being organized and promoted here by Daniel A. Schwartz's Connecticut Employment Law Blog. The challenge? "Summarize, comment on, or write something pithy" on any Supreme Court case in a single "tweet" on Twitter.

Schwartz offers a couple of examples:

* Brown v. Bd of Ed: Remember Plessy v. Ferguson? We don't know what we were thinking. Yes, separate schools are inherently unequal #cbftech

* What would Law & Order be without its most common phrase "You Have the Right to Remain Silent"? Thank you Miranda v. AZ #cbftech

Schwartz says the best Supreme Court-themed tweet will receive a modest prize of some kind, and that many of the top entries will be shared at the upcoming Connecticut Bar Foundation's Technology Symposium.

Here are the basic instructions to participate:

  • Your entry must be posted on Twitter.
  • Your entry on Twitter must include the hashtag of #cbftech, so that it can be tracked.
  • You may enter as many times as you'd like.
  • The deadline is midnight of April 2, 2010, and the winner will be announced at the symposium on April 9, 2010.

To see what has already been submitted in the contest under the #cbftech hashtag, including my own effort to tweet Bush v. Gore, check out the widget below.

March 24, 2010 | Permalink | Comments (0)

March 23, 2010

9th Circuit (Eventually) Rules Inmate's Hands Not a Dangerous Weapon

One great thing about having the dual advantages of lifetime tenure and a cadre of clerks at your command is that you can feel free to wax poetic -- or rhapsodic, depending upon your nature -- about things that the man on the street wouldn't spend a lot of time debating.

Lowering the Bar, with its usual flair, brings us a recent example from the 9th Circuit. In United States v. Rocha (PDF), the court reversed a federal inmate's conviction for assault with a dangerous weapon. Because it was undisputed that he used nothing but his bare hands in the attack at issue.

Sounds like the right decision. So how could the court have taken nine pages to get from point A to point B? As follows:

Well, we could first discuss our "multi-faceted test for determining whether an object is a dangerous weapon," although the defendant was not holding any objects whatsoever. We could then engage in a lengthy review of cases finding that "objects that have perfectly peaceful purposes may be turned into dangerous weapons and that such use may be punished under the federal assault statute." Those cases all seem to make perfectly good sense, except for an Eighth Circuit decision that sneakers are a "dangerous weapon" if used to kick somebody, which is stupid, but they still don't have anything to do with this case.

We would then regale readers with a review of possibly every case in the United States that has dealt with "whether body parts can constitute dangerous or deadly weapons for purposes of ... assault and battery statutes."

Tongue in cheek though it might be, that description is pretty accurate. It's a long, thorough discussion of an issue that seems to call for nothing more than common sense. To be fair, some of the cases reviewed and cited by the court did manage to conclude that body parts can constitute weapons. Of course, as pointed out by LtB, none of those cases were binding on the 9th Circuit.

LtB did offer up one potential reason for the expansive treatment of a seemingly simple issue:

The opinion was written by Judge Jay Bybee, who along with his former compadre John Yoo has had some trouble in the past with what seemed like common-sense definitions, like whether something qualifies as "torture."

Oh, snap.

March 23, 2010 | Permalink | Comments (1)

A 'Burning Legal Question' Answered Elsewhere

Apparently, my colleague Bruce doesn't have a monopoly on providing answers to the legal questions that are keeping blawg readers up at night.

I don't know what Bruce knows about tax law, but TaxGirl sure seems to have the skills to answer all your basic tax queries. And kind soul that she is, she welcomes them via e-mail. Today's question must have been on the minds of millions of people across the country, but one brave American had the guts to come out and ask it:

Taxpayer asks:

Hi taxgirl, I know this is a weird question but could the IRS take Sinbad's money from “Celebrity Apprentice” if he had won? He didn't win because he got fired. But I wanted to know. Thank you.

Ah, the old reality show winnings back taxes hypothetical. Classic. Pretty sure that was on my final exam back in the day.

I, like TaxGirl, had no idea Sinbad was on "Celebrity Apprentice," but was aware that the IRS had deemed him a naughty, naughty boy for his failure to pay taxes dating way back to 1998, or what I like to call the "Immediately post-Good Burger era."

TaxGirl says the IRS likely couldn't have reached "winnings" from the show, since they go straight from the Donald to the charity of the winner's choice, even though the last celeb standing gets the honor of presenting the check. However, any "appearance fee" Sinbad got for the show -- and he apparently gets one even though he lost -- would be ripe for the taking.

As for Sinbad, I don't know if it can be attributed to his IRS issues, but he apparently has already decided not to appear on "Dancing with the Stars." So there's one less source of funds to satisfy the lien.

March 23, 2010 | Permalink | Comments (1)

Chamber of Commerce Releases Annual State-by-State Lawsuit Climate Report

As reported on the Blog of Legal Times, yesterday, the U.S. Chamber of Commerce's Institute for Legal Reform released the results of its annual survey of the "lawsuit climate" in each of the 50 states. According to the survey, West Virginia has the worst lawsuit climate in the country, while, shocker, Delaware has the best.

West Virginia's poor showing, something it has gotten quite used to over the years, was again largely attributed to its unique status as the only state with no intermediate appellate court, and thus no automatic appeal rights from the decision of a trial court. A bill to establish an intermediate appellate court died in committee earlier this month.

Along with the report, the chamber rolled out a new advertising campaign, entitled "Jobs, Not Lawsuits." The ads, some of which will be shown at movie theaters during previews, feature small business owners talking about how their businesses were ruined by frivolous lawsuits. I caught this one on TV last night:

The survey was administered to "in-house general counsel, senior litigators or attorneys, and other senior executives who are knowledgeable about litigation matters at public and private companies with annual revenues of at least $100 million," and respondents were asked to rank only those states with whose "liability systems" they claimed to be familiar.

Respondents were also asked to cite the reasons they had negative opinions of certain jurisdictions' legal climates, and the overwhelming top response was bias on the part of judges or juries.

The organization formerly known as the Association of Trial Lawyers of America issued its own press release criticizing the survey's methodology, to put it kindly:

The survey relies on the opinions of corporate defense attorneys that profit when they shield their corporations after injuring American consumers, and is bankrolled by companies like AIG, which gave nearly $25 million to the Chamber in the last decade to sit on its board of directors.

All of this "data" will give me lots to think about before I conclusively decide where to open my new Drive-Thru law office.

CORRECTION: Thanks to Sue for pointing out in the comments my inartful draftsmanship of the second paragraph above. West Virginia is most certainly not the only state without an intermediate appellate court. It is often cited as the only state that does not provide losing parties, even criminal defendants, an appeal as of right. Though New Hampshire had sometimes been slapped with that dubious distinction as well, reforms in recent years have resulted in a process whereby the New Hampshire Supreme Court accepts mandatory appeals. Apologies for any confusion.

March 23, 2010 | Permalink | Comments (2)

Ann Coulter Gets a Preemptive Lesson in Canadian 'Freedom of Speech'

Love her or hate her, you can't deny that Ann Coulter, cable news show darling and Weekly Hot Conservative for September 12, 2009, has a talent for getting attention.

Some of that attention this week has come from north of the border. In advance of a mini-Canadian tour of speaking engagements, Coulter received an e-mail from the provost of the University of Ottawa. Francois Houle said he was pleased as punch to have Coulter come and speak today at the invitation of the school's campus conservative organization, as long as she didn't say anything that might be construed as "promoting hatred against any identifiable group."

Uh, Monsieur Houle, have you met Ann Coulter? Houle did his Canadian best to be polite, and couch the e-mail as a friendly reminder that things up in Mountieland are just a bit different than they are down here:

I would, however, like to inform you, or perhaps remind you, that our domestic laws, both provincial and federal, delineate freedom of expression (or "free speech") in a manner that is somewhat different than the approach taken in the United States. I therefore encourage you to educate yourself, if need be, as to what is acceptable in Canada and to do so before your planned visit here.

Annnnnd, if you aren't careful, your words "could in fact lead to criminal charges," eh.

The e-mail is reprinted in its entirety in the National Post. Professor William A. Jacobson at Legal Insurrection called the e-mail "a paradigm of intolerance of opposing conservative viewpoints under the guise of promoting freedom of expression." The Student Federation at U Ottawa actually passed a resolution expressing their disapproval of Coulter's appearance, beginning with a "Whereas" clause for the ages: "Whereas Ann Coulter is a hateful woman ..."

Coulter, at first, displayed a sense of humor about the whole thing, saying she was hoping for a fruit basket, rather than threats of prosecution. But in her speech last night at the University of Western Ontario, she decided to change course, declaring her intent to file a grievance with the Canadian Human Rights Commission, on the ground that Houle's e-mail to her was, itself, "a hate crime."

Coulter has had some choice words to say about Canada in the past, including that the country is "lucky we allow them to exist on the same continent." So perhaps Houle's warning was just a bit of sour grapes.

It seems Coulter made it through Monday's appearance without being cuffed and thrown onto the back of a horse for the trip to jail, but it will be interesting to see how the rest of the trip turns out. If nothing else, I look forward to Coulter's cover version of the Ice-T classic "Freedom of Speech (Just Watch What You Say)."

March 23, 2010 | Permalink | Comments (2)

March 22, 2010

Monday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

1) Question: We'd like to drive our Stripper Mobile around town to drum up business for a strip club. Is that alright?

Yes, but make sure to stay out of the neighborhoods until after 10 pm and no simulated sex acts! (WTSP, Stripper Mobile Back on the Streets)

2) Question: The guy next to me for jury duty says he is going to wear his Ku Klux Klan robes to court if he is picked. How will that possibly work?

Answer: It won't.  (AP, Indiana Ku Klux Klan Leader Gets Out of Jury Duty)

3) Question: I'm headed back through customs after a trip to the Philippines. All I bought there were a few packs of iced tea from a grocery store. Do I have to declare this?

Answer: Yes, and declare it really loudly because sometimes both the guard dogs and the "presumptive swab" test will mistake lemon-flavored iced tea for the narcotic methylamphetamine and you'll get thrown in jail for several days until the real test comes back negative. (The Age, Drug Accused Woman Freed After Substance Found to Be Iced Tea)

March 22, 2010 | Permalink | Comments (0)

After a Decade, U.S. Supreme Court Finally Revamps Its Web Site

Anyone who spent time on the U.S. Supreme Court's Web site over the past few years would probably agree that it was outdated and lacked many features that would be useful to lawyers and other users. As discussed on WisBlog on Friday, the Court rolled out a new Web site last week that, while not a dramatic move toward Web 2.0, finally brings a much-needed update.

Indeed, for nearly a full decade, the Court's site appears to have gone virtually unchanged, and offered very little in the way of features. The always-fun Internet Archive Wayback machine shows that between 2000 and 2008 (the last available date), the Web site changed the look of a few icons but not much more:



A few tweaks here and there, et voilà, 2008:


As of last week, however, the new site offers an updated and more user-friendly design. In a press release last week, the Court also highlighted the new site's enhanced search capabilities, an interactive argument calendar, improved graphics and additional historic information, and added that additional updates and features would be coming over time. Below is a screen shot of the new site. Click on the image to explore it for yourself.


March 22, 2010 | Permalink | Comments (0)

Sponsored Tweets Reach the Legal Profession

I write for plenty of publications, including my own, that have sponsors and ads that hope to grab readers' attention. For that reason alone, it would be hypocritical of me to come down hard on anyone who is successfully selling and publishing ads.

Sposoredtweets That realization, however, has so far not kept me from at least marveling at a development from the Twitter world involving a recent law school graduate named Rex Gradeless. Over 76,000 people out there who follow Gradeless on Twitter may also know him by his Twitter username, "@Rex7." As pointed out here by Scott Greenfield on his Simple Justice blog, Gradeless appears to have found a way to monetize his massive following on Twitter through a service called Sponsored Tweets, which hooks "Tweeters" like Gradeless up with advertisers who want to reach their supposedly vast audiences (although as discussed here, a person's numbers of Twitter followers can be a pretty meaningless figure). This new age meeting of supply and demand resulted last week in what may well be the first "sponsored tweet" from a lawyer. On March 18, Gradeless sent out the following message to his Twitter followers:

when was the last time you tried one of Tony's Crispy Crust Pizzas? - get one today! #mmm #TonysPizza #ad

I flipped quickly through the list of "celebrity" tweeters offering Sponsored Tweets and didn't see any other lawyers, but I may have missed some. Mainly it was people like Audrina Partridge from MTV's "The Hills" (who charges $2,353 per sponsored tweet), NFL cornerback Champ Bailey ($352 per tweet) and Kim Kardashian (apparently so shockingly high per tweet that you must "call" to get a quote). Gradeless is looking for $174 per tweet, which puts him somewhere between Oscar-winner Marlee Matlin ($217/tweet) and "former NFL star Tony Mandarich" ($58/tweet).

March 22, 2010 | Permalink | Comments (4)

Breaking Down the Types of Crummy Criminal Defense Attorneys

Over at Ken Lammers' CrimLaw blog, he notes the recent flurry of discussion about incompetent attorneys who have a knack for somehow keeping their clients quite happy even while they are walking them "right off the plank and into the ocean." Lammers says this type of lawyer is well known in criminal defense circles, and he takes a shot at breaking down the different types of lawyers who fit this description, including:

  • Sturm und Drang: Lammers says this guy (women, too?) has figured out that the best strategy for attracting clients is to be loud and confrontational at all times, with no give on any issue. This lawyer is not concerned that "the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client" as a result, since 50 percent of the people in the gallery are wowed by his fighting and it brings him business and big fees.
  • The Only: This guy is one of only two lawyers who have done criminal law in the County for the past 20 years, and has represented "entire clans - grandfather, fathers, sons, grandsons & granddaughters - as each generation makes it's way into court and on to jail." People come to him without even thinking about it. He's been doing it for so long "he must know what he's doing," even if he doesn't.
  • Miss Empathy: She makes illogical arguments in court and to prosecutors because she is convinced all of her clients "didn't really mean to do it." The problem is, Lammers says, that she has "believed it for the last 300 clients just as strongly and nobody trusts her judgment." At the end of the trial she'll be more upset about the adverse ruling and jail sentence than Mom is, which only makes her clients love her more.
  • MegaFirm International: Big shot from BigLaw whose "hair styling alone ... cost more than the combined value of the suits of all the trial lawyers in the room." Has his high-priced associates research all the shoplifting laws in the entire U.S. for the past 20 years instead of simply walking over to the prosecutor and asking that the first time shoplifting offense be taken under advisement for six months and dismissed after shoplifting classes and 50 hours community service. The client still loves that he found an obscure case that would have been helpful precedent, had the judge been remotely interested in such research.

Lammers nails several other crummy lawyer-types in his post, and more are being offered up in the comments section to the post. Read the entire post here.

March 22, 2010 | Permalink | Comments (1)

March 19, 2010

Casemaker Upsets LoisLaw in Low-Cost Provider State Case Law Tourney

At 3 Geeks and a Law Blog, Greg Lambert has crowned Casemaker king of the second tier when it comes to state case law content.

Lambert's competition started with a field of four: Casemaker, Fastcase, Google Scholar and LoisLaw. (He excludes the top-tier triumvirate of LexisNexis, Westlaw and Bloomberg Law, which he dubs "Wexisberg.") Lambert says he expected Loislaw to come out on top. But he found Casemaker to have better coverage, as measured by overall percentage of state case law available:

Some commenters have already criticized Lambert's methodology for assigning too much importance to old cases. But he cops to being a believer in the theory that "it is better to have it and not need it, than to need it and not have it." Amen.

Last year, Bob Ambrogi reviewed Fastcase and Casemaker head-to-head, and gave Fastcase the advantage. And Casemaker didn't take it lying down. Presumably the Casemaker folks will be popping the champagne corks today. Congrats.

March 19, 2010 | Permalink | Comments (3)

Prosecutors Investigating Racist Walmart Announcement

Sunday night, some yahoo got on the PA at a Walmart store in Washington Township, N.J., and made the following announcement: "Attention, Walmart customers: All black people, leave the store now." It is still unclear whether the gentleman was an employee or a customer who got access to one of the dozens of PA-enabled phones in the store.

Now, the Gloucester County Prosecutor is apparently investigating whether a bias crime was committed. My very quick perusal of the New Jersey criminal statutes tells me the potential crime being investigated likely couldn't be anything more serious than harassment. But harassment is one of the offenses that can be ratcheted up to bias intimidation if the targets are selected based on race.

Assuming they can figure out who made the announcement and track him down, does he get charged? Is he convicted? Does he plead out? Does it matter whether it was an employee or not? Is it much ado about nothing and a waste of taxpayer resources, as many commenters seem to believe?

March 19, 2010 | Permalink | Comments (2)

9th Circuit Affirms Dismissal of Case About Autistic Child Locked in Closet

We're all lawyers here, and understand that sometimes you have to jump through a hoop or two to get things accomplished, even if you might have a legitimate beef. But sometimes, you read about a court opinion that makes you say, "Seriously?"

That was the reaction of the folks over at the Section 1983 Blog when they came across the opinion in Payne v. Peninsula School District, released by the 9th Circuit yesterday. The case is about a parent (named "Windy Payne"; I was suspecting that was a pseudonym, like a "Jane Doe" for the 2010s, but it looks like it might really be her name) who didn't particularly like the Individualized Education Plan implemented pursuant to the Individuals with Disabilities Education Act (IDEA) for her 7-year-old autistic son by the local school district.

Largely because it involved routinely locking him in a closet-sized "safe room" until he messed his drawers. Ah, yes, the Mike Leach method of special education. Two of the judges on the panel agreed with the district court that it had no jurisdiction over the claims because Payne had failed to exhaust administrative remedies under the IDEA. To do so, they had to endorse the idea that locking the kid up was legitimately part of an educational strategy. Not necessarily a wise part, but a part nonetheless. Judge Noonan, in dissent, saw it as more akin to "a return to the bleak black days of Dickensian England," with a bluebook-perfect cite to Oliver Twist.

The 1983 Blog post is not all about outrage, but also legitimate confusion. I concur with the observation that the opinion is less than clear as to whether there are Section 1983 claims separate and apart from the IDEA claims; the majority's bare reference to claims that the policy was "unconstitutional" don't shed much light. However, the long list of things I'm not an expert on includes Section 1983 and IDEA. Anyone else care to weigh in?

March 19, 2010 | Permalink | Comments (3)

'I Know You(Tube) Are, But What Am I!': SJ Briefs Unsealed in Viacom Case

Yesterday, the Southern District of New York unsealed the dueling summary judgment briefs in the mega-copyright case of Viacom v. YouTube. And the blawgers are abuzz.

Eric Goldman at the Technology & Marketing Law Blog has a very thorough breakdown of the arguments, pulling out some choice highlights and even giving readers handy page references. Some examples: YouTube takes Viacom to task for not even being able to keep track itself of which clips it had authorized for posting and which it hadn't and exposes in some detail Viacom's use of a boatload of marketing firms to "stealth upload" clips, even making them look degraded in quality. To avoid being traced, Viacom apparently sent its own employees to Kinko's to upload clips to YouTube.

For its part, Viacom did a decent job in getting some juicy material in discovery. Like the fact that one of the founders of YouTube, Jawed Karim, was scolded by his colleagues for uploading pirated material himself. And that YouTube management estimated that 75-80 percent of the site's content was unauthorized. Oh, and that YouTube personnel referred to their baby as a "video Grokster." Eesh.

Big picture, Goldman observes that the briefs "largely talked past each other," since YouTube's brief is focused on the here and now, while Viacom's attacks are soooo 2006. Based on his reading, it sounds like YouTube got more bang for its buck -- and I'm sure parent company Google spent quite a few of them -- out of the briefing. Goldman's post is well worth checking out if you're a Digital Millennium Copyright Act junkie. Or if you're just really concerned about the continued online availability of those lost "South Park" clips.

Over at Ars Technica, Nate Anderson has a pretty comprehensive post on the briefing as well. He explores the allegations, or at least intimations, that YouTube and Google might have been involved in some funny business as regards preservation of e-mails and documents. One of the YouTube founders, Chad Hurley, claimed to have lost all his e-mails, and when presented at deposition with copies retrieved from Karim's personal files, was stricken with "serial amnesia," an allegation apparently supported by the attachment of 140 pages of his deposition transcript to an affidavit.

Finally, at the Legal Satyricon, Marc John Randazza, after parsing the papers, describes the parties as follows:

Viacom looks like a scorned lover smashing up Youtube’s car up after their failed Youtube buyout and Youtube looks like an prick purposely trying to induce copyright infringement in brazen Napster/Grokster fashion.

The Carrie Underwood link is Randazza's. I swear. 

Here are links to both Viacom's brief (67 pages, PDF) and YouTube's brief (not to be outdone, 100 pages even!, PDF), for those of you who like to go right to the source. Now that this fight is taking place out in the open, we can all look forward to watching the fireworks.

March 19, 2010 | Permalink | Comments (1)

March 18, 2010

Thursday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

1) Question: A plane crashed into my house while I was sitting in my living room! I'm still in a state of shock. Is there anything I should be doing or watching out for?

For one thing, make sure your lawyer doesn't miss the one-year statute of limitations for cases about planes crashing into houses. (Legal Profession Blog, Plane Hits House, Attorney Misses Statute Of Limitations)

Paperclip 2) Question: I just found out my dentist was charged with inserting paper clips in patients' mouths during root canals instead of stainless steel surgical posts. Is this going to be a problem?

Answer: It definitely will be a problem for your dentist if he's been charging Medicare for stainless steel surgical posts, which costs a bit more than paper clips. We're not really sure on whether it will be a problem for you. Perhaps you could pose your question to Dental Blog Watch? (The Herald News, Former Fall River Dentist Accused of Using Paper Clips in Root Canals) (via Bad Lawyer)

3) Question: I'm really dreading breaking up with my girlfriend, but I know I have to do it. Any ideas on how to do this as painlessly (for me) as possible?

Answer: Have you considered having your lawyer deliver the break-up news for you? That seems to be a new practice area. (Lowering the Bar, Greg Brady's Girlfriend Claims He Had His Lawyer Break Up With Her)

March 18, 2010 | Permalink | Comments (3)

Should I Scrap My Law Blog and Start a New One?

Delete Throughout more of the blogosphere than you might expect, a question appears to be percolating: Should I shut down my current blog, make a clean break, and start anew with another? Well-known bloggers such as Bob Ambrogi are asking that question. So is Venkat Balasubramani. And so is Ron Coleman.

Why the urge to purge? Ambrogi says he started his LawSites blog back in 2002 as an adjunct to his book, The Essential Guide to the Best (and Worst) Legal Sites on the Web. As his blogging interests have broadened through the years to things like media law and technology law, however, he feels that "the name LawSites no longer reflects what I want my blog to be."

Similarly, Balasubramani has been blogging at Spam Notes for about 3-and-a-half years on spam-related legal issues. His interests and his law practice have broadened well beyond the spam arena, and he, too, is wrestling with the question of whether to scrap Spam Notes and launch a new blog. In this post Balasubramani lays out in detail some of the pros (branding; chance to move to a better platform; fresh start with no baggage) and cons (loss of "google juice;" loss of subscribers/regular readers during the transition) of scrapping his current blog.

In response, Kevin O'Keefe of LexBlog offers the following advice to people wrestling with this question: "Keep the blog, make it your leading Internet presence (web site would add zero), change your focus so not so lawyer to lawyer (listen to and engage others), and upgrade to another platform."

Kevin says the importance of the actual name of the blog is "overhyped." He suspects 90 percent of the readers of his popular blog wouldn't even know the blog's name (which happens to be "Real Lawyers Have Blogs"). Rather, he says, his name is his brand, "not the name of my blog. That's the case for any professional - especially lawyers."

March 18, 2010 | Permalink | Comments (4)

Is Faxing Dead? No, Just Different

Firstfax The rollout of the fax machine in the 1980s was revolutionary. Instantly sending pieces of paper through the ether to another person on the other side of the country or the globe? It blew our minds for a while, and then became an indispensable part of every office. (Check out this photo of what is said to be the very first fax machine, used by a post office in Europe in 1979).

But in 2010, has the fax become a relic of the 1980s, like "big hair, Cabbage Patch Kids, and padded shoulders?" (Or, more specific to law offices, like law review subscriptions, typewriters, bike messengers and law libraries?) In a guest post on the Legal Technology Blog, Steve Adams of Protus says that faxing remains a vital part of the business world despite the advent of e-mail.

Adams notes that faxing is still used on a daily basis in many professions: by real estate agents and insurance brokers, for example. The key change in the use of faxes, he says, is that an actual fax machine is fading away as a means of sending and receiving faxes, in favor of Internet fax services. Adams says that Internet fax services can do things a fax machine never could:

• Let you go mobile. Internet faxes are sent and received through your e-mail account, and can be viewed anywhere you can get an Internet connection, including your smart phone.

• Improve privacy. Transmissions that go through fax machines often sit in a common area where anyone walking by can read it. Not so with Internet fax services. This can be particularly important with documents protected by the law, such as medical records.

• Keep faxes organized and available. Internet fax services deliver electronic files, which can be organized and stored on a hard drive or server where they can be pulled up quickly anytime they're needed.

So while it may be time to junk the fax machine taking up space in your office, it appears that the concept of faxing will live on for some time. Read the rest of Adams' post here.

March 18, 2010 | Permalink | Comments (13)

Calif. AG Candidate Ruffles Feathers With His Designated 'Occupation'

Califseal Yesterday, an attorney named John Eastman formally filed his candidacy for the elected position of State Attorney General in California. FlashReport reports in this post that Eastman had been the Dean of Chapman University's School of Law, but recently stepped down from that role. As of less than a month ago, he has been representing the State in a case before the United States Supreme Court, and for this limited purpose was appointed an "Assistant Attorney General" by South Dakota Attorney General Marty J. Jackley.

Eastman ruffled some feathers this week when he conveniently had his occupation listed on the ballot as "Assistant Attorney General." FlashReport states that, assuming this ballot designation is "upheld by a judge on the invariable court challenge, it will REALLY help Eastman" as none of the other GOP candidates for Attorney General are going to have the funds necessary to run statewide television campaigns.

Eastman defends his designation by stating that the South Dakota Attorney General is "authorized to appoint assistant attorneys general as he may deem necessary on a part-time basis for special assignments," and that he will expend substantial time on the case over the balance of this month and next month. Having stepped down as dean, Eastman says, his work as Assistant Attorney General now constitutes a "principal profession and occupation "within the meaning of Elections Code Section 13107(a)(3). Overall, he argues, "the ballot designation of Assistant Attorney General is literally accurate and is the most accurate description" of his occupation.

Cal Law's Legal Pad adds that an aide to Attorney General Jackley said she had never heard of Eastman. Legal Pad also notes that California law gives candidates a bit of leeway in describing their jobs, so long as the designation won't “mislead voters.”

March 18, 2010 | Permalink | Comments (2)

March 17, 2010 Humor or Insanity?

Overlawyered linked today to a site called And it's amusing. So I sure hope that Overlawyered's determination that it must be nothing more than parody/satire is correct.

The premise is the flip side of the argument for a single-payer health care system. The article (PDF) linked to on the front page of the site, written by a Matthew S. Rice, M.D., and apparently published in the Journal of American Physicians and Surgeons, makes clear that the concept is: A little bit of "turnabout is fair play":

With attorney-legislators scrutinizing and planning the reform of medicine and the health insurance industry, it is only fitting that physicians apply the most current progressive healthcare reform principles to the legal profession.

The folks at singlepayerlegal do seem to have spent a fair amount of time and energy on this site though. They've set up a petition to Congress, calling for, among other things, the proposed legal system to be one "in which all attorneys are salaried, and are required to provide legal services to all-comers, regardless of income or disparity-group status, at fair and stable reimbursement rates determined by a Department of Legal Services (DLS)." I am willing to bet that the $1,000/hour rate would appear nowhere on such a reimbursement schedule. Though I like the sound of "catastrophic felony protection."

Reading through the site is entertaining, perhaps with the exception of the descriptions of the "victims" of the current legal system (wrongly convicted criminal defendants; there is even a link to the Innocence Project site). The overwhelming theme: Keep the lawyers and politicians out of our healthcare system. Not bloody likely.

But, if you really dig what you read, you can show your support for the organization by buying a bumper sticker.

March 17, 2010 | Permalink | Comments (4)

Drawing the Line Between Lawyering and Lobbying

The recent hubbub about the "Al Qaeda 7" -- Department of Justice lawyers who, while in private practice, represented Guantanamo detainees -- spurred a massive debate, nominally about legal ethics and national security. The legal community seems to have come down largely on the side of the attorneys, ripping Liz Cheney and others who question the loyalty of these now-public servants. Lawyers, we're told, understand their ethical obligations, and should not be barred from government work simply because they previously represented clients who kind of hate the government.

Walter Olson, at Point of Law, ponders the significance of this opinion vis-a-vis the hybrid firms that exist in Washington (and elsewhere). Josh Gerstein had a piece at Politico last week questioning the different treatment of lawyers and lobbyists. Lobbyists, under current federal rules, must observe a two-year "cooling off period" before the taint of their prior activities is considered to have abated.

As Olson points out, though, the line between a firm's legal work and its lobbying work is often hazy at best. Well, he says it much more eloquently:

Washington law firms have a great deal going: because their internal workings are necessarily somewhat opaque, their participants can inevitably engage in (and reap the high rewards of) some non-courtroom advocacy efforts on behalf of unpopular well-heeled clients without having to pay the public price of ostracism as lobbyists.

What do we think? Should some attorneys be assumed to be somewhat beholden to their former clients and eyed skeptically when they give up the car service rides home at night and enter the world of the GS-scale?

March 17, 2010 | Permalink | Comments (2)

Coming Soon to a Computer Near You: More Free PACER Documents

Top o' the mornin' LBW readers. I thought it appropriate to start off St. Paddy's Day (no, it's not "St. Patty's Day") by bringing you all some news that might make you want to raise a glass. Or a coffee mug, whatever.

Tony Mauro reports in The National Law Journal that the U.S. Judicial Conference voted yesterday to increase fourfold the number of free documents that members of the public will be able to retrieve from the federal courts' PACER system. Rather than a $10 per year limit on freebies (at $.08 per page), users will now be allowed to retrieve $10 worth of documents per quarter.

While that change might not matter to many attorneys who are on PACER as often as a tween girl is on Facebook, the Conference estimates that 75 percent of users will now pay nothing for their yearly use. Sweet.

The conference also voted to reduce the cost of digital recordings of proceedings, which are currently provided by certain district and bankruptcy courts under a pilot program, and to encourage additional courts to participate.

While increasing free access is certainly a step in the right direction, Professor Mitchell H. Rubinstein of St. John's Law thinks we shouldn't settle for anything less than 100 percent free access to all court documents. The U.S. Courts press release states that the federal judiciary is in the midst of a "comprehensive study" of ways to beef up its services, and the results of the study should be available by July.

The idea that all "public" documents should be freely available to the public is not new, and advocates like Carl Malamud have been banging that drum for quite some time. Rubinstein makes clear that, in light of the fact that PACER documents are more often than not uploaded by attorneys, rather than the courts themselves, any issue of recouping costs to avoid assessing them to the taxpayers is dubious.

March 17, 2010 | Permalink | Comments (1)

March 16, 2010

Tuesday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

1) Question: I took my eyes off of my son for 2 seconds at this restaurant and now I see he has climbed into the "claw grabber" machine filled with lollipops. Doh!! He's stuck in there now. Do we have a claim for false imprisonment or something? What are our rights here?

No. You have the right to be an attentive enough parent that your kid does not crawl into a claw grabber machine. If you're lucky, you might get a £30 voucher, but that is about it. (Telegraph, Toddler Trapped in Lolly Machine After Climbing in for Sweets) (via Jonathan Turley)


2) Question: I'm a female nurse. One of my male patients filed a complaint against me for my "failure" to provide sexual services as part of his care at home. He says I should be dismissed on the grounds that I am unfit to provide care. Huh? This was not covered in nursing school.

Answer: No, of course you do not need to do that. And rest assured that Dutch union NU'91 has launched a national campaign against demands for sexual services by patients called, "I Draw The Line Here." (Reuters, Nurses' Union: Care Does Not Include Sex)

Enronscripophily 3) Question: My bank just sent me a letter saying that my home was at risk of foreclosure, and that "To cure the default you must pay the the past due amount of $0.00, including $0.00 in late charges and $0.00 in delinquency related expenses." How do I accomplish this?

Answer: Thinking ... scanning blogosphere ... hmmmph ... the blogosphere has no answer for you. Perhaps just send them a check for the amount of $0.00? Or send an empty wallet? Maybe send an Enron stock certificate? (Consumerist, Citi Demands You Pay $0 or They Will Foreclose on Your House)

March 16, 2010 | Permalink | Comments (3)

LBW Follow-Up Edition: Giraffe Gaffes, Potent Perfumes and Baby Einstein

Possibly spurred on by the looming threat of Judge Carton ruling in their cases, three matters recently discussed on Legal Blog Watch have come to interesting conclusions.

Giraffe 1. Fake Killer Giraffes: Earlier this month, a Louisiana judge issued a TRO requiring a publisher to take down a clearly satirical story about fictional killer giraffes. Yesterday, however, common sense was restored in the Pelican State when a district judge struck down the TRO and ordered the wildlife preserve that had obtained it to pay $500 in attorney fees and court costs. The court found that the story was satire and protected speech.

2. Allergy-Inducing Perfume: Last month, a Detroit civil servant reached a $100,000 settlement agreement with the city after her supervisor failed to address her complaints that her coworker's perfume bothered her allergies. This week, the city of Detroit announced that it will soon install placards in three city buildings instructing employees to refrain from "wearing scented products, including ... colognes, aftershave lotions, perfumes, deodorants, body/face lotions ... (and) the use of scented candles, perfume samples from magazines, spray or solid air fresheners ..."

Babyeinstein 3. Baby Einstein refunds: Back in October 2009, the Walt Disney Co. caved in to demands from the Campaign for a Commercial-Free Childhood advocacy group that it offer refunds to all purchasers of its "Baby Einstein" videos because, in short, the videos will not make your child into an Einstein or a genius. This month, Disney may have quietly gained some payback, however, when CCFC was "evicted from the Harvard-affiliated children's mental-health center in Boston that had housed and sponsored it for more than a decade" after Disney allegedly "made contact" with health center officials.

March 16, 2010 | Permalink | Comments (2)

C-Span Gives Political Junkies 160,000 Hours of Video to Explore

Via this post on Computational Legal Studies I learned today that C-Span has placed virtually every minute of its 23 years of video archives on the Internet. The New York Times reports that the "C-Span Video Library," which goes back to 1987, is now available to the public. The archive is fully searchable, and will be formally announced by C-Span on Wednesday.

Political junkies now have more than 160,000 hours of C-Span footage to explore. MSNBC host Rachel Maddow told the Times that the library is “like being able to Google political history using the 'I Feel Lucky' button every time.”

Although few cable networks would be willing to make their entire archive available for free on the Internet, C-Span founder Brian Lamb said doing so was an extension of the network's public service commitment. “That’s where the history will be,” he said.

Blogger Ed Morrisey told the Times the archives were so vast that finding valuable material might be like looking for a "needle in a haystack.” C-Span executives say they hope the search filters on the archive will help with that issue.

I'm no politico, but I gave the search engine a try to see if I could quickly find some of my favorite recent Congressional moments. Let's see ... searching for "Fuld" ... ah, yes! There's former Lehman Brothers CEO Dick Fuld being skewered by Congress following the collapse of the investment bank.

OK, what else can I find ... let me see if I can find where that great statesman Rep. Gary Ackerman, D-N.Y., declared last year, "I want to know who is responsible for protecting the securities investor, because I want to tell that person or those people whose job it is that they suck at it.” Bingo -- by searching for "Ackerman" and then searching the transcript of the correct hearing for "suck" I quickly found this statement (at almost exactly the 120 minute mark of the video below). Thanks, C-Span! Good stuff.

March 16, 2010 | Permalink | Comments (0)

March 15, 2010

NCAA Tournament Detrimental to Academic Research, Study Finds

And someone's tuition dollars likely funded the study to figure this out! Drexel Law School professor Dan Filler reports on a Duke University study showing a precipitous decline in academic research in the weeks following the announcement of the "March Madness" college basketball tournament field.

And -- I hope you're sitting down for this -- the further a school's team advances in the tournament, the longer it is before that school's faculty gets back to work. The professor who conducted this groundbreaking study, Charles Clotfelter, of Duke's Sanford School of Public Policy, referred to this phenomenon as a "winner's curse."

I can't tell from the press release whether he's being sarcastic or not. On one hand, he teaches at Duke, perennial basketball powerhouse, seeded number one in this year's South regional, where he also attended undergrad. On the other hand, he's a public policy professor with two degrees from Harvard. And his name is Clotfelter.

When you're filling out your brackets for the office pool this week, take a minute to consider whether, by doing so, you're indirectly contributing to the (temporary) decline of the value of higher education. The students at the University of Montana School of Law may never recover, especially if the Grizzlies somehow manage to beat the Lobos of the University of New Mexico in the first round.

March 15, 2010 | Permalink | Comments (1)

2nd Circuit Says OK to 'Heavy Hitter' Attorney Ads

Heavy Hitters

On Friday, the 2nd U.S. Circuit Court of Appeals rejected attorney advertising restrictions put in place in 2007 by the State of New York. The opinion can be found here.

Among the prohibitions that the court struck down as First Amendment no-nos were those barring "portrayals of judges" and "trade names or nicknames that imply an ability to get results." The court did uphold a 30-day moratorium on solicitation of accident victims and a ban on the use of "fictitious names" implying that attorneys are members of the same firm.

It's an interesting case in that the attorneys challenging the restrictions affirmatively argued that the speech at issue was "irrelevant, unverifiable, [and] non-informational," and thus, not inherently false or misleading. Alexander & Catalano, the plaintiffs firm that was itself a plaintiff in this case, has trademarked the phrase "The Heavy Hitters," and has archived its TV commercials on its Web site. Barring an appeal to the Supreme Court, The Heavy Hitters are free to continue having actors portray judges and using thunder and lightning special effects in those ads.

Perhaps it's time for Adam "Bulletproof" Reposa to open a New York office.

March 15, 2010 | Permalink | Comments (1)

An FCPA Exemption for Dealings in Haiti -- Good Idea?

The Foreign Corrupt Practices Act must be much on the minds of in-house lawyers nationwide these days, what with the DOJ's announcement that it intends to beef up its enforcement unit "substantially." At Marginal Revolution, economist Tyler Cowen suggests that the FCPA may be standing in the way of U.S. participation in rebuilding efforts in Haiti.

Cowen says that, "You can't do business in Haiti without paying bribes," and recent events would seem to lend some credence to that opinion. Cowen quotes from a Wall Street Journal opinion piece (of which I, a humble non-subscriber, can show you only this much) where an unnamed American entrepreneur operating in the Caribbean stated that he simply "did not bother with" Haiti -- which he called "strictly pay to play" -- because of the FCPA.

The devastating earthquake clearly presents an opportunity of sorts for many American businesses. And some seem to have wasted no time getting down to Haiti to hawk their wares. It should not be necessary to suspend enforcement of an anti-corruption law to enable U.S. companies to participate, but, realistically speaking, is it justified in this case to look the other way for a time?

March 15, 2010 | Permalink | Comments (4)

Keeping Clients Happy by Doing Everything Wrong

Is it ever OK to rant and rave, arms flailing, during a court appearance? Or to cite to an irrelevant -- or worse, overruled -- case in your briefs?

Apparently, it depends on who you're trying to impress. At his My Law License blog, Miami lawyer Brian Tannenbaum writes that some of the most popular lawyers -- at least measured by client satisfaction -- are those that don't necessarily conduct themselves professionally, or even get the best results.

Tannenbaum and North Carolina divorce lawyer Lee Rosen suspect it's about emphasizing care and concern over, well, legal knowledge and skills. Of the particular attorney that first led Rosen to ponder why some "crappy" lawyers seem to have happy clients, he writes that, "She loves her clients and it shows. She knows it and her clients know it. She’d do anything to help them. They are her friends."

In a criminal or family law practice, "client" has a very different meaning than in BigLaw, so it's hard to make an apples to apples comparison. But the kinds of mistakes, both errors in judgment and carelessness/failure to comprehend the issues, that Rosen and Tannenbaum attribute to the successful crappy lawyer would likely be fatal to a BigLaw associate's career. And how do you demonstrate passion, or even empathy, for the poor, downtrodden insurance companies of the world? Working 20-hour days reviewing documents is not even going to get you noticed by the partner running the case, let alone the "client."

In the SmallerLaw world, is it better to be respected by your peers, or liked by the people who write the checks? And shouldn't there be a way to balance the two?

March 15, 2010 | Permalink | Comments (2)

March 12, 2010

Friday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blogosphere.

1) Question: I'm trying to save up to get a new baseball bat and a Lebron James jersey. Any ideas on how I can make some money quickly, maybe in the $10/hour range?

Let's see. Lifeguard... Cashier... Oh, almost forgot -- lawyer! (Temporary Attorney: The Sweatshop Edition, Chicago to $10 an Hour!)

2) Question: I'm a flight attendant. This passenger on my flight insists that I check his scrotum to determine why he is spotting blood. Umm, no thanks! Do I have to do this?

Answer: You won't get sacked, but you might get sued if you don't. Thankfully, you won't need your coin purse. You'll probably win in the end. (Consumerist, Man Sues Airline For Not Looking At His Scrotum)

Hank 3) Question: I was convicted of shooting my neighbor's dog with a bow and arrow. I've been sentenced to four weekends in jail but I haven't played my trump card yet: My girlfriend and I have Hank Williams Jr. tickets for one of the weekends. That will work, right?

Answer: Hank WIlliams Jr. tickets? Why didn't you just say so right away? Is that even a question? It's Hank Williams Jr.!!! (Charleston Daily Mail, Teen Who Shot Dog to Attend Concert)

March 12, 2010 | Permalink | Comments (1)

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