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December 29, 2006

Happy New Year!

The two newest posts below are our last ones for 2006.  Here's a "Happy New Year" from all of us at Legal Blog Watch and best wishes to all for a prosperous -- and prolific -- 2007!

December 29, 2006 | Permalink | Comments (39)

Professor Gets Chance to Clear His Name at Trial

The Washingtonienne story tarted out like those impossible blog rags-to-riches fables that many of us lawyers dream about:  girl starts blog, girl's blog gets high profile notice, girl gets Dooce'd and finally, girl gets major book deal. But as many of us already know, the story of this particular girl, Jessica Cutler, ends with a different twist:  Girl gets sued for $20 million by her, quite literally, overexposed paramour, Robert Steinbuch, whose sexual escapades with Cutler were graphically described on her blog. Though referenced as RS in Cutler's posts, Steinbuch claimed that those who knew him could readily identify him through his initials, and as a result, his good name was besmirched.  Now, Steinbuch's case is headed for trial.

Opinionistas, aka Melissa Lafsky (and another girl blogging success story) shares her analysis  of the Steinbuch case in this post, Sex, Bloggers & Privacy:  Let the Lawsuits Begin. Lafsky views the case as another in a line of recent court cases that tackle the issue of where to draw the line between bloggers' First Amendment rights and individual privacy concerns. At the same time, she notes that Judge Friedman seems more focused on Steinbuch's common sense, rather than the loftier principles in the case. From Lafsky's post: 

Perhaps the most heartening news for Cutler is presiding Judge Paul Friedman's statement to both sides: "I don't know why we're here in federal court to begin with ... I don't know why this guy thought it was smart to file a lawsuit and lay out all of his private, intimate details."

Volokh also wonders whether it's possible for Steinbuch to restore his name.  Like Judge Friedman, he writes:

Nothing in this lawsuit will "restore [Steinbuch's] good name." In fact, to the extent that the original blog besmirched Steinbuch's good name, the extra publicity created by the lawsuit will only besmirch that name further.

I, too, tend to believe that Steinbuch has brought the added publicity on himself.  After all, I'd never heard of him until all of the press generated by this lawsuit. Or maybe it's just all about the money, perhaps Steinbuch really just wants a piece of Cutler's good fortune that he inadvertently helped to create. I can understand sacrificing First Amendment rights to protect others' privacy. But I hope the court won't cut back on the First Amendment to protect a law professor from a lapse of judgment or his own sour grapes -- which is what seems to be driving this lawsuit far more than an innocent desire to vindicate one's name. 

December 29, 2006 | Permalink | Comments (3)

Diversity Roundup

As we posted here several months ago, corporate clients are pushing law firms to diversify. And as this news story shows, corporate clients are putting their business where their mouth is: at least one large corporation cut a law firm, Gibson Dunn, from bidding on work because of lack of diversity among its lawyers. And the push for diversity isn't limited to large national shops; as The Daily News in Memphis , Tenn., reports (12/28/06), 'Diversity' Becomes Word of the Day at Local Law Firms.

Law bloggers have diverse views on the  push for diversity. Peter Lattman's post on the diversity story has generated pages of comments. Ted Frank at Overlawyered is upset that corporations are willing to hire less than the best in the name of diversity, as expressed in a post:   

Stories like this put the lie to any claim that African-American participation in big law firms is hindered by racism; if anything, law firms are forced by this socially-accepted racism to compete against one another to recruit and retain the few African-American attorneys out there, because clients apparently value minority lawyers versus those who are merely the best lawyers, and shareholders tolerate this dissipation of value.

At Sui Generis, Nicole Black takes a  different view:

I respectfully disagree with the contention that those currently at the top of law firms -- the white male partners -- are necessarily the best lawyers.

To agree with that premise, one must accept the idea that law firms are not shaped by institutional racism and sexism. One must accept the idea that people make partner simply based upon their skills as an attorney, rather than as a result of who they know and how much money they bring in as a result of their contacts.  One must accept that idea that partners in law firms are not, at the very least, subconsciously influenced by their socialization in a culture that is subversively racist and sexist. One must accept the idea that preconceived notions about the role of women or minorities don't exist. One must accept that clients, judges, and other lawyers do not presume the incompetence of an attorney -- a presumption that can be overcome, but it's an uphill battle -- simply by virtue of their race or gender and that those very same clients, judges and lawyers presume the competence of white male attorneys until that competence is disproved.

Satisfying clients' needs is part of the practice of law. From what I've read lately, few corporations are satisfied with their outside counsel, not just with respect to diversity but to performance in general. If threatening to take business elsewhere is what it takes to make firms serve their clients, then what's the problem?  Or do large firms now need special protection from market forces?   

December 29, 2006 | Permalink | Comments (0)

December 28, 2006

In Defense of Public Defender Blogs

Greg Worthen is a journalist turned investigator for the Colorado State Public Defender. He is also a blogger at Public Defender Stuff and overseer of the PD Blog Guide, an index of blogs written by public defenders. Worthen believes that PD blogs are overlooked by others in the legal blogosphere, so he is doing something about it -- hosting the first-ever Public Defender Blog Awards.

In an e-mail this week to Douglas A. Berman at Sentencing Law and Policy, Worthen noted the recent slew of awards for legal blogs and bemoaned that they "completely ignored public defender blogs." Hence these awards, as Worthen explains:

Last February I began the Public Defender Stuff blog to publish news involving public/indigent defense, and to bring together the incredibly diverse blogs of public/indigent defenders.  That led to the creation of the PD Blog Guide and a daily listing of every PD blogger who has posted since the previous day's listing. Now, in response to what Blawg Review has already described as an unfortunate oversight, Public Defender Stuff is hosting the inaugural Public Defender Blog Awards.

The awards will honor nominees in various categories, such as Best Title of a Blog That Reflects Something About the Job, Best Blog by a Female Public Defender and Best Blog that Deals With Actual Law Stuff. Polling is open until midnight, Jan. 5. Vote by clicking on a category and entering your pick in the comments. Winners will be announced Jan. 7.

December 28, 2006 | Permalink | Comments (0)

Gerald Ford's Supreme Court Legacy

With Gerald R. Ford's death Tuesday, many observers are assessing the legacy of this lawyer who became president. While his pardon of Richard Nixon is an unavoidable focus of debate, two commentators -- Bill Barnhart in the Chicago Tribune and Lyle Denniston at SCOTUSBlog -- suggest that the greater milestone of his presidency may be his nomination of John Paul Stevens to the Supreme Court. In fact, Ford himself cited this as the measure of his term. In a letter Ford wrote last year to the dean of the Fordham University law school, Barnhart reports, he discussed how historians would evaluate his presidency:

"Normally, little or no consideration is given to the long-term effects of a president's Supreme Court nominees. Let that not be the case with my presidency. For I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination 30 years ago of Justice John Paul Stevens to the U.S. Supreme Court."

If so, the legacy remains a work in progress. As Denniston writes:

"His one appointee to the Supreme Court, Justice John Paul Stevens, this month completed his 31st year on the Court and remains a dominant figure -- perhaps the most important voice there on the grave constitutional issues still unfolding on presidential powers in wartime. At age 86, Stevens shows no signs of tiring of the Court's work, or of thinking seriously about retirement."

Both Barnhart and Denniston agree that Ford will be remembered not simply for the person he nominated, but also for his decision to choose a nominee based on merit rather than politics. But Denniston reminds us of another, less memorable, mark Ford left on judicial tenure. Just five years before nominating Stevens to fill the vacancy left by the retirement of Justice William O. Douglas, Ford, as House Republican leader, led "an unsuccessful and arguably misguided effort" to impeach Douglas. In the course of that effort, Ford gave a speech in which, to his own question, "What, then, is an impeachable offense?" he answered:

"The only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body [the Senate] considers to be sufficiently serious to require removal of the accused from office."

In part, then, Ford's legacy is this open-ended definition of what constitutes misbehavior in office, Denniston says, concluding:

"It has become, perhaps as a direct result of Ford's formulation, an inexpensive political gesture for members of Congress to call for the impeachment of Supreme Court Justices whose decisions do not meet with political favor. That, too, is part of the Ford legacy."

December 28, 2006 | Permalink | Comments (0)

December 27, 2006

Lawyers Appreciate ...

What do lawyers appreciate? Bloggers Stephanie West Allen of Idealawg and Julie Fleming Brown of Life at the Bar are determined to find out, with the help of other law bloggers. Each day from Dec, 22 until the end of the year, they'll be linking to posts from other bloggers, like Jamie Spencer at Austin Defense LawyerGerry Riskin at Amazing Firms, Amazing Practices, Tom Collins at morepartnerincome and more, who give their opinion on what lawyers appreciate.

Though I've not been asked for my input, I'll happily volunteer my response, which is pretty obvious. Quite simply, lawyers appreciate our clients, the folks who pay our bills, who feign interest at our explanations of dull concepts, who patiently accept (though they never understand) that the court will need nine months to decide their case (though they could close a multimillion-dollar deal in nine days) and who take time off to show up at depositions, in court and in our offices to do what we need to resolve their cases. And in most instances, they put up with the resolution that we get, even if they don't always win. 

We lawyers choose our path, we're paid to show up in court and we've grown so jaded we don't get upset by protracted litigation or 700-page contracts or even when the right side doesn't prevail. Our clients don't make these same choices, and that's why we lawyers appreciate (or ought to appreciate) our clients, the raison d'etre of our practice.

December 27, 2006 | Permalink | Comments (0)

Remembering Gerald Ford

On Dec. 26, 2006, the 38th president of the United States, Gerald Ford, died at the age of 93. Though Ford held office for little more than two years, he'll be remembered for at least two law-related legacies. First, in his inaugural address, Ford forcefully reminded our broken nation that after nearly two centuries, "Our constitution still works." And Ford's other legacy, Supreme Court Justice John Paul Stevens, whom Ford nominated to the Court on Nov. 28, 1975, still remains on the Court today.

But Ford had many other little legacies as well, including the impact that he left on a newbie attorney, as May It Please the Court's Craig Williams describes in this post.

Williams met Ford as a young attorney, assigned to represent the Bighorn Institute, a research institute dedicated to bighorn sheep created in large part through Ford's efforts. From Williams' post:

At that first presentation [at the Institute], I had been in practice less than five years, but President Ford, a lawyer himself, treated me like an equal, and engaged me in discussions like any fellow lawyer would have. He was articulate, insightful, and very analytical. Frequently, what I had been asked to provide (a five-minute presentation) turned into a half-hour or forty-five minute discussion, with President Ford helping develop strategies for the lawsuit. He helped turn the case from one where the Institute initially found itself on the defense to one where the Institute not only recovered its fees and costs, but also furthered its already-established endowment fund. I had been lucky enough to glimpse for a brief moment what I imagine the experience of the give-and-take between a president and his attorney general.

Many of Ford's colleagues and friends extolled how he restored a sense of decency to the presidency. And from Williams' post,  Ford apparently treated many others -- even insignificant, young attorneys -- with that same decency as well.

December 27, 2006 | Permalink | Comments (1)

December 26, 2006

Sherry's Yellow Underpants

Last week, Sherry Fowler turned 34. In honor of the occasion, she shut down her blog. But even as she did so, she left us with the story of her yellow underpants and what it teaches about blogging.

Fowler is a self-described recovering lawyer, writer, sailing coach, extrovert and insatiably curious woman. She is the blogger for whom Dennis Kennedy names his Sherry Fowler Best Writing on a Legal Blog Award, and for good reason. I met her briefly at BlawgConnect.2005, which she helped organize, and have read her blog ever since.

Writing about law became an afterthought for Fowler many posts ago, but her blog never ceased to engage. Over more than three years of blogging and 2,665 blog posts, Fowler's blog brought her new friends and even romance -- "bizarre as that still seems," she writes. So as she wrapped up, she wanted to leave with a thoughtful post summing up the lessons three years of blogging taught her.

What came to her mind was an elementary-school exercise in which she was asked to write about her most embarrassing moment. The story, of course, involved yellow underpants and a wet bathing suit. In the sharing of it, and in others sharing their embarrassing moments, she learned "how writing and sharing could transform your life experience." Over the years, she'd forgotten that lesson, but blogging brought it back to her:

People don't care about your shiny strong moments or the ways you're exactly like everybody else.  They want to read the yellow underpants story, and there's something magical and mysterious that happens from telling it: you feel wobbly and shaky and like you'll be exposed as the gawky unloveable outsider that you are. ... But instead what happens is that you tell the story and everyone else breathes a sigh of relief, because they were sitting there right beside you, in a wet bathing suit, and they're so glad not to be alone with that anymore.

While Fowler is giving up this blog, she is not giving up blogging. She is launching a new blog, where she will "do something different," focused on her photography and writing exercises.

December 26, 2006 | Permalink | Comments (0)

Best of the Law Blogs, Part 2

While this marks the third year Dennis Kennedy has doled out his Blawggie awards (as reported in an earlier post today), the anonymous editor at Blawg Review is establishing what is described as a new tradition with the Blawg Review Awards 2006, the second year the editor has honored the best law blogs in numerous categories.

Once again, I am honored to report that Carolyn Elefant and I are recognized in the category Blog Journalism for our contributions to this blog and that the Coast to Coast podcast I co-host with J. Craig Williams is named Best Legal Podcast. In fact, Craig racks up multiple honors, with awards to his blog, May It Please the Court, for Best Law Blog Design and Best Blog by a Practicing Attorney.

Others among the several blogs honored here are Above the Law as Best New Law Blog, Overlawyered for Best Blawg Theme, Likelihood of Confusion for Best Law Blog Name, Antitrust Review and PHOSITA sharing the award for Best Group Blog, TalkLeft for Best Politicio Blog by Lawyers, Althouse for Best Personal Blog by a legally oriented female blogger, SHLEP: the Self-Help Law ExPress for Best Law Blog in the Public Interest, Online Guide to Mediation for Best Law Blog by a legal mediator, and Denise Howell as Blawg Diva for her blogging at Bag and Baggage, Between Lawyers and Lawgarithms.

In addition to this blog and May It Please the Court, other blogs from the blog network honored with awards are The Common Scold for Most Creative Law Blog Name, Adam Smith, Esq. for Best Practice Management Blog, Legal Sanity for Best Mentoring Law Blog, How Appealing for Best Source for Legal Headline News and Human Law for Best British Law Blog.

Plenty of other awards, so check out the full list.

December 26, 2006 | Permalink | Comments (0)

Best of the Law Blogs, Part 1

Lawyer and legal technologist Dennis Kennedy is making an annual tradition of his "Blawggie" awards for best law-related blogs, and this year's results are now in. I am proud to say that Kennedy has picked this blog, which Carolyn Elefant and I co-author, as Best Legal Blog Digest (in a tie with Stark County Law Library Blog). Also, Kennedy named as Best Legal Podcast the Coast to Coast program I co-host with my fellow blogger J. Craig Williams. Thanks to Dennis and congratulations to Carolyn, Craig, the folks at the Legal Talk Network who produce Coast to Coast and everyone at who sponsor this blog, the blog network and the Coast to Coast podcast.

In other categories, Kennedy's picks for best are:

Kennedy's awards are not based on any votes, surveys or scientific measures. "They are highly-opinionated choices made by me, based on my experience, expertise and likes and dislikes gained from nearly four years of blogging and several more years before that of reading blogs," he says. The factors he looks for are consistently useful content, a generous and helpful approach and a combination of commitment and talent, with an emphasis on good writing.

December 26, 2006 | Permalink | Comments (0)

December 22, 2006

Happy Holidays to All

On behalf of my co-blogger Carolyn Elefant, the editors who work behind the scenes here at Legal Blog Watch (particularly Jennifer Moline and Jennifer Collins), and myself, I wish all our readers a holiday season filled with love and joy.

December 22, 2006 | Permalink | Comments (0)

The Year's Top Legal Ethics Stories

At Legal Ethics Forum, John Steele, ethics and conflicts director for the law firm Fish & Richardson and lecturer in legal ethics at Boalt Hall School of Law, has posted his picks of the Top Ten Legal Ethics Stories of 2006. At the top of his list:

SCOTUS’s Hamdan decision rejected the controversial legal theories articulated in the OLC’s "torture memorandums"; in response, Congress passed the Military Commission Act, severely restricting detainees' right to counsel.

Other items on the list include the Milberg Weiss indictment and the HP pretexting scandal. Steele cheats a bit -- although in a perfectly ethical way -- by expanding the list with seven honorable mentions, including the incident we reported here in August as Lawyering Under the Influence.

December 22, 2006 | Permalink | Comments (0)

Woman Lag as Patent Holders

At Patently-O, Dennis Crouch looks into women as patent holders. He finds that, historically, only a very small number of women have obtained patents. Data from historical studies, he reports, shows:

  • 1790 to 1895: About 1% were granted to women.
  • 1905 to 1921: About 1.4% were granted to women.
  • 1954: 1.5% of issued patents included women inventors.
  • 1977: 2.6% listed one or more women as inventors.
  • 1996: 9.2% listed one or more women as inventors.

He conducted his own study of patents issued in 2006 and found not a single woman among the top 100 patent holders. This data suggests an "easy" conclusion, Crouch says:

Our patent system is not driving innovation amongst women to any significant degree.  A recent Science article teases this out in two-ways (with a focus on academic science): (1) there are more men than women working in scientific academic fields; (2) the men working science file patents at a much greater rate than do the women.

What incentives, Crouch wonders, would encourage more women inventors to enter the field? More importantly, he asks, "What barriers are in place today that work against woman inventors?"

December 22, 2006 | Permalink | Comments (1)

Odd Case of Lawyer Identity Theft

As you wrap up last-minute holiday shopping, be careful about where you flash your ID and credit cards, lest you end up like Annapolis, Md., lawyer Amanda Sprehn of the law firm Hyatt, Peters & Weber.

Sprehn was on maternity leave from her firm when authorities notified her of something rather suprising, given the circumstances: She had been caught on camera having sex with an inmate at a Maryland prison. The news struck her, she told a reporter, as a "real laugh."

Turns out, Sprehn was the victim of a mysterious case of identity theft. The Associated Press reports that a 29-year-old woman somehow obtained a Maryland State Bar Association photo ID and business card in Sprehn's name. She used them to get past prison guards to inmate Jason Moody, who is serving 30 years for manslaughter. Once alone with him, the two became engaged in decidedly unlawyerly activity. Guards who observed their behavior brought the visit -- and the activity -- to an abrupt end.

As for Sprehn, she had no idea how the woman got her ID. "I certainly feel like a victim," she said.

December 22, 2006 | Permalink | Comments (0)

Sledding's Slippery Slope

If the lawyers had their way, Charles Foster Kane might never have uttered the word "Rosebud." That is the implication of news from Nebraska, reported by Walter Olson at In the wake of a Nebraska Supreme Court decision that municipalities can be held liable for users' injuries in public recreation areas, towns in the state are closing or restricting skate parks and sledding areas. From Lincoln, Neb., Associated Press reports:

The same court ruling that prompted some Nebraska cities to close their skate parks has led Lincoln officials to restrict sledding at two of its public recreation areas.

"We've taken a critical eye on all of our outdoor recreation venues," said Jerry Shorney, assistant director of Lincoln Parks and Recreation. "This is the one we felt we had the least amount of control over."

AP says that skateparks have been closed in the communities of Fremont, Norfolk, North Platte and Scottsbluff. The city of Gering has closed both its skate park and sledding slope.

For the great and powerful Citizen Kane, the simple pleasure of a childhood sled summed up all that mattered in life. For future generations, perhaps the image of the sled will be replaced by that of a waiver of liability form.

December 22, 2006 | Permalink | Comments (0)

December 21, 2006

Will Bankruptcy Lawyers Be Forced to Declare Bankruptcy With the Recent Drop in Filings?

Todd Zywicki's post at Volokh Conspiracy on the large drop in bankruptcy filings for 2006 is generating plenty of comment. Zywicki writes:

As the year closes out, it looks like the final tally for consumer bankruptcy filings for 2006 (the first full post-BAPCPA year) will be about 600,000 or so. Last year the figure was 2 million (in large part because of the pre-BAPCPA spike) and in 2004 it was about 1.5 million. So there has been a drop of roughly 60% from the prior levels.

Zywicki offers three hypotheses for the drop:

1. BAPCPA [Bankruptcy Abuse Prevention & Consumer Protection Act] Hangover: One theory is that the system is still suffering from a BAPCPA hangover, and that everyone who was thinking of filing filed last October before the law went into affect. But this is hard to square with the observation that filing levels stabilized in the spring and have not subsequently bounced back to anything like their preexisting levels ...

2. Increased Cost and Complexity: Another theory is that increased cost and complexity of the system is simply making it more difficult for needy filers to get access to bankruptcy even though they need it. But if this is the case, then one would expect to see a spike in "informal bankruptcies," i.e., defaults by struggling consumers who need to file bankruptcy but are unable to do so for some reason. Yet looking at the Federal Reserve's data on delinquency rates and charge offs on consumer loans, there appears to be no increase in delinquencies on consumerloans, as one would expect were struggling consumers unable to get access to bankruptcy, and a drop in charge offs.

3. A third hypothesis is that despite some hiccups, BAPCPA has been working largely as Congress intended so far in diverting various categories of debtors out of bankruptcy while preserving relief for those who need it.

Most commenters tend to agree with the first two of Zywicki's hypothesis. Another explanation is that the economy has improved, thus reducing the need for bankruptcy filings. Of course, if bankruptcy filings continue to drop at the current rate, there's bound to be a rebound affect, as bankruptcy lawyers start declaring bankruptcy!

December 21, 2006 | Permalink | Comments (10)

Why Firms Should Want Their Own Lawyers to Have a Portable Practice

Dan Hull of What About Clients? offers law firms a new standard for evaluating associates: the "dude, if you can't steal our clients, you're fired" standard. As Hull elaborates:

Every day, the client service by associate and paralegals should be good enough to permit those employees to actually steal any client, and take them to another law firm (use "transport" for the foregoing, if you need the PC professional services term), if they were to leave your shop tomorrow morning. Period.

Of course, in Hull's paradigm, the law firm must reciprocate associate service to clients with its own service to associates. Because it's only by providing a "fun, lucrative and engaging" work environment that law firms can hang on to client-generating and client-serving associates. 

Michelle Golden at Golden Practices opines that it takes trust to make Hull's system work: trust that partners and team members will do the right thing, trust that associates will learn what they need to know and trust that when you place trust in others, it will return to you. If Golden is right that trust is the lynch pin of a firm that really offers client service, I don't think we'll be seeing this model any time soon.

December 21, 2006 | Permalink | Comments (0)

Blogging Policies for Companies and Law Firms

This week brings discussion among bloggers about blogging policies -- for companies and law firms. Justin Patten at Human Law links to a bunch of sample corporate-blogging policies. Some policies discuss whether there's a need to suspend blogging during the SEC-mandated “quiet period,” before an IPO, while others merely consist of a list of sensible guidlines.

As for law firms, the real policy issue related to blogs is whether bloggers should get bonuses, an issue discussed by Peter Lattman in this WSJ Law blog post. Actually, the original discussion topic behind the post is whether law firm bonuses should reward associates for hours billed or rainmaking. In this context, Lattman notes that according to Kevin O'Keefe, efforts by bloggers like Dennis Crouch of Patently O or Christine Mingie of Forestry Law blog have brought clients to their firms. O'Keefe suggests:

Let's incent associates who may not be as comfortable doing other forms of marketing to blog as away to enhance their and the firm's reputation as well as to bring in new work.

What kinds of incentives does your firm give to associate bloggers or any kind of associate rainmaker?

December 21, 2006 | Permalink | Comments (0)

Second Acts in Law

As Bruce MacEwen writes in this post, Back to Business Law, law firms in conjunction with the American Bar Association are developing programs to help female attorneys who left the law to raise families keep their skills fresh if they choose to return. As MacEwen describes, the programs cover cutting-edge issues in corporate law, like professional responsibility for corporate lawyers, Sarbanes-Oxley and changing regulation for securities issuances, and they're taught by first-rate experts. 

Don't think law firms are necessarily growing more enlightened about work-life balance in sponsoring these programs. In many instances, economics drive the creation of these programs. As MacEwen writes:

The economic tragedy is one we also know too well: As expressed by Arthur Field, retired corporate partner from Shearman & Sterling: ''Firms have a big investment in this group because they have trained them,'' he said, ''while the individual lawyers have an enormous investment in their education. Those who want to come back will work harder. If it's just a dollars and cents decision -- which it shouldn't be -- why wouldn't you hire more highly motivated people who have left and want to come back?''

And indeed, the law firms have found the right target audience. Consider this comment from MacEwen's post comments:

You have heard, as have I, the female friend now 25 years out of a top-three law school, whose practice, in the ascendancy at an AmLaw 5 firm, ended 18 years ago, for keeps, when the first of her two children was born: And I quote, "I wasted my education, and my career!" 

What firm wouldn't want to hire a lawyer (male or female) who overlooks the absolute blessing of children to bemoan the loss of a career and who apparently lacks the creativity to figure out a way to keep a place in the law without a job at Biglaw?   


December 21, 2006 | Permalink | Comments (3)

December 20, 2006

Gibson Dunn Takes on the '60s

When I discovered Wolfgang's Vault, I thought I'd entered classic-rock heaven. As I wrote last February on my LawSites blog, the site is the creation of entrepreneur Bill Sagan, who in 2002 bought the complete archives of legendary rock promoter Bill Graham. These included never-released tapes of thousands of live performances by the likes of Jimi Hendrix, Janis Joplin, The Doors, The Grateful Dead, Cream, Jefferson Airplane, Santana -- the list goes on and on. Through his site, Sagan began offering streaming versions of the recordings along with sales of rock memorabilia.

Now comes the law firm of Gibson, Dunn & Crutcher, which, on behalf of The Dead, Santana, Led Zeppelin and The Doors, files a lawsuit in federal court in San Francisco seeking to shut down the site's sale of memorabilia. The blog Grateful Dead News reprints Gibson Dunn's press release, which says that the suit seeks "to stop the unlawful reproduction, promotion and sale of thousands of vintage concert memorabilia items and illegal copies of the memorabilia." The release continues:

"Graham's archives contained millions of promotional items and personal memorabilia, such as vintage concert posters and t-shirts featuring the musical artists' intellectual property -- their names, voices, likenesses, photographs, trademarks and copyrights -- which were never authorized for sale."

As for Sagan, he has not yet said whether he and his Web site will keep on truckin'.

December 20, 2006 | Permalink | Comments (0)

Anonymous Blawger, Unmasked

Well, not quite yet. But in honor of his second birthday as a blogger, the hitherto anonymous Wired GC announced today that he will unmask himself sometime in January. "In January 2007, the Wired GC will take off the mask," he writes. "It’s beginning to itch and the suit is a bear in the summer." Of course, the last legal blogger to be unmasked saw his career go from Assistant U.S. Attorney to disher of legal gossip. Will the Wired GC soon be asking readers to help pick the hottest in-house counsel?

We hope not. We do hope, however, that the Wired GC has a very happy blog birthday and continues to bring us more of the same for the coming year.

December 20, 2006 | Permalink | Comments (0)

Holiday Gifts for Tax Collectors

It is the most taxing question many of us face each holiday season: What to get for our favorite tax professional. Whether the person on your list collects your taxes or helps you avoid them, finding the perfect gift is undoubtedly a capital gain. Once again, it is blogs to the rescue. In a series of posts at TaxProf Blog, the never-taxing blogger Paul L. Caron compiles a precisely calculated collection of holiday gifts for tax people. (One might ask: Aren't we all tax people?) His finds include a mahogany-framed reproduction of the original 1913 Form 1040; an assortment of IRS chocolates; coffee mugs with tax-related quotes, including Albert Einstein's statement, "The hardest thing in the world to understand is the income tax"; and Caron's own book, Tax Stories. Caron's tax-gift posts are here, here, here and here.

Will you be able to deduct your holiday purchases for tax professionals? Caron doesn't say, but he does point to a post by blogger Andrew Coyne, who proposes a Santa tax incentive in the form of a tax credit for children's gifts:

"As any parent can attest, Christmas presents are not a discretionary expense: only those without either children or a heart would think otherwise. Yet unlike other necessities, no provision is made for this in the tax laws."

Perhaps holiday shopping is all just a matter of deduction.

December 20, 2006 | Permalink | Comments (1)

Profile of a Prolific Blogger

"I think I was born with the research gene," Sabrina Pacifici tells lawyer Mark Tamminga in his interview of this prolific legal blogger, publisher and researcher for the December 2006 issue of the ABA's Law Practice magazine. Pacifici is author of the popular legal blog beSpacific and founder of the equally popular law and technology webzine Pacifici tells Tamminga that she is excited about the impact blogs are making on research and the legal profession. But blogs are not necessarily right for every lawyer or every project, she says.

"In weighing the decision to launch or participate in a blog, there are several important factors, including determining if the format offers the requisite criteria, then establishing a level of comfort with the features of the application you choose and, in following, making a commitment to consistently add reliable, well-sourced, new data and information. Also, identifying the intended audience -- your community of readers -- is especially important."

Anyone who follows Pacifici's blog knows that she is prolific and consistent. How does she manage daily blog postings, a Web publication, a full-time job and other projects? She tells Tamminga:

"I can honestly say that I never tire of it. The energy I draw from working on these online publications is not draining. It is sustaining. It is a lot of work, but I couldn’t imagine not doing it."

The interview is not yet available on the Law Practice magazine Web site, but a copy is available through

December 20, 2006 | Permalink | Comments (0)

December 19, 2006

A $70 Million Tab for 24 Years in Jail

This opinion piece by John Mashek at US News (12/18/06) lambastes Jeff Skilling's attorneys for running up a $70 million tab and getting him nothing less than a 24-year sentence.  Mashek writes that Skilling's lawyer, Dan Petrocelli and his firm, O'Melveny Myers, have already been paid $40 million; now they're seeking an additional $30 million that's still outstanding.   The firm seeks $800 an hour for Petrocelli's service, as well as fees for the 12 lawyers, five paralegals and temporary staff to handle the case.   Mashek writes:

There is no question the case was a puzzle of finding accountability at the top of Enron. Still, that bill seems extraordinarily stunning and excessive.

With $30 million outstanding, it's not clear how Skilling will pay for an appeal.  Of course, there's always the option that another white-collar defendant, Jack Abramoff, is using:  pro se defense.

December 19, 2006 | Permalink | Comments (3)

Cadwalader Runs A TV Ad

Larry Bodine blogs about biglaw firm Cadwalader's entree into television marketing by running an ad on MSNBC, which can be viewed here.  While Bodine credits Cadwalader for non-traditional marketing, the ad doesn't seem to be generating much positive feedback from other marketers.  Among the comments:  The ad is bland and ineffective and doesn't give much reason for a prospective client to call.  In addition, the British voiceover gives the ad a snooty feel.

Bodine quotes another marketer, Bob Weiss, who predicts that law firms will move more toward TV and Internet video ad campaigns, although Weiss says he believes that these work better for consumer practices like PI or domestic relations. I'm not sure why that's true.  Seems to me that online ads give prospective clients a chance to size up the large law firm attorneys they seek to hire before devoting time to an in-person consultation. 

In my view, large firms that recognize the value of effective TV and video marketing will gain an edge over their slower-to-market competitors.  Or maybe big firm lawyers just don't come across very well  on the small screen.

December 19, 2006 | Permalink | Comments (2)

Time Celebrates You!

Jim Calloway of Law Practice Tips and Kevin O'Keefe of LexBlog post about Time magazine's selection of "You" as its Person of the Year here and here.  Both rave about how much we've gained from Web 2.0 developments like blogs, wikis and the advent of citizen journalism.

But has Web 2.0 changed the law?  I know that there's far more substantive information available to lawyers and the general public than ever before, through blogs run by law firms and law school professors.  At the same time, I think it's still too early for these advancements to improve the quality of representation that lawyers provide or to reduce the cost of legal service.  But in a few years, I believe that law firms and the practice of law will look different from its present state, in part because of the increased availability of information.  What do you think?

December 19, 2006 | Permalink | Comments (0)

Podcasts: Legal Year in Review

Three legal experts discuss the most important legal developments of 2006 in three Legal Year in Review podcasts released by Thomson West. In the first, Lee R. Petillon, a partner with the California firm Petillon & Hiraide, presents his pick for the year's most significant legal event: the federal crackdown on backdating stock options. In the second, Frederick A. Brodie, a partner with Pillsbury Winthrop Shaw Pittman in New York, tells why he believes the year's most significant piece of legislation was The Pension Protection Act of 2006. Finally, in the third (and as yet unavailable) of the trio, Loyola Law School professor Laurie L. Levenson offers her nominee for the most important Supreme Court Case, Hamdan v. Rumsfeld.

December 19, 2006 | Permalink | Comments (0)

Report: GC Complicit in HP's Train Wreck

Baskins_ann1 Since her resignation Sept. 28 as Hewlett-Packard general counsel, Ann Baskins' role in the company's spying scandal has remained largely a mystery. Now, Sue Reisinger, in her article for Corporate Counsel magazine, Did Ann Baskins See No Evil at HP?, has pierced the veil of what Baskins knew and when she knew it. Reisinger analyzed more than 1,500 pages of documents and interviewed people close to the case to conclude that Baskins had the knowledge and the power to stop the spying, but failed to act:

"In the end, the HP scandal comes down to this: The spying probe became a runaway train. And Ann Baskins was the person in the best position to recognize the danger and stop it. But she didn't. In fact, the records show that from June 2005 to April 2006, Baskins raised legal questions about the tactics at least six times. But she never pushed for a definitive answer about whether the methods used were, in fact, lawful. Or, more importantly, whether they were unwise and dangerous to the company. In retrospect she could have, and should have, shut down the throttle on this train long before it crashed."

Even Baskins concedes that she should have done more, Reisinger reports. Her lawyer told Corporate Counsel that she fully recognized that instead of solely focusing on whether the investigation was legal, Baskins also should have questioned whether it was ethical.

This is a well-written and well-reported piece that answers important questions about the role of HP's general counsel.

December 19, 2006 | Permalink | Comments (0)

Study: Tort Costs Slow in 2005

U.S. tort costs rose just 0.5 percent in 2005, much lower than the 2004 growth rate of 5.7 percent and the smallest increase in tort costs since 1997, concludes the 2006 Update on U.S. Tort Cost Trends, a study conducted by the insurance and financial services consulting firm Tillinghast. On a per-capita basis, the total $261 billion cost of the tort system dropped $4 per person, to $880.

The biggest contributor to the overall decline in tort costs has been the decade-plus drop in auto accident frequency, because "the basic auto accident is the single largest portion of U.S. tort costs," Tillinghast principal Russ Sutter said in a statement. Analyzing tort costs from 1950 through 2005, the study predicts 2006 growth will be 3.5 percent, while the following two years will see a slightly higher growth rate of 4.5 percent.

The study measures direct costs of tort cases, which include benefits paid or expected to be paid, defense costs and administrative expenses. Critics of the study -- such as Ted Frank at -- say the study's greatest failing is that it does not account for the tort system's indirect costs, "which by far outweigh the direct costs."

December 19, 2006 | Permalink | Comments (0)

Weblog Awards: Results Are In

Winners were announced this week of the 2006 Weblog Awards. Taking home the trophy for Best Law Blog is The Volokh Conspiracy, with 31.95 percent of the 7,509 votes cast. Runner-up was How Appealing with 1,483 votes. Other finalists were IMPACT (987 votes), Balkinization (907 votes), The Grotian Moment (796 votes), Blawg IT (244 votes), JURIST- Paper Chase (234 votes), Becker-Posner (193 votes), Concurring Opinions (182 votes) and Consumer Law & Policy Blog (84 votes). The lawyer-written blog Talk Left won first place in the category Best of the Top 250 Blogs, with 3,495 votes. Congratulations to all.

December 19, 2006 | Permalink | Comments (0)

Blawgs in the Key of H

The "H" is for Harlow, as in David Harlow, author of the blog HealthBlawg, who today hosts Blawg Review #88. Just as the number of his Blawg Review matches the number of keys on a piano, Harlow tickles the ivories of legal blogs as he draws inspiration from masters of the keyboard to highlight masters of the blogosphere.

I can claim the unusual coincidence of having met David, a fellow Bay State blogger, at a business lawyers networking event on the very day that he officially launched his blog. I've followed his blog ever since and commend to you not just today's Blawg Review but all of David's regular postings on health law issues. 

December 19, 2006 | Permalink | Comments (0)

December 15, 2006

Economics Still Drive Equality

Though perhaps it's best for equality to derive from more enlightened attitudes, in some cases, economics remain the most effective force to drive progress. Following a New Jersey Supreme Court decision that directed the Legislature to accord benefits of marriage to same-sex couples, the Legislature is now debating whether to legalize gay marriage as opposed to a system of civil unions, with marriage benefits. And what is causing some to take a look at the marriage option are the economic benefits that it would bring to New Jersey, according to this article (Press of Atlantic City, 12/14/06). From the article:

The UCLA School of Law study predicts that New Jersey wedding- and tourism-related businesses would cash in to the tune of $102.5 million per year for the first three years, while state coffers would get $7.2 million per year in tax revenue for those years, all from introducing a gay marriage market. “New Jersey would have no competition from other states for the expected influx of wedding-related visitors,” the study's author, M.V. Lee Badgett, said. Badgett is the research director at the Williams Institute on Sexual Orientation and Public Policy, an academic think tank at the California school.

By contrast, authorizing civil unions would not bring the same benefits, because many other states allow them already. 

Of course, not all legislators are moved by the economic arguments. The article quotes Assemblyman Jeff Van Drew, who argues:

Sometimes you have to look beyond dollars and cents. This is an issue far greater than dollar value. It has social, ethical, religious and legal implications. Our job is to fulfill the legal issue, and we can do that with civil unions,” Van Drew said.

December 15, 2006 | Permalink | Comments (2)

Electronic Holiday Cards -- Admirable or Annoying?

Over at the InHouse Blog, Geoffrey Gussis can tell it's holiday time with the arrival of a stream of holiday e-cards. He wonders, however, whether this is such a good thing. For example, what if a spam filter catches the cards, leading an in-house consel to wonder why he didn't get a card? And he also asks more generally whether e-cards are a welcome development.

I'd say no. It's all too easy to send a holiday card by e-mail, and what's the point? Do you print it out yourself? Admire it and hit the delete key? Seems to me that if a firm is going to go to the trouble of sending cards, it might as well send a card that matters. Or as Tom Kane at Legal Marketing Blog says, the least lawyers can do is sign the damn holiday card!

December 15, 2006 | Permalink | Comments (3)

More About Law Firm Rate Increases

Today, Wired GC concludes his four-part series on law firm rates going up. Wired GC doesn't much care about the cause of the increase, whether it's talent or inflation or profit motive  -- the latter which Wired GC identifies as a "likely culprit." Instead, Wired GC is more concerned about what GCs are getting for their money. Initially, the answer is -- not much:

Considering the way many firms communicate rate increases, the answer to this question would seem to be: “The same thing, costing more.” That’s one answer. What it really means is that the client is getting less value (if the same services cost more). Giving less value in a competitive marketplace is one strategy. Not easy to see how it is sustainable.

Law firms, are you listening?

December 15, 2006 | Permalink | Comments (1)

Google Launches Patent Search Feature

From my co-blogger, Bob Ambrogi, I learned that Google has added a patent search as a new Google feature. The new tool searches the full text of more than 7 million U.S. patents, from the 1790s through mid-2006. Advanced searching allows you to search by patent number, inventor, classification and date. Steve Nipper of the Invent Blog the new function rave reviews. Patent Baristas is more temperate, griping about Google's practice of issuing new tools in beta and warning users to take care since Google's database does not include patent applications or recently issued patents.

December 15, 2006 | Permalink | Comments (0)

December 14, 2006

The Framers and the Atkins Diet

Christy2 Judging by Howard Chandler Christy's depiction of the signing of the Constitution, the Founding Fathers were not followers of the low-carb Atkins Diet. So what would strict constructionists think of this week's federal court ruling finding protection for the diet in the First Amendment?

At Internet Cases, Evan D. Brown reports on the decision of the Southern District of New York in Gorran v. Atkins Nutritionals Inc. The case was brought by a man who had to undergo an angioplasty after two years on the diet, Brown relates. He sued Atkins Nutritionals, claiming that information on the Atkins Web site constituted negligent misrepresentation. Defendants moved for judgment on the pleadings and the court agreed. Brown explains:

"The court held that the content on the Atkins website that Gorran complained of could not be the source of any negligent misrepresentation, as it was fully protected by the First Amendment."

Gorran had argued that the site functioned as "an electronic store" and therefore contained commercial speech. But the court saw it otherwise, Brown writes:

"[T]he content that Gorran alleged was negligent misrepresentations was merely general advice pertaining to the diet. That content was non-commercial. Accordingly, the information was 'afforded full First Amendment protection,' and the claim was dismissed."

If only the founders were not so portly, they might be rolling in their graves.

December 14, 2006 | Permalink | Comments (3)

T. Jefferson: Blogger

Blogger and legal ethicist Ben Cowgill must be running out of room on his own blog, because his latest post appears instead on Larry Bodine's LawMarketing Blog. That aside, Cowgill's contention is this: "If Thomas Jefferson were alive today, there can be little doubt that he would have a law-related blog."

Cowgill's point is that lawyers who write blogs today follow a path blazed by great lawyers such as Jefferson long ago:

"The legal profession has a great tradition of writing and speaking about the law. Law-related blogs are merely a new example of that great tradition. Until the Internet came along, lawyers had to find other ways to share information about the law. ... Now, with the Internet and blogging software, it's possible for lawyers to continue that tradition in another way, and it is not surprising that many lawyers are choosing to do so."

Ethicist that he is, Cowgill is taking us towards an ethics-related conclusion about blogs -- that they are, in and of themselves, no more or less advertising than any other legal writing:

"There are not any more 'ethics issues' regarding blogs than there are regarding other aspects of what lawyers do. 'Advertising' is a subset of 'marketing.' All advertising is marketing, but not all marketing is advertising. A law firm web site is clearly an advertisement for legal services and a marketing activity. On the other hand, a lecture at a CLE seminar is a marketing activity but not an advertisement.  Those issues do not arise in connection with online journals ('blogs'), because blogs do not contain representations about the legal services that will be performed if the reader becomes a client of the lawyer."

Thomas Jefferson was an "information junkie," Cowgill says -- just like lawyers who blog today.

December 14, 2006 | Permalink | Comments (1)

Cross-Examining a Greased Pig

Even the best trial lawyers sometimes muff their cross-examination. But one difference between the best lawyers and the rest of us may be in their ability to recover. At The Maryland Injury Lawyer Blog, Ronald V. Miller Jr. rummages through old ABA publications to find a 1988 article detailing how one skilled lawyer made up in closing argument for his failed cross-examination of a critical witness -- an FBI special agent named O'Rourke.

Miller does not name the lawyer, but he quotes at length from the transcript of the closing argument. Facing the jury, the lawyer concedes that, in cross-examining O'Rourke for 90 minutes, "I never laid a glove on him. I never touched him. Every time I thought I had him where I wanted him, he would slip away." But something about the witness struck him as familiar, the lawyer told the jurors. In eloquent style, he recounted his childhood on an Alabama farm, his visits to the county fair and his favorite game at the fair, the greased-pig contests. No matter how hard he tried to catch the pig, it would always slip away, he remembered. "That's where I've seen O'Rourke before," the lawyer said to the jury. "He's just like that greased pig." A good line, but not the end of the story. The best part of the lawyer's closing argument was his next line, Miller says, which "changes this from a really good closing story to a great one." And the line was? Since Miller dug it up, I'll leave the telling to him.

Thanks to The Illinois Trial Practice Weblog for the link.

December 14, 2006 | Permalink | Comments (2)

ATRF Lists 'Judicial Hellholes'

Hellholes2006sm Just in time for the holidays, the American Tort Reform Foundation has released its picks of the courts you don't want on your forum-shopping list -- that is, if you are a lawyer who defends companies in civil litigation. The report, Judicial Hellholes 2006, claims to shine a spotlight on "America's worst jurisdictions in which to face a lawsuit." At a press conference yesterday, American Tort Reform Association President Sherman Joyce said:

"Judicial Hellholes are places where judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants, in civil lawsuits."

The six worst courts, according to the report:

  1. West Virginia
  2. South Florida
  3. Rio Grande Valley and Gulf Coast of Texas
  4. Cook County, Ill.
  5. Madison County, Ill.
  6. St. Clair County, Ill.

The report also includes a "watch list" and "dishonorable mentions." But all is not dark for the defense bar. The report identifies several jurisdictions as "points of light," those "that have considerably improved civil justice, particularly when it comes to containing scandalous asbestos litigation." They are:

  • Illinois Supreme Court
  • California Appellate Court
  • Florida Legislature
  • Various state legislatures and courts
  • Oregon Trial Court

Of course, one man's hell is another man's heaven, to paraphrase the old saying. Not everyone sees damnation in the courts singled out by ATRF. The Center for Justice and Democracy, for one, called the report "vicious and undemocratic, not to mention dishonest and ungrounded." It released a fact sheet of its own, describing ATRA as representing "polluters, tobacco companies and the insurance industry, to name a few," and providing its counterpoints to ATRF's findings.

Perhaps the truth lies somewhere in the middle. As Harry S. Truman once said, "I never give them hell. I just tell the truth, and they think it's hell."

December 14, 2006 | Permalink | Comments (1)

The Butt of Contention

May a school district discipline a teacher for his off-duty "cheeky creations"? At Jottings by an Employer's Lawyer, Michael Fox takes up this question in the odd case of a Virginia art teacher whose unusual forte is butt art. Fox's post was prompted by an Associated Press report about teacher Stephen Murmer. As AP described it:

"Outside of class and under an alter ego, the self-proclaimed 'butt-printing artist' creates floral and abstract art by plastering his posterior and genitals with paint and pressing them against canvas. His cheeky creations sell for hundreds of dollars."

Murmer went to great lengths to keep his after-hours avocation hidden from his students, using an alias and appearing in disguise in photos and videos promoting his art. But after a video clip of Murmer's appearance on a cable TV talk show appeared on YouTube, it was not long before Murmer's students tuned in. School officials reacted by placing the teacher on administrative leave. Which brings us back to Fox, who says the situation raises very real questions of employment law:

"Although leading to all sorts of bad puns, 'cheeky creations' etc. it does raise a serious question about an employer's right to discipline for an employee's legal, if somewhat unusual, off-work behavior. The ACLU is looking at the case for Murmer."

As for Murmer's students, AP reports: "Most appeared to be firmly behind their teacher, describing his suspension as 'stupid,' 'ignorant' and 'kinda retarded.'"

December 14, 2006 | Permalink | Comments (0)

December 13, 2006

Smile -- One of Your Best Client Development Tools Comes Free

Perhaps it's just the nature of the job, but you don't find too many smiling lawyers. And that's too bad, because as Joey Asher writes in this column, "Legal Smile Helps Attorneys Connect With Colleagues, Clients," a smile might be  all it takes to put clients at ease and smooth over a difficult situation, such as firing an employee. Plus, as I've always thought, smiling makes people believe that you enjoy your job. And if you smile for long enough, you may start to believe it too!

December 13, 2006 | Permalink | Comments (0)

The Duke Lacrosse Saga, Nine Months Later

As Mike Cernovich posts here at Crime and Federalism, William Anderson is an economist -- and yet he's been writing about the 2006 Duke lacrosse team scandal for nine months now, with 21 articles on the topic. When asked why, Anderson responds:

How could anyone of good conscience remain silent whenthe Duke case is nearly nine months old, Nifong’s "evidence" has been shredded by attorneys and the blogs, yet the case continues toward trial because government courts are not about truth or justice, but rather are a plaything for prosecutors. It is obvious that truth does not matter either to the prosecutors or the judges, but I also know that truth serves as sunlight. I think of what I am doing as shining a light on cockroaches, something that makes them scatter.

And whether due to Anderson's articles, the lacrosse players' attorneys or the impact of the blogosphere, a North Carolina congressman is now taking notice. According to this news report (12/12/06), Jones has asked the U.S. Department of Justice to investigate whether Nifong has violated the civil rights of the three lacrosse players charged in the case and to determine whether Nifong's actions constitute prosecutorial misconduct.

The players were indicted by a grand jury and insist they are innocent; a trial isn't expected to start until spring.

December 13, 2006 | Permalink | Comments (0)

Incentives That Work

How do you get lawyers to develop business for their firm? As Larry Bodine writes, the answer is to offer incentives  that reward lawyers for bringing in new work. In this post at his Law Marketing Blog, Larry Bodine describes an incentive program used by Minnesota law firm Leonard, Street and Deinard. Leonard Street implemented Fast Foward, a program to train 21 attorneys to generate an additional $500,000 in revenue each over two years. Those participants who met the goal received a four-day, three-night trip to any Ritz-Carlton in the United States, including hotel, airfare, meals and paid child care. Thirteen of the participating lawyers won some kind of incentive and generated $8 million additional dollars in fees. And though the program cost $150,000 to run, Bodine calculates a 5,300 percent return on investment.
I'm not sure why this kind of incentive actually works. Let's see -- $500,000 for the firm, a trip worth $5,000 at the absolute maximum for participants. That's about 1 percent of the revenue generated for the firm. Is that all it takes to motivate lawyers to bring in business?   

December 13, 2006 | Permalink | Comments (3)

More Liabitility for Employers: First Cell Phones, Now BlackBerrys

Just as employers have started to implement policies to minimize liability arising out of employees driving while using cell phones, they may have a new concern to worry about: liability for using a BlackBerry while driving. That's the subject of Mike Fox's post at Employer's Lawyer entitled "BlackBerry and Driving -- An Employer's Problem?"

Fox writes about a recent settlement of $4.1 million awarded to a Chicago area woman who was injured when a van driver ran a red light and plowed into her car. The reason he didn't stop? He was looking down at his BlackBerry, not to read a text message but, instead, for navigational purposes because he was lost.

Fox writes that any kind of multitasking associated with a job while driving -- whether finding appropriate directions to a site or communicating for a job-related reason --  poses a potential problem for employers.

December 13, 2006 | Permalink | Comments (2)

December 12, 2006

Judge Posner's Second Life

Judge_posner Judge Richard A. Posner is doing just fine in his first life, thank you. There's that gig on the 7th U.S. Circuit Court of Appeals, that lecturer post at the University of Chicago Law School, that blog he co-authors and even his own fan site. Yet few were surprised and many were impressed when Judge Posner took on a second life, in the form of an appearance by avatar in the virtual world known as Second Life.

He showed up there Thursday, where he spoke about his new book, Not a Suicide Pact: The Constitution in a Time of National Emergency, and took questions from Second Life denizens such as copyright lawyer William Patry. For those of us too busy with our own first lives to attend, Second Life blogger Wagner James Au has posted the transcript of Posner's talk. Observes Au:

"If you want to gain a deeper sense of an influential thinker, bring him into an alien environment where he's beset on all sides by humanoid animals, supermodels, and intermittent fireballs, and see how he engages the unpredictable world around him."

Judging by the transcript, Posner's second life stood up as well as his first, even if his appearance was punctuated by moments such as this, when Posner noted an unusual avatar in the audience:

JRP: Is that a raccoon?
Kear Nevzerov: I'm a "furry". Not sure how I got this way.
JRP: I think it's Al Qaeda.
KN: I'm really an IP lawyer from DC. Honest.
JRP: I like your tail.

As for Posner's own take on the event, he told Fortune writer Roger Parloff that he thought he "looked kind of weird."

December 12, 2006 | Permalink | Comments (2)

Download Lessig's Latest Book

Stanford Law professor Lawrence Lessig's 1999 book, Code and Other Laws of Cyberspace, earned praise as a "paradigm-shifting work" and "the most important book ever published about the Internet." Yesterday, Lessig released an update to the book, Code v2, and like the earlier version, it continues to dabble with the paradigm.

Lessig calls this version "a translation of an old book -- indeed, in Internet time, it is a translation of an ancient text." Notably, the "translation" was accomplished, in part, through a collaborative wiki in which Lessig opened the editing process to anyone who wished to contribute. Lessig took the wiki text as of Dec. 31, 2005, and then added his own edits. And the process continues. Soon, Lessig says, he will post Code v2 on its own wiki for readers to further revise.

The book is available for free download in PDF format or for purchase in softcover. Lessig will contribute all royalties to Creative Commons

December 12, 2006 | Permalink | Comments (0)

Bill Less and Prosper!

With her post Bill Less and Prosper!, Carolyn Elefant should win the award for catchiest headline of 2006. How could you not read what follows? We all want to work less and earn more, don't we? This is right up there with "Eat More, Shed Pounds."

Turns out, her advice is quite simple -- and quite sensible. All you need, says Elefant, is one nifty tool -- The National Law Journal's recent survey of associate billing rates. How does it work? She explains:

"First, if you're a Boston area solo or small firm competing for business with biglaw, the chart can help you set your rates.  For example, if you've got a decade of experience, you don't want to charge much less than $275 an hour, the going rate for a first year at a large firm. And if you set your rates at $350, you can argue that you're worth it, because you've got double the experience of a 5th year who bills at $485."

The comparison works as well for value billing, she says. The point is: How does your worth compare to that of a large firm associate, and what value do you deliver for the price? It is an equation that adds up to Elefant's suggestion that you "take this chart and laminate it, and stick it in your desk drawer for the next time you draw up a fee proposal."

December 12, 2006 | Permalink | Comments (0)

Networking for the Chickenhearted

Some lawyers would rather face a root canal than a holiday party. It's not that they lack holiday spirit but that they fear forced networking. Still, networking helps keep the clients flowing, so whether it is something you relish or fear, it is undoubtedly something you will encounter in the coming weeks. For the socially squeamish among you, there is help. In three recent posts at her Legal Ease Blog, marketing consultant Allison C. Shields offers what amounts to a minicourse in the fundamentals of networking.

Lesson No. 1 begins with Shields' Holiday Networking Tips, her 10 steps to effective networking. She recommends, for one, that you focus on quality, not quantity:

"Networking isn’t a race to collect the most business cards. It’s about making connections. Remember: people do business with people they know, like and trust. Focus on meeting one or two people and establishing an initial connection, rather than just collecting a bunch of business cards. Make sure to learn something concrete about each person you meet."

Easy for her to say. But what if you are innately shy? Then move on to Lesson No. 2, Networking for Shy People. Acknowledging that socializing can be particularly daunting for shy people, Shields offers several suggestions for breaking the ice. Among them, arrive early:

"When you arrive early, you're not as likely to be intimidated by a room full of people who are already talking, laughing and sharing inside stories. If you're one of the first to arrive, chances are that you'll have an easier time striking up a conversation with the other earlybirds. Don't be afraid to tell them you're new to the group and that you're looking forward to meeting other people."

Yes, but even after you've arrived early and sidled up to the hors d'oeuvre table, there is that inevitable moment when talk turns to the much-dreaded topic of last night's game. Is admitting your ignorance about sports akin to confessing you are unlettered in the law? In Lesson No. 3, Networking: What Do I Say?, Shields suggests you use your lack of knowledge to your advantage:

"If you're not a golfer, try asking someone in the group (or the group as a  whole) what it  is about golf that they enjoy so much. Ask them how they got started in the sport. Ask how often they play, or how they manage to fit golf into their schedules, or how they use golf as a business opportunity."

So fear not the holiday party. Pour yourself an eggnog and pore over Shields' tips.

December 12, 2006 | Permalink | Comments (1)

December 11, 2006

Mandatory Retirement at Law Firms

By his own admission, Bruce MacEwen of Adam Smith avoids staking out positions, preferring instead to focus on the in depth and astute quantitative analyses that have addicted his wide audience, myself included.  But in response to this New York Times story on law firms' mandatory retirement programs (12/08/06), MacEwen comes out swinging, decrying these programs as idiocy or atrocity and an inherently inhumane practice. And as I'll discuss in this post, many others in the blogosphere side with MacEwen, though as I'll conclude, I hold an opposing and apparently, minority view.

Before getting to his critique of mandatory retirement, MacEwen begins with the predictable justifications: younger partners need to take over client relationships, senior partners' draws mean less money for younger partners and senior partners are less productive. MacEwen dispenses with these arguments in short order. As to younger lawyers wanting a bigger piece of the pie, McEwen argues that today's firms are far better off than those of decades ago, which kept older lawyers on without any detriment to younger partners' earnings. As to the problem of underperformance, MacEwen correctly diagnoses it as an issue that afflicts some lawyers irrespective of age -- and should be treated on a case by case basis, rather than with a broad mandatory retirement policy. Finally, as to the rationale of "passing clients on to younger partners," MacEwen points out that clients may want to keep older lawyers with whom they've developed a relationship -- and they ought to have a say in the matter. 

For MacEwen, older lawyers have a valuable role to play in the firm. They can:

mentor, train, help transition client relationships to younger people, operate as ambassadors for the firm to important constituencies (lateral recruits, potential merger partners, law schools, even governmental and regulatory agencies).   They can, in other words, "dial back" while still providing valuable service to the firm -- service you might not want to sacrifice the high-priced billable hours of others to perform.

For a complete backstory on some of these issues, Jen Burke at Transcending Gender has an exhaustive overview of ageism at law firms, including the New York State Bar Association's recent statement that mandatory retirement is discriminatory and inhumane.  The Legal Profession Blog mentions the Times story here, as does WSJ Law Blog here, though the story only generated minimal comments from readers, which I'd attribute to what I'm guessing is WSJ Law Blog's  youth-oriented demographic. Finally, at Prawfs Blawg, Scott Moss analyzes the   legality of mandatory retirement programs.

As for me, I definitely hold a minority view on all of this.  First, if these older lawyers had the kinds of relationship with clients that is claimed, why don't more of them take their portfolios and walk, like the attorney Victor Morris described in the Times story. What I suspect is what I've written before: that many of the lawyers being sent out didn't have a stake in the firm or the clients, but were nothing more than highly paid employees. 

Second, I have to admit that it's difficult for me to feel sorry when these older lawyers, who've spent their careers earning millions at large firms, are told to leave. If there's ever a group of people who had options, it's this segment of the population. Many retiring biglaw attorneys have earned enough during their career so that they're not tied to a steady paycheck. They can teach, embark on other careers, start a legal clinic or consult with emerging companies. They can, if they have the portfolio, pack up their clients and start a new firm. They can run for political office or use their contacts to apply for judgeships. Why stay put for comfort when you have a whole new opportunity to leave your mark on the law? 

December 11, 2006 | Permalink | Comments (2)

Tolerating Different Viewpoints Is a Good Thing

In this post,  Rees Morrison reminds company general counsel that their viewpoint and demeanor has a trickle-down effect on others' willingness to express their views.  Morrison writes:

Once the top lawyer takes a position, everyone else typically scrambles to support it or freezes into silence (See my post of Jan. 17, 2006 on passive-aggressive behavior.). Although some techniques help thaw the chill (See my post of Feb.1, 2006 with two.), the sina qua non is sensitivity by the general counsel to the conversation-stopping risk.

Morrison writes that any issue of importance will invariably have two sides.  Thus, it's necessary to encourage an atmosphere where all views are vetted and worked through.  So top lawyers may want to wait to express their position until they have a chance to hear from everyone else.

December 11, 2006 | Permalink | Comments (0)

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