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February 28, 2007

Blogless DA Blamed for Blogging

I am surprised at how little response there was among legal bloggers to Sunday's San Francisco Chronicle story, Blogging Prosecutors Raise Some Eyebrows. Doug Berman weighed in at Sentencing Law and Policy with a statement in support of "every professional use of this amazing medium," Mark Obbie at LawBeat  endorsed First Amendment advocate Peter Scheer's comment in the story that DAs have a right to speak out and Legal Profession Blog commented that these DAs should consider the hot water Duke prosecutor Mike Nifong got into with his public comments.

The problem with the story is, there is no blog. Here is the story's lead:

"Ed Jagels launched a blog last year.

"Normally, yet another blog wouldn't attract any attention, much less a story in the local paper.

"Jagels, however, stands apart from the thousands of people who post their opinions online every day. He's the district attorney of Kern County, and he posted his discourse -- a one-page column detailing what he called 'shoddy journalism' by the Bakersfield Californian newspaper -- on the publicly funded county Web site."

This blog, says the article, raises questions about ethical impropriety, particularly "if prosecutors are commenting on pending cases." But read that lead again carefully and then look at the Web site in question. It contains seven brief commentaries in PDF format, four by Jagels and the others by a police officer and two deputy DAs, posted over the course of four months. The commentaries share a common purpose, which is to critique the crime reporting by the local newspaper, the Bakersfield Californian. There may be legitimate questions to discuss here, but to call this a blog is to sound the wrong alarm.

I was happy to discover that the National Law Journal got the story right when it first reported it in November, Angry DAs Battle Critics on the Web. As reporter Pamela A. MacLean accurately described it:

"Critical media coverage has prompted local district attorneys in San Jose, Bakersfield and Orange County, as well as a city attorney in San Diego, to take on local newspaper criticism by posting responses on the Internet through county Web pages and, in the case of San Diego, regular blog postings."

She distinguished Jagels' articles posted on a Web site from the one prosecutor in this story who actually has a blog, San Diego City Attorney Michael Aguirre's The Aguirre Report. As MacLean makes clear, Aguirre's purpose in writing a blog is not to comment on pending cases but "to expound on the city's financial problems from underfunding of city pensions to bond debt spent for upgrading the football stadium."

Blogs raise any number of ethical and professional issues for lawyers. But we need to be careful not to sound the alarm over blogs where they are not the issue.

February 28, 2007 | Permalink | Comments (0)

Supreme Court Says 'Crawford' not Retroactive

The Supreme Court's 2004 decision Crawford v. Washington redefined the standard for admission of out-of-court statements by witnesses absent from trial in criminal cases. The impact of the decision was, as Wikipedia described it, immediate and profound. The question remained open, however, as to its retroactive effect on cases already final.

As Lyle Denniston reports at SCOTUSblog, the Supreme Court answered that question today, ruling 9-0 in Whorton v. Bockting that Crawford is not retroactive. Denniston writes:

"In an opinion by Justice Samuel A. Alito, Jr., the Court found that the decision limiting out-of-court statements as criminal evidence was a new rule and was not a 'watershed rule' so it does not apply to earlier cases."

February 28, 2007 | Permalink | Comments (0)

Manage a Law Firm? Are You Crazy?

In her new book, Managing the Modern Law Firm: New Challenges, New Perspectives, editor Laura Empson of Oxford University writes:

"Some parents dream of their children becoming lawyers. None ever dream of their children becoming law firm managers. Why would anyone want to manage a law firm"

Why, indeed. As Edward Fennell, columnist for The Times of London, writes in his piece, A Seminal Moment for Law Firm Management, recent evidence suggests "that a significant minority of leading law firm managers are making stupid decisions and frittering away the firm's money." Even when they get it right, they foster "a culture of long, stressful hours." This is why Empson is square on, Fennell says, when she says:

"We are at a pivotal moment in the evolution of the modern law firm as law firm managers struggle to develop new ways of organising lawyers. There are terrible costs for getting it wrong."

This is true not merely for the largest firms. Law firm management consultant George Bull, of Baker Tilly, tells Fennell that even quite small firms must confront difficult management decisions that "mirror those which are debated amongst the cream of the Magic Circle." The book comes just in time, Fennell believes. "The lesson for every lawyer is that their professional skills are no longer enough."

(The book is scheduled for U.S. release in March.)

February 28, 2007 | Permalink | Comments (0)

YouTube as Legal Strategy

Next week's National Law Journal will include this piece by Washington reporter Marcia Coyle, Gitmo Detainee Featured on YouTube May Be Set Free. It begins:

"The power of the Internet, most people would agree, is awesome, but has it done what the federal courts may no longer have jurisdiction to do — helped to free a possibly innocent man held at Guantanamo Bay?

"Last Friday, the Department of Defense (DOD) informed the Office of Federal Public Defender in Portland, Ore., that three of its detainee clients were now 'eligible for transfer,' or, in more common parlance, eligible to leave the island prison."

One of the three, Coyle writes, is Adel Hamad, an enemy combatant whose legal case was profiled in a video, Guantanamo Unclassified, posted on YouTube by his lawyers in the Federal Public Defender's Office. Did the video pave the way for his release? The Department of Defense did not respond to Coyle's call, and a lawyer for Hamad declined to speculate. But others Coyle quotes in her article suggest that "Internet full disclosure" should be seen as a visionary legal strategy.

Well worth a read.

February 28, 2007 | Permalink | Comments (2)

February 27, 2007

What Lawyers Are Learning From Airlines

I don't know whether two posts are enough to qualify as "frequent flyers," but the past two weeks have brought a pair of posts identifying the lessons that lawyers can learn from the airlines. After listening to a talk by Dr. Rob Britton, adviser to the chairman of American Airlines, Larry Bodine came up with these lessons for lawyers from the airlines. They include grappling with the issue of concerns over price and distinguishing your firm in customers' minds (who regard airlines and law firm services as generic to some extent). And, the solutions are similar as well, such as offering frequent-flyer programs and a "first class" section for crown jewel clients. 

In the aftermath of the Jet Blue Valentines' Day crisis, I posted here about lessons lawyers can learn from David Neeleman's handling of the situation. The takeaway from my post is that both airlines and lawyers need to take responsibility and apologize for major errors to stand a chance of keeping a client -- and to have malpractice (or business insurance) to pay losses where even your best efforts won't suffice to avert a lawsuit by an upset customer or client.

February 27, 2007 | Permalink | Comments (0)

Where Are the Women at Web Conferences?

At his home blog, Law Sites, my colleague Bob Ambrogi posts on the exclusion of women from Web conferences. Ambrogi cites a post by Jason Koettke at Law Geek, which examines recent and upcoming Web-related conferences, where the percentage of women speakers ranged from zero percent to 31 percent, with the exception of the upcoming Blogher Business Conference, where all of the speakers are women. 

I'm not sure whether Koettke's informal study results are limited to Web conferences. In my practice area of specialization, energy regulation, I typically find myself as the sole woman on speaking panels. And when there are other female speakers, they tend to be energy consultants or businesspeople, not attorneys. At the same time, there are far more male energy lawyers than female energy lawyers, and I've simply assumed that the conferences that I attend reflect the make up of the practice area rather than some kind of gender bias.

For those of you practicing in more gender-balanced fields -- healthcare, insurance, litigation or such -- do women speak on the panels that you attend? And if not, what's your explanation?

February 27, 2007 | Permalink | Comments (0)

Firms Hire Nonpracticing Lawyers in Manager and Support Roles

Ron Friedmann posts on a new trend at large firms: use of nonpracticing lawyers as managers. He writes that firms now hire nonpracticing lawyers for jobs such as marketing, e-discovery, knowledge management, professional development and practice support. There are some pitfalls, of course, as Friedmann points out:

Either way, firms must exercise some caution. First, they must “be careful of what they ask for, lest they get it.” For example, some churn in CMO and CIO positions in recent years likely stems from initial excitement followed by balking when the firm learns what’s really involved. Second, they need to consider how to integrate the non-practicing lawyer and any team reporting to him/her. Thinking this through requires a realistic assessment of a firm’s culture and the strength of its caste system. And third, they need to allocate risk fairly between the firm and the new role: negotiate a graceful exit strategy for both the firm and individual if things don’t work out.

I would think that second-class treatment is the biggest impediment to finding and retaining nonlawyers in managerial roles at firms. My guess is that many lawyers at firms would look down on the nonpracticing lawyers, thinking to themselves that the person "couldn't cut it as a real lawyer." Does your firm have lawyers in nonlawyer roles, and if so, how is the firm using these people? And for lawyers currently working in a nonlawyer function, what motivated you to seek out this type of alternate career path?

February 27, 2007 | Permalink | Comments (3)

Anonymity on the Web: An Oxymoron?

In this post at May It Please the Court, Craig Williams asks whether you can truly be anonymous online. Williams comments on this New Jersey case involving a lawsuit by a former town council member against, who posted several anonymous and derogatory remarks about a firefighter involved in litigation against the town. The firefighter filed a subpoena against for the identity of the commenter, which the site readily disclosed. The town councilmember sued, claiming that the site violated his privacy rights and failed to comply with proper procedures for disclosing user information in response to a subpoena.

Williams comments that some view this case as a test of whether Internet users will be able to sit behind their monitor and remain anonymous. And he also writes:

The Internet provides a perhaps comfortable feeling that you can sit in front of your computer monitor and no one will ever find out who you are.  Feelings aside, the assumption is far from the truth.  Your particular computer is identified by its own IP (Internet Protocol) address.  Sure, sophisticated users can attempt to spoof IP addresses, but nothing truly works to hide your identity.  Even aside from the technological issues, Internet users have used monikers and other "anonymous" names to hide their identity.  For the most part, those attempts don't work, either.

Is this a matter of caveat emptor, where users ought to remain aware that someone may always discover their identity? Or do Websites and chatrooms and other online fora owe users a duty of confidentiality?

February 27, 2007 | Permalink | Comments (0)

Pro Ses Get Their Day in the Court of Last Resort

Back in September, I posted on the compelling case of Winkelman v. City of Parma, a 6th Circuit decision barring parents from enforcing their disabled children's rights under the Individuals with Disabilities Education Act (IDEA) unless represented by counsel. And while we'd all agree that parents might be better off with attorneys in these kinds of matters, the sad reality for the Winkelmans was that they couldn't afford the thousands of dollars that this kind of case often costs. Moreover, to add insult to injury, in a related case, the Ohio Bar brought suit for unauthorized practice of law against a dad who succeeded in winning thousands of dollars in educational services for his son in an IDEA action against a school board. I ended my post with the hope that the Supreme Court would grant cert to stop this madness.

The Court did grant cert, and today, the no-longer pro se Winkelmans have their day before the Supreme Court. Scotus Blog previews the arguments here. The Supreme Court won't address the substance of the Winkelman's claims under the IDEA. Rather, the Court will hear the narrow issue of whether parents are aggrieved parties under the IDEA such that they can enforce rights under the statute, as well as whether Congress intended to allow parents to represent their children pro se in IDEA actions. 

What's most interesting to me is that the parents who couldn't afford a lawyer to represent them in a suit against the school district have now secured able representation by Jean-Claude Andre free of charge. Like the Ugly Betty wallflower who loses weight and acquires a glam wardrobe to emerge as a beautiful and desirable swan, the Winkelman's case has undergone a similar transformation, from a spurned stepchild that no lawyer would adopt without a substantial fee to an attractive plum coveted by multiple law firm suitors.   

It's not clear whether the Winkelmans would have embarked on a pro se path had they been able to afford an attorney. And their Supreme Court case, while an important vindication, doesn't do much to address the underlying problem of the cost of pursuing IDEA litigation. While I appreciate the heroic efforts of lawyers like Andre who devote their time (and let's not kid ourselves: Supreme Court litigation is time and labor intensive) at no charge to bringing cases to the Supreme Court, let's not forget that there's a need for resources at the lower level. After all, if the Winkelmans could have afforded counsel at the lower level, the case would never have reached the Supreme Court.

February 27, 2007 | Permalink | Comments (1)

February 26, 2007

Sunshine and Judge Seidlin

In 1933, Supreme Court Justice Louis D. Brandeis advised, "Sunlight is the greatest disinfectant." True to this notion, Florida is known as the Sunshine State not only for its weather -- it has long been a leader in open government. But when it comes to cameras in the courtroom, does openness serve an injustice?

After watching Judge Larry Seidlin's on-camera antics in the Anna Nicole Smith proceedings, Norm Pattis thinks so. At his blog Crime & Federalism, he says Seidlin singlehandedly rests the case against cameras in the courtroom. "The judge sniveled and emoted like a pro se in traffic court for the cameras today, when he gave the lifeless body of Anna Nicole Smith to the lawyer for her five-year-old daughter."

Pattis is not alone in the belief that Seidlin played to the cameras. The Miami Herald called the judge "something of a national spectacle." The Associated Press described him as "showboating for the cameras." CNN legal analyst Jeffrey Toobin said he let the case meander, "mostly because he seems to enjoy being on television." Any doubts about Seidlin's soft spot for TV were erased when it was reported that he had a demo tape and hoped to audition for his own series. Sure enough, it was revealed over the weekend that CBS offered Seidlin a gig as host of a new Saturday morning feature. (No, not a cartoon.)

Pattis acknowledges that cameras in the courtroom can play an important role  in public education. "But how do we prevent cameras from influencing the proceedings?" he asks, adding, "Does anything go in the Sunshine State?"

Focusing blame on cameras was inevitable, says Mark Obbie at LawBeat.  But to view cameras as the problem is to get it "exactly wrong," he argues.

"[W]e should rejoice in what Florida's open-courts law gave us in this case: a full-on view of the kinds of idiots who can make it onto the bench, even in sizable metropolitan areas like Fort Lauderdale. Seidlin didn't know the difference between 'anecdote' and 'antidote.' But his voters now know the difference between competence and incompetence."

At Bench Conference, Andrew Cohen argues that Seidlin's performance was so unseemly and inappropriate "that the Florida bar ought to immediately launch an investigation into whether he is truly fit to determine the rights and liberties of others." It is probably Florida's Judicial Qualification Commission, not the bar, that should take this up, but that is beside the point. Obbie is right: Cameras should not be on trial -- the judge should be. This man has been on the bench for 29 years. If he is investigated and if he is found to be unqualified, we have cameras to thank, not blame. When sunlight illuminates misconduct, our response should not be to close the blinds.

February 26, 2007 | Permalink | Comments (1)

Gender Bias at the Supreme Court

In 1873, the Supreme Court affirmed the Illinois Bar in denying admission to a woman, explaining, "The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother." We've come a long way in the 134 years since -- or have we?

By way of the blog Empirical Legal Studies comes word of new research showing that women attorneys have less success before the Supreme Court than men. This is true both when a woman argues the case and when women form part of the appellate team. In fact, the research indicates that the higher the proportion of women on the appellate team, the lower the likelihood of success.

Why is this? Two reasons, say the study's authors, political science professors John J. Szmer of the University of North Carolina and Tammy A. Sarver of Benedictine University. One is the "different voice theory," the notion that women "will construct different types of arguments than male attorneys, and the male-dominated U.S. Supreme Court will be less receptive to arguments presented by women attorneys." The second, more troubling reason is that a justice's political ideology is a measure of his responsiveness to women lawyers. The authors explain:

"Conservative justices are significantly more likely to support litigants that are represented by more men. Conservative justices are less receptive to arguments constructed by women."

The dominance of men on the Supreme Court bench makes it impossible to generalize more broadly about the interaction of justice and attorney gender, the authors say. They urge further research examining the role of attorney gender in other courts, "particularly those with more gender diversity amongst the judges." But at the Supreme Court, they conclude, the picture their research draws is "rather grim."

Read their paper and decide for yourself: Have We Come A Long Way, Baby?: Female Attorneys Before the United States Supreme Court.

February 26, 2007 | Permalink | Comments (0)

How to Start a Mediation Practice

One sure-fire shortcut: Win the lottery. It worked for Diane Levin of Online Guide to Mediation, but even lottery dollars get you only so far. There remains that nagging need for new business. So how do successful mediators get started? Thanks to the impetus of lawyer and mediator Victoria Pynchon, we are finding out.

At her blog, Settle it Now, Pynchon recently shared her advice for how to start a mediation practice. Pynchon's post inspired another mediator, Tammy Lenski, to write about how she started her practice. She promises a second post on what she would do differently with the benefit of hindsight. Lenski invited other mediators to share their stories, tagging Levin, who told us of her lottery luck, and Dina Beach Lynch, who has yet to weigh in. Levin, in turn, passed the start-up baton to others, inviting them to share their own stories and advice.

Common themes among these successful mediators: Have a plan. Build a network. Pursue training and experience. Take the plunge.

February 26, 2007 | Permalink | Comments (1)

The User-Friendly Lawyer

Wendy L. Werner is a business and career adviser to lawyers. She is also an award-winning photographer who believes that her ability to see a good picture complements her ability to teach lawyers what they need to see about themselves and their businesses. She pulls together her thoughts on where lawyers lack vision in an article, How to be More User-Friendly, published in the ABA's Law Practice Today. She describes it as "a list of things that lawyers need to do or think about to not just be tolerated by the rest of the world, but to flourish." On her list:

  • Talk less, listen more.
  • Sharing information with those around you is not a bad thing.
  • Know what your colleagues are working on.
  • Being rigorous doesn't mean being a jerk.
  • Risk is sometimes necessary to find new opportunities.
  • If you only spend time with lawyers, you won't know how to talk to juries or clients.
  • Lawyers are frequently smart people -- but lots of other people are smart too.
  • Diversity is a fact of life. If you want a successful and smart organization, hire and promote a diverse work force.
  • Seek opportunities for feedback.
  • No matter what your level in the organization, find a mentor, coach or adviser.
  • Having fun at work isn't a crime.
  • At the end of your life you probably won't say, "I wish I had spent more time at the office."

Read Werner's full article, and perhaps you'll end up more user-friendly.

February 26, 2007 | Permalink | Comments (0)

A Healthy Dose of Blawg Review

Health Care Law Blog hosts Blawg Review #97 -- the second stint at hosting Blawg Review for Charleston, W.Va., lawyer Bob Coffield. With a growing interest in social networking and Web 2.0, Coffield starts by highlighting some of the week's submissions that reflect aspects of the "fundamental technology changes which we are all experiencing as a result of the social networking phenomenon, the availability of new technology tools and the shift toward living our lives out on the Web." From there, he wraps up with a wrap-up of other submissions from the legal blogosphere.

February 26, 2007 | Permalink | Comments (0)

February 23, 2007

Women Leaving the Law

This article, Leaving Your Legal Career Far Behind, Debra Bruno (Legal Times 2/23/07), tackles the question of "why do women keep leaving law firms?"  The most oft cited reason, of course, is the lack of compatibility between law firm life and parenthood.  But as Bruno writes, that's not all there is to it:

But the reasons for women leaving the law are not always straightforward. Often they find themselves on a meandering path that brings them to places they never imagined in their early days -- writing children's books, wrangling cows or leading visitors through an art museum.

The article profiles six women who left traditional law practice for jobs as writers, public policy experts and consultants.  For some, the birth of children or the financial support of a spouse provided an opportunity to explore other options.  For others, law firm life just didn't satisfy.   

What I gleaned from the article is that the statistics on the glass ceilings at law firms and the small number of making partner are misleading in part. Seems to me that at least some of the women in the article wouldn't have stayed with a firm even  it were an option, and their family situation provided a way to explore other options. Would men do the same if they had those options as well?

February 23, 2007 | Permalink | Comments (3)

Increased Risks for GCs

This past year presented some tough issues for in-house counsel, and 2007 will likely continue to present liability risks according to this post from Wired GC. Quoting from an article by Susan Friedman in New York Law Journal, Wired GC writes:

Of note, according to Ms. Marsh, are these issues:

In 2006 in-house attorneys were confronted with a myriad of potential exposures, many of which will continue through 2007 and beyond. The highlights of 2006 included: §307 of SOX, backdating stock options, new rules of federal civil procedure regarding electronically stored information, the McNulty Memorandum, Federal Rule of Evidence 502, liability to outside third parties, investigating boardroom leaks, and multi-jurisdictional practice and licensing.

With all of these traps, are in-house counsel positions still regarded as attractive alternatives to law firm life?

February 23, 2007 | Permalink | Comments (1)

New Handbook on the Risks of e-Lawyering

Here's a blurb on a New Handbook Offering Tips for Mitigating E-Lawyering Risks (2/2/2007).
The handbook, created by Chubb Group of Insurance Companies and available for download here, explains how lawyers and law firms can utilize new technologies while mitigating the associated risks.  The handbook covers issues such as inadvertently creating client engagements, disclosure of confidential information, premature destruction of electronic documents and unauthorized practice of law online.

February 23, 2007 | Permalink | Comments (0)

Denied Admission After Passing the Bar on the 12th Try

Mike Frisch at the Legal Profession Blog posts about this rather  pathetic story of a candidate for admission to the D.C. Bar who flunked the exam a dozen times before passing (he'd also failed the Virginia exam six times)..  Sadly, however, this isn't a tale of the the triumph of persistence because he was denied admission anyway.  Turned out he'd cheated on one of his earlier exams and attempted to get a disability accommodation without justification.

Still, I'm not sure that the previous story tops this one, about the pregnant attorney who took the bar exam for her husband.  The fraud was discovered, apparently, because, posing as her husband (also a serial flunker), scores soared -- the woman received the ninth-best score in the state.

February 23, 2007 | Permalink | Comments (0)

February 22, 2007

When Clients Are Risky Business

At his LawMarketing Blog, Larry Bodine reports that a new study by Redwood Analytics sheds light on how to identify risky clients -- not the clients who pose risks when they first walk in your door but the clients who are at risk of walking out the door. The study identifies four markers of whether a client is likely to stay. The client:    

  1. Provides the firm a large amount of legal work.
  2. Has a mature, established relationship with the firm.
  3. Sends the firm work in more than two practice areas.
  4. Has more than two firm partners significantly involved in the management of the client’s matters.

The last two are the most important, Bodine says:

"Firms that successfully cross-sell clients are going to keep them.  On the other hand, firms that allow partners to hoard clients and keep other partners away are likely to lose those clients."

In addition, the more varied the legal services provided to a client, the less likely it is to leave, Bodine says. 

February 22, 2007 | Permalink | Comments (1)

A New Blog From Legal Times

Even vegetarians will enjoy The BLT, because the bacon is in the substance not the lard. That is my prediction, at least, given that The BLT is the newly launched blog of Legal Times, the Washington, D.C., legal newspaper published by ALM, the parent company of this blog's host, Why a blog, and why now? Legal Times editor-in-chief James Oliphant says he is not merely following journalist convention.

"The real reason is the opportunity this medium affords us, one that despite the wretched excess of blogs polluting the net remains very real, particularly in the areas this publication watches."

As for what to expect on the blog, Oliphant says:

"Here, we hope to translate the smaller bits of information that comes across our transom in a given week into something interesting and entertaining (famous last words) on a daily basis.  And if possible, perhaps break a little news, too."

The BLT comes stacked with contributions from Legal Times' full staff of editors and reporters. All I ask of them is, Hold the mayo.

February 22, 2007 | Permalink | Comments (0)

Writing About Writing About the Law

Invite a bevy of writing-inclined lawyers who also happen to be prolific bloggers to a conference about writing about lawyers, and what do you get? A bevy of blog posts about the conference -- and about each other. And after reading David Lat's round-up today of these various posts, I have to say, Who knew writing about the law could be such a party?

The New York Law School conference, Writing About the Law: From Bluebook to Blogs and Beyond, had a scholarly and intriguing agenda. But the post-mortem from the blogosphere suggests that socializing ranked a close second to scholarship. Consider Overlawyered blogger Walter Olson. Somehow, I've never equated "senior fellow at the Manhattan Institute" with "party animal." Now that I've read his post from the conference, Social Life of a Blawger, I see him in a new light. The social life Olson describes includes meeting conservative law prof and blogger Ann Althouse, who blogs the event as well, posting photos of herself hobnobbing with Slate senior editor Dahlia Lithwick and others and a YouTube video of her with The Volokh Conspiracy blogger Randy Barnett. True to form, Lat himself posted insightful observations about the hotness of the 3Ls he encountered while at NYLS.

If this all seems ripe for a bit of ridicule, then the folks at Quizlaw have just the tonic in their post, Blawgers are Dirty Swingers. Taking their cue from Olson's post, they go on to engage in a bit of  speculative blawger coupling.

In fairness to the conference, all was not mere fun and games. For a wrap-up of the substantive panels, see Legal Theory Blog here, here and here.

February 22, 2007 | Permalink | Comments (0)

Bar Exam: The Documentary

Poster4_1 "A Lawyer Walks into a Bar ..." sounds like the start of a bad joke, but in this case it is the name of a soon-to-be-released documentary. The bar in issue is in California and serves up not alcohol concoctions but essay questions to lawyer wannabes. The film, A Lawyer Walks into a Bar ..., follows six aspiring lawyers as they prepare for and take the California bar exam. The filmmakers describe it this way:

"The documentary features a cast of characters that runs the gamut -- from a type A 'gunner' hellbent on rising to the top of her profession at whatever cost, to a former Marine who has taken the bar exam 41 t imes.  (Yes, 41 times.)  Cameras were rolling for six months of tears, hysteria, hypnotherapy sessions and 'Lamborghini lessons' as our subjects traveled through the nine circles of hell in a quest to fulfill their collective lifelong dream."

That's not all. In following these six, the film also "takes a whimsical look at lawyers, law and litigiousness in America." It does that, in part, through cameo appearances by legal "luminaries" and legal observers, among them actor and comedian Eddie Griffin, attorney Robert Shapiro, CNN’s Nancy Grace, Court TV’s Catherine Crier, novelist Scott Turow, Harvard law professor Alan Dershowitz, U.S. Sen. John Cornyn, Clinton adviser Vernon Jordan, Texas trial lawyers Joe Jamail and Mark Lanier, Comedy Central’s Michael Ian Black and ABC’s John Stossel.

You might think that watching a film about taking the bar exam would be about as engaging as watching people play Scrabble. As it turns out, the film's director, Eric Chaikin, previously directed a film about people playing Scrabble, Word Wars: Tiles and Tribulations on the Scrabble Circuit, with notable success. The film made its debut at the 2004 Sundance Film Festival, won honors at other film festivals and was nominated for an Emmy.

Chaikin is not a lawyer and has no plans to become one. A co-producer of the film, Evan Fitzmaurice, is a lawyer and practices with an entertainment firm in Los Angeles. In an e-mail, Fitzmaurice notes that the film deals not just with the bar exam but with other "hot button issues in our profession." He writes:

The film is non-ideological and exceedingly balanced in its treatment of these issues, which include, among other things, stress, big firm economics, substance abuse, law as a calling, frivolous litigation, bar exam economics, women in the law and other threads that you can likely intuit.

The film makes its premiere March 13 and 15 at the South by Southwest Film Festival in Austin, Texas. Until then, you can view the trailer and clips at its Web site, where you can also read more about the characters and the filmmakers.

February 22, 2007 | Permalink | Comments (1)

February 21, 2007

Should Law Schools Teach Skills?

Over a month ago, my colleague Bob Ambrogi posted about the Carnegie Foundation report indicting legal education for failing to teach about real cases and trends and practical skills. And the debate over the role of law schools in preparing students for the reality of practice continues to rage in full force, with a  diverse coalition comprised of both law professors and practitioners advocating for substantial reform. 

Up first is Professor Ann Althouse, a guest columnist this month for the New York Times, with her piece, Skull Full of Mush (2/20/07). Althouse writes that law schools disrespect law students by focusing too much on theory and unreal hypotheticals instead of using real cases and facts to teach students to think and practice like real lawyers. Another academic, Professor James Maule of Mauled Again, follows with a lengthy post that includes multiple links to other critiques of legal education and the need for reform. Maule doesn't advocate for teaching skills per se; rather, like Althouse, he endorses teaching about real cases, thinking about how how a particular analysis would impact clients or considering the ethics implications of a decision, instead of teaching ethics in the abstract, as a separate part of the curriculum. From Maule's post:

What's needed is a change in the structure of the traditional doctrinal courses. It's not enough to learn that the law requires one thing or another. It's important to consider whether the parties will act in accordance with it, to understand what the options are when the theoretically correct legal answer does not match the actions of the client or some other person, and to appreciate how one's approach to the matter can influence how the client deals with the matter. It is more important to understand how the law came to be the way it is than it is to advocate some law reform that has little if any chance of seeing the light of day in a committee let alone a court or legislature. Professional responsibility issues need to be incorporated into substantive courses and not stashed in the corner in a separate course, because in practice those issues do not arise in a vacuum. Some of my students bristle when I raise professional responsibility questions in my tax and decedents' courses, because "that stuff is in another course." Well, it ought not be. The same problem exists with respect to digital technology. Most law faculty continue to omit discussion of cutting edge legal issues arising from the existence of legal technology, perhaps because they don't understand it and don't have the time to learn about it because they're under pressure to crank out ten more articles for tenure. It's only in my decedents' course, my students tell me, that they are challenged to consider the legal issues arising from the use of digital signatures on wills, revocation of digital documents, and the issues arising from the disposition of the decedents' email and email accounts. To put it bluntly, law faculty need to prepare students for practice in the twenty-first century.

The lawyers with more practice experience, however, want legal education to go even further and not simply teach what it's like to think and practice as a lawyer but how to actually function as one. Susan Cartier Liebel of Build A Solo Practice (who's also taught a law school course on this topic for seven years) has written extensively about the need for law schools to teach practical skills. And in this post, she features a letter by trial lawyer, Mark Solomon, who is also a partner in the The Billable Hour, who writes that one reason that so many law students grow frustrated in law school is due to the lack of practical training. From Solomon's letter:

The real source of discontent among law students, I’m afraid, is the utter failure of law schools to educate our future attorneys in the profession. Law schools do a wonderful job of laying the foundations of a practice with core courses in constitutional law, contracts, torts, criminal law and the like. Some schools have valuable trial advocacy programs, clinics, and local practice courses. But law schools leave their graduates literally and figuratively without a roof over their heads. That is the source of the law students’ sense of disconnect with the real world.

My connection to the real world is through my clients. Law school didn’t teach me how to get clients, how to market my services to the public I was trained to serve. How do I open a law office, what supplies and resources do I need in my office, what should my office look like to appeal to my clients and my need for a comfortable workspace? Do I need malpractice insurance, how much, where do I get it and what should it cost to buy? What business records should I be keeping? How do I balance my books?

Considering the draconian penalties that are routinely imposed upon lawyers who inadvertently make even the smallest mistake in their escrow account, it is incomprehensible to me that at least one semester of the required curriculum of every law school isn’t devoted to law office accounting. Marketing and management courses are equally essential to a complete legal education.

So where do I come down on all of this? I do agree with professors Althouse and Maule that law school ought to examine practical issues and incorporate ethics into every aspect of the curriculum instead of ghettoizing it as a stand-alone course. In fact, I craved this type of education back in law school, when I sat in the back of the class, forever asking questions about whether a particular practice was ethical or how this provision or that of the tax code impacted individual behavior (my efforts weren't well received; pretty soon, professors simply stopped calling on me).   

But the absence of real life issues from law school isn't as acute as it was back when I was a student, in large part because of blogs. Today, more law professors are blogging than ever before, and they're sharing their views on the intersection between legal theory and real world cases. That doesn't excuse the failure of law schools to formalize this kind of approach within legal education, but it certainly has a mitigating effect.

But while I'm willing to go as far as Althouse and Maule, you might be surprised to discover that as someone who's spent the past four years blogging about how to hang a shingle, I'm not a big fan of skills training in law school. Sure, I think that law schools should offer these classes as options, in the same way that law schools offer clinics or trial advocacy or moot court, but I don't believe in mandating them. For me, the best part of law school (and any school, in general) is that it afforded me the luxury of  avoiding the nitty gritty of the real world (with the exception of the law firms where I worked during the summer) and to spend time pondering the meaning of a judicial opinion or exploring how precedent developed. As a student, I knew that I had my entire career to argue cases, to deal with clients and to worry about how I'd earn a living. 

I think in many ways, we oversell the importance of skills training. There's always time to learn skills on the job. But when is the last time when, as a busy lawyer, you had a chance to savor the reasoning of a really well written Supreme Court decision or contemplate its impact not just on your client but on public at large? To me, that's what law school is, or ought to be for.

I'm quite sure I'm in the minority here, so let me hear your views below.

February 21, 2007 | Permalink | Comments (5)

Big Victory for Big Tobacco

Big tobacco won a big victory yesterday, as the High Court Rejects $79.5 Million Award in the Philip Morris Case (, 2/21/07). In its 5-4 decision in Philip Morris v. Mayola Williams, Justice Breyer, writing for the majority, held that the jury's verdict violated the Due Process clause of the Constitution because jurors had been permitted to consider harm suffered by other smokers, who weren't parties to the case, in assessing punitive damages. Wrote Breyer:

In our view, the Constitution's Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation. For one thing, the Due Process Clause prohibits a State from punishing an individual without first providing that individual with "an opportunity to present every available defense." Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted). Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to damages because he or she knew that smoking was dangerous or did not rely upon the defendant's statements to the contrary.

For another, to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate...

Justices Ginsburg, Thomas, Scalia and Stevens dissented separately. Justice Ginsburg (joined by all but Stevens in her dissent) had no problem with with allowing a jury to consider harm to others in assessing punitive damages, which are intended to punish the defendant for the "reprehensibility" of is action. Justice Stevens objected to the court's attempt to impose limits on a state's ability to impose punitive damages, while Justice Thomas emphasized that the Constitution does not constrain the size of punitive damages. And in fact, some corporate interests expressed disappointment with the court's ruling because it bypassed the issue of whether the Constitution requires some numerical limitation on damages (the dissenters have already made clear that they don't agree).

As for blog-related commentary, check out the SCOTUS Blog Round Up of articles and commentary on the case; Prawfs Blawg's comments about the difficulty of distinguishing between a jury's ability to consider reprehensibility (which is permitted) and damage to others (which is not) and Sentencing Law & Policy's commentary on the implications of the Philip Morris decision in criminal cases.

February 21, 2007 | Permalink | Comments (3)

Wikis for Lawyers

As we posted here previously, many judges are using the mother of all wikis, Wikipedia, to provide background explanations on facts relevant to their opinions. And now it seems as if wikis are also poised to take off within the ranks of the legal profession, at least according to tech guru Dennis Kennedy, who posts here at Between Lawyers about an article that he and Tom Mighell just published on wikis. The article, Wikis for the Legal Profession, published in the ABA's Law Practice Management magazine (February 2007), provides an expansive overview that describes what wikis are and how lawyers can use them to benefit their practices. From the article:

Why should lawyers use wikis? They may help lawyers both as consumers and as producers. Most lawyers will get the most value from using wikis created by others. The classic example is the Wikipedia. Wikis can be seen as constantly updated collections of useful information arranged in an encyclopedic or similarly organized way, with hyperlinks to related internal and external information.

On the producer side, perhaps the greatest potential of the wiki tool for lawyers is its use as a collaborative tool or even an information or knowledge platform, especially as a way to gather and manage "unstructured" information easily and quickly. The key feature of wikis in this regard is that multiple authors and editors are able to work together to create a collection of information or even collaborative documents.

Is your firm using wikis, and if so, how? Post a comment and let us know.

February 21, 2007 | Permalink | Comments (1)

Judge Hopes That Celebrity Hearing Will Make Him a Celebrity

While some of the judges who handled cases involving Anna Nicole Smith prefer to avoid televised hearings, word has it that one judge presiding over the hearing on where to bury Anna Nicole has his sights set on TV stardom. According to these articles, Judge Larry (MSNBC 2/20/07) and Snappy judge is star of this Anna Nicole reality show (Kansas City Star, 2/20/07), Broward County Judge Larry Seidlin reportedly wants to audition for a TV series. And thus far, he's getting pretty good ratings, at least in the TV-likability department. From the Kansas City Star article:

''He is not as pretty as Judge Judy, but he is cut from the same tooth,'' said Vinnie Politan, co-host of CourtTV's weekday morning show, ``Bloom & Politan.'' ``We here at CourtTV love him. This is going to put him on the map, and he knows it.''

Apparently, however, Seidlin isn't as highly regarded by other attorneys:

One lawyer, who spoke on the condition of anonymity, was mystified that Seidlin is getting national attention.'One of the worst judges in Broward County could wind up becoming a TV star,'' said the lawyer.  And that attorney is not alone. In the 2004 Broward County Bar Poll, 22 percent of lawyers responding to the survey said Seidlin was not qualified - putting him near the bottom of the pack of judges. And the blog found on the Web site for the Justice Advocacy Association of Broward - - had several hostile statements about Seidlin, calling him some names that can't be published in a family newspaper.

Of course, what real lawyers think about Seidlin doesn't matter at the end of the day. After all, we all know that television shows portraying the legal profession don't accurately reflect real life.

February 21, 2007 | Permalink | Comments (0)

February 20, 2007

Of Witnesses and Memory

Closing arguments today in the trial of I. Lewis "Scooter" Libby were expected to focus on one key question: "What did he forget and when did he forget it?" The interplay of testimony and memory is something that vexes every lawyer who has ever set foot in a courtroom or a deposition. How can a witness be so certain -- or so uncertain?

The Washington Post last week explored the art and science of memory in an article, Where'd We Leave That Darn Fact? Writer Linton Weeks walks us through the malleability and the murkiness of memory, reminding us, as psychology professor Elizabeth F. Loftus tells Weeks, "Human memory does not work like a video camera."

In the Libby courtroom, memory aids abound, both in the notes put into evidence and in the Blackberrys clutched by observers. But the larger question, says Weeks, is whether Washington has a memory. Watching Libby's trial, he writes, brought back foggy recollections of other famous Washington cases that turned on remembering:

"That of Dwight L. Chapin, for instance. Appointments secretary to President Nixon, Chapin was also the godfather of Nixon's 'dirty tricks' campaign against other 1972 presidential contenders. Chapin hired Donald Segretti to oversee the foul deeds. Segretti was called before the Watergate grand jury and ratted out Chapin. When Chapin appeared before the grand jury in 1975, he was asked if he had ever given Segretti 'any directions or instructions with respect to any single or particular candidate?'

"'Not that I recall,' Chapin replied. For that -- and another similar -- response, Chapin was found guilty of lying to the grand jury. The 'faulty memory' defense did not work for him; he went to jail.

"Then there was Edwin Meese III. In 1984, a special prosecutor investigated the financial dealings of Meese, counsel to President Reagan at the time. The prosecutor determined that Meese was lousy at keeping records and at remembering things, but that bad memory was not a crime. Meese was cleared of the allegations. He went on to become attorney general."

As I read Weeks' piece, a thought came to mind. Unfortunately, I forgot it. But before you next examine a witness, read the piece for yourself.

February 20, 2007 | Permalink | Comments (0)

Courts Should Admit 'Educated Guesses'

That is the recommendation of George Mason University School of Law professor David E. Bernstein in a new research paper, Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution. The article is garnering attention from blogs such as TortsProf Blog, Blog 702 and

For Bernstein, the question is whether the rationales underlying Daubert and federal evidence rule 702 hold up in practice. He concludes that, while rule 702 "attempts to serve a worthy goal, ... it far from fully succeeds in efficiently achieving this goal." One significant failure:

"Rule 702 does nothing to address the huge gaps in resources between the prosecution and most defendants that severely inhibit defendants' ability to challenge unreliable prosecution expert testimony."

Applied correctly, rule 702 does succeed in barring "junk science" from the courtroom, Bernstein believes. But "it does so at the expense of excluding speculative evidence supporting causation." Bernstein's proposed solution:

"The way around this problem is to amend Rule 702 to allow courts to admit educated guesses about causation, but only when nonpartisan experts, not subject to adversarial bias, are willing to make such guesses."

My nonexpert educated guess: Implementing Bernstein's suggestion would face a hard-fought fight.

February 20, 2007 | Permalink | Comments (0)

News from Bloggers

Milestones this week for two of the blogs in the blog network:

  • At Law Department Management, Rees W. Morrison marks two years as a blogger. His blog, he says, has made great strides as he has sought to extend its depth and scope. But he continues to "scratch my head over the paucity of comments and e-mails." So, if you agree with me that Morrison offers a truly useful and informative blog, give him a blogiversary treat: send him an e-mail or leave him a comment letting him know that.
  • Meanwhile, Crime & Federalism introduces a new contributor. He is Andy Thibault, author of the book, "Law and Justice in Everyday Life," and a lawyer once described by F. Lee Bailey as "a gunslinger from the Old West, ready to fire at anything that moves -- especially if he doesn't take kindly to the movement." Thibault also writes the blog, The Cool Justice Report.

February 20, 2007 | Permalink | Comments (0)

Fallout from Grace

Legal bloggers are buzzing about K.C. Johnson's post Graceless at his blog Durham-in-Wonderland yesterday.   Professor Bainbridge calls it "a must-read post" and "a devastating indictment of the worst of the legal talking heads." Overlawyered praises Johnson for having "assembled the details on the CNN/Court TV commentator's scurrilous handling of the lacrosse rape allegations."

Johnson, a professor of history at Brooklyn College, says that CNN host Nancy Grace is one of three people who stand out as the worst of the broadcast media. (The others: Boston-based commentator Wendy J. Murphy and Maryland lawyer Georgia H. Goslee.) Of Grace, he writes:

"Grace, who regularly mocked principles of due process, allowed guests ... to say virtually anything denouncing the players, while challenging even the mildest assertion suggesting the players' innocence. And, when the case imploded, this television bully, who takes such joy in shouting down guests who challenge her views, was silent."

He goes on to make his case with a detailed review of 25 episodes of Grace's show that included portions devoted to the Duke case. He calls her a "mistress of innuendo" and says that, when innuendo failed her, she turned to non-existent evidence. He closes with a hilarious Saturday Night Live send-up of Grace.

In his comment on Johnson's post, Stephen Bainbridge says:

"There's a lot wrong with the legal profession and TV 'star' Nancy Grace accounts for much of it. Her relentless pro-prosecution bias, her Torquemada-like attitude towards punishment, and her attack dog personality routinely hold the legal profession up to disrepute."

Johnson is not a lawyer, but he certainly knows how to assemble facts and make his case.

February 20, 2007 | Permalink | Comments (5)

February 16, 2007

Podcast: Libby Trial and Freedom of the Press

The First Amendment and freedom of the press are front and center in the trial of I. Lewis "Scooter" Libby. This week on the legal affairs podcast Lawyer2Lawyer (formerly Coast to Coast), we discuss the trial, shield laws and judicial attitudes towards free speech and a free press. My cohost J. Craig Williams and I welcome guests Ed Carter, a lawyer and assistant professor of communications at Brigham Young University who recently completed a study of Supreme Court free speech rulings, and Mark Obbie, director of the Carnegie Legal Reporting Program at Syracuse University's S.I. Newhouse School of Public Communications and former executive editor of The American Lawyer.

February 16, 2007 | Permalink | Comments (2)

Gavel to Gavel Blogging

Nancy Pelosi made history as the first woman (and, let us not forget, first Italian-American) to become speaker of the U.S. House of Representatives. Now she is making history again, as the first speaker with a blog, titled The Gavel. The blog has been up for several weeks, but Pelosi officially launched it this week with -- what else -- a YouTube video.

"The Gavel," Pelosi says in the video, "will provide an unprecedented forum, in real time, on how the people's House is conducting the people's business." The speaker is no stranger to blogging. She has contributed in the past to The Huffington Post.

February 16, 2007 | Permalink | Comments (1)

Anonymous Blawger Comes Out

In a post here last month, The Urge to Undress and Unmask, I commented on the apparent trend among lawyers who blog anonymously to unmask themselves. One blawger I mentioned whose outing was in the offing was The Greatest American Lawyer. Last month, he launched a contest, Who's that GAL?, inviting readers to guess his true identity.

Well, the contest is over. GAL has revealed himself to be Enrico Schaefer, a partner with the firm Traverse Legal  in Traverse City, Mich. To accompany his coming out, Schaefer includes a video describing himself and his firm. One thing the video makes clear: The man handles a mean Hacky Sack.

February 16, 2007 | Permalink | Comments (0)

February 15, 2007

More Law Professor Blogging

Kevin O'Keefe writes here that we can expect more law professors blogging at law school blogs. Among the benefits for professors that O'Keefe cites are faster recognition for law professors as leading authorities, current content, immediate peer review and interaction with practicing lawyers. Used to be that serving as a member of law review provided a useful credential for law firm jobs and clerkships. I wonder whether that's still the case as blogs pick up momentum, leaving scholarly law reviews behind.


February 15, 2007 | Permalink | Comments (3)

Lawyer Turns Artist

I don't often associate lawyers with being the most creative people, but as we lawyers know, every rule has exceptions. And Sharzhad Heyad Jalinous is one of those exceptions, a lawyer who's changed careers and is now an artist, as described in this Washington Post story, Art CLasses Turn Lawyer Into A Painter (2/15/07). Jalinous had taken some art classes in college, but stopped during law school. Four years later, when her legal job grew too stressful, she returned to art classes and, eventually, left the law for art. But Jalinous has no regrets and comments in the article on the intersection between law and art:

I've never regretted law school; it gives you unique training to think," she said. "You can deal with people on a business level in a more confident way." Law and art have some things in common, too. When crafting a response to a motion, "you have to look at ways you can do what the other side says you can't." Plus, "I stand in front of my canvas and take in all the problems - then stop thinking and just do."

February 15, 2007 | Permalink | Comments (1)

February 14, 2007

Lawyers Send Their Love

On this day devoted to love, lawyers show their soft spots:

Who says lawyers are heartless?

February 14, 2007 | Permalink | Comments (1)

Valentine's for Tekkies

If you head out for a Valentine's Day dinner tonight, don't be surprised if the person in the dimly lit booth next you cooing softly to his Treo is Rick Georges, author of the Future Lawyer blog. Today on, Georges pens a love letter to his favorite tech gadgets. He swoons over the "thin good looks" of his Olevia 27-inch LCD TV/computer monitor and revels in how his SlingBox has changed his life.  Lest we conclude Georges has gone head over heels for technology, he assures us, "I love my wife, who tolerates my obsession with gadgets and technology, as long as she gets my old stuff."

If you think Georges is alone in turning his amorous thoughts to technology this Valentine's Day, think again. At the blog Sci Fi Tech, we are treated to the top 10 gadget gifts for your Valentine. There is the Marziphone, a BlackBerry modeled from marzipan, and the umbrella built for two. Top of the Sci Fi list: Any good quality 42-inch plasma TV.

At his blog Inter Alia, lawyer Tom Mighell offers a Valentine's tech present from SpeedFiler. Mighell has a soft spot in his heart for this Outlook add-in, which helps you sort your sent e-mails. So he teamed up with SpeedFiler's creator to offer a sweet discount.

For a more stellar display of your affection, head over to YNIS -- that stands for Your Name into Space -- where, for a tax-deductible contribution, you can post your Valentine's Day message or image on a satellite. In the process, you will be supporting an initiative by students at MIT and Georgia Tech to launch their own, unmanned research spacecraft.

Finally this Valentine's Day, don't forget about protection. As Channel Register reports, various Valentine's Day worms and phishing spam are making the rounds, and they might give you an infection you'd rather not have. How would Georges explain that to his Treo?

February 14, 2007 | Permalink | Comments (0)

Valentine's Busy for Divorce Lawyers

One would expect that Feb. 14 would be a busy day for the folks at Lawyers in Love. After all, their business is matching single legal professionals who are in search of romance. One would not, however, expect this day to be any more or less busy for the folks at a different kind of legal matching service,, given that their business is the decidedly unromantic pairing of lawyers with clients. Au contraire. In a news release distributed today, LegalMatch associate general counsel Ken LaMance describes what he calls the Valentine's Effect -- a surge in divorce cases around the very day that celebrates love. "Over the last four years," he says, "we have seen an average increase of 31 percent (compared to all other weeks) in divorce, annulments and prenuptial cases in the week prior to and directly after Valentine's Day."

It is worse in some places than in others (or better, I suppose, if you are a divorce lawyer). LegalMatch reports that Philadelphia saw the biggest surge last year, with a nearly 50 percent increase in new divorce cases in the weeks around Valentine's Day. Dallas and Fort Worth, Texas, saw increases of 44 percent and 32 percent. Among major metropolitan areas, Atlanta saw the smallest spike, 20 percent. LegalMatch concludes that population density plays a role in the Valentine's Effect and that small-town America seems immune.

The LegalMatch blog describes LaMance as an avid surfer and bicyclist, but makes no mention of a psychology background. Nonetheless, LaMance has an explanation for the Valentine's Effect: "The added stress of a holiday where you are all but required to express your love with chocolates, flowers and even jewels, especially so soon after the holidays, can make people anxious and questioning."

Anxious and questioning and, apparently, in search of a lawyer.

February 14, 2007 | Permalink | Comments (1)

February 13, 2007

The Supremes' Love-Hate Relationship With TV Cameras

Over at Volokh, a number of the conspirators are commenting on some of the renewed proposals by Congress to televise the Supreme Court, specifically addressing whether Congress has authority to legislate televised access. Orin Kerr offers an off the cuff opinion that Congress could make the Supremes the newest reality television programming if it wanted, reasoning that:

Congress has a great deal of control over how the Court operates.  For example, Congress determines the number of Justices, see 28 U.S.C. § 1, when the Term opens, 28 U.S.C. § 2, and allowances for law clerks, 28 U.S.C. § 675. Congress also requires that the Court's opinions must be bound togther and published as volumes of the United States Reports "as soon as practicable after rendition." 28 U.S.C.A. § 411. As far as I know, none of these sorts of regulations have ever been suggested to violate the Constitution.

Ilya Somin agrees, but for slightly different reasons:

Article III, Section 2, Clause 3 of the Constitution says that most of the the Supreme Court's jurisdiction must be exercised "under such Regulations as the Congress shall make." Presumably, this includes the power to establish procedural rules for the Court's proceedings, including such matters as the timing of Supreme Court terms (which is indeed regulated by Congressional statute, as Orin notes). To be sure, Congress cannot use this power to establish "regulations" that violate other explicit provisions of the Constitution. For example, it could not establish a regulation depriving justices of their life tenure, because life tenure is specifically guaranteed by Article III, Section 1. On the other hand, there is no provision of the Constitution that forbids Congress to regulate the degree of publicity accorded to Supreme Court arguments. So the justices would have to obey a congressional law mandating openness to Television of coverage of oral arguments - however much it might annoy them.

Somin also discusses the Supremes' motives for avoiding television:

it is worth considering the possibility that the Supremes' motive for banning TV coverage is not as high-minded as we might think. Several years ago, the then-Supreme Court correspondent for one of the major TV networks told me that the main reason for the justices' strong opposition to TV coverage was their desire to avoid being recognized by members of the general public in the streets - especially people who might harangue them about their decisions.

But the privacy rationale doesn't hold water anymore, given that the Supreme Court justices' television appearances have increased significantly, according to Dalia Lithwick's recent commentary, Love Us! (The American Lawyer, 2/07). Lithwick writes:

At the same time their caseload was dropping, the justices were storming into television studios like Iraqi insurgents into Anbar province. Stephen Breyer appeared on programs ranging from The Charlie Rose Show to FOX News Sunday. Ruth Bader Ginsburg invited CBS's Mike Wallace into her chambers for a cozy schmooze, the first time television cameras have ever been in chambers. At 86, John Paul Stevens did his first television interview ever, with Jan Crawford Greenburg on ABC News's Nightline. But the year's American Idol moment came when the new chief justice, John Roberts, Jr., made his own appearance on Nightline in December. Roberts has already held a pair of press conferences and is participating in a new PBS special about the Court. The justices may seem resistant to cameras in the courtroom, but get them outside of their marble palace, and they're ready for their close-up.

I suppose, like all politicians, Supreme Court justices want to be seen in the best possible light, preferring appearances in a controlled studio rather than their unscripted performances from the bench. But like it or not, the justices are public figures who make law, and the public is entitled to see how the Supreme Court does its job. With  new technology and distribution sources like YouTube, the public gains more and more insight about how other public officials do their job. There's no reason for treating the Supreme Court justices any differently -- especially when their recent actions show that they're not averse to 15 minutes of fame.

February 13, 2007 | Permalink | Comments (0)

Blawg Review #95

Blawg Review #95 is up and running at the Auto Muse Blog, which provides the ideal vehicle for this car-and-highway-themed review. Some of the stops along the way include Stephanie West Allen's post, Do clients tell the truth when surveyed about satisfaction? The brain knows and it might be telling, Dan Hull's post on what lawyers need to do to serve clients in a global economy and Nicole Black's post on whether New York's advertising rule requiring lawyers to post their address on ads places an undue burden on home office lawyers. So cruise on over to Auto Muse to read more of the posts covered in Blawg Review #95.

February 13, 2007 | Permalink | Comments (0)

Homeowners' Insurance Not the Same as Homewreckers' Insurance

Marc Mayerson of Insurance Scrawl posts about the current state of the law governing an Insurers' Duty to Defend Their Insureds Against Intentional Torts. But what I found most interesting about the post wasn't the general discussion of an insurers' duty to defend in intentional tort cases but rather one of the examples that Mayerson discussed, where an insured attempted to invoke his insurer's duty to defend.

That case is Pins v. State Farm Fire and Gas. Co., where an insured sought coverage under a personal liability insurance umbrella policy for liability and defense costs arising out of a suit filed against him for alienation of affection by his lover's husband. The court determined that by definition, alienation of affection was an intentional tort, which could not be deemed an accident, for which coverage might be available. From the decision: 

[T]he comfort and consortium injuries alleged by [the husband] were sufficient to state a claim for alienation of affections, and under South Dakota law, [the husband] could not recover on this claim unless he proved that Pins intended to cause those specific injuries. In these circumstances, any ‘loss’ to [the husband] was ‘expected or intended’ by Pins and could not be deemed an ‘accident.’ Therefore, State Farm had no contractual duty to defend.

Mayerson has the best characterization of the court's decision, however. He concludes, "Put differently, the court found that State Farm issued a homeowner’s policy, not a home-wrecker’s policy." 

February 13, 2007 | Permalink | Comments (1)

Appellate Court Hopping Mad Over Reference to a Kangaroo Court

In this recent column, Marsupial Alert:  Don't Refer to Appellate Judges as a "Kangaroo Court", Howard Bashman describes the drama that ensued when a California appellate court mistakenly thought that the trial judge had referred to it as a "kangaroo court." The incident started back in December 2006, when a trial judge remarked, on the record, during a criminal sentencing proceeding, "You can't offend the kangaroos up there in kangaroo court." In reviewing the trial judge's order, the Court of Appeals took offense at the comment, feeling that the trial court had unfairly lashed out at the appellate judges because precedent precluded the judge from resolving the case as he saw fit.   

However, as it turned out, the trial judge didn't intend his kangaroo court remarks for the appellate court at all. In investigating the story, a reporter learned that the trial judge had called the prosecuting attorney's "strike committee" (the committee that decides whether to count prior convictions as strikes under California's repeat-offender law) a kangaroo court, not the trial judge. Fortunately, the prosecutor was not as sensitive as the appellate judges; apparently, he laughed off the reference.

Bashman draws from useful lessons for the case:

When a trial court judge wishes to insult or even merely poke fun at a party while on the record, the judge should use language that cannot be misunderstood by an appellate court as holding the appellate court up to ridicule. In this instance, instead of calling the prosecutor's "strike committee" a "kangaroo court," the trial judge could have instead called the committee something along the lines of "prosecutorial grand pooh-bahs." That alternate suggestion also has the benefit of possibly causing those who hear or read it to reminisce about Gilbert and Sullivan's "The Mikado" or "The Flintstones" television series.

February 13, 2007 | Permalink | Comments (0)

February 12, 2007

Poetry in Motions

"Poet Lawyerate" is the unofficial title a reporter this weekend gave Urbana, Ill., lawyer Carl Reisman. Writing in The News-Gazette, reporter Mary Schenk explains: "He's a poet who happens to put food on the table by practicing law. And he's a lawyer who likes to write poetry." Sequentially, poetry came well before the law degree for this workers' compensation attorney. Today, however, neither takes a higher seat. "I don't think you can say either comes first. You can't separate out identities that way. People are complicated," Reisman says.

Lest there be any question as to the interplay between poetry and law, Reisman is helping to organize a conference to be held Thursday and Friday, Opening Arguments: Poetry and the Law. Sponsors are the University of Illinois College of Law, the University of Illinois MFA Creative Writing Program and Richard Powers, author of National Book Award winning novel, The Echo Maker. Among the topics on the agenda: "In Search of the Lawyer Poets," "Does the Practice of Law Kill Passion?" and "Law and Poetry as Spiritual Paths." A featured speaker will be West Virginia College of Law professor James R. Elkins, who collects information on lawyer/poets at his Web site, Strangers to Us All: Lawyers and Poetry.

As for Reisman, poetry helps keep him grounded, he says. "It gives me a way to try to take an experience and condense it and to process things that are very difficult, contradictory and put it into some sort of expression that other people might find meaningful."

February 12, 2007 | Permalink | Comments (1)

Why the Delay on Detainee Cases?

That is the question Lyle Denniston asked Friday at SCOTUSblog,  as another round of decisions from the D.C. Circuit Court of Appeals failed to address the cases involving the legal rights of foreign nationals being held at the U.S. military prison camp at Guantanamo Bay, Cuba. "The Court has taken no action on the cases, and has not even responded to a motion filed a week ago Friday asking it to expedite its ruling because of alleged deteriorating conditions for the detainees at Guantanamo," Denniston says.

In a recent court filing, Denniston reports, lawyers for the detainees recounted the dragged-out timeline of the cases:

"Sixty months ago, the first of the Guantanamo detainees arrived at Guantanamo and began filing habeas petitions seeking release from detention. Thirty months ago, the Supreme Court held that those detainees were entitled to seek such habeas relief. Twenty four months ago, after further habeas petitions were filed, Judges Joyce Hens Green and Richard Leon issued the decisions giving rise to these appeals. Eighteen months ago, this Court heard oral argument on the merits; six months ago, the Supreme Court held that the Detainee Treatment Act did not apply to pending actions; and four months ago, Congress enacted the Military Commissions Act."

As the lawyers argued and as Denniston notes, "habeas review must be speedy in order to be effective."

February 12, 2007 | Permalink | Comments (0)

Why Do GC Fire Firms? Who Knows?

At his blog Law Department Management, Rees Morrison picks up on an interesting statistic from the Association of Corporate Counsel's most recent Chief Legal Officer Survey. Question 4b asked CLOs who fired an outside firm during 2006 to give the primary reason. The survey listed possible grounds such as cost, lack of responsiveness, poor work quality, lack of diversity and lack of expertise. CLOs added other reasons of their own, including personality conflicts, disagreement on strategy and firm consolidations.

Given these various choices, it would seem the survey covered all the bases -- at least the most obvious ones. Yet nearly 63 percent of the CLOs who responded to the survey answered the question with the choice, "Not applicable." What, if anything, does this tell us about why CLOs fire firms? Morrison suggests this answer:

"It may be that law departments stop using a particular firm not because of any gaffe or malpractice, but because another firm made a more attractive offer of service."

Also noteworthy, he adds, is that no one gave "conflicts of interest" as the reason they fired a firm.

February 12, 2007 | Permalink | Comments (1)

Anna Nicole's Tangled Legal Legacy

Thank you, Joanna Grossman, for today's valiant effort to sort through the legal aftermath of Anna Nicole Smith's demise. You walk us through her hard-fought battle for a piece of her late husband J. Howard Marshall's estate, the sure-to-be hard-fought future battle over who will inherit her estate, the high-stakes contest over paternity of her infant daughter and other lawsuits past and pending. As AP writer Linda Deutsch elsewhere summed it up, "Anna Nicole Smith's legacy could take years to untangle and could leave her baby daughter with millions of dollars or nothing at all."

The word "symbiotic" comes to mind in considering the relationship between Smith and the legal profession. After all, judging from media coverage, it is still not clear whether it was Smith who had her day at the Supreme Court or the Supreme Court that had its day of Anna Nicole. But the relationship, whatever it was, went beyond symbiotic. There is, for one, her involvement with Los Angeles attorney Howard K. Stern, who she did or did not marry in September and who is or is not the father of her daughter. And then there is her late husband, J. Howard Marshall, the oil baron whose estate brought her to the Supreme Court. He, too, was a lawyer who graduated from Yale Law School and, according to Wikipedia, may have spent time on the faculty there teaching -- irony of ironies -- trusts and estates.

Then there are the lawyers caught up in the media maelstrom, such as G. Eric Brunstad Jr., a partner in the Hartford, Conn., office of Bingham McCutchen. For the past seven years, he represented Marshall's family in the battle over his estate. In the wake of Smith's death, as the Hartford Courant reports, this notch on Brunstad's resume earned him a flood of media calls. As he related to a reporter on Friday:

"I went to the office on Thursday thinking I would be working on briefs, and the next thing I knew AP was calling, and then Larry King at CNN and MSNBC. Then it was The New York Times, The Wall Street Journal, the Fort Worth paper and People magazine. I didn't get back to my house in Avon until 12:30 at night and then, at 11:30 this morning, it started up all over again with Inside Edition and Fox News."

Leaving aside the lawyers in Smith's life as lovers and as litigators, there remain those legal professionals who were touched by her life more remotely. One, it would appear, is Terry L. Turnipseed, a professor at Syracuse University College of Law, who reportedly attended the Supreme Court argument and wrote several articles about the case. For whatever reason, he issued a statement, republished on PropertyProf Blog, in which he said of Smith's death:

"It's like someone took my heart out, put it in a food processor, turned it on, then put the shredded remains back in my chest, only they forgot that before they put my heart in the food processor they had been using it to dice spicy jalapeños, and so some of the jalapeño seeds are mixed up with my shredded heart, and so it burns, in addition to hurting because, you know, it's been shredded. That's how bad I feel after hearing this news."

The final word on Smith's legal legacy is years away. For the final word of this post, we return to Joanna Grossman's essay:

"There were many aspects of Anna Nicole's life that were unusual. ... But her litigious life makes her unusual as well. Lawyers, courts, and perhaps juries will now be left to sort out the legal morass she left behind."

February 12, 2007 | Permalink | Comments (4)

February 09, 2007

Lawyer Ratings Used Just 18 Percent of the Time

In this post, Rees Morrison briefly explores lawyers' usage of lawyer rating guides like Martindale-Hubbell, Super Lawyers, Chambers USA, Best Lawyers in America and Lawdragon. Morrison says that the Association of Corporate Counsel has found that between 2001 and 2006, "in-house lawyers look to these directories -- online or in print -- about 18 percent of the time in hiring lawyers."

Eighteen percent doesn't seem like a very high ratio. And it also leaves open numerous other options for learning more about lawyers, such as perusing their blogs (if they maintain one) or searching for articles they've written on Google, or Google Scholar. So if I were a lawyer evaluating listing in one of these ratings services (assuming that option were available), and I had to pay to list (I don't know whether payment is prerequisite to listings in the services Morrison cites), I'd weigh the value of the 18 percent usage against what must be at least 50 or 60 percent search-engine use by consumers and in-house counsel looking for lawyers.

February 9, 2007 | Permalink | Comments (0)

Depositions as a Grudge Match

Over at his Illinois Practice Blog, Evan Schaeffer posts about a decision by 7th Circuit Judge Easterbrook in Redwood v. Dobson concerning bad behavior by lawers in depositions, though "not as bad as the insult-riddled performance by Joe Jamail that incensed the Supreme Court of Delaware." (Not sure if this widely circulated Joe Jamail deposition is the same one).

But Easterbrook's opinion doesn't offer entertainment value only. He also recounts a list of "don'ts" that lawyers should abide at depositions. They include:

    * Asking harassing questions;
    * Feigning an inability to remember;
    * Pretending not to understand ordinary words;
    * Giving improper instructions not to respond.

And Schaeffer explains that Easterbrook's opinion explains the few circumstances in which a deponent can be instructed not to answer a question under the federal rules. "A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(4)." Being harassed isn't on the list, however; Easterbrook says that in some cases, the deponent may be entitled to "stalk out of the room."

February 9, 2007 | Permalink | Comments (0)

A Law Firm's Long, Slow Dissolution

It's been nearly 18 months since Coudert Brothers announced its intention to dissolve and five months since the firm filed for bankruptcy. Yet as this New York Times article, The Complicated End of an Ex-Law Firm (2/9/07), reports, the firm's unwinding "continues to be a complicated, messy affair." From the article:

Creditors and at least one former partner have filed lawsuits against the firm. Malpractice claims have accrued as well. There are allegations in court filings that three overseas lawyers sequestered money from the firm as it tried to pay off its creditors.

And the committee for unsecured creditors contends that payments to partners were done improperly at a time when the firm should have known it was insolvent, an assertion that lawyers for Coudert deny. Although it is difficult to determine just how much is at stake, the lawyer for the creditors’ committee, David Adler of the New York office of McCarter & English, said the amount could exceed $25 million.

The article describes some of the lessons taught by the Coudert experience, such as the risk for firms with global ambition and threats to middle-sized firms from consolidation by others. Even more, the Coudert case is showing that questionable business practices are never the right approach; many of these are now coming to light in the bankruptcy proceedings. 

The irony of all of this is that while, apparently, Coudert couldn't make enough money to survive, it's now making profits for one constituency: the law firms working on the complex bankruptcy.

February 9, 2007 | Permalink | Comments (1)

Dennis Kennedy Looks Into the Future of Legal Technology

At the beginning of each year, I eagerly anticipate legal technology guru Dennis Kennedy's legal technology trends, but this year, he's really outdone himself. Kennedy has so many thoughts about seven technology trends for 2007, that he's thus far devoted two posts to the topic, here and here, with still more to come. In any event, here's what Kennedy has to say about Trends 1-4.

For Trend 1, Kennedy sees a reaction to Microsoft; not necessarily a backlash but definitely at least a re-evaluation of implementation of Microsoft products. In that regard, he notes these subtrends, where firms will focus on:   

(a) deciding whether and when to upgrade to new Microsoft versions, (b) investigating whether to move away from Microsoft environments, and (c) the growing role of free, Open Source and Web 2.0 services.

In particular, Kennedy anticipates that alternatives to Microsoft like Linux and Macs will actually start to penetrate the legal profession in 2007, albeit slow. Says Kennedy:

Frankly, the legal practice is a Microsoft world, and I don't expect to see that change dramatically in 2007, but given the complexity and potential costs of moving to new Microsoft versions, we will see greater attention on non-windows options. By the end of 2007, I would expect to see a noticeable increase in the number of lawyers using Mac notebooks.

And open source applications and Web 2.0 will also provide viable options to Microsoft and other more costly applications -- even Adobe Acrobat, the gold standard for lawyers for electronic documents. 

Trend 2 concerns electronic discovery, and here, Kennedy thinks that we've underestimated the long term impacts. He writes:

However, let me be clear that, as has been said before about the Internet, we overestimate the short-term impact of electronic discovery, but we greatly underestimate the long-term impact of electronic discovery. I’ve read recently complaints of attendees at the LegalTech New York show that 90% of the vendors called themselves e-discovery vendors, with the implication that EDD was being over-sold and over-hyped. There is a clear resistance from lawyers to electronic discovery and sometimes this attitude is manifested by referring to EDD as a fad or hype.

While, as I’ve said many times before, the concepts in electronic discovery are straight-forward and EDD should be seen as evolutionary rather than revolutionary, the details, the tools, the practical questions, and the application of law and rules to specific facts can be confusing, complicated and challenging. However, we are not going back to a world of paper-based discovery. The e-discovery ship has set sail, and the wishful thinking of resistant lawyers will not turn it back around.

Other issues for firms to consider with electronic discovery are: (a) basic EDD tools for small cases, (b) the growing role of litigation support managers, and (c) the availability of "big iron" tools for e-discovery.

In Trend 3, Kennedy expects that firms will start to bring technology decisions to the executive committees or to managing partners for decision. As for subtrends, which will pick up momentum on technology decision-making, these include:

(a) audits and efforts to find cost savings, (b) applying traditional business principles, and (c) refocusing on outsourcing.

Finally, Trend 4 describes Kennedy's predictions about security and disaster recovery, which Kennedy says that firms will finally start taking seriously:

In 2007, there is a growing realization that security and disaster recovery must be top priorities that require continuing attention, and that the two areas are inextricably related. While we cannot predict the future with certainly, there's little doubt that we will see some unexpected security and other disasters that will cause serious problems and be largely unexpected.

You need to read Kennedy's posts in their entirety, because they provide a great roadmap for what smart firms should be looking at with respect to technology in 2007.

February 9, 2007 | Permalink | Comments (4)

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