Blog Network

About The Bloggers


June 30, 2010

Wednesday's Three Burning Legal Questions

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

1) Question: Yes. Yes, I did attack my brother's neck with a knife-edged barbecue spatula. And don't even try to tell me that the "reasonable person" wouldn't have done the same darn thing under the circumstances.

Answer: There's not enough information here to really answer, sorry. But if the circumstances you're referring to relate to a disagreement over whether to use butter or margarine when making macaroni and cheese, I think I must beg to differ with you on this. (Lowering the Bar, Good Reason to Kill #7: Disagreed With Your Macaroni Recipe)

2) Question: I'm a vampire. This woman in Colorado claims that she spotted a vampire in the middle of a dirt road near Fruita, Colo., on Sunday night, threw her SUV into reverse, and crashed into a canal. That is B.S. I have asked around and none of us U.S.-based vampires were anywhere near Fruita this weekend. How can I clear our names?

Answer: You know what, that's exactly what I would expect a vampire to say. You're all alike, taking no responsibility for your actions. Look at the accident scene video below of what you did to this poor woman's car -- she would obviously have no reason to make such a story up. (, Western Slope woman blames vampire for car crash) (via Jonathan Turley)

3) Question: I just bought an American flag. Isn't this thing supposed to have just 50 stars on it -- one for every state, right?

Answer: Well, traditionally and legally, yes. But you may have accidentally purchased a "patriotic banner" made in China. Sometimes those come with 61 stars. That's 11 extra for you, free of charge! (, Dallas store sells U.S. flag with 61 stars)

June 30, 2010 | Permalink | Comments (2)

Have You No Sense of Decency? Let Elena Kagan Use the Bathroom!

Supreme Court nominee Elena Kagan is in Day 3 of her confirmation hearings, and has reportedly held up well thus far. The Christian Science Monitor reports that in particular, Kagan's sense of humor has been on full display during her Supreme Court confirmation hearings this week. (For example: Sen. Graham -- "I just asked you where you were on Christmas?"; Kagan, laughing out loud -- "You know, like all Jews, I was probably in a Chinese restaurant.")

But one, perhaps even more important, attribute that Kagan will need to survive her hearings has received very little attention: the ability to sit for hours without ever taking a bathroom break.

Bob Fuss of CBS News reports that Congress has a "bizarre practice of making witnesses testify for hours without a bathroom break." Many hearings, Fuss writes, "can be confrontational and there are always power issues and witnesses don't like to show weakness by asking to take a bathroom break and they are almost never offered."

Petraeus Indeed, on June 15, 2010, General David Petraeus was testifying before Congress when he "turned pale, seemed to lose his train of thought and then crumpled onto the table." After seeing a doctor and after a few cups of water and some bananas, Petraeus returned and explained that he had become dehydrated. Fuss suggests that "Petraeus made the logical if unhealthy choice to not eat or drink before the hearing" because he knew he would have no opportunity for a bathroom break.

Fuss argues that

It is time for this madness to stop.

When the commander of US forces in Iraq and Afghanistan, a model of middle age fitness, faints on national television, things have gone too far.

Grill the witnesses if you like. Make them sweat. But give them a glass of water and at least every few hours let them go the bathroom.

There's been no word from Ms. Kagan on this issue, but I believe she would join me (and all future witnesses) in saying, "Amen!"

June 30, 2010 | Permalink | Comments (2)

LBW Alert: Watch Out for Fake ATM Machines

CashTo the ever-growing list of clever ways that crooks are trying to rip you off, add this one: the fake ATM machine.

Consumerist reported last week that in Beijing, China, thieves bought a normal ATM machine and somehow "installed it on a busy Beijing street." They then used information taken from the users/victims' debit cards to steal all the money from their accounts.

And don't think you are safe just because you are living in the U.S., and not in China. In a follow-up post yesterday, a Consumerist reader named Paul told his story of almost being burned by a fake ATM machine at an outdoor city festival in his hometown in the U.S. Paul says that someone created a fake ATM by somehow taking an arcade cabinet and adding "a TV screen and number pad lifted from another ATM machine and a real (definitely not fake) card reader installed very well next to the screen."

The fake ATM was set up outside a jam-packed bank near the festival and captured the overflow customers. Paul discussed the matter with the FBI, who told him that the fake ATM actually had a real cash dispenser and actually gave out real cash, as part of the following scam:

Build and deploy a fake ATM, let it dispense real money not to tip off anyone, sit in a van down the street with a laptop and have the fake ATM feed credit card numbers and PIN’s to it over WIFI. Once the money runs out, just dip out.

Turns out that the machine probably had about $2000 in it, not bad for the potential money that can be stolen later and the fake ATM couldn’t have cost more than $1000 to make. The bank logo, the ATM menus can easily be copied from image files off the internet and setup to look real.

The FBI also told Paul that fake ATMs are popping up more and more often lately, even in malls and gas stations.

June 30, 2010 | Permalink | Comments (3)

Xerox Ad Pretends We Care About Its Trademark Rights to Term 'Xerox'

What do you care more about: Xerox's trademark rights to the term "xerox" or the lives of individual mosquitoes?

Eric Johnson has a great post on the PrawfsBlawg tied to a concept in Larry Lessig's new book, Remix. Analyzing Lessig's take on the differences between commercial economies and sharing economies, Johnson summarizes that "friends do favors for one another in a sharing economy, and corporations and customers use cash as the medium of exchange in a commercial economy." Thus, it would be odd for a friend who missed a lunch date with you to offer you $50 to make it up to you, and also odd for, say, McDonald's to ask you to "help out" by promising to buy its hamburgers at least once a month. 

This concept is the lead-in to Johnson's rant on Xerox's ad in the current issue of the ABA Journal:


Taking the words right out of my mouth, Johnson says, "Dude, I'm sorry, but what the #@!& do I care if Xerox loses its trademark registration to 'xerox'? Wow. I've got other stuff to care about. Like the lives of individual mosquitoes." 

Johnson acknowledges that courts will consider educational advertising when determining if a trademark has been lost, but adds that 

it is one thing to tell people that this way or that way is the right way or wrong way to use a word. But it is quite another thing to attempt to appeal to people's sense of right and wrong and ask them to altruistically "please help" a publicly traded corporation in its self-serving pursuit...I'm going to go downstairs and xerox something on the Canon photocopier right now just to do it.

Xerox, I, too, have given the matter much thought and have decided to carry on with my life and not help out. Sorry!

June 30, 2010 | Permalink | Comments (4)

June 29, 2010

Save the Date: July 12 for Law Librarian Karaoke

I don't know that it's worth a special trip, unless you're having a really slow summer, but if you happen to be in Denver two weeks from yesterday, either because you're lucky enough to live in that beautiful city, or because you're getting ready to file a suit challenging the University of Colorado's concealed weapons ban, you should clear your evening.

Thanks to the Law Librarian Blog, we know that Monday, July 12, will bring to the Mile High City an event not to be missed. In connection with the annual meeting of the American Association of Law Libraries, some of your favorite law librarians will be getting their karaoke on!

Thanks to Ken Hirsh for proving that, despite abundant evidence to the contrary, law librarians do know how to have fun (even if they have to plan to do so over two months in advance). It seems librarian karaoke night is a 13-year-old tradition, now officially sponsored by the Computing Services Special Interest Section of the AALL, and last year's event in Washington, D.C., drew 75 participants. To be sure you don't miss any important updates, just look for the Twitter hashtag #karaokeken2010. No, I'm not kidding.

Have a blast, library dudes and dudettes. Just one word of advice: stay away from the Sinatra, for your own safety.

June 29, 2010 | Permalink | Comments (0)

Blagojevich Trial Tidbit of the Day: Senator Oprah

This one's just too good to pass up. Yesterday, in the perpetually entertaining trial of Rod Blagojevich, the jury got to hear tapes of a wiretapped conversation between Blago and his then-chief of staff John Harris, in which the former Governor suggested filling President Obama's vacated Senate seat with none other than Oprah Winfrey.

She may not have had political experience, but, according to Blago, "she's a king maker, she made Obama." OK. She made him, so it's only fair that she then take his place. Further excerpts from the tape reveal that Blago's reasoning was a bit faulty, at least in part: “You know, appointing the first African American woman U.S. senator is historic.” Um, Carol Mosely Braun Fail.

The big O could have made history regardless. I, for one, would have been glued to C-Span to watch the distinguished gentlewoman from Illinois step up to the podium and tell her 99 colleagues to look under their seats, because they'd each been given a "Get Out of an Ethics Investigation Free Caaaaaaaaaarrrrrrrd!"

(Yes, I know the ridiculous idea appointing Winfrey to Obama's vacated Senate seat was revealed publicly a year and a half ago. But to have that tape played for the jury must have been priceless. Hooray wiretaps!)

June 29, 2010 | Permalink | Comments (2)

Federal Agency Web Policy Worrisome to EPIC

Via beSpacific and the Electronic Privacy Information Center come links to new guidelines (.pdf) for federal agencies using "web measurement and customization technologies," i.e., information storage and tracking software.

EPIC seems concerned about the "Clear Notice and Personal Choice" policy, which it dubs both "weird" and "remarkable," based on an apparent concern that it allows agencies to "routinely disclose personal information of citizens to private companies." I read the memo to say that, where personal information is collected and stored, the agencies will be required to abide by a stricter opt-in policy, rather than the opt-out allowable for more benign preferences-type information. The policy defines "Tier 3" usage as follows:

Tier 3 -- multi-session with PII [Personally Identifiable Information]. This tier encompasses any use of multi-session web measurement and customization technologies when PII is collected (including when the agency is able to identify an individual as a result of its use of such technologies).

And the policy goes on to state:

Tier 3 restrictions. Agencies employing Tier 3 uses must use opt-in functionality.

So, on my reading, agencies are required to get users' express consent to store and use personal information. 

EPIC also links to companion guidelines on agencies' use of third-party websites (.pdf) for purposes of communicating with the public.

June 29, 2010 | Permalink | Comments (0)

'Please Rob Me' -- Premier Media Ratings Company Edition

In our continuing quest to bring you news of all the ways a person -- or a company -- can beg to get robbed, I present the latest installment of "Please Rob Me," this one inspired by a personal experience.

No, I haven't been mugged here on the dangerous streets of Austin, Texas. But I have been chosen to be a Nielsen TV Ratings Family. It's a multistep process, involving postcards and letters and phone calls, but the bottom line for "Please Rob Me" purposes is that Nielsen's initial survey -- to assess whether you qualify to participate -- comes with two $1 bills. Cash money through the mail. The package containing the week-long "TV Diaries" that I'm supposed to keep religiously starting on Thursday contained $30. An Andrew and an Alex, if you will, just tucked right into the cardboard envelope there.

Sending cash in the mail is not, despite what you might have heard, illegal. As the good folks at Snopes point out, if it were, your grandma would be a criminal. But, again, just because something may not be illegal doesn't make it a good idea. Nielsen apparently sends out 2 million TV diaries a year. Assuming the average household has three TVs (as opposed to my 2), that means 666,667 envelopes floating around the U.S. Mail with 30 bones inside each. $20 million in cash waiting to be snatched.

Nielsen doesn't do the "plain brown wrapper" thing either. If you see one of these envelopes, there's no doubt who it came from or why.

I got my $30 (and promptly spent it here). But I do believe the Nielsen Company is just asking to get robbed.

June 29, 2010 | Permalink | Comments (0)

June 28, 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: A mall Rent-a-Cop is trying to detain me for shoplifting even though I just explained that I am a freelance reporter and I was stealing the item for an assignment I'm doing "on the side." Isn't this covered by the First Amendment or something?

Answer: Umm, no. The "freelance assignment" defense is unlikely to prevent police from arresting you in this instance, sorry. (, Reporter: Shoplifting was part of a "freelance" assignment)

2) Question: I don't want to get into all the details, but quick question: is there a search engine I can use to find out the exact relationship I have with a particular cousin? We have a wedding to plan here!

Answer: Yes, you are in luck! The Wolfram Alpha computational search engine should work. I hope it gives you the answer you are looking for! (Futurelawyer, But Will It Tell Me Which Relatives I Can Safely Marry?)

Firemans 3) Question: My fellow firefighters and I just saved a half-dozen kegs of beer from a burning hotel. It's OK if we, you know, celebrate a bit back at the fire hall with one of the kegs we pulled from the fire, right?

Answer: Not recommended! You might get yourself suspended or even charged with theft. (The Chronicle, Firefighters admit tapping rescued keg)

June 28, 2010 | Permalink | Comments (1)

Unreasonably Dangerous? Introducing the 'World's First Practical Jetpack'

Today I learned about a new product on the market that I am adding to my wish list. The Martin Jetpack, touted as the "World's First Practical Jetpack," promises to launch you to your next destination at speeds of up to 63 mph. Already I envision strapping this 535-pound baby on my back and heading due east along the Potomac River into D.C., while people stacked up in traffic on the parallel George Washington Parkway see me rocket by and say, "What the &$#@ was that??!!"

Check out the video below of one of my fellow jetpackers flying around a warehouse.


Of course, since I learned about my new jetpack via a post by Kevin Couch on the Abnormal Use: An Unreasonably Dangerous Products Liability Blog, I now also have a lot of the tricky legal issues worked out, as well. To wit:

  • Will my use of the jetpack pull me in to the dangerous activities exclusion on my life insurance policy? "Surely," Kevin says.
  • Do I need a pilot's license? No! Martin designed it as an "Ultralight" to avoid the need for a pilot's license.
  • Can purchasers waive liability should I, like Wile E. Coyote, accidentally rocket myself into the side of a mesa? Kevin says
it's not clear what type of waiver would be available, if any, to protect Martin from a strict liability claim. See, e.g., Simeone v. Bombardier-Rotax GMBH, No. 02-4852, 2005 WL 2649312 (E.D. Pa. Oct. 12, 2005). Unless a purchaser waives a known product defect, a waiver is probably not a viable defense. Martin would likely have a public policy problem, i.e., their fantastic waiver drafted by their presumably fantastic lawyers would not be useful in a strict liability action.

Bottom line: All I need now is $86,000 and the courage to hover at around 8,000 feet.

June 28, 2010 | Permalink | Comments (1)

Project Management an 'Exploding' Option for Lawyers in E-Discovery Field

Back in May, I wrote here about a budding trend where Big Law firms were formally training their lawyers to be better project and quality managers. Law firm Seyfarth Shaw, for example, has adopted the "Six Sigma" methodology and encouraged its lawyers to attain "Black Belt" and "Green Belt" status in various quality-management methods.

Ediscovery Earlier this month, Monica Bay reported on The Common Scold that project management is "exploding" as an option for lawyers in the e-discovery world, as well. According to David Cowen of The Cowen Group, a New York-based legal recruiter and consultancy, legal project management is exploding for both attorneys and non-attorneys. Cowen told Bay that his research shows that "firms are embedding 'legalists' (read: attorneys) into lit support, and everybody's comfortable with that model."

According to Paul Easton of the Legal Practice Management blog, Cowen's comment on embedding attorneys into litigation support lends support to a "trend I've noted before on this blog: the lawyerfication of litigation support." Easton notes, however, that he is not as confident that "everyone is comfortable" with that model. He says that while lawyers have loudly advocated for lawyers to be the ones managing e-discovery projects, others "have opined that lawyers are not well equipped for e-discovery project management (much less litigation-support project management in general)."

June 28, 2010 | Permalink | Comments (0)

Ready or Not, Cameras Start Rolling on Film Version of 'Atlas Shrugged"

Atlas-shrugged-book-cover-175x300 Sometimes it just takes a firm deadline to prompt action, even after more than a decade of delay.

In 1992, John Aglialoro purchased the film rights to Ayn Rand’s epic novel "Atlas Shrugged." Since that time, Aglialoro has shopped the the film to studios and tried to entice big-name stars to take on the lead roles -- with no success (although Angelina Jolie and Charlize Theron each reportedly "flirted" with the idea of playing the novel's protagonist, Dagny Taggart). On June 11, however, production began on the film as a "$5 million indie," with Paul Johansson of "One Tree Hill" finally signing on to direct and star "among a low-wattage cast," Deadline reports.

Why are the cameras rolling now, when there are no stars and no studio support for the film? According to Aglialoro, "everybody is saying, how can you shoot this movie without a star? We’re shooting it because it’s a good movie with great characters….” They are shooting it now for another reason, as well. According to Variety, Aglialoro would have lost the feature rights that he paid $1 million for in 1992 if the film wasn't in production by Saturday, June 12.

So roll 'em!

June 28, 2010 | Permalink | Comments (0)

June 25, 2010

You Really CAN Buy Anything at Walmart

In today's installment of "Seriously?" I present the story of Patrick Fousek and Samantha Tomasini:


The two were arrested Wednesday in Salinas, Calif., for trying to sell their 6-month old baby outside a Walmart store. (If only they had made it inside the store, I'm sure they would have been prominently featured here.)

Fousek demanded the princely sum of $25 for the child. Which, I'm guessing, is about what an evening's worth of crystal meth goes for in Salinas. From the AP report:

Fousek and Tomasini were arrested at 1 a.m. Wednesday at their home. Officers said the couple appeared high on methamphetamine and the house was in disarray. A police report also claimed that Tomasini told Child Protective Services, who took the baby, that she had breast-fed the infant while under the influence, Villegas said.

The couple will be arraigned today. And I hope they enjoy their stay in prison.

June 25, 2010 | Permalink | Comments (2)

Credit Rating Agency Provision in Financial Reform Bill a Boon to Litigators?

CRA Everybody is talking this morning about the hard-fought compromise on a financial reform bill, which will now be making its way to the president's desk for signature before July 4.

As expected, there are widely divergent opinions on whether the bill is a "game-changer" or will serve only to preserve the status quo. Over at the WSJ Law Blog, Nathan Koppel seizes on one particular provision of the law that might have litigators salivating:

For starters, the legislation would allow investors to sue credit-rating firms for a “knowing or reckless” failure to conduct a reasonable investigation. That is a higher liability bar than the one proposed in earlier versions of the legislation. A bill approved by the House in December, for example, would have required investors to merely show that a ratings company was “grossly negligent” in issuing a grade, Bloomberg reports.

Suits against the credit rating agencies have been coming fast and furious since the meltdown, and, while the agencies have been coming out on top regularly, plaintiffs have not given up. Though the agencies have claimed to be unconcerned about the difference between the two standards, commentators have noted that more litigation and increased risk of liability would, of course, be worrisome. 

Though a small part of the reform package, it will be interesting to see how this subplot plays out.

June 25, 2010 | Permalink | Comments (1)

A Peek Inside the PTO

Kappos Hey IP geeks: Grab a Diet Dr. Pepper and get comfortable. Intellectual Asset Management magazine (available on newsstands all over Alexandria, Va.) has posted a video of an exclusive interview with Patent and Trademark Office Director David Kappos (pictured, left, looking like a cross between comedic actor Rob Corddry and that character actor who always plays the hapless corporate or governmental lackey, whose name escapes me right now).

It's 40 minutes of nonstop action. By which I mean a British guy asking Kappos open-ended questions about his 10-month tenure as director, and Kappos doing a fair amount of patting himself on the back for making the PTO a super-terrific more efficient patent processing machine.

In fairness, Kappos also discusses some of the work that remains to be done, particularly to address the global perception that the PTO's patents are of "lower quality" than those issued by its European or Japanese counterparts. And Kappos has started a blog, so, hey, he's gotta be a good guy, right?

Dennis Crouch at PatentlyO has pulled out some highlights from the interview, and Joff Wild (the aforementioned British guy) summarized it as well. Enjoy.

June 25, 2010 | Permalink | Comments (1)

Big Law Webbies Highlights

Yesterday, a shadowy figure known only as "The Snark" published in the Fulton County Daily Report the results of the "First Annual Big Law Webbies," and I, for one, am hoping the tradition continues ad infinitum.

As you might expect of honors bestowed by a Snark, many of the categories in which awards were given were on the biting, sarcastic side. Below are some highlights.

Most Obscure Blog Topic was awarded to Womble Carlyle's Furniture Law Blog. Who knew that there was a need for such an animal? The blog is, to the credit of the firm's "Furniture Law Team," pretty chock full o' information on what must be every furniture-related patent or trademark case filed in the country. Did you know that Sleepy's was suing Macy's for its use of the phrases "Ask Our Mattress Pros" and "Factory-Trained Mattress Professionals?" RSS this puppy, and you will next time.

Best Full-Body Lawyers-Out-of-the-Office Photos went to the Van Winkle Law Firm. To wit:


There are some better ones, described in the Snark's article, but I'll let you all spend your Friday on a scavenger hunt to find them. Definitely check out the guy with the goat.

Small-Firm-That-Really-Wants-to-Be-an-Indie-Rock-Band Website was justly awarded to the Offices of James Hugh Potts II. This place looks like an Ally McBeal experiment gone wrong. One dude who thinks he's the coolest lawyer in town hires three young, decent-looking females, and tries to sell you t-shirts.

Check out all the awards. And if you think there are any The Snark missed, let us know in comments. We'll be sure to pass the info along.

June 25, 2010 | Permalink | Comments (1)

June 24, 2010

Value Billing: Getting Paid for Knowing 'Where to Pound the Nail'

Hammer I have seen two posts recently on the topic of the value of one's work that I think are interesting in the context of the legal profession. Seth Godin argues here that there is a big difference between what people will pay for "hourly work" versus "linchpin work." He defines linchpin work as work performed by someone where there are no short term substitutes available.

Godin writes that when there are available substitutes, you can put a value on someone's time based on what the market is paying. "If there are six podiatrists in town, and all can heal your foot, the going rate is based on their time and effort, not on the lifetime use of your foot," he states. "On the other hand, if there are no short term substitutes, then you don't pay what the market will bear, instead you pay what someone is worth. Big difference."

Godin provides an example of a college professor of his who did engineering consulting and was asked to assist on a brand new office tower that had a brown stain coming through the drywall. The building's owners had exhausted all other possibilities and were a day away from tearing out all of the drywall at a cost of millions of dollars. The professor looked at the stains and said he thought he could "work out a solution, but it will cost you $45,000 if I succeed." The owners instantly agreed. Godin writes that the professor then wrote the name of a common hardware store chemical on a piece of paper and handed it to them:

"Here, this will work." And then he billed them $45,000. That's quite an hourly wage. It's also quite a bargain.

On the Texas Lawyer blog, Michael Maslanka makes a similar point with respect to hiring local counsel -- which he compares to professional golfers having an experienced "local caddy" at a tough golf course. Maslanka says that when he is explaining to a corporate client in New York why it needs another lawyer in state court in Texas, he relates a story of a woman with a squeaky floor:

She hired carpenter after carpenter, but no one could fix it. it was driving her crazy. One day, she hired a guy who came in, looked around carefully and pounded a nail into a section of the floor. It took 10 minutes. She asked how much, and he said, "$100." She retorted that he was only there 10 minutes and demanded a breakdown of the bill. He took out his pencil and wrote the following: Pounding in nail: $1; knowing where to pound nail: $99. It is all about knowing where to pound the nail.

So how can lawyers move toward getting paid for "linchpin work" versus hourly work? For knowing where to pound the nail versus doing the pounding?

June 24, 2010 | Permalink | Comments (5)

The '12 Most Bizarre Comedian Lawsuits' is not usually on my list of LBW sources, but maybe I've been selling it short? Earlier this week on, Josh Spector offered up his suggestions for The 12 Most Bizarre Comedian Lawsuits ever filed. Here are some of my favorites from his list:


10. An Israeli Comedian Sues Borat: In 2007, Israeli comedian Dovale Glickman sued Sacha Baron Cohen claiming that Cohen’s Borat character stole his catchphrase, which is:“Wa wa wee wa.”

7. Carol Burnett Sues 'Family Guy': Carol Burnett sued the "Family Guy" television show for copyright infringement after it portrayed her as "just another janitor in an adult film store." The lawsuit was eventually thrown out of court.

3. Dane Cook Sues His Half-Brother: Dane Cook sued his half-brother/manager for allegedly stealing about $11 million of Cook's cash.

1. Sunda Croonquist Is Sued by Her Mother-In-Law: In what Spector considers "the most bizarre comedian lawsuit of all time," comic Sunda Croonquist was sued by her own mother-in-law, who did not like the jokes Sunda was telling about her.

Read the full list of The 12 Most Bizarre Comedian Lawsuits.

June 24, 2010 | Permalink | Comments (0)

PrawfsBlawg Proposes New Federal Consumer Law: All Instruction Manuals Shall Be Posted Online

InstructionmanualI'm not usually one to lobby for new laws, but given that there are already so many of them coming out of Congress each year, adding just one more proposed by the PrawfsBlawg yesterday can't really hurt, can it?

 PrawfsBlawg's Eric Johnson, like me and many others, I assume, is tired of having to file and save instruction manuals for consumer products, a practice that Johnson says "is absurdly out of date." He proposes the following new federal law to remedy this situation:

All commercial manufacturers of consumer products that are sold with instructions, manuals or other such documentation shall permanently label such products with a URL web address where consumers may download copies of the documentation. The Federal Trade Commission shall have the authority to promulgate regulations under this Act and to bring enforcement actions.

Such a law, Johnson says, would unclutter offices and homes; be an economic benefit in productivity gained and time saved for millions of consumers; save trees; and, for safety-based products like car seats, maybe even save lives.

You have my vote!

June 24, 2010 | Permalink | Comments (3)

June 23, 2010

Survey Shows Increasing Gap Between Legal and IT Departments

Recommind, a software vendor with several e-discovery products, last week released the results of a survey showing that collaboration and communication between corporate legal departments and IT departments is on the wane.

The press release doesn't specify how many companies, or what kind of companies, were surveyed, other than to say that respondents were "senior IT managers at enterprises averaging 13,000 employees." But the results are interesting.

Some highlights:

  • In 2009, 40 percent of respondents stated that their IT department considered e-discovery to be a high to very high priority; in 2010, that number has dropped to 26 percent.
  • 72 percent of respondents report that their IT and legal teams meet once a quarter or less; 52 percent meet once a year or less and 23 percent never meet at all.
  • When it comes to actually implementing e-discovery processes, the focus of each department is also quite different: The primary goal of the IT department is “executing as quickly as possible” (35 percent), while the primary goal of the legal department is “complying with federal regulations and court orders” (61 percent).

At the Legal Project Management blog, Paul Easton endorses the notion of companies hiring "legal support managers" to fill the role of liaison between the two departments, and at Project Counsel, they've even found a way to tie this sort of disconnect to the Jerome Kerviel/SocGen scandal.

In-housers: do you feel like IT is there to support you when you need it? Do any of you have your own "mini-IT" department within legal? And law firm lawyers: Do you ever find yourselves stuck in the middle between your client's legal and IT folks? Anyone have any concrete suggestions on how to improve the working relationship?

June 23, 2010 | Permalink | Comments (2)

More Lawyer Advertising: Depositions 101

Maybe I just don't get it.

On the Birmingham Injury Blog, lawyer John Watts has begun a series of videos on the basic principles of deposition preparation. He's posted the first video, in which he discusses the most important principle of sitting for a deposition: Tell the truth. 

The next video, in which he lists the four rules of answering questions, though it doesn't appear to have been posted to Watts's blog yet, is available on YouTube. And, now, on Legal Blog Watch:

In my days practicing in New York, I prepared many a witness for deposition. And I have no quarrel with the advice given by Watts so far. It sounds very much like what the first five minutes of a deposition prep session for a novice witness should sound like.

What I fail to understand is how posting videos like this to a blog and/or YouTube serves Mr. Watts or his clients. Are there really situations where a witness will be Googling around the Internet the night before his deposition looking for tips, come across Watts's videos and decide, "Hey, maybe I should have a lawyer come with me?" Once he's already been retained, does he refer clients/witnesses to his videos to save himself the hassle of meeting with them in person?

Watts seems to be a serial video-maker, offering advice on the FDCPA, automobile accidents and more. What's the point? Is it simply about the appearance of expertise and gaining maximum search engine results? Somebody, please help me understand.

June 23, 2010 | Permalink | Comments (5)

Cease and Desist Letter of the Day: Naked Cowboy to Naked Cowgirl

New York fixture Robert Burck, better known as the Naked Cowboy, apparently doesn't dig on people stealing his shtick. Namely, standing in the middle of Times Square, minimally clothed, playing music and singing poorly.

The New York Post reports (via Lowering the Bar) that Burck has sent a cease and desist letter to Sandy Kane, apparently a well-known stripper and frequent guest on the Opie and Anthony show, who has been rocking (and I use that word lightly) a bikini and entertaining (again, lightly) tourists in Cowboy's territory, but refusing to sign a "franchise agreement."

Burck says Kane is clearly violating his trademark. The other Naked Cowgirl, Louisa Holmlund, has Burck's blessing, as a licensed Naked Cowperson franchisee. Kane, however, does not seem all that concerned:

"I've been naked for years," said Kane, who hosted a raunchy public-access comedy program called the "Sandy Kane Blew Show" for more than a decade.

"You know how much money I make? Two dollars a picture. I'm not selling any products."

This may be underestimating Burck, who, as Lowering the Bar points out, has come out on top in IP scrapes with some pretty heavy hitters in the past.

Yesterday's prize for cease and desist letter of the day is retroactively awarded to Pork vs. Unicorn, well-covered at Above the Law.

June 23, 2010 | Permalink | Comments (0)

Dopiest Catch: Lack of Fishing License Costs Winning Blue Marlin Team $1.2 Million

Fish Add now to the annals of "the one that got away" stories the tale of the one that was taken away on a technicality.

The crew of the Citation thought they were sitting pretty, having pulled in the biggest fish in the annual Big Rock Blue Marlin Tournament in Morehead City, N.C., an 883-pounder. This would have netted (pun intended) them over $1.2 million, because the fish was the first over 500 lbs. and because, as it turned out, no bigger fish was caught through the end of the tournament.

But, yesterday, the Citation was disqualified. Because one of the mates on the boat was not in possession of a valid North Carolina fishing license. A license that would have cost him $30. According to the story in the Virginian-Pilot, the mate, Peter Wann, had lied to the Captain of the boat, saying he had a license. Once the record fish was caught, and he realized it might be an issue, Wann purchased a license (presumably online?) on the way to the weigh station.

Wann's belated licensing was discovered when he failed the routine polygraph examination given to the crew members of tournament winning teams. Fishing is apparently serious business in the Carolinas. So serious, in fact, that before the tournament board of directors made the decision to disqualify the Citation, they "spent three days deliberating with state officials and the North Carolina attorney general." 

If only the fish could have been pulled in on July 4th, Free Fishing Day . . .

June 23, 2010 | Permalink | Comments (2)

June 22, 2010

Legal Writing 102: Lessons From Songwriters

I've posted here several times recently to pass along the blogosphere's ongoing tips for better legal writing. I'd characterize most of those tips as Legal Writing 101 -- tips for avoiding truly "bad briefs," tips from brief-writing rockstar Justice John Roberts, and so on. Now let's move on to Legal Writing 102.

Notes The (new) legal writer blog asks here whether lawyers can learn from songwriters, and links to an interesting post on the Six Minutes blog entitled, "8 Speechwriting Lessons You Can Learn from Songwriters." In the Six Minutes post, Peter Jeff writes that there are eight very effective songwriting techniques that can also be used in speeches. As the (new) legal writer suggests, I think some of these can work well in legal briefs and arguments.

Here are a few of the eight techniques that seem most applicable to legal writing:

#2. Refrain

Jeff explains that a refrain is "a short phrase used in a series of (at least) three sentences. This short repetitive phrase is more strategic to the message and more memorable to the audience than repetition." For example:

  • Arnold Schwarzenegger at the 2004 Republican Convention:

   "America is back.
    Back from the attack on our homeland.
    Back from the attack on our economy.
    Back from the attack on our way of life."

  • President Ronald Reagan speaking on D-Day in 1984:

    "The men of Normandy had faith that what they were doing was right, faith that they fought for all humanity, faith that a just God would grant them mercy on this beachhead, or on the next."

#5: Rhythm

This technique involves changing the tempo of your speech or writing much like a songwriter changes the beats per measure. "Use at least five verbs in a repetitive sentence structure," Jeff says, "to generate a recurring beat that resonates with your audience." Example:

  • President John F. Kennedy's Inaugural Address, 1961:

    "We will pay any price, bear any burden, meet any hardship, support any friend, and oppose any foe in order to assure the survival and success of liberty."

#7: Echo

Use this technique to provoke your audience to echo a key phrase in your message. This will obviously have a different effect on a reader than on someone in an audience, but it might still be an effective way to engage a reader. Example:

  • Senator Ted Kennedy, 1988 Democratic Convention:

   "The vice‐president says he wasn’t there -- or can’t recall -- or never heard -- as the administration secretly plotted to sell arms to Iran. So when that monumental mistake was being made, I think it is fair to ask: where was George?

    The vice-president says he never saw -- or can’t remember -- or didn’t comprehend -- the intelligence report on General Noriega’s involvement in the cocaine cartel. So when that report was being prepared and discussed, I think it is fair to ask: where was George?

    The vice‐president claims he cares about the elderly -- but evidently he didn’t know, or wasn’t there, when the Administration tried repeatedly to slash Social Security and Medicare. So when those decisions were being made, I think it is fair to ask: where was George?

    And the vice‐president, who now speaks fervently of civil rights, apparently wasn’t around or didn’t quite hear when the Administration was planning to weaken voting rights, give tax breaks to segregated schools, and veto the Civil Rights Restoration Act of 1988. So when all those assaults were being mounted, I think it is fair to ask: where was George?"

You can read the whole list here. As the (new) legal writer blog puts it, your next brief need not "read like Bob Dylan’s lyrics. But if some of these techniques are trying to happen in whatever you’re writing, consider letting them happen."

June 22, 2010 | Permalink | Comments (2)

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'm in the airport gift shop and my flight leaves in 20 minutes. Should I get the snow globe for my kids or not?

Answer: What!? Are you not concerned with airport safety? Did you not see the large, stand-alone sign that clearly states that snow globes of any size are not allowed to be carried through the airport security checkpoint?  (Seth's Blog, Don't Snowglobe Me, Bro)


2) Question: I noted your answer a couple of weeks ago to the woman who paid the Florida police officer who pulled her over a "roadside fee" to avoid a speeding ticket. You said Florida had no such program. How about a $400 "in-store" fee to avoid embarrassment and police involvement if you get caught shoplifting by store security at a grocery store? Is that legit?

Answer: Hmmm -- creative. But threatening to report that someone has committed a crime can be considered a form of extortion, so this may not be legit after all. (The New York Times, Stores’ Treatment of Shoplifters Tests Rights)

3) Question: What do you mean I need to stand trial? What part of "I don't remember raping anyone because I was sleepwalking at the time" don't you understand?

Answer: Not everyone buys into the sleepwalking defense, I guess. And FYI, if the prosecutors fail to call a "sleep disorders expert" as a witness, you could get a new trial. (AAP, Alleged sleepwalker gets new rape trial)

June 22, 2010 | Permalink | Comments (0)

After Grades, What Else Can We Alter to Make Ourselves 'Look More Attractive?'

My mind is spinning now that I've learned that law schools are willing and able to retroactively inflate by 0.333 every grade recorded by their students over the last few years if it will make their students "look more attractive in a competitive job market." I just didn't know that this kind of thing was even on the menu of options!

Frog Now that we know that it's possible for an institution to instantly change what was previously considered to be an "etched-in-stone" number, the next question to me is what other areas of life this can be applied to? Please help me develop a list here. I'll throw out a few to get the ball rolling:

1. Pants sizes: Why should people have to wear blue jeans that say "Waist 38" on them? Blue jeans makers should deflate the size written on each pair (so size 38 now becomes 32) to make their customers "look more attractive in a competitive dating market."

2. Batting averages: The league-wide batting average in the American League is consistently 5 to 10 points higher than the average in the National League. The National League should inflate all of its players' averages by 8 points to make their players "look more attractive in a competitive free agent market."

3. Am Law 100 "Profits per Partner:" Your law firm's PPP is $2,000,000 but mine is $1,000,000. How is this helping me? Law firms should inflate their reported PPP figures to make their firms "look more attractive in a competitive legal market."

What else? Please add to this list!

June 22, 2010 | Permalink | Comments (2)

Why Should Law Schools Give Away Better Grades When They Can Sell Them Instead?

Gradeinflation The New York Times reports that next month, every student at Loyola Law School in Los Angeles will "awake to a higher grade point average," but not because of anything the students did. Rather, the school has simply decided that by retroactively inflating its grades by 0.333 for every grade recorded in the last few years, it can make its "make its students look more attractive in a competitive job market."

I'm sure this type of thing happened all the time when Grasshopper Lipman was in law school last month or whenever it was, but back in my day the grading process worked something like this: You studied, you took a test, the professor gave you a grade, and, well, that was your grade. Who knew that there was an additional possible step where the school just turbo-boosted your GPA to make you look better? Had I been able to take advantage of such a booster program my grades might have been good enough to make me a real judge today, instead of just a fake judge.

Now that we've established that law schools are willing to ignore and improve upon the actual grades students receive if it will make them and their students look better, maybe its time to talk price? Over at The Cuban Revolution, Brian Cuban suggests the next logical step: Law schools should adopt a “Frequent Flyer Model” to grading and sell grade increments. As Cuban explains it,

When I am short on American Airlines Frequent Flyer miles for that trip to Europe, I buy an extra 10k miles for a grand. When I am short an incremental + grade away from that coveted Law Review spot or Big Law job, does it not make sense for the law school, instead of engaging in an illusory and inflationary grading practice for free to monetize it? They should sell me an increment and help me bump the Law Review geek that actually worked for it while at the same time  filling the depressed funding coffers. Like American Airlines, they could offer cut-rate weekend special grade boosts for the C students about to accept a job at The GAP.

Exactly. Why just give away better grades when you can sell better grades?

June 22, 2010 | Permalink | Comments (3)

June 21, 2010

Not-Too-Bright Defendant of the Day: Catherin Vaughn, aka Katherine Funk

IF you've pleaded guilty to child abuse, and IF you're lucky enough to be sentenced only to probation (a travesty in and of itself in my opinion), it's probably a pretty bad idea to threaten to kill a judge, the judge's children, and the parenting-skills and anger-management instructor you're seeing pursuant to court order.

Via a post on the Legal Profession Blog, we learn that this is precisely what Catherin Vaughn/Katherine Funk did, noting that she and her husband were adept at using explosives, and revealing that she had followed the judge home from court on several occasions and knew what the judge's children looked like.

The Tennessee Court of Criminal Appeals ruled (.pdf) that it was perfectly appropriate for the judge to revoke Vaughn's probation and sentence her to 21 days in jail, followed by another two years of probation. Though three weeks in jail for a judge-threatening child abuser seems too kind, I suspect Vaughn/Funk will do more stupid things in short order and be punished accordingly.

June 21, 2010 | Permalink | Comments (1)

Legal Blog Watch Vacation Planner: Destinations to Avoid

Today is officially the first day of summer, and, no doubt, lawyers everywhere are thinking about planning their annual summer vacations. With many of us being unemployed -- in some cases merely a bit underemployed -- the temptation may be to try to find a good deal on a trip to a less-popular vacation spot.

Here at LBW, we want to make sure you don't get suckered. So, from TopTenz, here are 10 places you most certainly do not want to spend a week this summer. Or even an hour, I'd imagine. (Hat tip to Lowell Steiger.)

To this list, I would like to add one: Los Angeles. I just hate L.A. There are lots of good reasons to feel that way. Add Manny Ramirez to the mix, and it seems like a no-brainer to me.

Back in my BigLaw days, there was a partner who was (in)famous for going on vacation with his family every year, and receiving a daily FedEx package filled with the contents of his inbox (at the time, still a physical object, often composed of wood or metal), which he spent most of his waking hours dealing with. Wherever you go, you're not that important. Turn off your BlackBerry and go swim with the dolphins. Or, if you ignore our advice and go to Bubbly Creek, take a dip with the bloodworms. Buen viaje!

June 21, 2010 | Permalink | Comments (2)

Gimme an 'I'! Gimme an 'X'! What's That Spell? 'LAWSUIT'

Cheer Kicking off today in federal court in Bridgeport, Conn., is a trial that will seek to answer the question, "Is cheerleading a sport?" According to the AP, U.S. District Judge Stefan Underhill will be presiding over the case brought by members of the Quinnipiac University women's volleyball team, against the university for failure to comply with the requirements of Title IX.

Quinnipiac decided to cut its volleyball program and replace it with a "competitive cheer squad," which is apparently cheaper. Though there is currently a preliminary injunction in place preventing the school from axing the team pending the outcome of the suit, the results of the trial will set important precedent, especially in light of the fact that the case has been certified as a class action.

Quinnipiac was found to have manipulated its athlete statistics in an attempt to comply with the mandates of the law:

Evidence showed the men's baseball and lacrosse teams, for example, would drop players before reporting data to the Department of Education and reinstate them after the reports were submitted. Conversely, the women's softball team would add players before the reporting date, knowing the additional players would not be on the team in the spring.

I never did get the "new math." Though I'm skeptical about cheerleading being considered a sport in and of itself, even if you were to convince me otherwise, I'm in agreement with Anna Clark at Salon: "[W]hat a sorry birth it would be for varsity cheerleading if it were to come out of a swamp of data manipulation and lawsuits that pit sports against one another, making a mockery of any claimed commitment to the participation of women in athletics."

June 21, 2010 | Permalink | Comments (0)

Behind the Scenes (Sort of) of Murder Trial Prep

Last time we looked in on D.A. Confidential, the blogger was fantasizing about punishing doctors for their lack of respect for the value of their patients' time. It seems that he's currently engaged in something a bit more serious. Namely, preparing to try a murder case.

Confidential reveals that the trial is slated to start in the middle of next month, and gives a generic rundown of the kinds of things he's been doing to prepare, such as double- and triple-checking his witness statements, refining his witness list, and making sure to provide the defense with all of the required notices about what the state intends to present at trial.

The descriptions of the work he's been doing are general, and I'm sure that's no accident. Confidential is likely wary of revealing too many specifics about his trial preparation, among other reasons, because the defense attorneys, if they're smart, are reading his blog. And even though Confidential doesn't identify the defendant by name, saying "murder trial" and "beginning mid-July" probably is sufficient for the defense to know what case he's talking about.

How much information it's appropriate for a blawger to reveal about the matters on which he's working, morally, ethically, and according to the dictates of common sense, is a subject of much debate, some of which is hosted by Scott Greenfield at Simple Justice. (Sorry, Scott, I tried to think of a way to get your name into the title of this post, but came up blank.) Any blawgers have thoughts on this they want to share? Any lawyers who wouldn't dream of blogging want to tell us why?

I think Confidential's post comes out well on the safe side of the line, wherever you draw it, and it's still interesting to hear how the prosecution gears up for a big case. Confidential does reveal that it's his first murder case as first-chair, so good luck! Hope all goes smoothly and that justice is served.

June 21, 2010 | Permalink | Comments (1)

June 18, 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 have a brilliant plan to rob people at ATMs. It's low-cost, too. All I need are some squirt bottles and some liquid feces. Sound good?

Answer:  Sounds terrible. And not even that original. (CBC News, Feces-squirting thieves sought in Toronto)

Yemen 2) Question: I was born and raised in Fairfax, Va.  I'm headed off to Yemen to study information technology, after which I'll return to the U.S. What kind of jobs should I apply for when I get back?

Answer: Not so fast. Sometimes the U.S. government places people who study in Yemen on the no-fly list indefinitely and tells them they may need to return by "sailing the ocean blue" like Columbus. So unless you have a boat, you may not see Virginia again for a long time. (AP, Va. Man Trapped in Egypt on U.S. No-Fly List)

3) Question: I just caught a NYPD traffic officer using his flashing red lights and speeding through a neighborhood so that he could get a coffee coolata at Dunkin Donuts! I'm going to take his picture as he walks out of the store -- what will I get for this?

Answer: For starters, you might get a $165 ticket and a summons from a very unhappy traffic officer. (CBS, Cop Caught Flashing Lights, Speeding To Get Coffee)

June 18, 2010 | Permalink | Comments (0)

Are Cash Bonuses the Wrong Way to Incentivize Lawyers?

Recently, The Invent Blog posted a great video based upon a short lecture by Daniel Pink (“What Motivates Us”) related to his book, “Drive.”

In short, Pink says that while cash bonuses successfully produce higher performance for tasks that only require mechanical skill, studies show this is not true for tasks where even rudimentary cognitive skill or creativity is required. When trying to motivate people for cognitive tasks (like, say, lawyering), Pink says, employers must pay people enough to take the issue of money off the table (so they don't feel underpaid), but beyond that cash bonuses are ineffective. Rather, he says, three factors lead to better performance for such employees:

1. Autonomy: the desire to be self-directed;

2. Mastery: the urge to be challenged and to get better at something; and

3. Purpose: the desire to make a difference.

Check out the video below, including the amazing illustrator who makes the guy from the UPS commercials look like an amateur by comparison.

June 18, 2010 | Permalink | Comments (8)

Preparing for the 'Digital Afterlife' raised an interesting question earlier this week: How should the "digital afterlife" work, and what do we need to be doing now to make sure our intentions are carried out? 

Digitalafterlife People invest a great deal of time, energy and money in their "digital selves," Dave Wieneke observes, and he says that he and his lawyer friends "have always wondered about digital inheritance, and if businesses would rise up to provide escrow services for endowing our digital selves. Who will be your digital executor?" For instance, if you have created something online that you think your kids or perhaps others will value, why not "endow" it to keep it running after you are gone? 

As someone who has put a great deal of effort into creating something online that I think has value, I too have occasionally wondered what would become of it if I was no longer around. I can barely remember all of the passwords and accounts I have set up to support my website, and there is certainly nobody else who would have all of the information necessary to either keep it going or properly wind it down.

So what would happen to your blog or other digital assets if you were gone? Would they just stay online until your credit card expired with your Web host? Should we start collecting passwords, URLs and other relevant information and store it all in some easy-to-find place so that a digital executor can make intelligent decisions and carry out your wishes? Do we need to document our digital wishes before it is too late, e.g., "no one shall ever post on the 'I Love Labrador Retrievers' blog after I am gone?" Seems like a good idea.

June 18, 2010 | Permalink | Comments (6)

June 17, 2010

'Strategic Default' as Explained by Rapper Chamillionaire

By now, the fantastic burst of the housing bubble is old enough news that we've all become acquainted with the notion that some otherwise law-abiding, good-hearted, all-around nice people have decided to simply stop paying their mortgages and walk away from their homes.

It's called "strategic default," and it's even got its own blog, the Strategic Default Monitor. Law professors have gone all serious and academic about the morality of strategic default, but it's interesting to hear the concept discussed on a personal level by a self-proclaimed millionaire.

Not just any millionaire, but Chamillionaire, rapper (of Ridin' (Dirty) fame), blogger, and former custom car shop owner.

Houston real estate blog Swamplot has a good summary of Chamillionaire's situation (and also some pictures from inside the $2 million mansion Chamillionaire decided to abandon), but I thought you'd rather hear it from the horse's mouth (no disrespect intended):

Lest you worry about where Chamillionaire will lay his head at night, he's made it clear that the Houston mansion was simply one of multiple homes he owned, and he's "still got all the cars."

June 17, 2010 | Permalink | Comments (7)

Kentucky Court Watchers Rejoice -- Tell-All Book Now Available

KY Judge Anybody can read "The Brethren" or "The Nine" and call himself a court aficionado.

But if you're really hardcore -- and/or live and practice law in Kentucky -- you should get your hands on a copy of "Secrets of the Ky. Supreme Court" by retired Justice Donald Wintersheimer. The book appears to have been self-published. I can't find any reference to it anywhere on the Web with the exception of the linked review on But that review (written by retired Ky. District Court Judge Stan Billingsley, who, incidentally, owns LawReader) makes it sound like a real humdinger:

We particularly enjoyed one story about [the late] Justice [Charles M.] Leibson who was walking near the  Juniper Hills Golf Course in Frankfort, and found an apparently abandoned golf ball which he retrieved. He was quickly approached by  some angry golfers and returned their ball to them before quickly exiting the area.

I don't know -- revealing "secrets" like that could get a retired Justice in some hot water.

If you want to buy a copy ($25), contact Adams Avenue Books, 224 Adams Ave.,Covington, Ky. 41014, (859) 581-8781. Or just send me the $25 and I'll tell you a story about when I drove the green on a par-3 hole then proceeded to five-putt, resulting in my having to chug three beers.

June 17, 2010 | Permalink | Comments (0)

Digging for Bobby Fischer: Iceland Court Orders Chess Great's Exhumation

Say what you will about Deep Blue, but at least after its "death" in the late '90s, nobody claimed it had fathered an illegitimate child named Jinky. That is exactly the claim that has led a court in Iceland to order Bobby Fischer's body exhumed as part of a dispute over his estate that has been raging since he died in 2008.

Marilyn Young, Jinky's mother, claims that Fischer is the girl's father, and apparently provided the court with some evidence to that effect (which she also conveniently sent to Chessbase News). Here is a photo of the three, looking pretty tight, from 2004:

And here is one of several postcards Fischer allegedly sent to Jinky:


The point, of course, is not that one of the most brilliant minds in American history doesn't know how to spell the word "helicopter," but that he signed the card "From Daddy." Should be interesting to see what the DNA testing turns up.

Politics Daily's post on the exhumation order has a link to a thorough 2002 Atlantic profile of Fischer, by all accounts a few sandwiches short of a picnic basket in his waning years.

June 17, 2010 | Permalink | Comments (0)

Leahy to Introduce Bill Allowing Retired Justices to Fill Slots in Case of Recusal

Picture retired Supreme Court Justice David Souter as Al Pacino in "The Godfather III" -- "Just when I thought I was out, they pull me back in!"

If Sen. Patrick Leahy has his way, Souter, and any other retired justice, could be a special guest star for future cases where one of the active members of the Court has to recuse himself (or herself) because of a conflict of interest. As reported in this morning's National Law Journal, the idea was that of departing Justice John Paul Stevens, and Leahy supports it because it would eliminate the very real threat of  4-4 decisions, which, under the rules, result in an effective affirmation of the lower court's decision.

Leahy said he has a bill drafted and ready to go, though his office won't release the details. David Ingram's article in the NLJ cites several recent instances where justices who arguably had a conflict declined to recuse themselves, and cited the possibility of evenly split decisions as one reason. The article also quotes Indiana University Law School Professor Charles Geyh as warning that such a procedure could "politicize" disqualification of Justices and encourage "gamesmanship."

If this passes, I would call on Sen. Leahy to introduce a similar bill providing that, where a World Cup soccer game ends in a tie, Pele and/or Mia Hamm may view the highlights and choose a winner.

June 17, 2010 | Permalink | Comments (0)

June 16, 2010

Wednesday'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 working the register at Dunkin' Donuts. I'm pretty sure this guy just said "Give me the money, I have a gun." But he may have said, "Give me a honey bun." Now what?

Answer:  Your call. When that happened in Massachusetts recently, police charged the mumbler with attempted armed robbery. (Consumerist, Dunkin' Donuts Robber Says He Was Just Asking For A Honey Bun

2) Question: I'm a cab driver. This lady is about to stiff me on the tip for a $33 cab ride to the airport! How long can I keep her locked in the backseat of my cab until she reconsiders this rudeness? 


Answer: Unlocking the passenger's door is not optional, sir. (AP, Cabbie Arrested for Extorting $3.30 Tip)

3) Question: A judge just banned me for life from ever stepping foot in the Empire State Building again. Is that even legal?

Answer: It is certainly unusual. Were you recently caught trying try to parachute off of the Empire State Building's 86th-floor observation deck, by any chance? Judges can get prickly over that. (AP, Court bars stunt jumper from Empire State Building)

June 16, 2010 | Permalink | Comments (0)

Trend Watch: Employee-Customer Fights at the Wendy's Drive-Through Window

Wendysdrivethrough What is it about the drive-through line at Wendy's that is causing so much drama lately? What's up with all the fussin' and fightin,' people? Should drive-through employees receive combat pay? Let me recap what I've seen in just the last month or so.

May 4, 2010: At a Wendy's drive-through in Cumberland County, N.J., a customer rolled up on a Wendy's employee working the drive-through at 1 a.m. and started "talking sh*t" related to an argument over who was the father of the employee's child. The employee threw a fruit punch on the customer, who then tried to get at the employee by climbing in the drive-through window. Police did not charge either woman for their their role in the scuffle, but they did charge the customer and her two passengers after finding a plastic bag with suspected marijuana in the car.

May 19, 2010: At a Wendy's drive-through window in Daytona Beach, Fla., two women who were upset with their order allegedly cursed out the employee at the window, and one took at swing at him. One of the women then got out of the car and went inside the Wendy's brandishing a pink Taser stun gun. Police say she then chased the employee around the kitchen with the pink Taser while her cohort cheered her on.

The Taser-brandishing customer has been charged with aggravated assault with a deadly weapon, and her alleged "running mate" is charged with being a principal to aggravated assault with a deadly weapon.

June 12, 2010: At a Wendy's drive-through in Kalamazoo, Mich., a fist fight and a massive food fight broke out after four customers at the window claimed their order was incorrect. After what the employee termed a "communication breakdown," the disgruntled customers hurled food and drinks at an employee inside, who retaliated by throwing a drink, ketchup and fries on their car. This escalated to hamburgers and french fries, and ultimately to punches and chairs being thrown after the two people from the vehicle went inside the restaurant to continue the brawl. Two of the customers were arrested and charged with assault.

People, please! Think of the children in the minivan behind you before you try to crawl through the drive-through window to exact vengeance because your chicken sandwich has mayonnaise on it that you didn't ask for!

June 16, 2010 | Permalink | Comments (5)

Please Rob Me: Cruise Line Edition

An unexpected perk of writing the LBW column is that I'm becoming quite the expert on the many different ways people inadvertently say, "Please Rob Me." There is the use of Foursquare, of course, to announce when you're not home; listing a funeral or wedding in the newspaper, which will allow industrious robbers who read the newspaper to hit your house while you are mourning at the funeral or living it up at the wedding reception; and even using an answering machine to say you're "not home" (according to an old Family Circle magazine article).

The latest way to say "Please Rob Me?" Sign up for a cruise!

Royal CNN reports that Bethsaida Sandoval, a former Royal Caribbean Cruise Line employee has been arrested and charged with burglarizing the homes of 24 vacationers who were spending time at sea. Police say Sandoval accessed personal information about reservations to find out (a) when the vacationers would be away, and (b) the vacationers' home addresses. 

Sandoval allegedly obtained the customers' personal information and then gave the information to her husband. She and her husband would then reportedly go to the houses and burgle them on the first night of the cruises.

June 16, 2010 | Permalink | Comments (0)

Will the Traditional Concept of an 'Office' Be Dead Within 10 Years?

Officespace_stupididea Over at Seth's Blog, Seth Godin does his standard, masterful job of re-thinking big-picture issues with a post today entitled, "Goodbye to the Office." Godin looks briefly at the history of the "office" as a necessary destination at which work is performed, and concludes that the concept is probably on its last legs.

Godin writes that the idea of an office resulted from a need that developed in the 1800s for management to be right next to their companies' factories so that they could monitor what was going on. But what is the rationale for an office in 2010?

Godin identifies seven common answers to that question, and says that only one of them seems to have any merit today -- and even that one is probably short-lived:

   1. "That's where the machines are." Godin: The machine is now your laptop.
   2. "That's where the items I need to work on are." Godin: Again -- what you need is on your laptop.
   3. "The boss needs to keep tabs on my productivity." Godin: This can be done digitally.
   4. "There are important meetings to go to." Godin: Meetings are not usually that important. What would happen if you didn't attend?
   5. "It's a source of energy." Godin: You can get energy from people other than those in the same company.
   6. "The people I collaborate with all day are there." Godin: How many people in your office do you truly collaborate with daily?


   7. "I need someplace to go."

Godin acknowledges that there is still not a good answer for No. 7, and I can relate. With a house full of little kids and professional responsibilities that often include a need for a quiet environment without interruptions for a phone call or other interactions with third parties (e.g., no kids screaming and banging on doors, no dog barking),  a "place to go" can be a must. Once someone figures out how to offer No. 7, Godin says, "the office is dead."

Overall, I agree with Godin's argument: When you need to have a meeting, have a meeting. When you need to collaborate, collaborate. Otherwise, however, do the work wherever you like.

Do lawyers and legal professionals agree? Will the traditional law office be a "quaint antique" in 2020, as he suggests?

June 16, 2010 | Permalink | Comments (15)

June 15, 2010

A Car Rental Company by Any Other Name . . .

From this morning's New York Law Journal comes a report on a case decided by a New York trial court, holding that Zipcar, the "car-sharing" service currently operating in 50 cities and 100 universities around the country, is shielded from vicarious liability for accidents involving its vehicles.

The decision, Minto v. Zipcar (.pdf), is notable because it grants Zipcar the protections of the Graves Amendment, which shields from liability companies "engaged in the trade or business of renting or leasing motor vehicles." The plaintiff argued Zipcar didn't qualify, based largely on its own advertising, in which it goes to great lengths to distinguish itself from car rental companies, using such tag lines as "Car rental is so last century," and "You could rent a car (but that would be silly)."

The court didn't buy it, holding that, whatever Zipcar might call itself, the very marketing claims relied upon by the plaintiff demonstrate that it does compete with traditional rental car companies, and there was no basis to treat it differently. According to the NYLJ, this is the first case addressing the applicability of the Graves Amendment to car-sharing services.

June 15, 2010 | Permalink | Comments (1)

iPad, SchmiPad -- Get Your Favorite Lawyer a Pillow Tie

Lowering the Bar this morning features a new "it" item for lawyers forced to endure interminable conference calls: the Pillow Tie. It is pretty much exactly what it sounds like:

Pillow Tie
And it comes in a surprising array of colors and styles. The makers of the Pillow Tie promise that "when you rest your forehead on the soft, woven fabric, you will not be left with any incriminating lines from the pew in front of you, nor will you have to lay your face in someone else's drool an [sic] a communal airplane pillow." Also worth noting, the Pillow Tie is available in a clip-on.

June 15, 2010 | Permalink | Comments (1)

Oil Spill Expose of the Day: Foreign Registration of Rigs

Via Cruise Law News comes a link to a lengthy Los Angeles Times article exploring the practice of oil companies registering their drilling rigs in exotic foreign lands to avoid, to the greatest extent possible, oversight by U.S. authorities.

The Deepwater Horizon was registered in the Marshall Islands, and some experts quoted in the article assert that the foreign registration resulted in a dual command structure -- both a drilling expert and a sea captain having some command authority -- that likely contributed to the extent of the disaster because the captain felt he needed to consult with the drilling manager prior to taking action.

As I write, oil company execs are being grilled by Congress about the "cookie-cutter" disaster response plans they submitted, which apparently include provisions to protect walruses that haven't lived in the Gulf for the past 3 million years, give or take, and name as a wildlife expert a guy who died five years ago.

President Obama will be holding a primetime briefing this evening to talk about the spill and response, including his observations from his tour of the region over the past two days.

June 15, 2010 | Permalink | Comments (0)

FTC Public Affairs Office Must Be Overstaffed

Dad The Federal Trade Commission has some stuff going on that should be keeping its staff pretty busy. For example:

As we noted a few weeks ago, it's engaged in a follow-up study about the advertising of foodstuffs to kids.

Chairman Jon Leibowitz was making the cable news circuit this weekend, explaining that the "discussion draft" (.pdf) released late last month, in advance of today's "How Will Journalism Survive the Internet Age" workshop, was not an official endorsement of any of the kooky suggestions contained therein, but rather a mere compilation of ideas submitted by all sorts of people.

The Commission is warning consumers to watch out for oil spill scams.

Despite all of this work, someone in the FTC Public Affairs Office still found the time, in advance of Father's Day, to adapt "some of Dear Old Dad's favorite sayings" to tangentially related consumer protection tips in a cutesy release called "DADvice: Stuff Dads Really Say." To wit:

“There’s nothing a little duct tape can’t fix.” That may be true when it comes to home repair, but when your computer goes kablooey, duct tape won’t do. The best fix is prevention. Visit OnGuardOnline for tech tips on protecting your system from viruses, spyware, and other gremlins that can grind your computer to a halt.

Your tax dollars at work. If the FTC really wants a challenge, I suggest they use some of the gems found here for next year's release.

June 15, 2010 | Permalink | Comments (0)

June 14, 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: I need a divorce but I really don't feel like spending much time with the lawyers. Can't I just do this all on my iPhone?

Answer: Not quite, but the new DivorceApps will get you started. (LawSites, Getting Divorced? Now There are Apps Even for That)

2) Question: So I bought my daughter a new inflatable pool based on the "actual size" ad showing three kids happily playing and splashing together. Can I get summary judgment against the maker of the pool based on the photo below?


Answer: Judge Carton says your motion for summary judgment is GRANTED. (FAIL Blog, Actual Size Fail)

3) Question: I'm a lawyer trying to visit my client in prison. First the guards wouldn't let me in because the wire in my bra set off the metal detector. So I went into the bathroom and took off the bra, and now they won't let me in because going bra-less is against prison dress code guidelines. Now what? I can't work under these conditions!

Answer: Don't worry. The public defender's office reports that this matter, "while regrettable and unfortunate, appears to be an aberration." The warden says it won't happen again. (Miami Herald, Wrong bra, no bra: Jail bars lawyer)

June 14, 2010 | Permalink | Comments (0)

Blawg Review #267 Hits on Blogging, Facebook, Twitter and More

Venkat Over at the Spam Notes blog, Venkat Balasubramani (pictured) wrote last week's Blawg Review # 267 with a social media theme. Venkat hits on a number of interesting current topics, some of which do not even involve Scott Greenfield.

Among the non-Greenfieldian topics:

Why people are quitting Facebook.

Privacy issues surrounding the Facebook "Like" Button

The dangers of creating a fake MySpace page

Whether YouTube is a "Copyright Infringement Mecca"

Whether the Internet is making us stupid

Venkat states that the last point above is an important topic, and that his reaction to it was similar to Andy Borowitz’s:

The WSJ has a piece on how the Internet makes us smarter, which I will read once I'm done feeding my virtual sheep.less than a minute ago via web

Read the entire Blawg Review #267 here.

June 14, 2010 | Permalink | Comments (0)

Plain English for Lawyers: 'Exactly What You Are Supposed to Do'

Plainenglish A flurry of posts in the blogosphere last week provided a great reminder for young lawyers about legal writing: Just say it. In Plain English.

The recent posts on this subject were sparked by author and innovator Seth Godin, who wrote here that "the problem with just about every lame speech, every overlooked memo, every worthless bit of boilerplate foisted on the world" is that people love to write, talk and bullet without really saying anything. Take the following example, he says:

The firm will remain competitive in the constantly changing market for defense legal services by creating and implementing innovative and effective methods of providing cost-effective, quality representation and services for our clients

Work harder to think of something important to say, Godin argues. Otherwise, he says, it is better to "write nothing" at all.

Following up on this, Peter Friedman, associate professor of legal analysis and writing at Case Western Reserve University School of Law, writes on the Geniocity blog about one of the first briefs he ever wrote as a young associate, and the partner's response to him. The partner asked Friedman to put the brief aside and tell the partner in plain English why their client should prevail. After Friedman sputtered out his explanation, the partner asked,

"Then why didn’t you just say that?" I blinked, and asked in stupid amazement, "I can do that?" He laughed, and answered, "That’s exactly what you are supposed to do." Wow, just explain in plain English, without resort to legalistic rules and long chains of reasoning from premises established by Lord Blackstone? What an amazing idea, and what a truly difficult one to grasp.

Finally, on this same point, the Lawyerist summarizes things this way: "Say what you want to say. Do not imply it, do not hint at it, just say it."

It takes some rewiring for young lawyers who have been subjected to three years of dusty, legalistic court opinions to learn (re-learn?) to write in this way, but I believe that the advice offered to young lawyers in these posts is very solid.

June 14, 2010 | Permalink | Comments (7)

Law Professor Supports Scambloggers, Calls for Colleagues to 'Wake Up to Casualties of Our Enterprise'

Tamanaha Over at the Balkinization blog, support for the growing legion of Scambloggers who want to keep you from going to law school has come from an unlikely source: St. Johns University School of Law Professor Brian Tamanaha (pictured). Tamanaha, the Chief Judge Benjamin N. Cardozo Professor of Law, as well as a former Interim dean of the School of Law in 1998-1999 and Professor of the Year in 2001, wrote yesterday that it was time for his fellow law professors to "wake up to the casualties of our enterprise."

Tamanaha asks law professors to take a hard look at blogs such as Third Tier Reality, Esq. Never, Exposing the Law School Scam, Jobless Juris Doctor, Temporary Attorney: The Sweatshop Edition, which he believes "make a strong case that something is deeply wrong with law schools." The present dismal employment situation "was not created by the current recession -- which merely spread the pain up the chain into the lower reaches of elite schools. This has been going on for years," he writes. Tamanaha seems to agree with the assertions repeated throughout the Scamblogosphere that

law schools pad their employment figures -- 96% employed -- by counting as "employed" any job at all, legal or non-legal, including part time jobs, including unemployed graduates hired by the school as research assistants (or by excluding unemployed graduates "not currently seeking" a job, or by excluding graduates who do not supply employment information). They know that the gaudy salary numbers advertised on the career services page -- average starting salary $125,000 private full time employment" -- are actually calculated based upon only about 25% of the graduating class (although you can’t easily figure this out from the information provided by the schools).

To his law professor colleagues who protest that they are themselves not "scammers" and are simply providing students with the opportunity to have a go at a legal career, Tamanaha says that while this rationale made sense when annual tuition was $10,000 to $15,000, it begins to ring hollow when annual tuition reaches $30,000 to $40,000, as it now is at many schools.

Tamanaha says it is now time for law schools to provide straightforward, candid information about the employment numbers of recent graduates; to shrink the number of graduates; and to hold the line on tuition increases. "The negative consequences for individuals and for society of the extraordinary price of entry to the legal profession will become more apparent over time," he says. "And it all happened under our watch."

June 14, 2010 | Permalink | Comments (8)

About Incisive Media | About | Customer Support | Privacy Policy | Terms & Conditions