Blog Network

About The Bloggers


May 31, 2005

ALM editor grades AmLaw Top 10 on cloaking of associates

Monica Bay has put a great exclusive on her blog. In "Poaching Associates," Bay outs her latest Dirty Little Secrets column from Law Firm Inc., in which she grades the AmLaw top 10 firms on whether or not they try to cloak the identities of their associates, especially on firm Web sites. As Bay reports, the blawgosphere's been simmering for months over firms who say they hide their recruits in order to circumvent poaching by other firms. In practice, Bay writes, the effect is much deeper on everyone involved: 

"[T]reating associates like second-class citizens perpetuates the law firm caste system, and ultimately undermines client service. So we decided to review the Web sites of the top 10 Am Law 100 firms -- to see if a client could find direct e-mail addresses and phone numbers, a full biography, a picture and an educational summary for associates. The results were encouraging: Six of 10 earned a B or higher grade, and many firms that scored poorly are already reconsidering their policies.

Here's our report card: (All firms were invited to comment.) ..."

Click here to see how the following firms rate:

Skadden, Arps, Slate, Meagher & Flom

Baker & McKenzie

Jones Day

Latham & Watkins

Sidley Austin Brown & Wood

Mayer Brown Rowe & Maw

White & Case

Weil, Gotschal & Manges

Shearman & Sterling

Kirkland & Ellis

May 31, 2005 | Permalink | TrackBack

Is a psychological test a Fourth Amendment "search"?

"I just came across a very interesting opinion by Judge Posner from earlier this year on the question of whether a government-administered psychological test is a Fourth Amendment "search," and if not, what it might be," writes Orin Kerr, in an interesting post on Greenawalt v. Indiana Dept of Corrections and why Posner disagreed with a state worker who said a psychological test "searched" her in violation of her Fourth Amendment rights.

May 31, 2005 | Permalink | TrackBack

"Law Review is the path to the dark side"

So sayeth Matt Homann.

Find out why he follows Yoda's counsel here.

Steel yourself against the lure of the dark side of the force here.

May 31, 2005 | Permalink | TrackBack

Reason #539 to wear pants while opening the door

Michael Cernovich has been doing his reading, and you really should reward him for summarizing United States v. Quaempts, No. 03-30471, slip op. at 3, (9th Circuit, May 31, 2005). Here's how it begins:

"Darrell Quaempts' trailer home was so small that he could open the front door while lying in his bed. His doing so on one unfortunate occasion, in response to the knock of Yakima Nation police officers, resulted in his warrantless arrest for sexual assault ..."

More here.

May 31, 2005 | Permalink | TrackBack

SOXed in: When should legal departments cry uncle on compliance budgets?

When outside counsel are "charging like raging bulls. It was a fee fest," what's a law department to do?

That's the description by a senior executive at Adecco, which Rees Morrison found while reading the May 21 edition of The Economist. Morrison summarizes the article on Adecco's quagmire, in which the "$20 billion temp agency said they were not prepared to sign the company’s accounts for 2003 because there were material weaknesses, [and] they triggered a $120 million accounting and legal review."

Morrison muses what to do here.

May 31, 2005 | Permalink | TrackBack

Are you an equity partner or a jumbo shrimp?

The Wired GC wants to know. In "The Partner Paradox," (S)he writes,

"I think part of the problem is that many modern large firms use the term 'partner' rather generically. Some dole out nonequity partnerships like potato chips at a cocktail party. They seem to want to have it both ways: let the external client world assume a nonequity partner is a true owner of the firm, while internally treating her like an associate on steroids. Most don't disclose the distinction on the attorney bio entries of the firm Web site, for example.

"If my firm did work for DuPont, I would hope client wouldn't need to pop this question, since I'd want them to know all relevant information about the firm attorneys and staff on the engagement. For $400/hr, that's the least they should expect ..."

More here.

May 31, 2005 | Permalink | TrackBack

May 27, 2005's second anonymous blogger is...

The Wired GC. (S)he's Midwestern and it shows. Funny, smart writing. Use of the Internet to parachute into both coasts and pull back the veil on corner-office wrangling. Inside The Corporation and The Firm. For example, take today's entry, in which a seemingly innocuous title,  "Checking Out a Book of Business," becomes the punchline:

Law firms Coudert and Orrick are having a bit of a public dust-up over the latter’s hiring 11 of the former’s partners. The NY Times $ has the details. Orrick even has a news release.

Partners leaving one firm for another is scarcely news. But the NY Times article caught my eye when it mentioned a letter sent from Coudert to Orrick:

The letter raises the possibility of misconduct by the departing lawyers and by Orrick without explicitly accusing either of anything. The letter promises a review of e-mail messages sent by the departing Coudert partners and warns them not to try to woo clients away to Orrick.

I know there are ethical and perhaps legal constraints on soliciting clients from a former firm (no “wooing” even?). But the letter illuminates one point often missing in these “law firm scorned” situations: it is ultimately the client’s decision as to who the lawyer is.

It would be interesting to check back in a year, and see how many of Coudert’s former clients are now at Orrick. Or vice versa.

All the talk about a lawyer’s “book of business” sometimes obscures a simple fact: contained in each book are clients writing checks."

Welcome whomever you are (okay, we know, but we're not telling). Which isn't the case with Juan(a?) Non-Volokh. But that's up to the Blogfather.

May 27, 2005 | Permalink | Comments (0) | TrackBack

May 26, 2005

Oh look, the FBI and Dept. of Homeland Security redesign Web sites...

... during investigations into alleged criminal copyright infringement, that is. Bill Heinze shows us how (don't miss his link to a new home page for done in a shade of red that's, um, not exactly Web-safe) and links to news reports on the case.

If you're wondering what your rights and permissions are as a blogger, and who's advocating for them, you can (a) bookmark and read this site, and (b) attend BlogHer Conference '05. On the conference agenda is a session called, "What You Can Get Away With: Legal Tips, from copyright to Apple v. Does," where Content Director Jennifer Collins will moderate an audience discussion  with Lauren Gelman, associate director for Stanford Law School's Center for Internet and Society, and Wendy Seltzer, an attorney and special projects coordinator with the Electronic Frontier Foundation.  (Yes, men are welcome!)

May 26, 2005 | Permalink | TrackBack

The [non]billable hour up for awards

Matt Homann writes that his blog, The [non]billable hour, has been nominated for not just one but two awards: Technolawyer and Marketing Sherpa's 2nd Annual Reader's Choice Blog Awards. I'm a huge fan of MarketingSherpa, have been for years, and I agree with Matt that he's breathing rare air to be on a list with these amazing blogs:

Congrats all!

May 26, 2005 | Permalink | TrackBack

New FMLA regs? Mike Fox bets no ...

While there's a need and support for new family and medical leave regulations, Mike Fox doesn't think big changes are coming soon, despite a recent USA Today story and what other bloggers write. Here's why:

"While I hope I am wrong, I would be very surprised to see the DOL venture out too far into controversial regulatory waters so soon after the heated rhetoric over the changes to the FLSA white collar exemptions. Changes to the FMLA would not have to be controversial, but given the partisan rhetoric that permeates every issue in Washington these days, it would be. This is one prediction I would be happy to see be spectacularly wrong, but don't put too much money against me on this one."

More here.

May 26, 2005 | Permalink | TrackBack

When being rude to potential neighbors is a federal offense

"I kid you not," writes Michael Cernovich, who links to a fantastic post on the White Collar Crime Prof Blog that invokes the 9th Circuit, criminal prosecution for interfering in the sale of government land (United States v. Cassel) and a dog named Mr. Mooch Face.

May 26, 2005 | Permalink | TrackBack

Aftermath of Perelman's win vs. Morgan Stanley: "New playbook" for EDD?

Monica Bay brings us up to speed on Morgan Stanley's pledge to appeal the $1.4 b-b-billion-dollar verdict, and its ripple effects on the litigation support industry, as reported by Matthew McCarrick. Weighing in as The Litigation Support Guy, McCarrick writes,

"[O]ur team is hearing rumblings that suggest a whole new playbook of issues may be included in the fallout of this electronic discovery debacle.  One example of this is professional liability insurers. We are getting word from the front lines that professional liability insurers are now taking a hard look at law firm exposure issues presented by ostrich-like clients who refuse to address these issues up front and then subsequently drag the firm into a Kirkland-esque jackpot ..."

Related posts:

May 26, 2005 | Permalink | TrackBack

Pro bono update: Open-source tools, corporate counsel opportunities

Just in time for summer, two tools to help you get your white knight on:

  • Bob Ambrogi recommends a new open-source tool,  Prison Services Project,  "an intake, case management and referral service for licensed attorneys who provide pro bono brief representation to incarcerated individuals." More on the project and its developer, civil rights attorney Regina Mullin, here.
  • Corporate counsel looking for opportunities to contribute can do so here, with a little help from Geoffrey Gussis.

May 26, 2005 | Permalink | TrackBack

The Dark Side meets Darwin

This makes me a tad calmer about the broomhandle-as-lightsaber battles recurring at my house of late ... 

May 26, 2005 | Permalink | TrackBack

May 25, 2005

Opposition to potential Supreme Court nominee John Roberts

Many Volokh Conspirators are weighing in on this possibility, now that the filibuster deal's in the rearview mirror. Read these posts all on one page:

  1. Opposition to Roberts
  2. Would John Roberts Be A Controversial Nominee?
  3. More On 100-0 Nominees
  4. John Roberts and 100-0 Support
  5. Can we trust the Senators to live up to THE DEAL?
  6. 100-0 Nominees?

May 25, 2005 | Permalink | TrackBack

Blog post solves murder: Is printout of final entry admissable at trial?

Orin Kerr has the story, the final entry and the extra-credit question. Comments are open.

May 25, 2005 | Permalink | TrackBack

How about a firm wiki for key clients?

Bruce MacEwen writes about a CIO Insight article that he swears is not "yet another bloviating article about blogs." Instead, he writes, the piece "looks at blogs -- and the collaboratively maintained databases known as "wikis" -- as tools to enable coordination and project management among professionals.  Blogs and wikis share several attractive characteristics:

  • they're dirt cheap, even free;
  • magically intuitive to nontech people (perhaps the strongest extant analogy was the ease of adoption of e-mail) ;
  • changes and updates are instantly available to anyone with online access (and, if appropriate, a username and password);
  • since both have built-in RSS/subscription functionality, users can receive updates automatically without having to remember to go back and check (possibly to come away empty-handed); and
  • with their search and categorization tools, they can grow up into powerful knowledge bases over time."

More here.

May 25, 2005 | Permalink | TrackBack

More on how to protect IP in China

Bill Heinze recommends advice by to Loke-Khoon Tan, An Xiang, and Ren Haiyan  as reported by Managing Intellectual Property at the INTA Annual Meeting:

  • file trademark applications early
  • register Chinese character versions of marks
  • against squatters, consider filing a non-use cancellation application, making an unofficial agreement on coexistence, or buying their mark
  • booklets to help Customs officials identify counterfeit goods "can create bigger problems if the material gets into the wrong hands."
  • fight infringers politically and publicly, "not just legally"

May 25, 2005 | Permalink | TrackBack

Stink over co-worker's perfume nets employee $10M

Mike Fox reports the story of Erin Weber, formerly a DJ at Detroit country station WYCD-FM, who complained that a co-employee's perfume habit was a premeditated attack by another female DJ, Linda Lee. Of the all-female jury's $10.6 million verdict in favor of Weber, Fox writes,

"While the "perfume allergy" makes for good copy, including my favorite headline from a South African Web site, DJ wins $10m in smelly saga, one wonders if it will even stand up as a disability claim. My guess is it was the other aspects of the employer's conduct that set the jury off into an MDV frenzy; it may have been the unequal pay or the retaliation claim that Weber made after she filed a complaint with the EEOC. Even then the jury twice sent notes to the judge saying they were having difficulty reaching a decision. Given the numbers, my guess the fights were over damages not liability, and if I am right there was someone on the jury who was pressing for an amazingly high number. (Not that $10 million isn't!) ..."

More here.

May 25, 2005 | Permalink | TrackBack

Lex Talk: "Law" vs. "Legal" department

"What's the difference between 'Law Department' and 'Legal Department?'" asks Rees Morrison in this amusing post. "Gird yourself to plunge to the deepest profundities of epistemology, etymology, philology and psychology. ... At a loss how to split this hair, I Googled the two terms ..."

May 25, 2005 | Permalink | TrackBack

May 24, 2005

Introducing InhouseBlog author Geoffrey G. Gussis

Please help me welcome blogger Geoffrey G. Gussis, the newest blawg affiliate. Gussis, an attorney with Riker Danzig Scherer Hyland & Perretti LLP, specializes in corporate law, with a focus on information technology, intellectual property and Internet law issues.

On InhouseBlog, Gussis reveals that he reads aggressively and is willing to talk like someone who isn't part of a corporate superstructure. I'm partial to his posts on news of the legal and weird, as well as corporate risk management & compliance, such as this one:

Hell to Pay for Data Security Breaches?

When a top government official uses the expression "somebody has got to pay," you can be pretty sure of two things: (1) it's probably not going to be the government, and (2) it's probably going to involve your company sooner or later.  Recent comments by Orson Swindle, a commissioner of the Federal Trade Commission are no exception to this rule. reports part of his comments as follows: "While politicians raise hell about identity theft, what we're really talking about is the failure to protect valuable currency," Swindle said. "Corporate boards better start paying attention, because they haven't been." Be forewarned -- additional scrutiny, regulation and "hell" are on the way.


May 24, 2005 | Permalink | TrackBack

Cautionary tales for real estate shoppers: Land mines in foreclosures

"If you're in the market to buy property at foreclosure sales or considering it; be careful out there kiddies. Land mines are all around," writes J. Craig Williams. More here.

May 24, 2005 | Permalink | TrackBack

E-mail with links fails minimum notice requirement for arbitration under ADA

Mike Fox has a key update from Campbell v. General Dynamics Government Systems Corp. Here's an excerpt: Fox writes, "Although the Court goes to great lengths to note that e-mail can be a legitimate means of announcing and implementing an arbitration policy, this attempt did not suffice. Rather:

'To be blunt, the e-mail announcement undersold the significance of the Policy and omitted the critical fact that it contained a mandatory arbitration agreement. The result was that a reasonable employee could read the e-mail announcement and conclude that the Policy presented an optional alternative to litigation rather than a mandatory replacement for it...'"

May 24, 2005 | Permalink | TrackBack

Does Lingle v. Chevron foreshadow Gonzales v. Raich outcome?

Michael Cernovich thinks perhaps yes. Quoting from Justice O'Connor's opinion in Lingle, in which she describes the "The reasons for deference to legislative judgments about the need for, and likely effectiveness of, regulatory actions are by now well established, and we think they are no less applicable here."

Cernovich, who added the emphasis, suggests:

"Seems to apply nicely to Raich, in at least two ways.  First, it's up to Congress to determine what effect, if any, homegrown marijuana will have on interstate commerce, rather than to have courts "choose between the views of two opposing economists."  Second, whether Congress should take "regulatory action" to reach Angel Raich's conduct is entitled to 'deference.'"

May 24, 2005 | Permalink | TrackBack

The lawyer joke Rudy Giuliani tells at commencements

... At least at one commencement, anyway -- that of Norm Pattis' eldest son, who graduated from Middlebury College over the weekend. Pattis has a nice long lede:

"My family and I were dreading Rudy Guiliani's commencement speech at Middlebury College in Vermont. We brought books to read to avoid having to listen to the drivel. But I couldn't help but hear him from time to time. Engrossing as are Hawthorne's Tanglewood Tales, Rudy had a microphone, and I was more than a little curious about what sort of stuff he had. Why's he the darling of so many? ..."

"He did tell one lawyer joke I will share ..." Read it here.

May 24, 2005 | Permalink | TrackBack

May 23, 2005

He's naked and you're offended, but that doesn't change the First Amendment

In "It's a Crime for Cable Companies to Offer HBO in Michigan," blogfather Eugene Volokh interprets a Michigan Appeals Court decision, People of the State of Michigan v. Timothy Bruce Huffman, here. Here's an excerpt, but I encourage you to read the whole thing:

"The Supreme Court has made clear that material doesn't lose constitutional protection merely because it contains nudity that might offend someone. And I think this is correct; if you don't like what you see, a click of the remote control -- coupled with remembering what channels tend to carry such material, so you can avoid it in the future -- will solve the problem for you. Nor am I much worried about children here; whatever harm may flow from children being exposed to sexually themed material, let me stress again that the law as interpreted by the court isn't limited to the erotic.

"It turns out that there are interesting conceptual questions about how First Amendment law should treat nudity, and about what distinctions there may be between live nudity and televised (or for that matter painted or computer generated) nudity. Nonetheless, I don't think a court needs to be detained by these theoretical issues here; the First Amendment precedents are pretty clear, and they're in Huffman's favor."

May 23, 2005 | Permalink | TrackBack

Fair or unfair use? Electronic postings vs. library reserves

"What's the difference between books on reserve in library stacks for students (who are going to copy them and take the copies back to the dorm to study) and the same books on reserve online (where the same students can just hit the print button in their dorm room)?" asks J. Craig Williams. In "Fair Use On A Hard Drive Behind A Username and Password," Williams writes that he thinks the definition of "fair use" is headed back to court.

I know this much: Students are caught in the middle, between librarians and professors who see password-protected online postings as easy library reserves, and publishers who see a missed opportunity for permissions and royalties. What do you think? Comment here.

May 23, 2005 | Permalink | TrackBack

Why your litigators don't talk to your deal lawyers -- and how that could hurt you

Ona_1Enough about what's in your e-mail-- Bruce MacEwen has been researching what your email to/from list indicates about the way your company does business.  (He was spurred on by a story in The New York Times, as he describes in this post, "Enron's 1.5 million emails: A window into knowledge management?")

Is your firm or corporation customer-oriented or company-oriented? To put it another way, are you ball hogs or team players? In this post, MacEwen is using a graphic that depicts both, courtesy of Rob Cross, a professor at University of Virginia's McIntire School of Commerce, who:

"analyzed a large consulting firm reorganized into four regions across the US from its earlier city-by-city structure, with the goal of being able to provide a broader and more diverse array of services to each client. Eighteen months later, the question senior executives wanted answered was, how is the integration going? Using organizational network analysis (ONA), they produced the following graphic representing the relationships across two of the new regions.

"Any questions about which region had become more cohesive and which remained silo'ed in its earlier city by city footprint? So what's in ONA for you? Does integrating practice groups sound like a challenge you've ever faced? And did you try to address it through exhortation and evangelism? We can do better:  The tools are there for you to use, and they work."

May 23, 2005 | Permalink | TrackBack

World's oldest patent attorney (C. Yardley Chittick, 104) yields secrets

Don't miss this 1925 MIT grad's professional-life story, courtesy of Bill Heinze.

May 23, 2005 | Permalink | TrackBack

Big brother: Watching even more closely in Q3 and Q4 ...

In "Is Your Work Email More Likely To Be Monitored in Europe or the U.S.?" Mike Fox reports that about one-third of U.S. employers regularly monitor their employees' e-mail -- that's half as often as in France and Spain. Fox thinks monitoring is going to be a hot topic as the year continues:

"Given the significance of email and the productivity (and other) issues with surfing the internet, it doesn't seem likely either of these is going to become less frequently monitored. The next big monitoring issue would seem to be gps or similar monitoring. For employers with mobile employees, the technology will soon be there if it isn't already."

May 23, 2005 | Permalink | TrackBack

Does Hatch Act illustrate why the Court needs to reinvigorate the Tenth Amendment?

Michael Cernovich thinks so. He writes, "If any law illustrates how wrongly decided South Dakota v. Dole was, then it's the Hatch Act. Under the Hatch Act, a state employee can't run for certain state elective offices.   In other words, the federal government regulates who can run for state office.  Wow. How does this work in real life ..."

What do you think? Comment here.

May 23, 2005 | Permalink | TrackBack

All the legal news fit for parody

Bob Ambrogi introduces us to In Loco Veritas, a site devoted to the parody of legal news. If you love The Onion, you may like this site too.

May 23, 2005 | Permalink | TrackBack

Has SOX homogenized the roles of GCs and compliance officers?

Responding to a quote in The New York Times, Rees Morrison says he doesn't think so, but he raises a question about the fallout for companies who depend on both these roles:

"[T]he roles of general counsel -- providing legal advice -- and the chief compliance officer -- assuring procedures meet legal requirements -- remain fairly separate. [See my post of March 26, 2005, on two-tiers of staff.] If you combine promoting business (law) and enforcing regulations (compliance), do you create a no-fat department -- watered down and less effectual in both roles?"

May 23, 2005 | Permalink | TrackBack

May 20, 2005

How did three big-name Boston lawyers get brought to justice?

Carolyn Elefant wonders whether she has uncovered the answer. She writes:

"I have to admit that I was a little mystified when I read about the recent Massachusetts Discipline committee's decision to disbar three prominent Boston attorneys, whose resumes included high government posts and stints at biglaw) biglaws. ...But then I read this article "Boston Legal Community Abuzz Over Disbarment" (5/14/05) and it all made sense.  Seems that the Ellen Carpenter, the hearing officer who painstakingly drafted the 229 page decision is a shingler with her own practice -- in fact, one who we blogged about here several years ago.  Could including more solo and small firm lawyers on discipline panels be what it takes to ensure that complaints  against prominent attorneys  are treated as  seriously as those against solo and small firm lawyers?  Or is this just all a coincidence?"

More here.

May 20, 2005 | Permalink | TrackBack

List of American enterprises outsourcing some legal services grows ...

In the month since Joy London and Ron Friedmann began to list American enterprises that are using offshore legal services, the list has nearly doubled.

Friedmann puts the trend into context, writing, "Some may think that with all the new entrants and "buzz," legal outsourcing has the feel of the dot-com boom and eventual bust. My view is that outsourcing and offshoring will take hold but like many other past and present trends in the legal market -- adopting PCs, creating brochures, using e-mail, analyzing practice group profitability, and hiring marketing directors -- it will take time to grow and mature." At the same time, Rees Morrison, over at Law Department Management, raises an eyebrow at one estimate of the size of this market.

Click here to read the list that focuses on:

  • Document drafting by lawyers
  • Legal research
  • IP legal work, substantive or administrative
  • Review of discovery documents
  • Paralegal services
  • Administrative and secretarial support services, excluding digital dictation
  • Friedmann emphasizes that "the list does not include offshore litigation support coding or vendor-provided technology services. Nor does it include offshore vendors without a specific legal focus."

    May 20, 2005 | Permalink | TrackBack

    Solo Law 101: Techniques for getting paid

    Recommended reading from Carolyn Elefant.

    May 20, 2005 | Permalink | TrackBack

    Internet-talk radio for attorneys launches tomorrow

    Move over, Howard Stern. Bob Ambrogi reports that, "A Massachusetts company founded by former television broadcasters has launched a Web site devoted to Internet broadcasting of legal news and talk shows. Called The Legal Talk Network, the site so far offers only a handful of video and audio programs produced in cooperation with attorneys in Massachusetts but it aims to become a resource for attorneys nationwide. ..." More here about the network's Saturday launch.

    May 20, 2005 | Permalink | TrackBack

    May 19, 2005

    Shearman & Sterling IPO to make splash across the pond?

    "Now that the Clementi door is open, some firm is sure to walk through it," writes Bruce MacEwen, referring to a UK decision to allow third-parties to invest in law firms. "Across the pond, we're about to see an actual experiment that heretofore could only have been a thought experiment ... most dramatically, law firms could even go public through IPOs.

    "Before we can become sullied by actual experience with this newly opened door, then, it's a matter of some urgency to forecast what it might mean ..." More here on MacEwen's opinion of different business models and services that could take hold, some of which are more capital intensive than others.

    May 19, 2005 | Permalink | TrackBack

    Coming to a legislature near you? Florida's new self-defense law

    The Volokh Conspiracy's David Kopel weighs in on a new Florida law created by NRA President Marion Hammer and signed by Gov. Jeb Bush.

    Kopel thinks this "self-defense law" may be coming soon to a legislature near you:

    "The NRA has announced that it plans to take SB 436 national, and urge other states to adopt similar measures. Previous Florida programs created by Marion Hammer have done very well in other states. In 1988, her lobbying led Florida to enact “Shall Issue” concealed handgun licensing legislation -- so that any law-abiding adult with a clean record and who passes a safety training class may obtain a permit to carry a handgun for lawful protection. Before 1988, only a handful of states had Shall Issue laws; now, only a little more than a dozen states do not have such laws."

    What the law is and what it means for day-to-day life in Florida is also part of Kopel's lengthy post, one I recommend you read in full. Here are some highlights:

    "... a person may use deadly force against someone who unlawfully and forcefully enters a person’s home or vehicle. A victim may also use deadly force against a criminal who attempts to force a person out of her vehicle or home. Thus, if someone kicks down your front door in the middle of the night, or attempts to carjack you, you can use firearm or other deadly weapon to protect yourself. You do not have to worry that a prosecutor might second-guess your decision, and claim that you should have used lesser force against the violent intruder.

    "... Prior Florida law about self-defense allowed defensive deadly force only when the victim believed that no lesser force would suffice. The principle remains in effect in all self-defense situations in Florida, except when the attack takes place in the home or automobile; the legislative judgment was that attacks in a home or vehicle are so outrageous, and so threatening to the social order, that victims should be guaranteed that they will be protected from having their defensive decisions second-guessed in court."

    "... Principled opponents of the Florida law can object to the bill because it allows deadly force against home invaders and carjackers, because crime victims are not required to retreat, or because criminals may not sue crime victims. In the United Kingdom, such objections would carry the day. Earlier this year, the Blair government defeated a move in Parliament to ease Britain's severe restrictions on self-defense in the home, because, in the British government's view, criminals also have a right to be protected against violence. Likewise, the British courts have allowed burglars to sue victims who used force against them. But in the United States, social attitudes tend to favor the victim's rights over those of the criminal. Most Americans would disagree with the idea that a mugging victim should be sent to prison because he didn't try to flee, or that violent predators ought to be able to sue victims who shoot them."

    For more -- including exceptions to the bill and other essentials -- see here.

    May 19, 2005 | Permalink | TrackBack

    GlaxoSmithKline's reaction to a proposed AIDS patent pool

    Bill Heinze has some terrific links on a report by William New at Intellectual Property Watch about a proposal put forward by Consumers International and the Consumer Project on Technology (CP Tech) in the margins of the annual U.N. World Health Assembly on Tuesday.

    The proposal would create an "Essential Patent Pool for AIDS" to "enable a sustainable scale up of the global AIDS campaign and expansion of access and creation of needed technologies to combat the AIDS pandemic," Heinze summarizes:

    "One advantage to the pooled approach from a developing nation standpoint is that it would allow governments to join together on a compulsory license instead of one government facing the pressure that can accompany such a decision, she noted. It could also help generic producers innovate as some have feared litigation if they started producing in some countries and typically operate on small margins. Under the proposal, royalties for high-income countries would be determined through a formula reflecting "equitable" terms such as the relative therapeutic benefits of products and the affordability of royalties in countries depending on average incomes and the presence of HIV/AIDS."

    I also see that a lobbyist from at least one member of the pharmaceutical industry, GlaxoSmithKline, immediately issued a warning -- whether this warning also was a threat from this particular company remains to be seen. Heinze writes,

    "In a discussion following the announcement, Jon Pender, director of government affairs for access issues and intellectual property at GlaxoSmithKline, reportedly showed a willingness to discuss the issue further, but said at first reaction that it might lead to research-based industry "washing its hands" (pulling out of) countries that joined the patent pool. An additional concern was that it might mean a reduction of investment in those pharmaceuticals, he said."

    More here.

    May 19, 2005 | Permalink | TrackBack

    A comprehensive list of law reviews online

    Inquiring blogfathers want to know, so I'll recommend the Law Library of Congress, which lists more than 50 law reviews online and provides surfing recommendations for more at the bottom.

    Meanwhile, Orin Kerr links to a piece by Christine Hurt at The Conglomerate. Hurt, is "looking into why recent Volumes of the Harvard Law Review have mostly published the works of male authors. One obvious trend in the HLR's publication track, Christine notes, is the very strong preference for articles in constitutional law ..." More here.

    May 19, 2005 | Permalink | TrackBack

    May 18, 2005

    Calling all savvy blawggers: What will the legal profession look like in ten years?

    Bruce MacEwen has lobbed his latest "savvy blawger" question out to a panel of pundits, and it's a potential doozy:

    "What will the industry structure of the (U.S.-based) legal profession look like ten years hence? Not to be oblique about it, but I'm seeking the collective wisdom of the Savvy Blawgers on whether the much-bruited consolidation of the AmLaw 200 is for real, in their opinion, or whether it will run up against inevitable ceilings such as a fatal overload of "conflicts" or the inherent difficulty of managing a complex and far-flung enterprise.  With corollary questions such as, are clients or firms driving it, and if firms, what are they hoping to achieve? Jargon note: I'm using "industry structure" in the economic sense, meaning what is the makeup, distribution, composition, and market share of the industry players? The "industrial structure" of the long-haul passenger jet market is simple: Airbus and Boeing, each at 50% of recent deliveries. By contrast, the industrial structure of the artisanal cheese-making industry is completely atomized."

    MacEwen says reader comments are also welcome -- here.

    May 18, 2005 | Permalink | TrackBack

    Life just got a little easier for IP geeks

    Bob Ambrogi links to a new service that "enables patent professionals to create watchlists for patent searches and monitor them through RSS feeds. Called PatentMojo, its users are able to create watchlists using any search criteria. The service searches the U.S. Patent and Trademark Office data daily and delivers updates via RSS. A seven-day free trial is available through the site, after which subscriptions cost $15 a month."

    For more, read Bob's post here.

    May 18, 2005 | Permalink | TrackBack

    Wonder if your expensive Web listing pays? Here's how to find out.

    In "Why Sponsorship on Is Not Worth $900/Month," Carolyn Elefant offers unflinching advice to her fellow soloists:

    "Apparently, LexisNexis-Martindale haven't heard of the Internet.  Because if they had, they wouldn't be hoping to trade in on their name-recognition to lawyers and charge $900 a month for a national sponsorship service available on their data base as reported here in Courts Legal Marketers, ClickZ News (5/17/05)...

    Putting herself in a potential client's position, Elefant shows you how the search system works for a typical user -- and comes up with further proof that solos need to think through their marketing strategies. She writes,

    "The other problem with paying for a service like is that it won't buy lawyers what they really crave from Internet listings -- wide Web exposure.  If you're listed in, try Googling your name on the Internet.  It's likely that your listing won't even show up.  Even if you Google your specialty -- say, Maryland civil rights law -- and appears at the top of the list, users aren't going to want to deal with a scroll through menu.  Rather, they'll just go to the lawyer with the Web log on Maryland civil rights law who comes up at the top of the listing -- or the lawyer who bought the Google ad words "Maryland civil rights" whose links appear in a feature box ..."

    More here.

    May 18, 2005 | Permalink | TrackBack

    I/P attorneys mull outsourcing of legal work

    Bill Heinze reports that "Reed Smith partner Ajay Raju believes that India's enormous, educated work force, particularly in the math and science fields, makes outsourcing legal work in the IP practice an extremely attractive option. According to Jeff Blumenthal at The Legal Intelligencer on May 18, 2005:

    "Raju said cooperation between Indian and American business interests should only increase as the Indian government decreases economic protectionism. The Indian Advocates Act of 1961 prohibits foreign lawyers from practicing law in India. But the Indian government has recently proposed a controversial measure to allow foreign lawyers and law firms to enter India at the very least in alliances with Indian firms ..."

    More here.

    May 18, 2005 | Permalink | TrackBack

    Blawggers on Newsweek's Quran coverage

    While this story doesn't directly apply to the practice of law, plenty of blog affiliates are talking about Newsweek magazine's decision to publish, to correct and ultimately to retract a story that American interrogators were desecrating copies of the Quran (read Newsweek's statement here).

    Here's what blawggers said, posted in order of the most recent publication date:

    • J. Craig Williams writes Newsweek: Anonymously Reporting The News?
      "Let's take a look at it from a legal perspective. I wouldn't stand a snowball's chance in hell in winning a case if I relied on an anonymous source for testimony. Can any lawyer rely on anonymous sources? Sure ..."

    • Michael Cernovich
      • Truth, Death and Ethics: "If you were the anonymous source, would you recant truthful allegations because the truth was causing people to die?"
      • Deady Lies: "In yet another attempt to smear President Bush, Newsweek did what most here have seen overzealous (if misguided) police and prosecutors do -- rush to judgment ..."
    • Norm Pattis writes Toiletgate: "Definition of the term lie: A Bush administration flak moving his or her lips on the war on terror. Newsweek magazine this week published a semi-apology about a Koran's being flushed down a toilet at Guantanamo ..."

    May 18, 2005 | Permalink | TrackBack

    Lit Support Guy: Do shareholders realize that Morgan Stanley "kicked Kirkland under a bus"

    I have a blog-crush on Matthew McCarrick, The Litigation Support Guy, whose coverage of the Morgan Stanley Sunbeam fraud litigation has been superb. Today he takes on the financier's firing of another firm, Kirkland & Ellis, shedding light where shareholders perhaps should look:

    "As events were rapidly unfolding in March with a closely watched bare-knuckle courtroom brawl between two powerhouse legal teams, accusations of obstruction and a possible cover-up, not to mention the Court’s blistering adverse inference charge and partial default judgment (which  hammered the last nail into Morgan Stanley’s coffin), Morgan Stanley fired Kirkland & Ellis, virtually on the spot, and suggested to the Court that it was just then learning about the facts surrounding the e-mail debacle. Within 24 hours, The Wall Street Journal was reporting that Morgan Stanley raised the specter of a malpractice action in a conference call with Kirkland & Ellis when notifying the firm it was being fired...

    "Morgan Stanley and Morgan Stanley alone dropped the ball here.  They completely undermined Kirkland's ability to successfully defend the institution and it is going to cost shareholders, at a minimum, well north of a billion dollars when all is said and done. Furthermore, in the interim, they threw Kirkland under the bus in every venue they could, and did so knowing full well that Kirkland would be ethically forbidden from ever defending themselves."

    Tune in here for McCarrick's bulleted digest of events. These are the CliffsNotes any litigator and any reporter covering this case should read.

    Related stories:

    May 18, 2005 | Permalink | TrackBack

    "Have blogs improved"

    One of the questions Mike Cernovich raises today is whether or not blogs have improved  He writes,

    "A year or so ago, I rarely checked's page, since I wasn't impressed with its coverage.  No offense, folks, but often read like People magazine for lawyers.  Lately, I've noticed good changes. 

    "Over the past few months, has been especially useful and informative.  There have been stories dicussing actual legal doctrine, and less stories dealing with how cool AmLaw 100 law firms are.  Which makes me wonder.

    "Has improved because its editors and writers have been reading blogs?  I'm not privy to any information, but I note that there have been several articles that seemed like they were adapted from blog posts.  If writers have been inspired by blogs, then this shows the powerful alliance blogs and media outlets should make ..."

    What do you think? He's open to comments here.

    May 18, 2005 | Permalink | TrackBack

    May 17, 2005

    Justice Kennedy: American criminal sentences are too long

    Orin Kerr and Michael Cernovich both posted late last night about Supreme Court Justice Anthony Kennedy's recent comments on sentencing--mandatory and in comparison to Western Europe. (Hint: They're too long and we need a system, says his honor. See "Justice Kennedy Wades Into International Waters Again," by Harris Meyer for the Daily Business Review.

    In response, Kerr writes, "I suppose this speech offers one more reason [House Majority Leader] Tom DeLay will want to impeach Justice Kennedy." (Or DeLay's fans -- don't miss the trackbacks.) Kerr, who Cernovich notes clerked for Kennedy, adds, "Notably, Justice Kennedy has made both of these points before ..." Don't miss Kerr's links.

    Cernovich adds his 2 cents:

    "Justice Kennedy's sentencing views have always been contemplative and circumspect, so his comments don't surprise me.  And more broadly, I don't view his answers as an indication that he's turning left.  Still, if DeLay and other wing nuts keep treating him as an unwelcomed guest, I won't be surprised to see him further shift left."

    May 17, 2005 | Permalink | TrackBack

    Backstory on a $604 million verdict: Morgan Stanley's e-mail debacle

    I opened Jill Barton's story this morning to see that Morgan Stanley's attorneys are already swiping at the trial judge, Elizabeth Maass, accusing her of issuing a default verdict. Yesterday, Ron Perelman won $604 million in compensatory damages from the financier and, according to reports, the jury is considering another $2 billion in punitives. Morgan Stanley is crying foul:

    "The verdict, while disappointing, is not surprising, given the unprecedented and highly prejudicial rulings imposed by the trial judge," said a Morgan Stanley spokesperson. "Morgan Stanley was not permitted to defend itself on the merits. As a result, the jury heard allegations, instead of true facts, and Morgan Stanley was denied a fair trial."

    During the trial, Judge Maass instructed the jury to assume that Morgan Stanley was guilty of "massive fraud." Wonder what inspired her? So did I, so I poked around and found that Monica Bay has the essential backstory on The Common Scold. Here's her overview:

    "Morgan Stanley's retail brokerage unit was destroyed in the 9/11 attacks on the World Trade Center, and the company subsequently used this to argue that it couldn't produce certain e-mail evidence in several arbitration cases, regulatory settlements and legal judgments, according to this story.

    "But an internal review of e-mail retention related to the fraud case Perelman brought against Morgan Stanley revealed that the e-mails were discoverable. Florida state judge Elizabeth Maass told the jury to assume that "Morgan Stanley participated in a "massive fraud" ... because it failed to search backup tapes and review e-mails dating back to 1998." As [Matthew] McCarrick points out, the case nearly settled for $20 million before the e-mail debacle."

    Bay's archives (March 17) also contain the judge's finding of fact in the e-mail debacle: This ugly brief. The document's timeline details Morgan Stanley's e-mail discovery woes and Judge Maass' decision to allow Perelman to hire a third-party to check up on Morgan Stanley's work. The awful result reads like some combination of train wreck and Abbott and Costello's "Who's on first?" routine.

    Don't miss Bay's link today to McCarrick (The Litigation Support Guy), a regular in Bay's columns, who has a great piece in "The Woodshed Revisited." He writes,

    "There will be a lot more of these cases (and verdicts) before Corporate America wakes up and senses which way these winds are blowing. That day can't come soon enough.  At least then I won't have to listen to questions like I was asked last week by a general counsel facing an e-mail intensive litigation (to whom we were introducing a native file review/e-mail analytic tool), "Why would we use something like this instead of just printing everything and handing a pile of redwells off to a bunch of attorneys?"

    Now McCarrick can just print today's papers and hand a pile off to a bunch of clients.

    Related story: Wake-up call on e-discovery: Morgan Stanley's e-mail fumble hits WSJ p. 1

    May 17, 2005 | Permalink | TrackBack

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