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March 31, 2006
Tips for Associate Marketing
Larry Bodine shares business development tips for associates, gathered from a seminar dubbed "How Associates Can Excel at Business Development in 2006." The tips include a variety of suggestions, such as identifying successful people who could be outstanding clients, developing a specialty and marketing the heck out of it with on-the-road seminars, identifying a field that hasn't been overrun with lawyers and capitalizing on lack of competition and taking a specialty to a new geographic area. What's important is that these are strategies that associates can implement -- you don't have to wait (and in fact shouldn't wait) until you're a partner.
March 31, 2006 | Permalink
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Do Partners Fake Praise?
Rees Morrison addresses the tricky matter of whether partners fake praise or otherwise withhold criticism of law department lawyers and their work product. Morrison cites a white paper by search firm BCG that reveals that law firms apparently try to "toady up" to in-house counsel, rarely criticizing even poor work that they do. Morrison criticizes this practice. He writes that:
"Law departments retain outside counsel to bring specialized knowledge to bear, and if a firm forebears, if it thinks that obsequious sucking up keeps clients loyal, it is sadly wrong and ought soon to be discharged."
I think it will probably take just one good legal malpractice case to straighten this problem out.
March 31, 2006 | Permalink
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Does U.S. News Have a Monopoly on Law School Ranking?
As a follow-up to this earlier post on law firm rankings, David Bernstein of Volokh complains that one reason that there's so much focus on the U.S. News rankings is that the publication has a virtual monopoly on the rankings, though others (like Leiter) provide more useful information to those concerned about academic quality. Frankly, with the proliferation of both law professor and law student blogs, and so much information about schools available online, I'm surprised that it's so difficult to break in to the rankings market. But I'm with Bernstein on this one -- let one thousand rankings systems bloom.
March 31, 2006 | Permalink
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If You Wanna Make Money, You Need to Outsource
Biglaw partners have always recognized the benefits of outsourcing. That's essentially the business model for large firms: bring in a large client, delegate (or "in source") the work to associates, take a cut of the billings that each associate generates and make your money. Outsourcing companies are now following this strategy, getting rich by providing outsourcing legal and patent services to law firms and other businesses, in one case, to the tune of four million dollars a year. Considering that outsourcing hasn't been viable for that long, that's not a bad profit. Maybe we'll see unhappy firm lawyers become legal outsourcers.
March 31, 2006 | Permalink
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Good News for Those Accused of Junk Faxes
Marc Mayerson of Insurance Scrawl has good news for companies being sued for violations of the Telephone Consumer Protection Act (colloquially known as blast faxers): Your insurance policy will likely cover defense costs -- either both the property damage or advertising-injury coverage. In his post , Mayerson analyzes a recent 10 Circuit ruling finding coverage.
March 31, 2006 | Permalink
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Should Court-Appointed Lawyers Earn More Than Public Defenders?
Today, Bob Ambrogi posts about this week's Coast to Coast Podcast, where he and blogger Craig Williams will discuss low salaries for public defenders. Bob notes that in Missouri, public defenders earn a starting salary of $37,800 and are expected to handle close to 300 cases a year.
All of this stands in striking contrast to these North Carolina, court-appointed attorneys who were removed from the appointment list and reported to the bar for allegedly overbilling for court-appointed criminal defense work. According to this account, one of the accused lawyers earned around $500,000 from 2002-2004, while the other made $700,000 for the same period. At the same time, both lawyers were regarded as hard-working and the average amount billed for a felony case by one lawyer was calculated as around $1700 (though the article says that amount is double the average for the community).
Should the money currently spent on court appointments be funneled towards public defenders' offices? Are these kinds of salaries more comparable than they appear, given that court-appointed lawyers may have overhead? And why do lawyers choose to work for public defenders' offices when there's more money to be had, in some instances, going the court-appointed route?
March 31, 2006 | Permalink
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March 30, 2006
A Taxonomy of Legal Blogs
"I heart taxonomies," says Denise Howell at Between Lawyers. The inspiration for her romantic sentiment is A Taxonomy of Legal Blogs, a noble stab at collecting and categorizing all the stars in the galaxy known as the legal blogosphere. The taxonomy is the work product of Ian Best, a third-year student at Moritz College of Law, who explains on his blog 3L Epiphany why he did it:
"I believe that the blogosphere suffers from a lack of an efficient infrastructure. 3L Epiphany will exemplify a cohesive system for organizing legal blogs."
As ambitious as Best's taxonomy is, even more so may be his future goal:
"My hope is that ... 'blogging for credit' will one day be considered an essential component of a legal education."
Meanwhile, Best's effort stands as a well-organized guide to legal blogs, useful both to newcomers to blogging and old hands.
March 30, 2006 | Permalink
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Calif. Court Scolds Prop. 65 Lawyers
California's Proposition 65 is intended to protect the public from exposure to toxic chemicals. But an exasperated California Court of Appeal issued an opinion this week using no uncertain words to show its impatience with its perceived abuse of the law by plaintiff and defense lawyers alike, as both Shaun Martin and J. Craig Williams write about on their blogs.
Martin describes the opinion as "an incredibly harsh, unrelenting, sarcastic, and utterly damning indictment" of both the lawyers involved and of Proposition 65 litigation in general.
"Rarely have I read something as unceasingly bitter and visceral as this. Not that it's necessarily wrong; indeed, there's much in here that I agree with. But man, oh man, is Justice Sills ruthlessly mean. He's got a definite take on this type of litigation, and he isn't at all shy about letting the reader know what it is."
But the lawyers may have earned their comeuppance, Williams suggests. He notes that at the oral argument of the case, one of the plaintiffs' lawyers proudly described himself as a "bounty hunter," to which the court in its opinion remarked, "We will have more to say about exactly who Proposition 65 was created for later, but it wasn't bounty hunters." On his blog, Williams adds his own observation:
"The undoing of the lawsuits, however, was the Notice of Intent to Sue. It was so vague that in the Court's opinion, it could apply to every building in the state. If you occasionally read opinions and want to know what upsets appellate justices, this one is in the must-read category, if not also for the more casual style of writing that's coming out of this District."
A must read for Proposition 65 lawyers, in any event.
March 30, 2006 | Permalink
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$200M Payday for D.C. Firm
Both Future Lawyer and my blog note that there are a lot of smiling faces these days at the Washington, D.C., law firm Wiley Rein & Fielding. As Legal Times first reported last week, the firm received a $200 million contingency fee for its work representing NTP Inc. in its four-year patent dispute against BlackBerry maker Research In Motion. The payout is nearly a third of the entire $612.5 million settlement and $60 million more than the firm's total 2004 revenue of $140 million.
News media both in the U.S. and the U.K. have picked up on this story. U.K. newspaper The Lawyer described the atmosphere at the firm this way:
"Visitors to Wiley Rein & Fielding's office in Washington DC would be forgiven for thinking they had stepped into a sweet shop in Walt Disney World. 'Life's just one big party here,' says IP partner James Wallace. 'There are a lot of smiling faces.'"
Adds Future Lawyer's Rick Georges: "Now, if I can figure out a way to write this blog on contingency ... Wait, I already am."
March 30, 2006 | Permalink
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Sneak Peek at Law School Rankings
"Across American law schools, you can hear the loud sucking sound of academic productivity being flushed down the drain today," writes Joe Hodnicki at Law Librarian Blog. What he is referring to is this sneak peek at the U.S. News ranking of the top 100 law schools, posted by Dan Markel at PrawfsBlawg. Meanwhile, Brian R. Leiter offers his own deconstruction of the rankings, calling the U.S. News ranking methodology "baroque and indefensible and prone to gaming." But one component of the survey, Leiter suggests, "has some relationship to reality and ... can't be manipulated by the schools" -- its reputational surveys. He writes:
"Jeffrey Stake (Law, Indiana-Bloomington) has shown that the reputational survey of academics is increasingly an 'echo chamber' reflecting the overall U.S. News rank. Still, the effect isn't (yet, anyway) absolute, and the academic reputation results still tend to be a bit closer to 'common wisdom' among informed academics than the overall rankings."
Leiter sets out those reputational rankings in his post and then continues his analysis with another post today, comparing how schools' reputation rank compares to their overall U.S. News rank.
March 30, 2006 | Permalink
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Scalia: My Gesture Was Jocular
Supreme Court Justice Antonin Scalia says his gesture was not obscene, but jocular. We wrote here Tuesday about Scalia's GestureGate, the controversy over whether he made an inappropriate gesture with his hand as he left a Catholic Lawyers' Guild Mass in Boston on Sunday, as the Boston Herald first reported. Scalia responded with a letter to the Herald's editor, which the newspaper reproduced here and also wrote about. (Associated Press also covered the letter, via Law.com.)
In the letter, Scalia said the report that he made an obscene gesture was false.
"Your reporter, an up-and-coming 'gotcha' star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said, 'That’s Sicilian,' and explained its meaning."
To back up his position, Scalia cites this passage from the book, "The Italians," by Luigi Barzini:
"The extended fingers of one hand moving slowly back and forth under the raised chin means: 'I couldn't care less. It's no business of mine. Count me out.'"
How did the reporter leap to the conclusion that the gesture was obscene? Scalia asks. Perhaps from TV, he suggests:
"From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene -- especially when made by an 'Italian jurist.' (I am, by the way, an American jurist.)"
OK, now we understand. What Scalia meant to say was he couldn't care less about his critics.
March 30, 2006 | Permalink
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March 29, 2006
The Client From Hell
The world knows him as Moussaoui, the would be 9/11 terrorist. But for those of us like Norm Pattis who handle criminal or civil litigation, Moussaoui is no different from your run-of-the-mill client from hell, that client who decides to testify and proceeds to sabotage his case. (For more details on Moussaoui's day in court, in all its comic glory, see this piece from The Washington Post).
As Pattis describes, Moussaoui was a disaster:
"[He] all but confessed to the unsolved murder of Jimmy Hoffa. He and shoe-bomber Richard Reid were supposed to hijack yet another plane and run it into the White House, he testified. The claim smacks of grandiose self-delusion. Richard Reid, arrested after trying to light a bomb in his shoe aboard a transatlantic flight in December 2001 is an incongruous figure -- call him the Forrest Gump of international terrorism."
Now Moussaoui's lawyers face the task of discrediting their own client. Pattis concludes with this:
"The jury may well vote to execute Moussaoui, but will that be because he is the terrorist he pretended to be on the stand, or because they simply want to put this deluded liar out of his misery?"
This is one jury that I would definitely want to hear interviewed after the trial concludes.
March 29, 2006 | Permalink
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Creative Criminal Writing
Talk Left reports that Jack Abramoff's sentencing takes place on March 29 and links to some of the best creative writing to emerge from the case -- the defense's sentencing report. The report contains lots of fond recollections from Abramoff's old colleagues, Rabbis and friends, who knew him back when and recall his generosity and helpfulness. Interesting enough reading, but of course, it doesn't address the issue that burns in my mind which is what event converted Abramoff from an ambitious politico into a criminal -- and how easy or difficult is it for any of us to succumb to similar temptation?
March 29, 2006 | Permalink
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One of the Worst Collection Agencies is the Feds
I've never associated the federal government with lax collection practices. After all, think of the IRS. But Michael Fox writes here about the other side of the story. Apparently, according to this article, the U.S. fails to collect billions in penalties for wrongdoing, often significantly reducing large fines or simply allowing them to go unpaid. Fox is concerned that potential heat from the news report may lead to federal officials "taking a harder negotiating stance when it comes to compliance."
March 29, 2006 | Permalink
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One Positive Benefit of Katrina
If you could build a dream city from the ground up, free wireless access is probably one of the features you'd include. Courtesy of Katrina, New Orleans now has that opportunity and as Monica Bay reports here, New Orleans has established free Wi-Fi Internet access.
March 29, 2006 | Permalink
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All the Privacy Precautions Won't Cure Human Error
Just when you thought that technology had advanced to the point where it could safeguard against online privacy breaches, we learn from this post at The Wired GC about the theft of personal information from 196,000 HP employees. This breach, however, wasn't the result of an online hacker, but by a good old-fashioned thief who stole a laptop chockful of employee information. Wired GC comments:
"In an age of growing concerns about customer privacy, I find it staggering that personal data is moving around on the laptops of a company as sophisticated as Fidelity. Particularly when it includes the Rosetta Stone: apparently unencrypted SS numbers. Do you think this is the only time this has ever happened at Fidelity? The only time it has happened in the financial services industry? What about the healthcare industry?
"Despite all the privacy protections instituted by many companies, if laptops or sync-able PDAs can copy and take offsite deeply personal customer information, legislation or regulation will soon follow. Thus the innocent are punished by the sins of the guilty."
In the meantime, be careful what you keep on your laptop!
March 29, 2006 | Permalink
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U.K. Lawyers Happier Than Pharmacists, But No Others
Bob Ambrogi links to the results of a poll on U.K. lawyers that found that, like their U.S. counterparts, U.K. lawyers rank at the bottom of the heap of happiest workers, ahead of only pharmacists. At the same time, lawyers and butchers are tied for sixth place for best work/life balance. These results suggest that at least in the UK, a work/life balance -- a goal for so many lawyers here -- does not necessarily translate into happiness.
March 29, 2006 | Permalink
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March 28, 2006
Dark Side of Going In House
Weighing an offer to go in house? Rees Morrison picks up on a report by BCG Attorney Search, The 'Dark Side' of Going In House, which offers five reasons to just say no:
- It is extremely difficult to get another law firm job once you have gone in house.
- The overwhelming majority of attorneys do not reap an economic windfall when they go in house.
- It is very difficult to move to another in-house job once you have gone in house.
- Your legal skills are likely to deteriorate once you go in house.
- You may have to work as hard in house as you did in a law firm.
Going in house is not all darkness, the BCG report says, to which Morrison adds:
"To these rays of light I would add that you can believe in what your client is doing more than in a law firm and you neither have to market -- in the same way that law firm partners have to bring in business -- nor do you have to track time."
March 28, 2006 | Permalink
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Law.com Launches Custom News Reader
Law.com, owner of Legal Blog Watch, yesterday rolled out its own news reader for reading blogs and news feeds. Called NewsPoint, it is available for free and comes preloaded with all of Law.com's news feeds and the feeds of its affiliated bloggers (of which I am one.) The product is still being tested and a more formal announcement will follow, but it is available for you to download and try.
March 28, 2006 | Permalink
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Lawyers Top AdSense Payments
Over at Overlawyered, Ted Frank reports that six of the eight most expensive Google AdSense search terms are for attorneys, with lawyers paying nearly $50 a click for "mesothelioma lawyers." His source is CyberWyre, which has compiled a list of the 230 highest paying AdSense search keywords as of March 23. (Frank reports the price at $54.33, but CyberWyre used Canadian currency. According to XE.com, that would equal $46.45 U.S.)
Other chart-topping search terms include "tax attorney," "car accident lawyer" and "auto accident attorney." Comments Frank:
"This is because there is a lot of easy profit to be made on mesiothelioma cases by lawyers: there are so many defendants, and so many cases, that attorneys and defendants find it cheaper to settle for nuisance sums, which add up quickly to an automatic profit for the attorney, even if the case is tried and lost against recalcitrant defendants who dare to expose themselves to lottery litigation. ... The interesting question is what market failure has occurred such that this gigantic profit is not being competed away by, say, offering clients a smaller attorneys' fee. This is surplus that should be going to clients, not to Google. "
March 28, 2006 | Permalink
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Truth Hurts: Law School Edition
So, it's just your first year of law school, but you've got your future all mapped out. First, law review, then a cushy, high-paying job at a big law firm. Well, leave it to bloggers to provide a cold reality slap.
First comes FSU College of Law Library Blog, which reports that Yale Law School's Career Development Office has posted a page that all would-be and current law students should closely inspect: The Truth about the Billable Hour. As the page explains it, its purpose is to help students understand "the billable hour expectations most law firms have for associates, and the impact of those expectations on your lifestyle." To illustrate this, it does the math, first for a target of 1,800 billable hours and then for 2,200.
To achieve 1,800 billable hours, Yale computes, an associate would have to work from 8 a.m. to 6:20 p.m. Monday through Friday, for a total of 2,434 hours of work a year. A target of 2,200 hours would require the eager associate to work 12-hour days Monday to Friday plus three Saturdays most months (with an extra Saturday off in November and December), for a total time at work of 3,058 hours. The computations do not include commuting time or
"any personal calls at work, training/observing, talking with co-workers, a longer lunch (to exercise? Christmas shop?), a family funeral, any pro bono work (if not treated as billable hours), serving on a Bar committee, writing an article for the bar journal, interviewing an applicant, etc."
Meanwhile, Paul L. Caron of TaxProf Blog has the inside track on what law review editors really want. He describes a survey of the article selection process at more than 150 law reviews conducted over the last year by the University of Pennsylvania Law Review. The survey revealed the factors most and least likely to influence article selection. As Caron explains it, authors most likely to have an article accepted are those who:
- Are highly influential in the field.
- Have published frequently in highly ranked law reviews.
- Are employed at a highly ranked law school.
- Have a large number of previous publications.
- Have related practice experience.
Negative influences on selection, Caron reports, are when the author:
- Is a student.
- Does not have a law degree.
- Has no previous publications.
- Graduated from a poorly ranked law school.
- Is employed at a poorly ranked law school.
There is good news for law students: It's never too late to consider a public-service career.
March 28, 2006 | Permalink
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Scalia's GestureGate
Was it an obscene gesture or a dismissive flip of the hand? As Justice Antonin Scalia left a Catholic Lawyers' Guild Mass in Boston on Sunday, a Boston Herald reporter asked him about public criticism of his openly celebrating his conservative Roman Catholic beliefs. His response, the Herald reported, was to say, "You know what I say to those people?" and then flick his hand under his chin in what the Herald described as "an obscene gesture." But was it obscene?
No, Supreme Court spokeswoman Kathy Arberg tells The Boston Globe. "He did make a gesture," she said. "It was a hand off the chin gesture meant to be dismissive, and not at all obscene." The Globe added this explanation:
"The sign, made by placing the back of the fingers underneath one's chin and flicking them forward, is used by some Italians to express irritation."
The Associated Press likewise reports that the gesture was not one that gave prominence to the middle finger. AP provides this lesson in Italian culture:
"The sign he used in Boston is frequently used by Italians to express displeasure with someone -- from mild to deep irritation. It is done by cupping the hand under the chin and flicking the fingers like a backward wave."
Well, what do bloggers make of this? Wonkette initially expressed disbelief that Scalia had "flipped someone the bird with bits of the Eucharist still between his teeth." But in a later clarification, she included an illustration of the Italian hand gesture, and conceded that it was not a "full-fledged flipping of the proverbial bird. But it still wasn't exactly the most polite of actions."
At the legal blog f/k/a ..., David Giacalone -- no stranger to Italian-American customs -- draws a parallel to the Court's decision earlier this week not to hear an appeal involving the use of pit bulls in lawyer advertising:
"Where were the Dignity Police when we really needed them? Justice Antonin Scalia apparently couldn't bother to act to protect pitbull lawyer ads, but he's certainly willing to act like a tasteless gumbah in public -- and right outside of a church."
"Gumbah," by the way, is another Italian cultural expression. Giacalone continues:
"Scalia might want you to believe that his little Sicilian chin action was harmless, but a lot depends on the attitude displayed along with the gesture. [Both of my sainted grandmothers could definitely make it look obscene.]"
Not meaning to sound crabby, Maryland blogger Crablaw says:
"[I]t would seem that no religious, political or jurisprudential message is appropriately conveyed by a one-finger salute on a church's steps. Just my opinion. More than the precise scene of the 'Sicilian' one-finger salute, however, is the fact that it was given at all to litigants who might suggest that a judge recuse himself. Logically, the fact that Scalia gave a crude gesture to an entire class of litigants is evidence of his partiality, which is the strongest ground for -- you guessed it -- recusal!"
John Wirenius asks, "How do you solve a problem like Scalia?" He goes on:
"Justice Scalia has been, in many ways, an ornament to the Court -- pressing a more consistent, less political version of "originalism" than the openly partisan Robert Bork, building a jurisprudence that while I vigorously disagree with, I can respect. Since 2000, he has been more and more partisan, less of a judge and more of an advocate for engrafting his own moral code to the Constitution. But worse, of late, he seems to be more of an embarrassment."
Scalia is not without his defenders. At PointofLaw.com, Michael Krauss says the Boston Herald reporter "was clearly harassing" the jurist. He suggests:
"Maybe some cultural diversity training is in order for the over-sensitive Herald reporter. And maybe an apology from the paper itself."
Perhaps the greater concern is that this story, whatever your take on it, will further diminish the public's view of the legal profession. As Workbench blogger Rogers Cadenhead suggests, noting that Scalia was on his way out of a special Mass for lawyers and politicians:
"I didn't know the Catholic Church was singling out these groups for extra attention, but it makes a lot of sense."
March 28, 2006 | Permalink
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March 27, 2006
David Boies' Fame, and the Reason for It
I caught this blurb in the The New York Times yesterday about David Boies, the mega-Renaissance lawyer, and I see that it's been picked up by The WSJ Law Blog along with a post to earlier coverage of Boies. The reason that Boies fascinates me is that once upon a time, he was a partner at Cravath, the law firm that my Cornell Law School classmates most coveted back in the mid '80s. Great job, sure, but had Boies stayed there, I don't think that any of this publicity would ever have come his way. By striking out on his own, Boies gained the flexibility to take cases like Microsoft (where he worked for reduced fees) and Bush v. Gore, which took him from anonymous biglaw partnerdom to a household name. Boies inspires me, but then again, I'm a
solo. I wonder why Boies isn't more of an inspiration to large-firm lawyers toiling in obscurity and why more haven't followed his lead.
March 27, 2006 | Permalink
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Blawg Review
This week's Issue 50 of Blawg Review is out, hosted by The Dark Goddess of Replevin. It's a little cursory, but it did link me up to another blog that's new to me, The Dying Law Firm. It's written by an anonymous associate at an anonymous firm on the verge of collapse. Having worked for a firm that nearly collapsed itself (the firm survived, but my employment didn't), I'm familiar with the stress and anxiety, the anger and frustration that goes with finding yourself in that position. You need to get some perspective. I'm guessing that the author of the Dying Law Firm will look back, maybe six months or a year from now and laugh at how miserable she felt.
March 27, 2006 | Permalink
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Tips From Legal Literacy
A few days ago, in one of those small world Internet ways, I learned about a new Web log (new to me, anyway), Legal Literacy, written by Hanna Hasl-Kelchner, a corporate attorney with a business background who serves as associate counsel for a large corporation. (turns out we both worked for the same midsized D.C. law firm during different decades). Hanna's blog addresses a variety of issues important both for in-house attorneys as well as outside counsel who serve corporations. There's a bunch of posts on business blindspots and also practical advice. For example, in today's post, Hanna offers some nuggets on the attorney-client relationship, including one of her peeves: poor communication. One of her examples:
"How would you like to find out that your law firm has assigned a new senior partner to your cases without telling? His billing rate is higher than anyone else's previously on the team and no one has bothered to explain why the change was necessary. Actually, you find out about the change from the billing department looking to authorize a new timekeeper, not from any of the lawyers managing your cases. Would this make you happy? [...] If there's a compelling reason to adjust case staffing and add a seasoned heavy weight, fine. But please pick-up the phone and tell me why. Show me the value."
Let me know if you find this blog worth adding to your aggregator.
March 27, 2006 | Permalink
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March 26, 2006
Debating Classroom Laptop Bans
Between Lawyers discusses this post by professor James Maule over whether law professors should ban laptops from the classroom. Maule's post responds to a law school professor's decision to ban laptops from the classroom which generated a petition to the dean and a complaint to the ABA. Maule assesses all sides of the debate (including wondering why professors can't engage students and whether laptops are really all that different from doing the crossword puzzles). But ultimately Maule concludes that banning laptops is poor policy that coddles students and doesn't teach them to discipline themselves against distraction:
"One goal of legal education is to teach future lawyers that professionals need to be responsible. Teaching law students to be responsible requires more than denying them the opportunity to be irresponsible. It requires guiding them around the tempting distractions. If law faculty become too controlling, how are the students going to fend for themselves after graduation when the faculty isn't there to control things for them?"
Maule has a point. Law school teaches so few practical skills; you don't learn how to file a complaint or argue to a jury or run a law practice. Maybe letting students learn to multitask and prioritize class or laptop will make the price of tuition worthwhile.
March 26, 2006 | Permalink
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Charging $183,000 For Online Legal Research?
I realize that when bankruptcy lawyers charge hundred of millions of dollars for handling bankruptcy cases that a measly $183,000 is a drop in the bucket. Nevertheless, I was shocked to read in this article, Legal Fees Pile Up for Delta, Northwest, that in the Northwest bankruptcy proceeding, one law firm billed more than $183,000 for online research.
How do you justify that kind of charge? For starters, by now, most firms can purchase top of the line, full service LEXIS or Westlaw, which allows for unlimited searches, for several hundred dollars a month. Let's just assume for the sake of argument that the firm in question pays $1000 per month for LEXIS or Westlaw for each attorney in the firm. At $183,000, that's 183 months worth of service. Even assuming that twenty attorneys are working the case, that would mean that each is working on the bankruptcy matter for nine full months (I assume that if they are working on other matters, the cost would be pro-rated). So that's my first point: I just don't understand how a firm could pay so much for online service.
Second, and more to the point, the cost of online service ought to be rolled into a firm's overhead. Firms never billed clients to retain libraries and online research service has in most cases effectively replaced law firm libraries. Moreover, online research is now priced at flat fees, rather than per search, which makes it more amenable to inclusion in overhead rather than pro rated.
What's sad is that the sophisticated clients that hire these firms don't even know that they're being overcharged. And that's why these types of fees will continue: because until clients put pressure on law firms to charge less, the firms have no incentive to do so.
March 26, 2006 | Permalink
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Treo Benefits from BlackBerry's Woes
Future Lawyer posts about how Palm's Treo Capitalized on BlackBerry's Patent Fracas. According to an article in The Wall Street Journal, many large corporate Blackberry users put contingency plans in place for users to sample the Treo on a trial basis. Future Lawyer predicts that once users try the Treo, they'll never return to BlackBerry. Which is yet another potential cost to RIM beyond the money paid in the settlement.
March 26, 2006 | Permalink
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March 24, 2006
Paying for Your Privacy
As The Associated Press reports, New York Attorney General Eliot Spitzer sued an Internet company yesterday for selling consumers' e-mail addresses, calling it the biggest deliberate breach of Internet privacy ever. But as The Wired GC notes, your professional and business colleagues may also be profiting from your personal information.
It seems the Web company Jigsaw wants your contact information so badly, it is willing to pay for it. The Wired GC picks up on this post from TechCrunch:
"Unlike competitors like Hoovers and InfoUSA, which gather company information by semi-legitimate means such as scouring SEC filings, cold calling companies and asking for information, and reviewing other public documents, Jigsaw simply pays people to upload other people’s contact information. Users are paid $1 for every contact they upload, and some users have uploaded information on tens of thousands of people."
The Wired GC advises: "Watch out who you send an Outlook vCard to."
March 24, 2006 | Permalink
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Patent Bar Fears Immigration Bill
Why would a patent lawyer possibly care about an immigration-reform bill? Because it encroaches on the center of the patent bar's universe -- the Federal Circuit Court of Appeals. As Legal Pad reports:
"Members of the patent bar have joined the immigration-reform debate. A bill being debated by the Senate Judiciary Committee that would transfer jurisdiction over appeals of deportation orders from the regional court of appeals to the Court of Appeals for the Federal Circuit has ignited cries of protests from patent lawyers."
Even 7th U.S. Circuit Court of Appeals Judge Richard Posner joined the debate, according to Legal Pad:
"I cannot think of an area of law that is more remote from immigration than patents," Posner wrote. "No doubt the judges of the Federal Circuit can become knowledgeable about immigration law; but they will be overwhelmed by the new caseload."
I'm sure there are many lawyers who would say that Posner's point is patently obvious.
March 24, 2006 | Permalink
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Don't Forget Your Legal Fees
As if lawyers needed to be reminded, Norm Pattis explains why it is important to charge fees:
"My advice to young practitioners? Don't scramble so for cases that you fail to charge enough. I've spoken to more than one young lawyer in the past month who is at wits end over the impossible demands of impossible clients. Protect yourself and your firm by charging fees sufficient to permit you to get the job done, and fees high enough to let clients know that if they insist on wasting your time, they, and not you, will pay for it."
Norm is right of course. Many a solo or small-firm lawyer learned this lesson the hard way. That is not to say lawyers should not offer their services for free. Rather, as Norm puts it so well:
"As lawyers we are all free to give our time away as often as we like. Indeed, it is our obligation to serve and to offer pro bono service. But we get to choose the person to whom we give."
March 24, 2006 | Permalink
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Associates Share the Wealth
Associates who recently received unexpected salary increases threw a party last night in Washington, D.C., but it wasn't to celebrate their windfall. The party was for the launch of Give a Little 2006, a charity drive created by law firm associates to aid humanitarian efforts across the globe. Allow them to explain:
"The national Campaign was born out of the desire to use our position as law firm associates to benefit charitable organizations. This is especially true for the many associates who received an across-the-board, unexpected salary increase in early 2006."
Spearheaded by associates at Arnold & Porter, the campaign asks associates to donate a portion of their paychecks to one of several designated charities. The goal is to reach $250,000 in donations.
March 24, 2006 | Permalink
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Gender Bias Among Lawyers -- Part III
If airing a subject in public helps bring about reform, then this has been a good week for the status of women in the legal profession. But then reality offers a firm slap in the face and you realize how far we still have to go.
The conversation kicked off Sunday with a New York Times article on why so few women reach the top of large law firms. On Monday, I wrote about bloggers' reactions to the piece, as did Carolyn Elefant on Tuesday. Yesterday, the Coast to Coast podcast that I co-host with blogger J. Craig Williams featured a discussion of the gender gap in the legal profession.
But then, just as the conversation seems to be going along nicely, Law Blog points us to this USA Today article, "Should Business Execs Meet at Strip Clubs?" As the article sets out, the question pertains not only to business execs, but to lawyers:
"Attorney Rohit Sabharwal, a Rick's regular, says he often takes clients of his small law firm with him and such entertaining was common when he was at a large firm, too. "Nobody really objects," Sabharwal says. "I think it's a lot more civilized in the law profession. I don't think women have a problem succeeding in law firms."
One step forward, two steps back. But there is more positive news. The Massachusetts firm Bowditch & Dewey announced this week the formation of the Bowditch Institute for Women’s Success, a subsidiary that will provide seminars, consulting, speaking and coaching services designed to support the advancement of women in law firms and professional services organizations. Directing it will be partner Lauren Stiller Rikleen, author of the new book, "Ending the Gauntlet: Removing Barriers to Women’s Success in the Law," published by Thomson/LegalWorks.
March 24, 2006 | Permalink
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March 23, 2006
Will You Ever Be Called As A Witness for Your Client
Marc Mayerson of Insurance Scrawl blogs here about a dilemma common to many insurance lawyers: Often policyholder counsel can be called as witnesses in bad-faith insurance cases and can face disqualification from representing their clients at trial. Marc writes about the standard that lawyers might expect to be applied in cases where they represent a client and are identified as a potential witness in a bad-faith claim.
March 23, 2006 | Permalink
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Save Your Firm $80,000 Per Employee By Cutting Back on Email
Larry Bodine writes that lawyers waste $80,000 a year reading e-mail, citing numbers produced by Ed Poll, a well-respected law practice consultant. Here's how Ed arrived at his numbers:
"Based on personal experience, it is easy to estimate that most lawyers take about one or two hours each working day to 'clear out' their e-mail boxes," Ed says. "If we assume 200 workdays per year (there are more), and two hours per day and $200 hour billable value for an attorney (most are charging more today), the calculation is $80K of wasted billable time annually.
"Given the rapidity of response that e-mails encourage, it's likely that very few lawyers are truly capturing the time that they're spending on legitimate client communications, like phone conversations and e-mail communications," Ed writes. "Yet lawyers are going so fast doing so many things, that they don't actually write down their time notation as they're working on e-mails.
"Client e-mail gets so enmeshed in what has been called 'administrivia' that their importance is not adequately accounted for. The result is lost profitability."
Ed suggests that lawyers keep track of all time spent even answering e-mails, and while Larry agrees, he explains that you can't bill for responding to e-mails and voice mails in such as way as to make clients think that they're being nickel-and-dimed. Larry's seems to favor building these types of smaller tasks into overhead.
I guess in the end, it's all a matter of degree. Billing for a half hour spent listening to voice mail may be chintzy, but if you're answering e-mails for 10-14 hour stretches (like a Google exec mentioned by Wired GC), you may want to figure out a way to capture that time.
March 23, 2006 | Permalink
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Reporting Ethics Violations May Cost You Your Job
As this article, Ethical But Unemployed (ABA Journal, March 2006) begins:
"Instinct might argue that a lawyer should not be subject to termination because he or she reports ethics violations by another attorney to disciplinary authorities."
But as most of us lawyers know: Law, not instinct, governs most cases -- and the law applicable to attorneys working at firms is at-will employment. Though two jurisdictions, New York and Connecticut, will allow claims by lawyers terminated in apparent retaliation for reporting a firm's (or its lawyers) ethics violations, at least two other jurisdictions do not. As the article describes:
"In such cases, the courts generally have reasoned along two lines: first, that extending the public policy exception to the employment-at-will doctrine is unnecessary because lawyers already are bound by ethics rules that protect the public interest; and second, that permitting lawyers to pursue wrongful discharge claims would undermine the confidential nature of the client-lawyer relationship."
Both the Illinois and Texas Supreme Courts have rejected retaliatory discharge claims by lawyers who raised concerns about firm ethics or billing practices and were fired.
So long as lawyers must risk their jobs to report ethics violations, they won't. It's unclear why courts would rather have lawyers make a choice between financial well being and compliance with the Model Code (which requires lawyers to report ethics violations) than to afford protection to lawyers who do the right thing. There's something not entirely ethical about that.
March 23, 2006 | Permalink
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Yes, You Can Manage A Maverick
Large firms probably don't have many mavericks, but for those that do, Matt Homann passes on this link to an article on "How to Manage A Maverick." Top of the list -- "Engage them, draw out their ideas and listen to their questions." I'd love to hear from law firm managing partners on how you've dealt with mavericks and whether the extra effort involved in managing mavericks ultimately counterbalances the payoffs.
March 23, 2006 | Permalink
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March 22, 2006
In-house Linguistics
Rees Morrison ponders the "sublime profundity" of the language of in-house lawyers. What is the difference, he asks, between "general counsel" and "chief legal officer"? And when more than one of these types gather in a pack, are they "many general counsel" or "many general counsels"? For the answers, you will have to read Rees' posts for yourself.
March 22, 2006 | Permalink
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Lawyers barred from using own names
It is a truism that clients hire lawyers not law firms. But what happens when lawyers and firms stake competing claims in the same name? The federal court in Connecticut recently barred two lawyers from using their own names in the name of their firm. The name of their New London firm, Suisman & Shapiro, formed in 2004, violated the trademark of another, much-older New London firm Suisman, Shapiro, Wool, Brennan, Gray & Greenberg, the court said.
The lawyers at the center of the dispute, S. Joel Suisman and Andrew Shapiro, are both former members of the original firm and the sons of its founders. When the younger Suisman left the original firm in 2004 and joined with Shapiro to start the new firm, the original firm sued in federal court alleging violations of federal and state trademark and trade practices laws. In June 2004, U.S. District Judge Janet C. Hall entered a preliminary order against the new firm's use of the name. On Feb. 15, she made that order permanent.
The judge explained:
"A reasonable fact finder could reach no conclusion, on the basis of the undisputed evidence, other than that, in the market for legal services in Connecticut, the mark 'Suisman Shapiro' has become synonymous with, and refers distinctly to, the entity that is the plaintiff law firm. Accordingly, the plaintiff firm has demonstrated that the mark in question has, as a matter of law, acquired secondary meaning and is entitled to protection under the Lanham Act."
A 2004 New York Lawyer report on the preliminary injunction provides more background on the case.
March 22, 2006 | Permalink
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Patents pending
Writing in Legal Times, Tony Mauro reports on yesterday's Supreme Court arguments over the reaches of U.S. patent law:
"Supreme Court justices appeared reluctant Tuesday to decide a key patent law case in a way that would, as one justice put it, establish 'monopolies in this country beyond belief' over naturally occurring phenomena.
Justice Stephen Breyer expressed that concern during oral arguments in Laboratory Corp. of America v. Metabolite, a dispute that tests the scope of patentability. Other justices indicated sympathy with the solicitor general's view that the case should be sent back to lower courts for further review."
An editorial in The New York Times calls the case a reminder that the system has become Patently Ridiculous:
"The Supreme Court now appears ready to weigh in and -- we hope -- restore some sanity to the system. Yesterday the court heard arguments on whether the patent for a blood test for a vitamin deficiency was so broadly construed that it included a natural process of the human body and the idea of how to interpret it. Such a patent could prevent other inventors from developing new and better tests. The court will also hear arguments next week in a case attacking eBay, the global marketplace."
More information on the case is available from the Supreme Court's docket.
March 22, 2006 | Permalink
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Bloggers debate: Sequester experts?
When it came to light last week that lawyer Carla J. Martin had given trial transcripts to witnesses in the terrorism trial of Zacarias Moussaoui, her fate was sealed as a topic of debate among bloggers of every ilk. But the Martin matter also gave rise to a side debate that only a legal-blogger could love -- that of whether expert witnesses should be sequestered.
Peter Nordberg kicked off the debate when he asked on his Blog 702 (named for the federal evidence rule on testimony by experts) whether witness sequestration always makes sense, particularly in the case of experts:
"As regards most expert opinion, ... any benefit from sequestration is considerably diluted, at least in federal court, by the requirement, in both civil and criminal proceedings, that any expert testimony be disclosed in advance of trial. ... The modern federal trend is decidedly toward full and transparent disclosure of expert opinion in advance of trial. That trend has a lot going for it."
Nordberg's post prompted first this response from an anonymous reader and then another from C.E. Petit at Scrivener's Error, who said that the problem with failing to sequester is that it can taint the expert's opinion with "extraevidentiary 'facts'":
"This all leads to the question of what to do when a witness's testimony is influenced by events that occur at trial—admissible or inadmissible testimony, arguments over the propriety of questions, the judge's sidebar rulings, counsels' opening arguments and summations, and perhaps most importantly anything that takes place outside the jury's hearing. Since opinion witnesses are allowed to consider hypotheticals, 'protecting' them from these influences seems a little less important; however, that doesn't mean that experts can't be improperly influenced, or will be excruciatingly complete in stating the bases for their opinions."
Petit's comment led Nordberg to reply, "We agree that there's room for mischief here," but he continued:
"On the whole, though, we remain skeptical that much is generally gained from sequestering experts. Indeed, there are so many ways to circumvent sequestration that in the typical case, sequestration may amount to nothing more than a pretense -- one which may actually mislead the trier of fact. Sequestration may also afford an unfair advantage to litigants whose counsel and experts are willing to engage in gamesmanship, at the expense of litigants whose counsel and experts play strictly by the rules."
Coincidentally, a similar exchange over sequestration of experts took place a month earlier on The Wall Street Journal's Law Blog. In that case, it was provoked by a WSJ report on the New Orleans Vioxx trial noting the presence of a defense pathologist in the courtroom during testimony by the plaintiff's expert.
March 22, 2006 | Permalink
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Law Student Gives Prof Unwanted Press
Los Angeles Times columnist Steve Harvey has the story of the law student who went the extra mile for a professor -- perhaps an extra mile too many. The student at the University of West Los Angeles School of Law e-mailed several Los Angeles Times reporters with this request:
"My Midterm Assignment is for me to contact a Writer at the Los Angeles Times and find a way for my Professor, Jeffrey W. Steinberger, to contribute a Quote, Commentary or Sound Bite to a column or article you may be writing in the future."
Annoyed by the e-mails, a Times reporter called Steinberger. Harvey explains what happened next:
"Steinberger, whose website describes him as a 'celebrity attorney,' among other things, told the reporter that there was a misunderstanding. He wanted students in the law and media studies class only to reach out to members of the media to learn how to talk to them -- not to try to get his name in the paper."
Lesson learned. Maybe too well.
March 22, 2006 | Permalink
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March 21, 2006
No Women At the Top -- Part II
Picking up on Bob Ambrogi's post yesterday, there's more commentary in the blog world on The New York Times article on the dearth of women lawyers at the top in big law firms, from Preaching to the Perverted (saying law firms don't care about gender, but color -- green), The Happy Feminist (detailing her law firm experience) and Jeremy Blachman (honestly puzzled about how one parent home for dinner most nights is considered a good thing).
Though all these posts are insightful, they don't answer the million-dollar question of why the problem of inequality is endemic to large law firms. I've got an answer to that one -- it's the "inbreeding" phenomenon.
You don't need to read any further than the Sunday Style pages of The New York Times to see that biglaw attorneys typically marry other biglaw attorneys. Often, they meet in law school or at clerkships or even on the job. I attended a relatively small law school (Cornell) and I can think of at least eight or nine couples either immediately in my class or surrounding classes who met at Cornell, married and moved happily into biglaw jobs. I think that phenomenon applies across the board, and is not unique to my law school.
Within a few years of graduation, the female side of these couples had children and left biglaw practice. Some left permanently to stay home with children, others transitioned to alternative careers in public interest or teaching. And all were able to do this because their husbands remained gainfully employed at large firms, in most instances, becoming partners. Because of marriage to high-earning spouses, most high-earning female attorneys have the ability to leave large firms to care for children -- and indeed, have no choice but to do so if their children are going to have a parent around at all.
I don't think you see this same phenomenon, i.e., the high incidence of high-earning couples in the same types of positions (associates at large firms) as you do in the legal profession. There are either cases where couples meet in graduate school and hold lower-earning jobs, such as in academia or social work or journalism, where by necessity, both must continue to work after children are born. Sometimes, you may find the odd high-earning female attorney who is married to a lower-paid spouse or a spouse with flexible hours -- and in that case, you will probably also find that the female attorney has advanced on the law firm ladder (by example, I know two female attorneys who became partner and counsel at large firms: in one case, the spouse had a flexible schedule with a day off each week and in the other case, the spouse left his job to stay home with the couple's children).
I don't know how you eliminate the problem of inbreeding, but in my mind, that's the factor that best explains the gender disparity at large firms.
March 21, 2006 | Permalink
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The Evil Twin Defense
Nicole Black of Sui Generis has an interesting post on the recent arrest of Claude Allen, a former Bush adviser standing charges for felony theft related to fraudulent merchandise returns. Apparently, Claude Allen has a twin brother from "the other side of the tracks" whom some have suggested is the true culprit -- and that issue may potentially be raised as a defense.
The "evil twin" defense sounds implausible when it comes to big name politicos (imagine Clinton raising an "evil twin" defense in his impeachment, though I guess that some claimed that the Clinton's womanizing side was some type of "evil twin"). But Black writes that the defense is quite common in the types of routine criminal matters she has handled, where an innocent person was initially charged for crimes committed by their identical twin. Black writes, "It's a perfectly legitimate defense, and may actually explain the bizarre actions attributed to this formerly upstanding citizen."
One thing to be said about blogs is that you definitely learn something new everyday!
March 21, 2006 | Permalink
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Are Law Offices Becoming Extinct?
Of course, you'd expect someone like Grant Griffiths, at Home Office Lawyer, to tell you that law firm offices could just as well go the way of the dinosaurs without anyone missing them. But Grant also runs his own firm, so some might discount that view. But today, Rees Morrison notes that over at Sun Microsystems' in-house legal department roughly one-third of the 170 lawyers work at drop-in offices or from home, including Sun General Counsel Mike Dillon. Rees also notes that the benefit of "nomadic lawyering" is that it forces lawyers to spend more time at their clients' sites, which is good for business.
March 21, 2006 | Permalink
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Was the 2nd Circuit Too Soft on Bias?
Yesterday, the 2nd Circuit overturned investment banker Frank Quattrone's conviction, finding error in jury instructions and assigning the case to another judge for new trial. Today, Mike Cernovich takes the 2nd Circuit to task for downplaying lower court Judge Owen's bias. As Cernovich points out, Quattrone's appellate attorneys cited significant press coverage indicating the media's widely held view that Judge Owen was biased, which should have been sufficient (in Cernovich's view) to enable the 2nd Circuit to note Owen for judicial misconduct. Cernovich's parting words:
"I suppose it was easier for Judges Wesley, Hall, and Scullin to pretend that that no evidence of judicial misconduct existed, rather than properly and publicy note Judge Owen's judicial misconduct. For that, Judges Wesley, Hall, and Scullin are almost as worthy of our disapprobation as Judge Owen is."
March 21, 2006 | Permalink
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Will This Bad Use of Tech Spoil the Bunch
Future Lawyer wonders whether this abuse of technology during an arbitration proceeding will lead courts to crack down on technology use altogether. Future Lawyer links to this story that reports how lawyers involved in an arbitration transmitted the hearings from the hearing room to a consultant at a nearby hotel room. The consultant then wired back questions and advice to the lawyer conducting the hearing.
Future Lawyer worries that "computers and technology are likely going to be considered the bad guys here, when it is the stupid humans who should be taking the blame." I agree. Except I also can't help but wonder why the lawyers didn't simply have the consultant with them in the hearing room to begin with (making the secret transmissions seem even sillier).
March 21, 2006 | Permalink
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March 20, 2006
Springing into Legal Blog Watch
On this, the first day of spring, I am honored to join Carolyn Elefant and Scott Martin as a contributor to Legal Blog Watch. It feels a bit like a homecoming, but to a place where everything is changed.
I once worked for ALM, in a job that put me in daily contact with Law.com staff. They were separate companies then, under common ownership. Law.com was still struggling to find its place in the digital world. I would sometimes hear the remark, "Law.com doesn't seem to get it." I never hear that anymore. Law.com is now a vital center of the online legal community. Proof it now gets it is its blog network. Let's face it, when Law.com launched the network in 2004, it took a risk. In my opinion, it was a risk that's paid off handsomely.
Many people deserve credit for that, but one who stands out is Lisa Stone. Lisa gave birth to Legal Blog Watch and nurtured it toward maturity. Her voice and perspective gave this blog its distinct personality and place. I wish her continued success with BlogHer.
This weekend, a neighbor of mine, on learning that I have two blogs and a podcast, said, "Bob, you're a geek." I accept that as a compliment, but hasten to add that I am also a lawyer and a journalist. I hope to bring all these perspectives to bear as I step in for Lisa and join Carolyn and Scott as part-time stepparent to Legal Blog Watch.
March 20, 2006 | Permalink
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Scalia Skips the Footnotes
When I was a law student, a professor shared with me what I took to be valuable advice. To really get at the meaning of a Supreme Court opinion, he said, focus on the footnotes. I took that to heart, searching for hidden meaning in the fine print of high court jurisprudence. Imagine my shock, then, to learn from Paul L. Caron at TaxProf Blog that Justice Antonin Scalia does not read footnotes.
Caron's intelligence comes by way of the transcript of the oral argument in Cuno v. DaimlerChrysler, Inc. Therein may be found this exchange between lawyer Peter D. Enrich and Scalia:
Mr. Enrich: In a footnote in Flast, the court specifically says, "Having now decided that there's Establishment Clause standing, we can also reach the free-exercise question without discussing whether there would be independent standing."
Justice Scalia: I had not recollected that footnote. I will -- I will find it. I don't read footnotes, normally.
So much for what I learned in law school.
March 20, 2006 | Permalink
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Keep Them Dogies Rollin'
In Oklahoma, they take their roundups seriously -- well, not too seriously. Just ask Jim Calloway, author of Law Practice Tips Blog and director of the Oklahoma Bar Association's Management Assistance Program. For Blawg Review #49, he saddles up for Roundup at the OK Blawgger Corral:
Here in my part of the world, this summary of the week in online legal punditry doesn’t really seem like a carnival. Here we reckon we would call it a roundup -- yep, a roundup of the week's best of the blawg (or law blog) posts as culled from the herd of those that I learned existed. So head 'em up and move 'em out. There's no time for shark jumping or re-thinking. We gotta get them doggies, uh, bloggies to market.
Clint Eastwood was able to parlay his time as a cattle drover into a respectable career. We'll have to wait and see what it does for Jim Calloway.
March 20, 2006 | Permalink
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