Blog Network

About The Bloggers


July 31, 2006

Blawging Comes of Age

Thanks to Law Blog for the pointer to this Chicago Lawyer article, "Law-Related Blogging Starting to See a Coming of Age." It offers several real-life examples of the impact blogging has had on the legal profession and on the lawyers who write blogs. There is Douglas A. Berman, whose Sentencing Law and Policy has  brought him greater recognition than the more than 50 law review articles he has written. There is Ian Best, the first law student to receive academic credit for writing a blog, 3L Epiphany. And there is Dennis Crouch, whose Patently-O blog launched as a first-year associate at a patent-law firm helped catapult him into a position teaching patent and computer law at Boston University School of Law. Crouch tells the Chicago Lawyer:

"The blogosphere kind of levels the playing field, in that someone who's not well-known and maybe doesn't have his own network of potential clients can show the world that they are somewhat of an expert in an area. If people read what you're writing on a daily basis, and you're writing interesting things that are helping them understand how their business works, it's natural that they'll want to get in touch with you and harness more of your expertise."

Evan Brown, who writes, says the value of blogs comes in large part from their immediacy:

"It's good for the legal community to have information out there faster, and to have more people think about it and comment on it. The more that happens, the greater understanding we have and the more effectively we can represent our clients."

Are blogs coming of age? No question. Are they fully matured? Not by a long shot.

July 31, 2006 | Permalink | Comments (1)

Blachman's Blawg Review

Reading Jeremy Blachman's Blawg Review #68, I found myself wondering whether this might be his swan song to the legal blogosphere. After all, tomorrow brings the release of his novel, "Anonymous Lawyer," derived from his blog of the same name. The novel earned Blachman somewhere in the six figures, USA Today reports, and he is now "in talks" with Sony about a TV project. Might Blachman follow in the footsteps of Scott Turow, whose years at Harvard Law started him down a lucrative alternative career path? Or perhaps he will become another David E. Kelley, the former Boston associate who became a top-tier TV producer and husband of Michelle Pfeiffer. Law blogger Carolyn Elefant says Blachman's book is better than she expected, one that "will endure as a classic in the law profession genre of novels."

So, please do read Blachman's Blawg Review, but keep in mind that his days as a humble legal blogger may be numbered.

July 31, 2006 | Permalink | Comments (0)

Bloggers Quiet on New SEC Rules

"No issue in the 72 years of the Commission's history has generated such interest." That remark came last week from Securities and Exchange Commission Chairman Christopher Cox. The issue of interest was the SEC's sweeping new disclosure rules for executive and director compensation. His reference was to the more than 20,000 comments the SEC received after it proposed the changes.

But in the days since the SEC's adoption of the rules, the legal blogosphere has had little comment of its own. BeSpacific noted the new rules, but little else was said among legal bloggers. This is surprising given that these were the first major revisions to the disclosure rules since 1992 and that they squarely address the corporate scandal du jour -- backdating of stock options. As CCH Wall Street reports,

"Firms will be required to not only list the dates options were granted, but they must also include why they were granted and for whom."

Another key provision of the new rules requires that disclosure statements be written in plain English. That's all well and good, says Kathleen Pender in the San Francisco Chronicle, if only the SEC would write in plain English. She explains:

"The SEC issued a press release summarizing the new proxy rules, presumably for a general audience. But you'd need a law degree to understand parts of it. To paraphrase a quote by former SEC Chairman Arthur Levitt, who championed the plain-English movement, it rolled off the tongue like peanut butter."

As Professor Bainbridge predicted a week before release of the final rule, the SEC dropped what has been called the Katie Couric provision. It would have required disclosure of the compensation paid to a company's three most highly paid nonexecutives. Instead, the SEC will revise the proposal and resubmit it for public comment. The revision will require disclosure of a company's three most highly paid employees, whether or not they are executives, unless the employee has no significant role in setting company policies.

July 31, 2006 | Permalink | Comments (1)

BlogHer '06 Reports

Cathy Kirkman reports -- here and here -- on the weekend's events at BlogHer '06, the second-annual conference on women and blogging organized by former Legal Blog Watch editor Lisa Stone along with Elisa Camahort and Jory Des Jardins. Kirkman spoke on a panel on the topic of "transforming your life with blogging." She notes:

"As timely evidence of the impact of blogging, yesterday the San Jose Mercury News ran a page one story on the conference, which mentioned me and my blog, along with several other local blogs written by women."

Another blogger in attendance was J. Craig Williams.


July 31, 2006 | Permalink | Comments (0)

(Almost) Live From Honolulu: The ABA

Would that I were heading to Honolulu this week, where the American Bar Association convenes its annual meeting starting Thursday. But those of us not attending will nonetheless be able to see and hear highlights of the meeting, if not of Hawaii. For the first time, the ABA will make portions of this year's meeting available through podcasts and Web video.

At the ABA News Annual Meeting Update site, the ABA will post video of the opening speeches by President Michael Greco and President-Elect Karen Mathis, as well as the Assembly keynote by Supreme Court Justice Anthony Kennedy. The ABA also plans a series of podcasts during the meeting. They include audio of Greco's Friday news conference, Justice Kennedy's keynote, an Aug. 7 panel on government snooping moderated by Court TV's Catherine Crier and speeches by incoming president Karen J. Mathis and incoming president-elect William H. Neukom.

July 31, 2006 | Permalink | Comments (4)

Thanks, Carolyn

A note of thanks to my co-Blog Watcher Carolyn Elefant for her extra duty last week filling in for me while I was off camping in Maine. I should not admit that there among the tents, moose and pine trees, I discovered wireless Internet access. But I appreciated the fact that I didn't need to use it, save for a few urgent e-mails. So, thanks Carolyn.

July 31, 2006 | Permalink | Comments (0)

July 27, 2006

Reed Elsiver Keeps Gobbling 'Em Up

Ron Friedmann at Prism Legal reports on LexisNexis' continued expansion into litigation support products, with its recent acquisitions of CaseSoft and DataFlight. Quite frankly, the news has me terrified. One reason that CaseSoft's CaseMap products have gotten such traction in the solo and small-firm communities is the relatively low cost for a license. I fear that now that LexisNexis has gotten its monopolistic paws on this product, we'll see the prices increase.

Look at what's happened to Accurint, an asset locator service that Reed Elsiever (LexisNexis parent) acquired in 2004. Before the acquisition, Accurint boasted that it cost a quarter to obtain information, and that was true. I used Accurint years ago, and it was easy to access on a use-as-you-go basis. I revisited the Accurint site today to see if there'd been any changes. For starters, you can't tell what the costs are from the Web site -- you need to call a sales line, which hooks you into a phone line for all LexisNexis products. It seems like Accurint has added new features, which is great for large firms and justifies added costs. But solo and small-firm lawyers have a need for simple, bread and butter, use-as-you-go services and rates. Not sure if that's still available on Accurint.

That's my concern about all of these recent LexisNexis acquisitions. Lexis is going to keep upgrading the services like Accurint and CaseSoft to integrate them with other Lexis products. That's great for large firms that can afford to pay more. But in the legal profession, there's still a need for low-cost, pay-as-you-go, single-license services -- and I'm afraid that the more Lexis acquires, the fewer options we'll find at the low end.

July 27, 2006 | Permalink | Comments (2)

Good Old-Fashioned Columns Can Generate Clients Also

Blogs are all the rage today, but as this article, "Duane Morris Partner Writes His Own Ticket," from (7/25/06) states, simply writing a weekly column (albeit one that now appears online) has been a marketing winner for Duane Morris attorney Eric Sinrod. From the article:

The author of more than 300 columns covering a wide array of  topics relating to the Internet and technology, Sinrod has managed to use the Internet both as a subject and a medium with which to launch and market a high-tech law practice. Since starting his Cyberlaw column in 1999, Sinrod says he's  gotten calls from potential clients around the country who knew  him only from the articles he's written. Not only has it landed  him business, he says, it's also attracted potential employers,  including his current firm. "I showed my columns to some of the Duane Morris people, and I  think that got them interested in recruiting me," said Sinrod, who joined 600-lawyer Duane Morris in 2000 from Hancock Rothert &  Bunshoft. (The two firms merged this year). Today, his weekly columns, which appear on CNET's on  Tuesdays and on Thursdays, generate a significant  amount of counseling and litigation work for the former insurance defense and securities litigator. His columns have caught the attention of major clients like eBay, Thomson Corp. and Providian Corp. And the kind of work he's getting is as varied as the topics his column covers, from copyright, patent and trademark infringement to spam and privacy issues.

Sinrod's experience proves that you don't need to blog to win clients; writing a well-exposed column works just as well.

July 27, 2006 | Permalink | Comments (4)

Keeping the Talent Happy

Bruce MacEwen has some advice for law firms seeking to win the war on talent. According to a Legal Week survey that Mayerson discusses, it's never been harder to find talent with the retirement of baby boomers and the growing skills gap. I'd also argue that with the advent of the Internet and access to information, lawyers are able to ferret out leads on where the best jobs are and are more inclined to move than lawyers of 15 years ago.

So how do you get good people to stick around? Here, Macewen cites some surprising results. With so much focus on the work-family balance, one might think that more balanced work hours and a more accomodating firm would appeal to talented lawyers. But a McKinsey study points out that these factors are the most important contributors to career satisfaction:

    * firm's values and culture (58%)
    * freedom and autonomy (56%)
    * exciting challenges (51%)
    * a well-managed firm (50%)
    * career advancement and growth (39%)
    * respect for lifestyle (14%)
    * job security (8%)
    * acceptable pace and stress (1%)

MacEwen's not willing to conclude that firms can just work everybody 2,200+ hours per year and assume that if your firm's 'values and culture' are outstanding (which indubitably they are!), you have no attritution problems. But he makes an important point:  For all the talk about work-life balance, it may not be what attracts and retains talent. 

What do you think?

July 27, 2006 | Permalink | Comments (0)

N.J. Lawyers Still Liable for Medical Malpractice Premiums

Even though many New Jersey lawyers can't afford legal malpractice insurance, they're still required to pay for doctors' malpractice, according to this article, "Court won't let lawyers sue of $75 fee," Star Ledger (6/27/06). According to the article, back in June 2004, the New Jersey Legislature enacted the  Medical Care Access and Responsibility and Patients First Act, which created a temporary fund to subsidize medical malpractice insurance premiums for physicians in high-risk specialties. To raise the $78 million needed for the fund, the Act provides for asessment of fees on doctors, dentists, chiropractors -- and lawyers.   

The New Jersey Bar sued, arguing that a $75 fee on lawyers singles them out from other nonmedical legal professionals and violates equal protection. The Bar also argued that there was no rational connection between the law and the fee, since only a small percentage of lawyers in New Jersey even handled malpractice cases. But a New Jersey court rejected the argument and refused to second-guess the Legislature.

As a former member of the New Jersey Bar, I know that it has a security fund for victims of legal malpractice. Why don't doctors have to pony up money for that?

July 27, 2006 | Permalink | Comments (0)

Hey ABA: Say Aloha to Stale Tradition

In a couple of weeks, the American Bar Association's annual conference comes to Hawaii. Despite the ABA's membership of 400,000, last year's conference didn't generate much buzz, at least among lawyers online. But apparently, the ABA decided to make a big splash this year by pulling out of sponsorship of a surfing competition for lawyers because of liability concerns  ("Lawyers group won't go near water," AP (7/26/06).

According to the news story, 40 lawyers signed up for the National Lawyers on Longboards Surfing Contest. According to Lea Hong, an environmental lawyer quoted in the article, the ABA's reaction is silly:

"It's really funny -- the ABA won't officially sponsor it for liability reasons," said Lea Hong, a Honolulu environmental lawyer and surfer.  Hong is planning to go ahead with the contest and a luau on the convention's last day. She said the ABA overreacted.  "They were freaked out about the liability issue related to a surf contest, even though we had liability insurance and everything," Hong said. Organizers of the surfing event have required that all participants sign a liability waiver, and lifeguards will be on duty in case anyone gets in trouble, Hong said.

Personally, I wonder whether this is really about safety -- or image. After all, the ABA sponsors golf tournaments, where people can get hit with a club or a ball, pass out from heatstroke or be thrown from a golf cart. But golf's considered a dignified lawyer pastime, whereas surfing is not. I'm guessing that the ABA doesn't want to affiliate itself with a youthful, vibrant, exciting activity that the ABA deems as "unbecoming" of lawyers.

Come on, ABA, loosen up! The story about pulling out of the contest for liability is all over the news. And it doesn't make lawyers look smart or dignified; it simply makes us look like silly party poopers. 

July 27, 2006 | Permalink | Comments (1)

July 25, 2006

Would You Render Ineffective Counsel to Spare Your Client From Death?

With a growing number of capital cases overturned for ineffective assistance of counsel, might criminal defense lawyers be inclined to intentionally render poor service to spare their clients' lives? That's what 6th Circuit Chief Judge Danny Boggs suggested in his concurrence in Poindexter v. Mitchell (tagged here at How Appealing).

In Poindexter, the 6th Circuit reversed the lower court's decision that the defendant was deprived of effective assistance of counsel during his trial. However, the 6th Circuit affirmed the lower court's finding that the defendant's lawyers failed to represent him effectively at the sentencing stage. Among other things, the lawyers did not adequately investigate the defendant's troubled childhood, speak with family members or consult with experts, all of which might have produced mitigating evidence that might would have spared the defendant from the death penalty.   

Boggs concurred in the decision because it was consistent with "the current state of the law." But he expressed concern that defense lawyers might intentionally render ineffective assistance to spare their clients. Consider these excerpts from Boggs' decision that appear in this article, "Lawyers Could Be Tempted to Mess Up Trials" (Louisville Courier Journal, 7/25/06):

Prisoners who receive ineffective assistance are likely to be spared, "certainly for many years, and frequently forever," wrote Chief Judge Danny Boggs of the 6th U.S. Circuit Court of Appeals. "To put it bluntly, it might well appear to a disinterested observer that the most incompetent and ineffective counsel that can be provided to a convicted and death-eligible defendant is a fully-investigated and competent penalty-phase defense under the precedents of the Supreme Court and of our court," Boggs wrote.

Boggs' colleague, Judge Martha Craig Daughtrey, wrote a separate opinion to express her dismay with Boggs' "unjustified attack" on defense lawyers:

"For the chief judge of a federal appellate court to state that it is 'virtually inevitable' that 'any mildly-sentient defense attorney' would consider playing the equivalent of Russian roulette with the life of a client is truly disturbing," she wrote.

I agree that Boggs' ruling is insulting. But it also poses some interesting quandaries for defense attorneys. If it's true that many death penalty convictions are likely to be vacated based on ineffective assistance of counsel, would a defense attorney be ethically obligated to provide an inadequate defense if that 's what it took to save his client's life?

July 25, 2006 | Permalink | Comments (1)

Blacklisting Medical Malpractice Plaintiffs

This article, "Web Site Encourages Blacklist of Med-Mal Plaintiffs" ( 7/25/06), reports on, a Web site that  lists the names of  plaintiffs who have filed medical malpractice cases in Florida and their attorneys. According to the article, the Web site has two purposes:

[Litipages] encourages doctors to consider avoiding patients who are listed in the database, and it strongly encourages plaintiffs who have lost their cases at trial to turn around and sue their plaintiffs attorney. "If your attorney proceeded with a lawsuit without warning you of the risks involved, you may be the victim of Legal Malpractice and may be entitled to compensation," the site states.

I have to admit that I don't quite get the logic behind Litipages. For example, the site says that it publicizes the names of plaintiffs who file a malpractice case and fail to win at a jury trial. But often, the most meritorious medical malpractice cases settle. So the site penalizes plaintiffs who file cases with merit.

Litipages tries to sell its value to attorneys by suggesting that they can sue attorneys who bring malpractice cases and lose. But if a lawyer can successfully recover from a medical malpractice attorney who lost a case, doesn't that imply that the underlying cause of action had merit? 

If doctors really want to avoid plaintiffs who file lawsuits, they can easily run background checks on them; malpractice complaints are a matter of public record. And because complaints are public record, I'd have no problem with a Web site that provides the actual complaints, without any commentary on the merits. But what Litipages seeks to do doesn't offer much value as far as I can tell and,  in fact, doesn't seem to make much sense at all.

July 25, 2006 | Permalink | Comments (10)

Encouraging Rainmaking by Rewarding the Means, Not the Ends

Arnie Herz of  Legal Sanity augments previous posts on rainmaking by offering some advice on motivating rainmakers. Herz references a post by Tom Collins at More Partnership Income, which argues that:

it's “not the attorneys’ sales successes that drive them, but the value placed on the struggle”  to bring in new business. So, law firms looking to motivate their  lawyer sales force -- including those practitioners who typically avoid  rainmaking at all costs -- should celebrate and acknowledge rainmaking  failures as well as successes [...] You can motivate existing rainmakers and encourage others to become rainmakers by creating a culture where it is not a failure to come home empty-handed if you hunted well.”

Given that it takes 50 or a hundred leads and queries to produce a client, rewarding the effort for rainmaking may be the only way to get people to do it.

July 25, 2006 | Permalink | Comments (0)

New Jersey: The Kryptonite of SuperLawyers

SuperLawyers may prevail over clever adversaries and tough judges. But they're no match for Kryptonite, er, the New Jersey Supreme Court ethics panel. As this article, "Ethics Crusaders Crush SuperLawyers" ( 7/24/06)reports, on July 19, the New Jersey ethics panel ruled that lawyers are prohibited from advertising their inclusion in the SuperLawyer publications and taking part in the selection process. The article reports on some of the concerns that the ethics panel raised with respect to advertising a SuperLawyer affiliation:

The Committee on Attorney Advertising says in Opinion 39 that ads trumpeting a lawyer's inclusion in the two rankings violate the rule of professional conduct against suggestions that one lawyer is better than another. Such ads also create unjustified expectations about results a lawyer can achieve, another ethics no-no, the opinion says. "When a potential client reads such advertising and considers hiring a 'super' attorney, or the 'best' attorney, the superlative designation induces the client to feel that the results can be achieved by this attorney are likely to surpass those that can be achieved by a mere 'ordinary' attorney," the opinion says.  "This simplistic use of a media-generated sound bite clearly has the capacity to materially mislead the public," the opinion says.

A number of bloggers have lambasted the New Jersey decision, even those who think that publications like SuperLawyers are meaningless. Larry Bodine comments here that:

I don't defend the publishers of "Super" and "Best" lawyers.  They are advertising predators who make themselves rich as Croesus by tricking lawyers out of their money.  Most law firm marketers know to steer their firms away from this claptrap.  But a new sucker is christened with a J.D. every day.

But the publishers have a right to make a buck.  More importantly, lawyers have the right to market themselves in any honest way that will bring in clients. In America, lawyers have the right to be stupid. So does any other business that advertises, including the fools that blow $1 million to advertise in the quickly-forgotten Superbowl.  For the courts to pinpoint a particular marketing technique as "unethical" is a waste of its time and an insult to the U.S. Constitution (see Amendment No. 1).

Unlike Bodine, Monica Bay at Common Scold likes lists, but she too agrees that the New Jersey ruling was boneheaded. And Evan Schaeffer at Legal Underground asks what the ruling means for Martindale Hubbell:

Here's one question that leaps to mind: what about the Martindale-Hubbell rankings? Will those also be verboten in New Jersey? Apparently, the answer is no: the opinion by the New Jersey ethics panel makes a distinction between Martindale-Hubbell, which is primarily marketed to lawyers, and Superlawyers and Best Lawyers in America, which are often marketed to consumers. In addition, Martindale-Hubbell's AV, BC, and CV-type rankings don't mean much to the public, according to the panel.

Personally, I don't put much stock in beauty contests like SuperLawyers. Most of the time, they're dominated by large firms anyway; most of those firms wouldn't handle consumer matters anyway, and most consumers couldn't afford to hire those attorneys. Still, like my colleagues, I don't see the need to regulate lawyers who tout their SuperLawyers' listing. 

July 25, 2006 | Permalink | Comments (1)

July 24, 2006

Never Too Early to Start Cultivating Patrons of the Arts

There's a lot of marketing going on at law firm summer associate programs, though not in the way you might think. Sure, firms are wining and dining young law students and trying to sell them on all the benefits of working at the firm. But in New York, cultural and artistic institutes have been marketing themselves to summer associates, hoping that today's young law students will become tomorrow's patrons of the arts, as described in this NYT article, "For Top Law Students, A Sidebar with the Arts" (7/23/06). Kianga Ellis , founder of Avail Art, a for-profit company to support the arts, describes:

“I hope to create a pipeline of new patrons for the arts. The challenge the arts are facing in terms of cultivating new patrons is how to make it interesting and relevant to the lifestyle of new professionals. It’s about making it part of your lifestyle -- where you ate dinner, where you go on the weekend.”

Avail Art is not the only program to match lawyers with the arts. According to the article, last summer, the Appollo Theatre Foundation hosted summer associates for an amateur night at the Apollo, and the Museum of Contemporary Art in Cleveland held a social networking party for local nonprofits and summer associates from Cleveland's top law firms. 

The article asks whether "convincing young lawyers to buy art can ease the spiritual burden of 2500 billable hours a year." I wonder that myself. Will lawyers feel better about not having followed another passion, like art or writing, because they can afford to buy or sponsor it? Or does that simply make the longing worse?

July 24, 2006 | Permalink | Comments (0)

'Anonymous Lawyer' Hits the Book Stands Tomorrow

July 25 , 2006 is the first day of the bar exam in most states, but it's also the day that Jeremy Blachman's novel, "Anonymous Lawyer," officially hits the bookstores. Though releasing a book about big-firm practice on the same day that the bar exam starts doesn't strike me as the best timing (particularly where the narrator expounds on the devastating consequences of failing the bar), the release date does allow AL to ride the coattails of recent movies like The Devil Wears Prada and other exposes of bad bosses.

I was fortunate enough to have snagged an advance copy of "Anonymous Lawyer," which I've reviewed favorably, over at My Shingle.

July 24, 2006 | Permalink | Comments (0)

Blawg #67 Is Out

David Fischer of the Antitrust Review hosts Blawg Review #67. Not surprisingly, Blawg Review covers a range of antitrust topics, including a link to Fischer's co-blogger, Manfred Gabriel's analysis of Microsoft's Antitrust Principles and Fischer's post on the status of antitrust litigation against Bar Bri based on allegations of an illegal market division agreement with Kaplan. This week, notices to potential class members, i.e., those who took Bar Bri between 1997 and 2006, are being mailed out. But Blawg Review #67 contains much more than just antitrust; be sure to go over and take a look.

July 24, 2006 | Permalink | Comments (1)

Are Blogs the New 'Friends of the Court'?

Are blogs the new friends of the courts? That's one of the issues that Howard Bashman examines in this commentary,  "Viewing Law Blogs as a Vast Amicus Brief" (7/24/06). Bashman writes:

With increasing regularity, the legal blogosphere generates these types of discussions of noteworthy pending cases, and it is not unusual for those discussions to include thoughtful recommendations about how a court should rule based on existing law and policy considerations. In such instances, the Internet can be regarded as a vast amicus brief through which legal experts who are otherwise unconnected to pending court cases may potentially influence their outcomes.

So what are appellate judges to do when they come across relevant discussion from the blogosphere on a case pending review? Must judges ignore the information and limit themselves to what's in the record? Or should they consider the recommendations and ideas raised by bloggers? Bashman examines both sides of the argument, but here's how he comes down:

In my view, if the blog post is publicly available to anyone with Internet access, and if the blogger has not taken any steps other than publishing the post to draw it to the attention of the judges before whom a case is pending, then those judges are free to consider and rely on that information if they find it to be helpful. Such a blog post cannot be viewed as an impermissible ex parte communication any more than a New York Times editorial endorsing a particular outcome in a pending U.S. Supreme Court case could be viewed as such.

Furthermore, in my view, it is preferable for the appellate judge who becomes aware of an Internet posting about a pending case, written by someone with particular expertise in the area of the law at issue, to read the posting instead of refusing to consider it. The more informed a judge can become about the nuances of a particular area of the law before issuing a ruling, the more likely it is that the court will issue the best possible ruling in the case.

Bashman's conclusion makes sense to me. At the same time, if judges are going to take blog postings into account, how does this affect lawyers in practice? When we're handling appeals, should we go out and find credible bloggers who will post on our behalf? Should we make a point of  posting our briefs online so that we can attract bloggers to support our position? Where judges rely on a blog post, must they include the post in a citation? And would bloggers, particularly law professors, compete to see who could garner the most mentions in judicial opinions? Would firms that file "glamor" amici just to attach their name to a case stop doing so and blog about the case instead?

What do you view as some of the implications of treating the blogosphere as an amicus brief? Is it something you support?

July 24, 2006 | Permalink | Comments (0)

Options Backdating Scandal Trickles Down to the HR Department

Recently, there's been lots of coverage on the  stock option backdating scandals that have swept the corporate world and are now resulting in criminal indictments as discussed by WSJ Law Blog and Larry Ribstein's Ideoblog. But it's not just company CEOs and financial officers facing criminal prosecution for backdating; as  Employers Lawyer  Michael Fox writes,  human-resources officers also face indictment

The reason that HRs are getting noticed by prosecutors? As Fox explains, in contrast to other corporate, Enron-like scandals that focus on accounting, human-resource departments often play a major role in administration of stock options. In the Brocade indictment, the company's CEO, Gregory Reyes, had sole authority to grant stock options, and along with Stephanie Jensen, vice president and head of HR,  the company had a practice of  waiting until the end of a fiscal quarter before granting options at the lowest price for that quarter.

Fox isn't sure how the criminal case will proceed, so he concludes his post this way:

HR is often called on to be the conscience of a company. Time may soon tell how well that mission has been accomplished.

In the meantime, Fox's post should serve as notice to HR departments to review your involvement in administration of stock option programs.

July 24, 2006 | Permalink | Comments (0)

Lawyers Take Lessons From the Ritz

Law practice guru Allison Shields was on to something when she pointed out how lawyers can learn about client service from the hospitality industry. According to this article, "Firms turn to hotels to learn better service" (Wall Street Journal 7/23/06):

A growing number of companies in industries not known for great customer service -- banks, hospitals, law firms and car dealerships, to name a few -- are increasingly seeking help from luxury hotels that pride themselves on service, like the Four Seasons Hotels Inc. and Marriott International Inc.'s Ritz-Carlton hotels. (New-car dealers were among the 10 industries that consumers complained most about in 2005, says the Council of Better Business Bureaus Inc., while hotels were ranked 31st.)

I question how successfully the Ritz-Carlton lessons will transfer to law firms for this reason. One of the lessons taught at a recent class attended by at least one law firm executive was that "until you get happy employees, you're not going to make the leap to happy guests." If client happiness ultimately depends upon associate happiness, law firms have a long way to go before they can truly satisfy clients.

July 24, 2006 | Permalink | Comments (1)

July 21, 2006

Does Professional Courtesy Help or Hurt Clients?

In the past couple of years, I've seen articles and seminars such as this one that decry the decline of civility in the practice of law.  But is there such a thing as being too civil?  Can lawyers go too far to accomodate opposing counsel and avoid conflict such that their acquiescence hurts their clients? That's a topic that my colleague Dan Hull ponders in the post  Is 'Professionalism' Just a Lawyer-Centric Ruse?

Here's a sampling of how Hull says some clients might prefer rules of professionalism to read to serve those clients more efficiently:

  • Be nice -- but if in doubt, use the rules. If you feel you know the lawyers you are dealing with, we will follow your advice and instincts. If you are in doubt about the lawyers, or if it might compromise us to deviate from the formal procedural rules, please stay close to those rules.
  • If you have, or would like to have, a personal relationship with opposing counsel, that's fine, but don't let the relationship hurt us--the client. We don't care as much as you do about your maintaining or developing collegiality with other lawyers in your jurisdiction; in fact, we could not care less.
  • If opposing counsel shows animosity toward you for following the procedural rules and keeping things moving, that is tough. This is not about the lawyers. We hired you to represent us. We would like you to get this done. Again, as your client, we seldom think that aggression and persistence are "unprofessional".

Generally, I agree with Hull, which is why I frequently consult with my clients on decisions like whether to grant an extension of time, though technically, that's considered a strategic matter within the lawyer's discretion (in contrast to, say, a settlement proposal, where a client indisputably has decisional authority).  But sometimes, the result isn't so simple.  Often, it's not just an adversarial opponent who may delay a proceeding; a judge may be dilatory as well.  Sometimes, it does not make sense to file a motion to compel to secure documents when the judge might take several months to issue a ruling.  Better to take your chances accomodating your opponent, since you might get what you need more quickly.   

Still, Hull raises a significant issue often overlooked by most attorneys.  Often, as his post title suggests, we use professional courtesy as a pass to avoid vigorously representing a client for whatever reason - fear of confrontation or appearing too aggressive, concern about our reputation amongst our colleagues.  The lawyers whom I admire most (and there are few) are those who manage to straddle that narrow line between commanding respect of colleagues and judges while still acting tough enough to get the job done.

July 21, 2006 | Permalink | Comments (1)

Law Firms and IT Investment: Does It Pay Off?

In the post Is Your Firm an IT Pioneer or a 'Fast Follower'?, Bruce MacEwen ties together three posts from law practice bloggers David Maister , Richard Susskind and Kieran Flatt (Legal IT) who present three different views on the appropriate relationship between law firms and technology.   Kieran Flatt questions whether there is "any sort of technology that really does deliver a substantial competitive advantage to medium-sized City practices."   He's of the position that IT isn't really worthwhile unless a firm "gets big and global ... and commoditise[s] much of [its] business and slash[es its] margins to compete ..."  Maister says that technology may be great, but sophisticated IT tools won't guarantee success; professional offerings and client service are still what count.  Finally, Richard Susskind asks "SHOULD lawyers be technology pioneers?"

MacEwen's own question is whether the IT race is one worth running. He says yes, so long as technology faces towards clients, gives practitioners tools they can use and enables migration towards higher-quality, more effective personal one-on-one interactions.

All very interesting, but what I found missing from the discussion is the role of the billable hour and its impact on IT adaptation in firms.  Listening to law practice guru Ed Poll's excellent webinar (sponsored by Lisa Solomon), I was reminded that IT is costly but at the same time, it reduces the amount of time that lawyers require to perform a task, thereby decreasing billable hours.  Unless lawyers adopt different billing methodologies, the billable hour is a dis-incentive to adopt technology.  In all deference to Bruce MacEwen and his colleagues, I don't think that a discussion of law firms and technology is complete without an examination of the role of the billable hour in the equation.

July 21, 2006 | Permalink | Comments (1)

More Proof That Diversity Matters at Law Firms

Last month, I posted here about legal scholars who oppose affirmative action in law schools because some studies show that many minority students who are accepted under reduced standards do poorly or even flunk out.  The recent article Minority Partner Paradox  (e-report, 6/21/06) has fueled this debate, reporting that minorities who are accepted through affirmative action are often marginalized at law firms and wind up leaving.

That situation will change soon, however.  Because as the New York Times article Pushed by Clients, Law Firms Step Up Diversity Efforts (7/20/06) reports, large firms are going to need to hire minority and women candidates to meet their corporate clients' demands.

According to the article, about 100 companies, including American Airlines, Boeing and General Motors, have signed onto a pledge to increase diversity.   Moreover, the corporations don't just want trophy diversity lawyers; they now insist that women and minority lawyers function as part of the team.  Some companies are particularly serious about their commitment -- for example,  Wal-Mart went so far as to drop two law firms because of lack of diversity in the ranks.

Just as corporate America is demanding law firms with diverse attorneys who serve as more than figureheads, law firms will soon demand that law schools provide them with a pool of qualified, diverse attorneys.   And just as law firms are listening to their customers (corporate clients), law schools must listen to one set of customers, i.e., the law firms who hire law students.    If there's a demand for quality minority candidates, as the NYT article suggests, law schools better start making  sure that minority students succeed, so they can take advantage of the demand for diversity in the law firm workforce. 

July 21, 2006 | Permalink | Comments (1)

Should Law Firms Change the Way They Handle Bonuses?

Former biglaw attorney Victor Medina has some interesting  insights about how law firms reward associates for those hellish months where they're working virtually 24-7.   Medina describes how a friend of his just "banged out a 280 billable hour month for June."  But aside from a pat on the back, Medina expects that his friend won't get extra compensation for his hard work until annual bonus time.  And there's no guarantee of a bonus, because if subsequent months are average or slow, the friend's total hours for the year probably won't warrant a bonus anyway. 

Medina suggests that cutting a bonus into quarterly periods would create a closer link between compensation and effort expended on particular projects.   He offers other ideas too:

How about throwing these overworked associates a bone ... ? A weekend at a spa for two -- what's that, a couple hundred bucks? How about treating them to a golf outing and a dinner? How about escalating bonuses over the course of the year, paid out on a monthly basis (5% of excess billings the 1st month, 7% the second month of an effort)?  Point is -- there must be a thousand better ways of rewarding associates for their hard work than waiting a whole year for a bonus.

What do you think?  Should firms change the bonus system or make an effort to reward associates throughout the year, as Medina suggests? Post your comments below.

July 21, 2006 | Permalink | Comments (1)

July 20, 2006

ATLA's Ill-Conceived Name Change

So ATLA is now AAJ. The Association of Trial Lawyers of America wrapped up its annual meeting in Seattle yesterday with a 390-91 vote to change its name to the American Association for Justice. (Better hurry, AAJ, to scarf up that domain name.) I hope this post doesn't come across as sour grapes, given that they ignored my suggested name, Justice League of America. The truth is, I support ATLA, in spirit if not dollars. I believe its members, overall, truly do advocate for justice, protecting consumers from exploding automobiles and deadly drugs. But the name change, I believe, was unnecessary and ill-conceived. Here's why:

  • It accomplishes nothing. The reported impetus for the name change was to better communicate the organization's mission in the face of criticism by big business and Republicans. But as ATLA nemesis Victor Schwartz, president of the American Tort Reform Association, said of the change, "If a shark called itself a kitten fish I would still not put my daughter in to play with it." ATLA's opponents will remain its opponents. It is not a name change ATLA needs, but better PR and marketing to show the public that it is not a circling shark.
  • It describes nothing. Abstract names sometimes work in commerce, but not for an association. ATLA's former name was precise and descriptive. Its new name is vague and, as the Wall Street Journal notes, is glaring in its omission of the words "trial" or "lawyer," as if they were to be avoided like hot potatoes. When consumers first hear the name, "American Association for Justice," they will be more likely to conclude it is an extremist political group than a lawyers' organization.
  • It is divisive. In theory, anyway, aren't all lawyers engaged in the pursuit of justice? For ATLA to lay claim to the mission is to push away other lawyer groups that, while not precisely aligned with ATLA, may be its allies.
  • It is cumbersome. "ATLA" is a phonetically pleasing acronym that is easy to say and easy to remember. "AAJ" sounds like the beginning of a sneeze.

ATLA does good work, and its members often wear the white hats in the courtroom. It should take pride in its name and find better ways to spread the word of its good work.

July 20, 2006 | Permalink | Comments (5)

A Criminal Action: W.R. Grace and Montana Miners

Thanks to author Jonathan Harr and his book, A Civil Action, W.R. Grace will long be remembered as the antagonist in the tale of lawyer Jan Schlichtmann's pursuit of accountability on behalf of a group of citizens in Woburn, Mass. Come September, W.R. Grace will take center stage in another courtroom drama. This time, the company and seven of its current and former executives face criminal charges in federal court based on a federal indictment that they conspired to conceal the health risks of a vermiculite mine in Libby, Mont.

Andrea Peacock has written a book about the case, Libby, Montana: Asbestos and the Deadly Silence of an American Corporation, and this week at TortsProf Blog, she is presenting a seven-part overview of the case and its cast. "What I’d like to do during this next week is put a human face on these events," she says, "providing links where appropriate to more technical and historical information about the case." Her posts so far:

July 20, 2006 | Permalink | Comments (0)

Watch What You Say -- With Your Body

Next time you go to a job interview or even a business meeting, consider this: 55 percent of first impressions are based on your body language, while only 7 percent come from what you say. In her article, Is Your Body Language Sabotaging Your Job Interview?, Judith Earley says strong credentials may get you in the door, but bad body language can get you thrown back out. Among her body-language no-no's:

  • Folding arms across chest.
  • Shaking legs and wiggling feet.
  • Rubbing your nose or back.
  • Slouching or tipping your chair.

"The bottom line is that you want to project an air of confidence, not arrogance," she writes. "Arrogance is the opposite of confidence and demonstrates a profound lack of self-confidence."

[Hat tip to Stephen Seckler for the link.]

July 20, 2006 | Permalink | Comments (0)

Survey: Most Blogging Is Personal

Most bloggers focus on describing their personal experiences to a relatively small audience of readers while only a small percentage focus their coverage on politics, media, government or technology. So finds a national phone survey of bloggers released yesterday by Pew Internet & American Life Project. The survey says that the number of adult Americans who write blogs has grown to 12 million, or about 8 percent of adult Internet users, and that readers of blogs number 57 million American adults, or 39 percent of Internet users.

When asked to identify the main subject of their blogs, 37 percent answered, "my life and experiences." Other topics were far less frequent: 11 percent focus on politics and government; 7 percent focus on entertainment; 6 percent focus on sports; 5 percent focus on general news and current events; 5 percent focus on business; 4 percent on technology; 2 percent on religion, spirituality or faith; and even fewer focus on specific hobbies, health problems or other topics. The survey did not ask about law as a specific topic.

July 20, 2006 | Permalink | Comments (0)

July 19, 2006

You Can Never Stop Making It Rain

Back when I was in law school, Biglaw partnership was viewed as nirvana -- almost like university tenure but at a much higher salary. But now it seems that if you want to maximize the benefits of partnership, you can never stop working -- and more importantly, never stop rainmaking, as suggested by this article, Firm Looks to Bigger Bonuses to Stave Off Poachers, The American Lawyer (July 18, 2006).   

The article reports that most firms are implementing bonuses at the partnership level. Big firms have determined that bonuses are a way to reward rainmakers and ensure that they don't bolt, with their book of business, for another firm. In particular, bonuses give extra compensation to younger partners who may bring in lots of business but aren't senior enough to command a large cut of the profits. Finally, bonuses are also a way that firms can keep money from underperformers. Typically, when a firm has a good year and profits increase, underperformers might wind up getting paid much more than they're worth. By removing profits from the pot and moving them to a bonus pool, firms can ensure that partners who don't bring in business won't reap a disproportionate share of profits.

So for anyone who thinks that partnership at Biglaw remains a collegial or uncompetitive environment, think again. As with associates, it's still about the money, only on a grander scale.

July 19, 2006 | Permalink | Comments (1)

Energy Crisis in Law?

I know exactly what Arnie Herz is talking about in his fascinating post Energy Management for Lawyers, and I'm sure that many of you will recognize this scenario as well. Herz quotes from blogger Curt Rosengren, who writes:

"People who feel vibrant and alive because they're doing what they're meant to be doing are inherently energizing to be around." Rosengren dubs these people energy catalysts. On the flipside are the energy sappers [also known as energy vampires]. These "people who are dissatisfied with where their lives are taking them can be a drain, sucking the energy out of their surroundings" and the folks they interact with.

Many of us work with or interact with energy sappers -- and we don't even realize it.  As Herz writes:

Most of us go through the day without considering our own energy state. We know that we’re feeling put off, tired, overwhelmed and disheartened, but we don’t attribute those feelings to impaired energy. In a new Fast Company article called Is Your Boss Killing You? we learn more about the great havoc wreaked by workplace energy sappers. The piece leads off by citing study findings suggesting that “caustic, abrasive, and overbearing bosses just might be taking years off their employees' lives.” It goes on to offer expert views on ways people can avoid or re-route this energetic drain, such as “looking at pictures of their families, visualizing a beautiful vacation spot, or even trying to imagine a problematic situation as comical rather than stressful.”

One reason that I'm so enamoured of the lawyer blogging world is that it's full of positive energy people who invigorate. If you're feeling sapped by a  nasty  boss or a  complaining co-worker, try reading some blogs, because they're also a quick energy fix.

July 19, 2006 | Permalink | Comments (0)

Check Computer Filings, Before and After

Future Lawyer Rick Georges posts about a computer glitch from hell: the inadvertent attachment of privileged documents to materials disclosed in discovery. Ouch!

According to the post, a computer error caused the addition of allegedly privileged documents to a pleading. To compound matters, the mistake was not discovered for three to four months, at which point the attorney moved to compel return of the erroneously released materials. The court denied the motion, applying a five-prong test. The court considered a variety of factors in its ruling, including the fact that so much material had been released and that it would be unfair to burden plaintiffs with return of the materials and deprive them of their use. In addition, the court had little sympathy for the "I inadvertently clicked the wrong mouse button" excuse, finding that if attorneys are going to obtain the benefits of technology, they must also take the time to adequately protect information. 

In some ways, this case illustrates the one drawback (albeit minor) of e-filing and electronic production. You click the "send" button, and chances are, you never look at the file again. By contrast, when you file a paper document, you may spend time aimlessly skimming through it, which means that you'd catch any inadvertent errors. In any event, from now on, before I heave a sigh of relief after I e-file a court document, I'll be sure to visit the court site just to make sure that I filed the right version, before logging off.

July 19, 2006 | Permalink | Comments (1)

Lots of Fees for Motions, but Not a Single Phone Call

Any lawyer will tell you that orders like this one described at E-discovery law blog are hard to come by. Essentially, a plaintiffs attorney was awarded over $77,000 in legal fees for work performed over a two-year period in connection with 11 motions to compel various electronic police records. Even more amazing (and for reasons that I don't quite understand), the court ordered defendants to pay the fees dating back to the date of the initial request, even though, apparently, the plaintiffs attorney had only requested hard-copy documents at that time.

The court's order is interesting for two other reasons. First, it includes the plaintiffs attorney's two- to three-page time sheet for the period for which the court granted her fees. There's no one huge item like a 20-hour billable day -- just an endless list of tasks ranging from .1 to 3.0 hours. Amazing how it can add up. Second, throughout the entire time sheet, I did not once see an item such as "call to defense counsel to discuss discovery" or "meet and confer." Though the defendants' attorneys here seemed pretty flaky to let this motion go on for so long, at the same time, I can't help but wonder whether a call or two from the plaintiffs lawyer might have avoided this endless dispute.   

What do you think?

July 19, 2006 | Permalink | Comments (1)

July 18, 2006

Writing Justice Blackmun

Dorothy Clark Blackmun, widow of Supreme Court Justice Harry A. Blackmun, died earlier this week. Coincidentally, this week published Writing Justice Blackmun, the text of a July 9 speech to the American Association of Law Libraries by Linda Greenhouse, Supreme Court correspondent for the New York Times and author of the book Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey.

As it turns out, Dorothy Blackmun and her daughters were instrumental in bringing Greenhouse to write the book. Justice Blackmun, author of Roe v. Wade, had left his papers to the Library of Congress, with the directive that they be made public five years after his death. As the papers' March 2004 opening approached, the family and scholars feared a mob scene as people rushed to read them. The family, along with a committee of Blackmun's former law clerks, decided to give someone a two-month head start on the collection. That someone was Greenhouse. 

Her speech -- appropriate to a convention of law librarians -- tells the story of how she made her way through Blackmun's daunting and voluminous papers. You can now review those papers yourself, but start with the perspective that only Linda Greenhouse can offer.

July 18, 2006 | Permalink | Comments (0)

Legal Marketing via You Tube

Over at her other blog, Carolyn Elefant, my co-conspirator here at Legal Blog Watch, has a post about cool legal marketing using the video-sharing service You Tube. Picking up on a tip from Professor Bainbridge, she writes about California criminal attorney Allison Margolin, a Harvard Law grad who has created a video for You Tube to advertise her services in drug defense. Elefant says it is the smartest marketing idea she's seen in awhile. Why?

"Several reasons.  First, the video gives Ms. Margolin's potential clients an opportunity to see what's she's like - at the office and also in front of the court house.  Second, Ms. Margolin discusses her philosophical objections to criminalizing drugs, particularly for therapeutic uses.  So clients can see that Margolin believes in what they're doing and isn't just interested in defending clients charged with drug crimes for the money or because of the constitutional issues potentially raised.   Third, even though Margolin is young, putting her at a disadvantage against more seasoned practitioners, she's got something many of them don't:  an Ivy league education and a Harvard Law degree, which she displays prominently in the video and apparently, in her other marketing materials."

The video includes comments from a Margolin client as well as from her father, Bruce M. Margolin, a criminal defense lawyer and director of the Los Angeles chapter of NORML.

July 18, 2006 | Permalink | Comments (1)

For GCs, the Bennies Soar

Salaries for the corporate world's best-paid chief legal officers held steady last year, but the side benefits reached new heights, according to the 2006 GC Compensation Survey of Corporate Counsel magazine. The average salary of $564,612 was up just 1 percent from the year before, but bonuses rose 16 percent to an average of $906,820, and restricted stock grants went up 35 percent to an average of nearly $1 million.

At the top of the chart, where he has remained comfortably seated for five years straight, is Benjamin Heineman Jr., senior vice president of law and public affairs at General Electric Company, with a $1.6 million salary and $3.4 million bonus. The low end of the well-paid spectrum is Michele Coleman Mayes, senior vice president and general counsel at Pitney Bowes Inc., with a salary of $448,000 and bonus of $396,000.

And then there are the percs. Heineman, for example, had perquisites valued at a quarter-million dollars, which included his personal use of a GE airplane. While other GCs also received free air travel and automobile reimbursements, Ira Dansky got percs of a different thread. The GC of Jones Apparel Group received nearly $20,000 in discounts at the posh clothing store Barneys.

Corporate Counsel has full coverage of the survey:

July 18, 2006 | Permalink | Comments (0)

Bloggers React to Howell's Firing

I'm not the only one reacting to the Denise Howell news. Here are some of the other comments from around the blogosphere:

July 18, 2006 | Permalink | Comments (0)

Blogger's Firing Raises Questions Aplenty

Denise Howell's first-ever blog post opened with a quote she attributed to Janis Ian: "Don't spoil it all, I can't recall a time when you were struck without an answer." Answers are nowhere to be found, but questions abound as the blogosphere reels from the news of her termination from Reed Smith, as reported here yesterday by Carolyn Elefant.

If you have not already read Denise's post about her firing, you should. I cannot recall a single legal-blog post ever that was at once so evocative and provocative. There are so many layers to this post -- in Denise's words and in their implications -- that we could peel away at them forever and never get to the bottom.

The short version is this: Denise Howell, one of the first and most respected legal bloggers, was fired last week from Reed Smith. Details are sketchy. Denise, bound by a confidentiality agreement, hints at her part-time parenting status as a factor and says her blogging probably was not a factor. To my knowledge, the firm has said nothing.

I've never met or spoken to Denise. But I think I know something about her, purely from having read her blog for some four years now. I know that she is smart, witty, creative, savvy and always several miles ahead of the curve. When I started writing my blog four years ago, I followed a trail she had helped blaze starting a year earlier.

I know bits and pieces about Reed Smith, too. For one, I wrote a piece for The American Lawyer several years ago about an innovative technology initiative it spearheaded. Until I read Denise's post this weekend, my sense of Reed Smith was similar to my impression of Denise -- of a smart firm somewhere on or ahead of the curve. Denise, herself, described the firm's managing partner Greg Jordan as a "phenomenal and visionary individual."

Now I no longer know what to think. I've been around long enough to know there are always at least two sides to every story. From immediate appearances, however, Reed Smith handled this situation in way that demonstrates a startling lack of PR savvy and lack of understanding of blogging's place in the legal industry. Its move raises significant questions on multiple levels about lawyers, law firms, careers, innovation, management, marketing and PR. They are questions not just for Reed Smith but through Reed Smith as proxy to all mainline law firms.

Let's start with the firm's leaders in management, marketing and PR. We have to wonder:

  • What does this firm know and understand about blogging?
  • Did the firm grasp and give any value to Denise's international prominence?
  • Did the firm foresee and somehow prepare for the PR wallop this move would deliver?
  • Did the firm anticipate or give any weight to bloggers' reactions?
  • Did the firm understand the positive marketing Denise brought it and the potential negative marketing implications of this move?
  • Does this firm care about the message it sends to clients in technology, new media and similar leading-edge industries?
  • What does this tell us about firms' sense of the PR and marketing value of blogging?

Then there are the disturbing questions this move raises for individual lawyers at mainline firms everywhere. Again, we have to wonder:

  • Was gender bias a factor?
  • Was parenting bias a factor?
  • Was blogging bias a factor?
  • Do cutting-edge, creative lawyers have a place in mainline firms?

In that very first blog post of hers, Denise also cited James Thurber for the proposition, "Better to fall flat on one's face than to lean over too far backward." For Denise, this latest turn of events is perhaps a stumble but certainly not a fall. She will quickly regain her balance and end up all the better and happier. But what of Reed Smith? Is it leaning over too far backward? Didn't anyone in management or marketing or PR see that this would be a public-image nightmare?  How many other mainstream firms are leaning too far backward? Are any of them the place for lawyers who seek careers of innovation, creativity and personal fulfillment?

July 18, 2006 | Permalink | Comments (10)

July 17, 2006

Lessons From, and Cheers for, a Blawger Who'll be Doing What She Loves

Before this past Saturday, I'd guess that every law blogger and law blog reader had at least heard of Denise Howell, if not read her blog, Bag and Baggage. Among other things, Denise coined the term "blawg" to designate a law-related Weblog and wrote the first article that I'd ever read about lawyers and blogging over four years ago, a veritable century in Internet time. But until Saturday, you may not have heard of Reed Smith, which, undoubtedly, would prefer to be recognized as a top 25 global law firm but, at least for now, will forever be known as the firm that dumped Denise Howell, one of blawging's greatest talents. 

In her post Saturday, Denise offers her thoughts on Biglaw practice, balancing work and family and the importance of doing what you love. Denise wonders whether firms are willing to put teeth into their work-family balance programs and also writes about her plans for the future:   

My professional roadmap henceforth will involve only things that are washed through a stringent "how much do I really love that" filter.

Denise's posts triggered an outpouring of support and discussion from blogging's biggest names (of course, what would you expect from the a lawyer whose fans and friends organized an online baby shower?). Ernie the Attorney offers these thoughts:

I think more people are starting to discover this filter.  Certainly, that's true for a lot of people in post-Katrina New Orleans.  As the Yaqui sorcerer used to remind Carlos Castendeda, "you must remember that death is stalking you."  We dont' really have time to do things that aren't supremely meaningful and enjoyable to us.  We barely have time for the things that matter most, and time is always running out. 

And Gerry Riskin comments that Denise's post (and Ernie's follow-up) serve as a reminder that law firms must do much more if they want to retain good people and truly prosper.   

On the topic of women at law firms, Work Place Prof Blog chimes in that Denise's experience shows that women continue to lose their jobs because employers cannot put together sensible workplace flexibility policies. As for Dennis Kennedy, he is flummoxed by the decision.

Over the next few days, expect more commentary on Denise's post and topics like law firm work balance policies and gaining satisfaction in the practice of law. I have no doubt that Denise Howell will go on to a career far bigger and better than Reed Smith could have ever provided. What few in our profession realize is that our most talented lawyers' stars burn too bright for Biglaw. For Reed Smith, however, its options diminish. Because if you're a talented woman planning on having kids, why in the world would you EVER choose to work there?   

July 17, 2006 | Permalink | Comments (4)

Blawg Review #66

David Jacobson of External Insights, an Australia-based, solo business lawyer, hosts this week's link-packed Blawg Review 66, with a bunch of work-life balance links, professional firm management and IP and tech news from around the world. Jacobson also managed to include the news of Denise Howell's recent firing, which stands out as one of the hottest stories in the legal blogosphere and is the subject of a separate post. Stay tuned for next week as Blawg Review travels to the Anti Trust Review Blog.

July 17, 2006 | Permalink | Comments (1)

A Neat Idea to Get Supreme Court Cases and Free Work

With recent small-firm victories at the Supreme Court, looks like Biglaw will have to look for a different approach other than criticizing solo lawyers' competence to attract Supreme Court cases. And as this recent blurb from How Appealing bears out, big firms are now copying the ingenious idea patented by solo-turned-Biglaw attorney Tom Goldstein:  the law school Supreme Court clinic.

As the How Appealing post describes:

Lawyers from two D.C. firms are working with law schools that are launching Supreme Court litigation clinics this  fall, and others may not be far behind. Andrew Pincus and Charles Rothfeld, partners at Mayer, Brown, Rowe & Maw, will be sharing their high court skills at Yale Law School. And Mark Stancil, who is moving  this week from Baker Botts to the smaller appellate shop of Robbins,  Russell, Englert, Orseck & Untereiner, will be working on Supreme Court cases at the University of Virginia School of Law.

What an utterly ingenious marketing idea. For the cost of a few hours a week teaching a clinic, Biglaw attorneys have access to hundreds hours of FREE work on cert petitions by some of the top law students in the country. And the more cert petitions that you churn out, the better your odds of the Court picking your case for the docket. Plus, law students aren't bar members, so the lawyers don't have to worry about competition from them when it comes to arguing the case. As for the students, they'll have a couple of Supreme Court briefs as a writing sample, which beats a fake appellate moot court brief any day.

I will file this idea under "wish I thought of that one" and "how can I make this work some other way for my practice?"

July 17, 2006 | Permalink | Comments (0)

Why Doesn't Biglaw Want to Compete?

If I ever had to hire a lawyer for a contentious matter, I'd want a firm that was willing to fight and willing to do anything, within the bounds of the law, to win. So that's why Ron Friedmann's recent post about Biglaw's reluctance to compete for business through RFPs -- and in-house counsel's concommitant willingness to cave to law firm demands -- leaves me with a negative impression of large firms as well as in-house counsel.

As Friedmann describes, many in-house counsel report disatisfaction with their outside attorneys. RFPs are one way that in-house counsel can procure outside counsel at lower rates since firms compete against each other for accounts. However, as this article discusses, RFPs never took off because so few firms participate.

Why don't in-house counsel persist with RFPs? In my view, they'd get the best lawyer for the corporation by taking firms willing to compete and willing, as Friedmann suggests, to look for cost-cutting strategies to prevail in an RFP. As Friedmann points out, there's still little pressure on law firm rates; they'll continue to go up unless clients impose some cost limits, such as those that can be gained through an RPF. When will law firm rates grow so high that RFPs will become a more accepted method of procuring high-quality legal service?

July 17, 2006 | Permalink | Comments (0)

Happy 4th Blogoversary to Employers Lawyer Blog

Congratulations are in order for Mike Fox of Employers Lawyer Blog who today celebrates  his fouth anniversary of blogging. According to Mike, he was the first lawyer to focus a blog on employment law, though he graciously tips his hat to the many other employment law and employment-related blogs that have since followed. 

July 17, 2006 | Permalink | Comments (1)

July 14, 2006

Oxymoron of the Day: Lawyer/Healer

JD Bliss discovers Deborah King, lawyer turned healer. Here, in King's own words, is her transition:

"A successful real estate attorney and hotel developer, Deborah was plagued by longstanding health problems that worsened over the years. After she experienced a remarkable physical healing from a healer, she jumped ship and left the reality of the corporate workplace for the less tangible world of healers, sages and shamans."

King went on to spend two decades studying healing in different religious and cultural traditions and earned a doctorate in healing sciences. Now, she sees clients in private practice and conducts "healing events" throughout the world. Sure enough, she even writes a blog.

July 14, 2006 | Permalink | Comments (1)

The Right to Remain Seated

Are you sitting down? If you work in Massachusetts, you may have the legal right to be. Meg Hayden at Massachusetts Law Updates picks up on a report in yesterday's Boston Herald to point out how an obscure state law helped workers stand up ... er, sit down for their rights at Cingular Wireless.

Seems that when Cingular yanked workers' chairs from show-room floors, the workers decided not to take the move standing up. Their union, the Communications Workers of America, filed a complaint with state regulators. As Hayden points out, the workers' complaint was firmly seated in state law.

Mass. General Laws c.149, s.103, requires employers to "provide suitable seats for the use of their employees and shall permit such employees to use such seats whenever they are not necessarily engaged in the active duties of their employment." The law, Hayden explains, was written way back when to protect women and children in "manufacturing, mechanical or mercantile" businesses, but was amended in 1974 to cover all employees. Violators face a penalty of up to $200.

As Boston Herald reporter Jay Fitzgerald relates, the union and Cingular reached a compromise yesterday. "Now it seems workers will get back at least some of their chairs," he says.

July 14, 2006 | Permalink | Comments (0)

John Roberts: No Pictures, Please

Will the Supreme Court be televised? Not if Chief Justice John Roberts has his way. As both the Los Angeles Times and Associated Press report this morning, Roberts yesterday told lawyers and judges at the 9th Circuit Judicial Conference not to expect televised proceedings anytime soon -- and perhaps never. Cameras might have an adverse effect on the court as an institution, he said, adding: "We don't have oral arguments to show people, the public, how we function."

Maybe that is not why the court has oral arguments, but what reason is that for limiting them from public view? I wonder what former Supreme Court Justice Louis D. Brandeis would think, who wrote in 1933, "Sunlight is the greatest disinfectant." Public education may not be the purpose of oral arguments, but what's wrong with it as a corollary?

July 14, 2006 | Permalink | Comments (2)

Podcast: Supreme Court Year in Review

As the Supreme Court wraps up its term, many are asking, "How will history remember its first look at the Roberts Court?" On the legal-affairs podcast Coast to Coast, two highly regarded court observers offer their impressions of the term's highs and lows:

To listen to this podcast:

Coast to Coast is produced by The Legal Talk Network and sponsored by J. Craig Williams and I co-host it.

July 14, 2006 | Permalink | Comments (0)

July 13, 2006

The Accidental E-Mail: Read It?

What fortune befalls! Opposing counsel inadvertently copies you on a confidential e-mail. Read or not read? That is the question.

Unfortunately, with the ABA having withdrawn a controversial 1992 ethics opinion addressing the question, the answer is anyone's guess, says Michael Yablonski in an article, New Rule, New Ballgame? He writes:

"With little fanfare, the ABA has withdrawn a controversial 1992 ethics opinion requiring a lawyer who inadvertently receives privileged material from an opponent to refrain from reading the material, notify the sender of the error, and abide by the sender’s instructions. In the process, an unsettled area of the law that has troubled litigators for the past 14 years may have become even more unsettled and troublesome."

The committee, he explains, withdrew the opinion because it failed to correspond with any provision of the Model Rules of Professional Responsibility. A change to the model rules subsequent to the opinion requires the recipient of a misdirected document to notify the sender, but does not explicity prohibit review of the document.

"[T]hese unfortunate occurrences can create a high-stakes guessing game for both sides. A lawyer who 'messes up' by sending privileged material to an opponent faces an obvious client relationship problem. But the stakes are no less severe for the lawyer who unwittingly receives and reads such material."

July 13, 2006 | Permalink | Comments (0)

The Copyright Code, in Verse

To those who say the law inhibits artistic creativity, I say, "Pooh!" Consider the evidence presented by the blogosphere. There was, for example, the legal ethicist who turned to writing haiku. Perhaps it was he who inspired another to pen a haiku introduction to open access. Beyond poetry, there is the law professor's dramatic readings of the Internal Revenue Code.

Now I present to you the U.S. copyright code, in verse. This ambitious ode to American IP law comes from an Israeli Internet professional and game designer, Yehuda Berlinger. Here, for example, is his poetic interpretation of fair use:

Despite all of these rights
All people can reproduce
To report, criticise, or teach
Because that is fair use

Artistic achievements aside, the poet cautions:

But I'm not a lawyer
Don't rely just on me
Go find one to ask,
Better yet, two or three

As reviews of Berlinger's poetic achievement come in from around the blogosphere, Dennis Kennedy at Between Lawyers offers his in a verse of his own:

You can do a lot worse
than learning copyright by verse,
but please be sure to think twice
before acting without a lawyer's advice

Of all the comments, I favor that of Peter Suber, the very person who authored the open-source haiku. He notes of Berlinger's ode: "It could be verse."

July 13, 2006 | Permalink | Comments (0)

U.K. Survey: Hold Experts Accountable

Expert witnesses in the United Kingdom believe that they should be held liable for their courtroom opinions and conduct, according to a report today in Legal Week Student. The finding comes from a survey of expert witnesses conducted by Bond Solon, a consulting firm that trains expert witnesses.

"Sixty percent of the 158 respondents said that experts should not be immune from action for their conduct and opinion in court, while 52% said they should be personally liable for any delays in proceedings."

The report notes that the results come as the role of expert witnesses in litigation is being called into question in a Court of Appeal trial this week.

"The General Medical Council is challenging a High Court ruling that said expert witnesses who mistakenly give flawed evidence should be immune from disciplinary action by their profession’s regulatory bodies unless requested to do so by a judge."

Bond Solon director Mark Solon said of the survey: "There is a feeling that if you hold yourself out to be an expert then the buck stops with you." But Mark Humphries, head of advocacy at Linklaters, disagreed. He told Legal Week:

"Expert witnesses are performing a role for the administration of justice, and absent some sort of improper behaviour or malice, then there is a case for immunity -- even if the opinion turns out to be false."

July 13, 2006 | Permalink | Comments (0)

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