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March 30, 2007

Liveblogging Sedona E-Discovery Conference

Chicago technology lawyer Evan D. Brown, author of the blog Internet Cases, is in Memphis this week, attending the Sedona Conference Institute on e-discovery. Not only is he attending, he is liveblogging his notes from the conference, which, as he observes, features an A-list of e-discovery experts, including U.S. District Judge Shira A. Scheindlin, author of the watershed Zubulake opinions, and Ken Withers, senior judicial education attorney at the Federal Judicial Center (and, I can boast, my co-author of a 1977 Internet guide).

Brown's notes reflect that Scheindlin, in her keynote yesterday, discussed the changes brought about by the December e-discovery amendments to the Federal Rules of Civil Procedure. The most important change, she suggested, is the initial discovery conference, at which the lawyers must discuss four new topics: preservation of evidence, issues relating to disclosure of electronically stored information, form in which information is to be produced and procedures for handling inadvertent disclosures. For the conference to be effective, she said, lawyers must be collaborative, not adversarial.

As I write this, Brown's liveblogging continues, so check back for his full report.

March 30, 2007 | Permalink | Comments (1)

It's Official: The Top Law Schools

Earlier this week, we gave you a sneak peak at the U.S. News & World Report 2008 rankings of the top U.S. law schools. Today, the magazine released the official list. I am relieved to say the sneak peak got it right. Eleven schools rank in the top 10:

1. Yale University
2. Harvard University
2. Stanford University
4. New York University
5. Columbia University
6. University of Chicago
6. University of Pennsylvania
8. University of California-Berkeley
8. University of Michigan-Ann Arbor
10. Duke University
10. University of Virginia

The survey also lists tier 3 and tier 4 law schools.

March 30, 2007 | Permalink | Comments (1)

10 Worst Sins of Legal Reporting

Mark Obbie, director of the The Carnegie Legal Reporting Program @ Newhouse and former executive editor of The American Lawyer magazine, has assembled his list of the 10 deadliest sins of legal reporting. He prepared it for students in his course, News Perspectives on Crime, Courts and Justice, but it has relevance to anyone who writes about the law. His top 10 don'ts:

10. Assume you know anything.
9. Have fun with numbers.
8. Indulge your criminal state of mind.
7. Live off handouts.
6. Talk down to readers and viewers.
5. Throw gang signs.
4. Followup failure.
3. Genuflect to the black robes.
2. Play scorekeeper.
1. Join the true believers.

Check out Obbie's post for his full thoughts on each item. 

March 30, 2007 | Permalink | Comments (3)

Your Cell Phone, Your Psyche

Is that a Nokia in your pocket, or have you just lost your ambition?

Next time you flaunt your mobile phone in front of a roomful of business associates, consider what it may reveal about you. A study of cell phone usage Down Under links certain types of people with specific brands of phones. That Nokia? It suggests you are a family-minded, middle-aged manager. Got a Sony Ericsson? You are likely to be an ambitious and success-driven young man.

As reported this week in The Sydney Morning Herald, the study, conducted by Panorama and released by Nielsen Media Research, found that while all makes of cell phones have a wide spread of customer types, some groups are more attracted to certain brands than others. So what does your cell phone say about you?

• Nokia: Family-minded. Middle-aged managers. Balance seekers. Health conscious.
• Motorola: Fashion conscious. Under 24. Fun seekers. Individualistic.
• Sony Ericsson: Ambitious young men. Professionals. Success driven. Individualistic.
• LG: Favorite of moms. Stay-at-home parents. Success driven. Harmony seekers.
• Samsung: Young women. Career focused. Success driven. Fun seekers.

Unfortunately, no word on BlackBerry. How about: Obsessive. Disruptive. All thumbs.

March 30, 2007 | Permalink | Comments (0)

Podcast: Misconceptions About E-Discovery

When we spend as much time on a topic as we do these days on e-discovery, we're bound to start mixing fact and fiction. This week on the legal-affairs podcast Lawyer2Lawyer, we consider some of the more striking misconceptions lawyers have come to believe about e-discovery. To help us sort fact from fiction are two experts in the field, Stephen D. Whetstone, a former litigation attorney and now VP of client development and strategy for the e-discovery company Stratify, and Craig Ball, an attorney and internationally known e-discovery and computer forensics consultant. My co-host, J. Craig Williams, is away this week but will be back for next week's show.

Download or listen to the show from this page.

March 30, 2007 | Permalink | Comments (0)

March 29, 2007

Are Companies Really Firing Law Firms?

Law.com affiliate blogger Rees Morrison takes up the question Are In-House Counsel Really Dumping Law Firms Abruptly? (Legal Times, 3/27/07). His response: It's hard to tell. Morrison says that there are many reasons that companies part ways with counsel. Sometimes law firms and law departments grow apart, key partners develop different practices or in-house counsel take over the work. Of course, sometimes firms are fired for blunders, such as high cost, poor communication and incompetence. In one instance, a company stopped using a firm that would not complete a company's diversity survey.

The trouble with surveys that report on law firm firings is that "they have done a lousy job obtaining reliable numbers and percentages. " They don't show if a company actually fired a firm, or just thought about doing it. And surveys don't show if it's smaller firms that were let go, either because their billings were small or they were just brought in for a single transaction.

Morrison concludes:

It's no surprise that law departments decide, based on a single dramatic mistake or a series of avoidable missteps, to fire a firm. But despite the gaggle of surveys that have pronounced on this subject, the number of firms that a given law department fires each year is probably a small fraction of all of its law firm relationships. We need better surveys and clearer thinking for us to understand the actual incidence of abrupt terminations of law firms and the performance- or capability-related causes of those firings.

In my view, whether the surveys are right or wrong is irrelevant. The fact that companies do fire firms, even if it's a far smaller percentage than reported, or think about doing so shows that there's still dissatisfaction with how firms are performing. If I were a partner at a large firm, I wouldn't be spending my time analyzing these surveys; I'd be surveying my own clients and finding out what I could do to better serve them.

March 29, 2007 | Permalink | Comments (0)

RIAA Faces Some Pushback

For a while, it seemed that the RIAA's strategy of suing large numbers of people who'd allegedly downloaded music illegally was working. Rather than spend money to fight the suits, many found it more financially favorable to settle. But this week, RIAA has received some resistance in two matters. In one, it eventually decided to back down.

First, Al Nye the Lawyer Guy reports here that the University of Maine has told the RIAA to "take a hike" in response to the group's demand that the school turn over names of students who allegedly downloaded copyrighted materials.  And this post at Legal Pad tips us off to a powerful letter that a Visalia, Calif., solo "slung against the record-industry goliath," causing it to back down. The post includes choice excerpts from the letter, such as:

Your clients take the position that my middle-aged, conservative clients should speculate regarding the identity of persons your clients claim used their AOL account to download pornographic-lyric gangsta rap tracks as predicate to possible case resolution. In an age of Wintel-virus created bot-farms, spoofs, and easily cracked WEP encrypted wireless home networks (among other easy hacks), the only tech-savvy response to such a request is, ‘You've got to be kidding.’”

After receiving the letter, RIAA dismissed the lawsuit, though there's no word on whether the client will continue to pursue the attorneys' fees sought from RIAA in the letter.

March 29, 2007 | Permalink | Comments (0)

What a Difference a Day Makes...

We all know the saying "what a difference a day makes." As Eugene Volokh describes in this post, a day made a huge difference for a defendant convicted of statutory rape because the court adopted the statutory rule for computing the victim's birthday (i.e., the actual day) instead of the common law rule, i.e., the day before the actual birthday. In the case Volokh describes, a defendant engaged in nonconsensual sex with a victim the day before her 16th birthday. Under the common law rule, the victim would have been deemed to have turned 16 that day, thus enabling the defendant to defeat the statutory rape charges. Instead, the court held that Pennsylvania law, which provides that a person does not turn 16 until her birthday, would apply, which meant that the victim was under age on the date of the assault, thereby making him guilty of statutory sexual assault.

Volokh doesn't dispute the conclusion, per se, but rather the rhetoric that accompanies it. He writes:

But I don't quite see how all this rhetoric about "pervert[ing] justice," "maximum protection to children 16 and under," and "the greatest attainment of protection of society against child sexual predators" fits with the case in which the debate is about one day. Hooks would have not been punished under the indecent-assault-under-16 law if the incident had happened one day later; everyone agrees with that. The law would not have treated the 16-year-old as being in need of protection against consensual sex (nonconsensual sex is a different matter, but he was charged on that separately, and partly convicted and partly acquitted). How would there be any material loss of "protection of society against child sexual predators" if the court interpreted the law as allowing the 16-year-old-minus-1-day as being capable of consenting just as the 16-year-old is capable? Where would be the "perversion of justice" in such a holding? One could argue that there may be perversion of justice in changing a rule to a defendant's detriment, when the defendant could have reasonably relied on it (highly unlikely here, but possible in my hypothetical about the lovers who let out their sexual frustrations in doing legal research about when they can lawfully have sex). But -- again focusing on the statutory rape charge at the heart of the case, and not on the charges that required a showing of lack of consent -- it's hard to see perversion of justice in sticking with an old rule that would set the age of consent one day earlier than the majority thinks reasonable.

Mike Cernovich of Crime and Federalism also comments on the case. From Cernovich's perspective, the defendant was essentially convicted on a technicality. He writes:

This principle is illustrated nicely in a case from Pennsylvania. A man was convicted of statutory rape for having consensual sex with someone who, in just a few hours, was legally able to consent to sex. Convicted on a technicality. I certainly support statutory rape laws. Children should not have their youths misspent by adults. But convicting someone for conduct that, in just a few hours would be legal, is silly and unjust. Yet the court nonetheless affirms the conviction.

As for me, I continue to marvel at the unusual facts underlying this case. What are the chances of a defendant assaulting someone the day before she turns 16 (is it 1/365, all other things being equal)? Can you think of any other lawsuits that involves unusual or coincidental facts that you wouldn't otherwise expect?

March 29, 2007 | Permalink | Comments (4)

Should the Florida Bar Regulate Taste?

Chuck Newton, of Spare Room Tycoon, posts on the Florida Bar's latest effort to regulate taste by prohibiting divorce attorney Steve Miller from running a straight talking ad urging clients to contact his firm if they need help "getting rid of the vermin [you] call a spouse. Here's where Newton comes out on the issue:

The point of the matter for me is this. I do not like the spot. (I do not like it Sam I Am, I do not like when lawyers that act like hams). But, I do not like Judge Judy, Murry, or Jerry Springer (when it was on). I flip around the channels at lunch, and if I see one more trashy girl going ballistic over which one of the many men who might be the father of her child, awaiting the paternity test, (and, I am not just talking about Anna Nicole Smith), I think I might just off myself. It is not what motivates me. But it does to some people. Some people, like me, are turned off by this type of TV spot. Some people gravitate toward the hyperbole. Further, some people desperately need the services, at the price, this lawyer is offering. Nobody has demonstrated he is doing a bad job for his clients. Nobody is accusing him of not doing what he says he will do. No client is filing a grievance asking him to stop the ad. Only the Bar-tenders are not happy.

I also posted about Miller here, at my home site, MyShingle. I agree with Newton; I can't discern any consumer-protection reason for the bar's ban. Moreover, to the extent that the Florida Bar believes that consumers may be mislead by the ad, it can fight back YouTube, the same tool used to post Miller's site online. But the bar doesn't have to prohibit the ads entirely.

March 29, 2007 | Permalink | Comments (0)

March 28, 2007

Of Death Threats and Blog Law

When I first read about the death threats against blogger Kathy Sierra, I immediately wondered how the legal blogosphere might respond. Sierra is not a lawyer, but the implications of what happened to her are decidedly legal. The threats ignited the blogosphere, as Don Fost well summarizes at The Tech Chronicles. Among the blogosphere's legal contingent, Maine attorney Al Nye suggests that lawyers who blog should gather round in support of Sierra. He is right, of course, but apart from expressing our abhorrence of the threats she received, what actions, if any, should lawyers take?

One immediate action, suggests Denise Howell at her blog Lawgarithms, should be to re-examine the issues surrounding legal responsibility for blog content and, in particular, to reconsider Section 230 of the Communications Decency Act. Howell explains:

"I have concerns about its ability to adequately protect each of the individuals who might confront, but by rights should not face, legal consequences in this sort of situation.  I have concerns about a court's willingness or ability to analogize this sort of situation to the existing body of Section 230 jurisprudence.  Those concerns are of course amplified as to parts of the world where Section 230 does not apply and has no local equivalent."

Without doubt, our response needs to be measured. The threats, as I understand it, were anonymous. But blame is being thrown in many directions. At the blogher blog, Ronni Bennett has a thoughtful discussion of the charges and counter-charges. What happened to Sierra is indefensible, but some are being implicated as co-conspirators when perhaps they should not be. That is Howell's concern, and it suggests to me that we not jump too quickly towards deciding guilt or adjudging remedies.

March 28, 2007 | Permalink | Comments (0)

Patently Uncool: USPTO Breaks URLs

The U.S. Patent and Trademark Office is getting static from patent lawyers over its discontinuance of static URLs in its public Patent Application Information Retrieval system, known as PAIR. As Massachusetts IP lawyer Erik J. Heels explains on his blog, patent applicants, practitioners and the public use the public PAIR to check the status of pending and issued patent applications. (A private PAIR system is restricted to registered users, mostly patent professionals.) This public system provides an easy way for patent lawyers and their clients to monitor applications, Heels says.

"My patent and trademark law firm, Clock Tower Law Group, routinely sends static URLs to clients so that they can monitor the progress of their own applications. We also monitor all of these URLs. One of the reasons that we proactively monitor URLs for our clients is because we believe that it is better to prevent problems before they get out of hand. For example, one of our client's trademarks was accidentally assigned to Viacom due to a USPTO error. If we had not been monitoring our client's trademarks, then this problem may not have been discovered."

Over the weekend, however, the USPTO replaced PAIR's static URLs with dynamically generated ones. The URL is good for the duration of a browser session, but once you close your browser, the URL no longer works. Heels writes:

"It's bad enough that neither the Patent Office nor the Trademark Office offer ATOM or RSS feeds for trademark status (TARR) and patent status (PAIR), but it's unforgivable that the Patent Office broke millions of static URLs over the weekend without notice (or apparent reason)."

At the blog Patently-O, Dennis Crouch also discusses the change. "What would really be useful," he adds, "would be to have a system that allows for automatic updates of PAIR data, such as an RSS feed."

Heels, meanwhile, urges others to e-mail the USPTO Electronic Business Center and urge it to restore static URLs.

March 28, 2007 | Permalink | Comments (0)

And Now, Most Underrated Law Schools

Just in time for this week's anticipated release of the U.S. News & World Report rankings of the nation's best law schools, Vault has released its list of the 25 most underrated law schools. Vault bases the rankings on the votes of 512 legal recruiting professionals, including law firm recruiting managers, law firm hiring partners and corporate counsel. They were asked to name law schools that, based on their experience as hiring managers, are underrated. I won't steal Vault's thunder by reproducing the entire list here, but the top 10 most underrated law schools are:

1. Emory University School of Law
2. Fordham University School of Law
3. Howard University School of Law
4. Chicago-Kent College of Law
5. University of Oregon School of Law
6. George Mason University School of Law
7. University of Illinois College of Law
8. William and Mary Law School
9. Vanderbilt University Law School
10. University of Georgia School of Law

My law school, Boston College, showed up on the list as No. 15, with the comment that it is "smarter than is ranked." Funny, people often say that about me, as well.

March 28, 2007 | Permalink | Comments (5)

Sneak Peak: The Top Law Schools

Several bloggers are reporting a leak of the U.S. News & World Report 2008 rankings of the best law schools. The source appears to be this thread on the pre-law board at Law School Discussion. Here is how the top 21 stack up against the 2007 rankings:

This comparison shows some minor shuffling among the elite. Virginia, for example, went from 8th place to 10th, although it moved only one line down on the list. The University of Texas dropped from 16 to 18. George Washington swapped places with Boston University, with the former dropping from 19 to 22 and BU moving up from 22 to 20.

The official U.S. News rankings are slated for release on Friday. We are unable to confirm that this is, indeed, the final 2008 list. Read the above with that in mind.

March 28, 2007 | Permalink | Comments (0)

March 27, 2007

Can Justice Department Official Monica Goodling Take the Fifth?

Monica Goodling, a Justice Department official, invoked the Fifth Amendment when called to testify under oath before a Senate panel investigating the December 2006 purge of eight U.S. Attorneys. But bloggers aren't remaining silent about Goodling's decision.

As this account from the New York Times (3/26/07) reports:

Monica Goodling, the Justice Department’s White House liaison, who helped coordinate the dismissals, asserted her Fifth Amendment protection against compelled self-incrimination in a letter that her lawyer sent to the Senate Judiciary Committee. In the letter, Ms. Goodling’s lawyer, John M. Dowd, questioned the fairness of the panel and cited the possibility that she might be a witness in a criminal inquiry, although there is currently no known criminal investigation into the dismissals.

Some bloggers either don't buy or understand Goodling's approach. At Above the Law, David Lat asks:

We're going to play unfrozen caveman legal commentator, and ask: Based on what we currently know about the U.S. Attorney firings, how could Goodling's testimony expose her to criminal liability, to place her in a position to invoke the Fifth Amendment? What are we missing here?

Orin Kerr says this:

I'm not sure I follow the rationale here. The Fifth Amendment privilege is available if the witness has reasonable ground to believe that her testimony will be used against her to prove an element of a crime. Brown v. Walker, 161 U.S. 591, 598 (1896). What crime might Goodling have committed? I'm also puzzled by the comparison to the Libby case. Libby was prosecuted and convicted because he lied under oath, not because he admitted to criminal activity. Is Goodling taking the Fifth because if she testifies under oath she would lie and face perjury charges rather than tell the truth? If so, that's not a valid basis for the privilege. See, e.g,, United States v. Seewald, 450 F.2d 1159 (2d Cir. 1971). Or perhaps she is taking the Fifth because she lied before, and her testifying truthfully this time will reveal her earlier lies? UPDATE: According to the first page of the letter Goodling's counsel sent to the Senate, the rationale for taking the Fifth seems to be that Congress isn't being very open-minded and Democrats don't trust the Bush Administration. That's a new one; I don't think I've ever come across that one before. (Maybe there is more on the other pages of the letter not yet available?)   ANOTHER UPDATE: A few courts have discussed the theoretical possibility that there is some kind of "perjury trap" defense that might apply when a witness is hauled before a tribunal just to see if the witness can be tricked into comitting perjury. Courts have hinted that setting such a perjury trap might violate the Due Process clause. However, I don't think any court has ever actually found a perjury trap; courts invariably find a government interest that allows the testimony, and generally do not need to reach whether such a defense exists. See, e.g., Wheel v. Robinson, 34 F.3d 60, 67-68 (2d Cir. 1994). Perhaps that's what Goodling's lawyer has in mind?   YET ANOTHER UPDATE: The link to the letter now includes the entire letter, which in turn relies heavily on Ohio v Reiner. I don't see how Reiner is helpful. That case just says that a person can both claim that they are innocent of any offense and yet also claim the Fifth Amendment privilege. Well of course; a person can say whataver they want about their culpability without changing whether they have a privilege. But the Fifth Amendment issue is whether a person has substantial reason to fear that their truthful testimony will help lead to them being prosecuted. Goodling's letter doesn't give a legally valid reason for that fear, at least as far as I can tell.

On the other hand, White Collar Crime blog reminds us:

Now if this had taken place in a corporation that was under investigation, legal counsel for the corporation would be calling the parties in and asking the employees to answer questions. Either internal or external counsel would be investigating to determine if there was wrongdoing involved in the activities.  In all likelihood the individual would have no attorney-client privilege in a world where deferred prosecution agreements allow the corporation to act as mini-prosecutors and turn over evidence of the individuals to the government.  And if the individual refused to speak with counsel - the result would be - you're fired.  Will that happen here? And perhaps, more importantly, should that happen here?  What it is important to remember here is that we are all entitled to exercise constitutional rights, even those who work at the Department of Justice.

By the way, if you're looking for a way to track the emerging developments regarding the U.S. Attorney firings, check out the new blog, Gonzales Watch.

March 27, 2007 | Permalink | Comments (0)

Supreme Court Considers Liability for Secondary Actors in Securities Fraud

Investment banks and law firms that handle corporate transactions will be watching the Supreme Court closely next term as it addresses the question of whether "secondary actors" like law firms, which facilitate fraudulent transactions, can be sued for securities fraud. Yesterday, the Supreme Court announced that it accepted review of Stoneridge Investment v. Scientific Atlanta, an 8th Circuit decision where the court held that civil liability for damages does not lie against defendants who merely "aid and abet" securities fraud unless those defendants actually made a mistatement. The 8th Circuit decision conflicts with the 9th Circuit's decision in Simpson v. AOL Time Warner, Inc., et al., 452 F.3d 1040 (9th Cir. 2006), which held that secondary actor can be held liable if some if its conduct had "the principal purpose and effect of creating a false appearance of fact" in support of a scheme to defraud."  (For a good overview of these issues, see this article, Expanded Liability Under Section 10[b]).

What's interesting, however, is that what may have finally nudged the Supreme Court to accept review of Stoneridge isn't the split between the 8th and 9th Circuits alone but, rather, a recently issued 5th Circuit decision in an Enron-related case. As Lyle Denniston discussed in this analysis at SCOTUSBlog, the 5th Circuit threw out a class action against various banks and brokerage firms for transactions related to Enron's defrauding of investors, finding that "the banks and brokerage firms had not engaged in a "deceptive act" under securities fraud law. From Denniston's post:

The Fifth Circuit said that the "banks [and brokerage firms) owed no duty to the [investors] other than the general duty not to engage in fraudulent schemes or acts (that is, the duty not to break the law)." Thus, it concluded, investors could not have relied upon the banks and brokers' failure to disclose publicly the nature of the Enron scheme in which they allegedly took part...Making third parties liable in the circumstance in this case, the Circuit Court said, "gives rise to confusion about the extent of secondary actors' obligations and invites vague and conflicting standards of proof in divers courts."

Denniston's post, which was written before the Supreme Court's cert grant in Stoneridge, suggested that the 5th Circuit's decision, which aligned with the 8th Circuit, may have minimized the conflict, particularly because the 9th Circuit decision had become moot. But Denniston also noted that the Enron case was headed for the Supreme Court, and because of that, the Court might decide to accept review of a case that addresses similar issues already pending review. And apparently, Denniston was right.

March 27, 2007 | Permalink | Comments (2)

Paths for Fulfillment in Law

As Arnie Herz continues to remind us, lawyers crave fulfilling work "that inspires, energizes and fulfills them." The question is, where can they find it at a time that many large firms aren't doing much to address those desires? Herz addresses that question, directing us to new innovative law firms such as Axiom Legal, which has capitalized on lawyers' unmet desire for fulfilling work, as well as companies' concerns about rising legal costs. So take a look at the Axiom Legal Web site; perhaps this concept might work for you.

March 27, 2007 | Permalink | Comments (1)

Article Database for Lawyers

Over at Law Sites, Bob Ambrogi tips us off to a free resource for lawyers, Litilaw, which provides easy access to hundreds of articles written by lawyers for CLE programs or for publication in legal periodicals. As Ambrogi describes: 

The site focuses on collecting articles of interest to litigators and organizes them under more than 30 substantive and procedural categories. Search the full text of articles or browse them by categories or latest additions. Full articles are available only in PDF format.  Litilaw provides a synopsis of each article, but the full text resides offsite at the article's original location -- usually a CLE provider or law firm. In fact, the site invites attorneys to add links to their own articles.

I've noticed that many law firms have been including valuable articles at their Web sites -- but they're often difficult to find through search engines. To the extent that Litilaw facilitates access to materials otherwise buried at law firm sites, it's a site that you'll want to add to your cache of online research resources.

March 27, 2007 | Permalink | Comments (0)

March 26, 2007

Boom Time for In-House Budgets

Over the past two years, budgets for in-house legal departments have gone up by more than 20 percent -- and that is not counting the costs of litigation. This is the finding of the 2006 Census of In-House Counsel released last week by the Association of Corporate Counsel.

"The budget increases were seen among departments of all sizes, with smaller departments (six attorneys or fewer) showing an average budget increase of more than 30 percent. More modest increases were seen in litigation budgets, increasing by approximately 10 percent. One of the most notable budget increases existed within online resources, with departments of all sizes experiencing an average budget increase of 30 percent."

The survey found that in-house counsel's use of online products and services for compliance and department management soared.

"More than 40 percent of companies used online compliance training programs, with an additional 40 percent planning to do so in the next three years. Electronic document management systems are currently being used by 34 percent of companies, with an additional 24 percent planning to implement these systems in the next three years."

The survey collected responses from nearly 3,500 in-house counsel at some 2,700 companies. About a third of the respondents were chief legal officers. You can read the executive summary for free or purchase the full survey for $750.

March 26, 2007 | Permalink | Comments (0)

Blogging Legal Conferences -- NOT!

In January, Kevin O'Keefe at his lexBlog Blog bemoaned the lack of blogging from the LegalTech New York legal-technology conference. This week, he twice raised the same concern, first about the limited number of blog posts from ABA TechShow and then about the grand total of two blog posts from the Legal Marketing Association's annual conference. "I'm concerned about the lack of blogging from lawyers and legal technology professionals while attending technology conferences," O'Keefe writes. Why? He cites lost opportunities for collaboration and learning, marketing and promotion of the conference for future years.

In response to O'Keefe's January post of LegalTech, I wrote here that I disagreed with his conclusion that this paucity of blogging speaks poorly of the legal industry's adoption of new technologies. For one reason, I said, these conferences consume so much of an attendee's time that they leave little room for blogging. But as the evidence piles up, I am beginning to see that O'Keefe is right. The consistent drought of blogging from legal conferences is a reflection on our industry and our slowness to adopt new technologies fully. In other fields, it is common to find live reporting from important conferences not only through blog posts but through audio and video posts as well. I did not attend TechShow this year, but J. Craig Williams and I did post a podcast preview at Lawyer2Lawyer. For the next conference I attend, my goal is to capture some audio and video snippets to post -- perhaps interviews from the exhibit hall floor, perhaps excerpts from presentations.

O'Keefe is correct when he says: "We can talk a good talk about being tech savvy and hip. But our conduct lags behind other industries big time."

March 26, 2007 | Permalink | Comments (1)

Blawger on a Mission in Afghanistan

When JAG lawyer Scott D. Delius launched his blog from Afghanistan, Afghanistan JAG, in December, he did not intend it to become a key link in a humanitarian mission to provide clothing and shelter for the Afghan people. But that is exactly what happened, as reporter Meredith Hobbs writes today in the Fulton County Daily Report. Delius, a solo lawyer in Atlanta, put his practice on hold in October to go to Afghanistan with the Army National Guard. His official mission is to help establish a military justice system there, but he soon found himself taking on a personal mission.

Last month, Delius took part in a humanitarian visit to a local village. What he saw there, as he wrote on his blog, left him "in a fog" and "overwhelmed." As he described and showed through his photographs, he found children in the freezing Afghan winter barefoot and poorly clothed. "There's this overwhelming urge to somehow save all of them," he wrote, adding, "I know we are going to try and help." That evening, he sat down at his computer and sent an e-mail to friends and colleagues asking for clothing, shoes and tents. Reporter Hobbs tells what happened then:

"Within a week and a half, people had contributed more than $4,000. Delius’s wife, Allyson Garnett, initially planned to use the money to buy clothing, but then the donations of clothes, shoes, diapers and stuffed animals started coming in.

"'It turned into a campaign across the legal community,' Garnett said.

"Several Atlanta lawyers have spearheaded contribution drives. ... Groups in Tennessee, Oklahoma and New York have also organized collections.

"Garnett has used the money instead to cover the costs of shipping everything to Delius’s base in Afghanistan. [One firm] alone shipped off 70 boxes of clothing and other donations, which take a couple of weeks to reach Kabul. So far, 10 boxes of clothes, shoes and other contributions, which have been sorted by age and gender have arrived, and Delius expects to receive about 200 more."

With this relief mission well underway, Delius has learned of another nearby village even worse off. That means that his mission continues and, thanks in part to his blog, his stateside colleagues can continue to follow it and participate.

March 26, 2007 | Permalink | Comments (3)

Blawg Review Goes to the Races

When I hear the number "101," I think of an introductory college course in just about anything. When Kentucky divorce lawyer Diana L. Skaggs hears that number, she conjures up images of dalmatians. So when asked to host Blawg Review 101, those black-spotted dogs were her first thought for a theme. Problem was, Blawg Review 99 had already doggedly pursued the canine connection. This being springtime in the Bluegrass State, Skaggs had another idea -- breed dalmatians to horses and race them! Thus, she writes, "for blawg carnival, it is no stretch for us to host a race of dalhmorses, or shall we call them horsatians?"

Whatever you call them, they sure can run. Skaggs takes us on a tour of the week's best blawg posts, from the starting gate to the finish line. Along the route, she also manages to provide a lesson in how to host Blawg Review -- a lesson I might call Blawg Review 101.

March 26, 2007 | Permalink | Comments (0)

March 23, 2007

Improving the Image of Lawyers, One Coca-Cola Ad at a Time

You've probably seen videos like this one, where two Coke brand managers seek advice from counsel about a frivolous lawsuit. As many now know, the videos were part of a viral marketing campaign by Coca-Cola Zero, intended to capitalize on the public's willingness to see lawyers looking "tragically clueless."

But what you may not have realized is that the lawyers featured on the videos are not acting. Rather, as described in this article, the lawyers were "set up" -- or punked through an elaborate scheme:

When Coke marketing execs decided on the litigation theme, they tapped the previously unidentified acting skills of James A. Dudukovich, Coke’s marketing counsel for North America. His job was to convince six of Coke’s in-house attorneys and two outside lawyers to offer legal advice to a pair of brand managers who wanted to sue their own company.  “As you might imagine, when the general concept was presented, I got very nervous because it’s a sensitive thing to execute,” Dudukovich says, ticking off potential problems: fraud, ethical conduct issues, code of business obligations.  The end result: Dudukovich targeted unsuspecting lawyers who he thought would provide amusing on-camera reactions while—mostly—keeping their cool. He then prepped the actors, educating them about legal terms, hot-button issues and the practice areas of the lawyers they’d be duping.

Apparently, Coke's YouTube ads have grown so popular that they're now being shown on national television. I don't know whether the ads will increase the popularity of Coca-Cola Zero. But ironically, by trying to make lawyers look bad, in my view, the ads actually have the effect of  improving our image. After all, it's hard to dislike someone who's a good-enough sport to appear foolish on national television. And therein may lie the lesson for the bar in trying to improve the image of the legal profession: Rather than take ourselves so seriously, maybe lawyers ought to step back sometimes and just laugh at ourselves. 

March 23, 2007 | Permalink | Comments (0)

Did a Defense Attorney Go Too Far?

When does conduct in the name of zealous representation cross the line? That's a question that the Wisconsin Supreme Court may soon confront in the matter of Stephen Hurley, who is the subject of a bar grievance proceeding for use of deception to gather evidence in the course of defending a client. CNN has this report (3/22/07).

According to the report, Hurley's client had been charged with assault and child pornography but insisted that his accuser, a teenage boy, was lying.  Hurley sought to obtain the computer to aid his client's defense, so he hired a private investigator.  Posing as a computer company, the investigator sent the boy a letter, offering him a new computer in exchange for his computer.  The investigator traveled to the boy's home to pick up the computer, which housed "hundreds of pornographic images."  Hurley argued that the images on the boy's computer showed that he'd learned about child pornography on his own rather than through the defendant.

The judge never admitted the evidence, finding that pornography viewed in 2004 was not relevant to the boy's allegations regarding the assault that had occurred two years earlier.  But that wasn't the end of the matter.  The state disciplinary board filed charges against Hurley seeking a private reprimand and alleging that he engaged in "dishonesty, fraud, deceit or misrepresentation by approving the hoax." But Hurley's attorneys contend that the deception was the only means available to Hurley to obtain this information and that Hurley's actions were no different from tactics employed by prosecutors in their investigations. 

In this particular case, I think Hurley crossed the line.  Before engaging in deceptive tactics, Hurley should have at least attempted to subpoena the computer.  (Some experts quoted in the article say that routine discovery would have been impractical, but I'm not sure why.)  Moreover, the complainant was only a teenager who was particularly susceptible to the investigator's deception.

I realize that prosecutors also employ deceptive tactics and overreaching, and as recent events show, they are also coming under fire when they go too far.  But that's not excuse.  Moreover, unless defense attorneys stay above the fray, they weaken their credibility in challenging unethical conduct by prosecutors.

March 23, 2007 | Permalink | Comments (4)

Pet Food Lawsuits: What Are the Damages?

Back in December, we posted about the question of the law providing for compensation for loss of companionship and emotional distress associated with loss of a pet. Now, with the initiation of class action lawsuits against pet food companies for sale of tainted food, courts may once again revisit the matter of compensation for loss of companionship.

At the Milwaukee Injury Board, David Lowe takes a crack at describing the types of damages that may be available to pet owners. As Lowe says, the answer is complicated, because damages are determined by, and differ significantly, depending upon state law. Lowe writes:

The answer is complicated by the question of which jurisdiction's law will be chosen to determine the owners' remedy.  The manufacturer is based in Ontario, Canada, the batch of food originated from its plant in New Jersey, and the victims are dispersed around the country.  In Wisconsin, the Supreme Court held in a 2001 case (Rabideau v. City of Racine 243 Wis.2d 486, 627 N.W.2d 795) that public policy precluded a pet owner's claim for emotional damages based upon the tort of negligent infliction of emotional distress in connection with a negligent destruction of a companion dog. Absent an intent to inflict emotional harm on the owner, there is no remedy for the owner's emotional injury. Unfortunately, the sole remedy is for "property damage", probably measured by the market value of a new animal of the same breed.  Apparently, Tennessee has passed a statute allowing recovery of up to $4,000 for loss of companionship of a pet due to negligence.

Lowe notes that a class action related to harm to pets is a case of first impression and concludes by recommending that "this may be the appropriate time to test the old assumptions and make some new law in this area."

March 23, 2007 | Permalink | Comments (1)

Drawbacks to Offshoring?

For the past few years, outsourcing to India (or offshoring) has been a topic of much buzz, though despite the hype, some have questioned whether offshoring really has traction. Now, a post comes from Rees Morrison that identifies some of the potential drawbacks of offshoring document review to India.

Morrison's post draws from an article by Timothy Mahoney, who offers several arguments against offshoring. Specifically,

Mahoney points out that "Indian lawyers do not undergo the same training as U.S. lawyers.” Further, "there is no nationally recognized law examination required to practice law in India." Then too "Indian lawyers are unfamiliar with U.S. legal procedures and discovery mechanisms." Three other challenges are specific to litigation support. In India, communications between clients and in-house counsel are not protected by privilege, "Indian lawyers are not accustomed to reviewing documents for privilege" and "Indian lawyers are not familiar with large-scale electronic discovery." He also asserts that there may be higher ethical obligations regarding supervision of off-shore attorneys.

What's your view -- does your law firm or company outsource projects to India? Why or why not?

March 23, 2007 | Permalink | Comments (1)

March 22, 2007

Fair-Use Showdown at the YouTube Corral

The take-down provision of the Digital Millennium Copyright Act is under attack on two fronts, both involving videos posted to and then removed from YouTube. The DMCA says that a Web host is protected from copyright liability if it removes material alleged to be infringing. Critics say YouTube is too quick on the trigger even in the face of a legitimate claim of fair use.

Brooklyn Law School visiting professor Wendy Seltzer launched the first foray. As a lesson for her law students, she clipped the NFL's copyright notice out of the Super Bowl broadcast and posted it to YouTube -- the copyright notice, not the game. Within five days, YouTube removed it, notifying her that the NFL claimed the clip infringed its copyright. In adherence to the DMCA's counter-notification process, Seltzer sent YouTube a counter-notice, asking it to restore the video, which it did. But the NFL again demanded that YouTube remove the video, and, once again, it complied. (Seltzer has compiled all her blog posts detailing this saga on a single page of her blog.) Yesterday, Seltzer told the Wall Street Journal's Law Blog that she has not decided whether to sue the NFL, adding, "I could be persuaded that this is a good test case to make."

But litigation is underway on another front. The Electronic Frontier Foundation today announced that it has asked a federal court to protect the free speech rights of MoveOn.org and Brave New Films after YouTube removed their video, "Stop the Falsiness," a satire poking fun at Stephen Colbert's Comedy Central show, "The Colbert Report." YouTube removed the video in response to a take-down demand from Viacom, parent of Comedy Central. In the EFF announcement, staff attorney Corynne McSherry said:

"Our clients' video is an act of free speech and a fair use of 'Colbert Report' clips. Viacom knows this -- it's the same kind of fair use that 'The Colbert Report' and 'The Daily Show' rely upon every night as they parody other channels' news coverage."

For further reading about the two battles, see:

• NFL FanHouse: Is the NFL Abusing Copyright Law?.
• John Palfrey: Wendy Seltzer Puts the NFL on Notice.
• EFF: MoveOn, Brave New Films v. Viacom.

March 22, 2007 | Permalink | Comments (3)

Elefant Brings Energy to Video

Carolyn Elefant, my co-contributor here at Legal Blog Watch, yesterday joined the YouTube generation with the launch of her video feature, the Ocean Energy Minute. Elefant, whose day job is energy regulatory law, writes the Offshore Renewable Energy Law Blog (in addition to her MyShingle blog). The Ocean Energy Minute (or three minutes, in this case) promises a capsule rundown of the latest news from the ocean energy industry. She credits Rochester, N.Y., lawyer Nicole L. Black, who produces her own series of New York Minute videos, for her inspiration. And back at her MyShingle blog, she promises similar videos coming soon there as well. Congratulations to Carolyn for her well-produced video and for continuing to remain on the cutting edge of legal marketing and technology.

March 22, 2007 | Permalink | Comments (0)

Shake-Up in Store for Legal Media

As I reported yesterday at my LawSites blog, rumors percolating for several months proved true yesterday when its owners announced that legal-media giant ALM is for sale. The announcement said:

"Wasserstein & Co., LP today announced that it has retained Credit Suisse as its exclusive financial advisor to assist it in exploring various strategic alternatives for its investment in ALM, including the possible sale of the company. ALM, a leading media company serving legal and business professionals, was formed in 1997 by U.S. Equity Partners, L.P., a private equity fund sponsored by Wasserstein & Co., LP.

"The Company advised that there can be no assurances that this process will result in any specific transactions. The Company does not intend to disclose developments regarding its exploration of strategic alternatives unless and until its Board of Directors approve a definitive transaction."

Wasserstein, headed by 59-year-old Bruce Wasserstein, chairman of Lazard Ltd., formed ALM through a series of acquisitions that began in 1997 with the purchase of American Lawyer Group, publisher of The American Lawyer magazine. Soon after, it purchased the New York company Law Journal Publishing, publisher of the National Law Journal and New York Law Journal, and then the Philadelphia company Legal Communications Ltd., publisher of The Legal Intelligencer and other Pennsylvania newspapers. Other, smaller acquisitions followed, along with the launch of Law.com, the host of this blog. Today, the company publishes 34 national and regional magazines and newspapers along with a host of books, newsletters and related products, and produces an array of legal conferences, including the LegalTech shows. Crain's New York Business puts the company's value at close to $1 billion.

Its range and reach makes ALM the most significant legal journalism company in the nation. (Although I am a former ALM employee and still receive income from it, I say that as a fact, not an opinion.) That means that whoever ends up as its owner is sure to have a major impact on the future of legal media -- for better or worse. So who might that be? Well, it could be Wasserstein, because there could be no sale at all. That is what the announcement says, and it would not be the first time Wasserstein considered but decided against selling the company.

Who else? lexBlog's Kevin O'Keefe predicts buyers will be slow to come forward, suggesting that ALM's greatest value is its talent, which others could hire away for far less than it would cost to buy the whole kit and caboodle. But Bloomberg News cites observers who say the market for publishing companies such as ALM is strong. As Bloomberg notes, the two most obvious contenders are Reed Elsevier, owner of LexisNexis, and Thomson Corp., owner of Westlaw and FindLaw. My bet is that mainstream media companies will also have an interest.

However this plays out -- even if ALM's ownership remains unchanged -- the outcome is likely the chart the course of legal journalism for years to come.

March 22, 2007 | Permalink | Comments (1)

Update: 'Net Radio Wins Reprieve

We wrote here March 8 about a March 2 decision of the U.S. Copyright Royalty Board raising royalty rates for Webcasts by 30 percent. Many bloggers agreed with U.S. Rep. Edward Markey, D-Mass., who said the decision could lead to the death of Internet radio. Now, Internet radio has won a reprieve of that death sentence.

According to Anne Broache at CNET Politics Blog, the Copyright Royalty Board's chief judge, James Scott Sledge, issued an order Tuesday setting the stage for a possible rehearing of the ruling. Sledge invited the various petitioners who had requested the rehearing to submit documents detailing their arguments by April 2. According to Broache's posting, those petitioners include groups representing college radio operators and small commercial Webcasters, as well as National Public Radio and Clear Channel Communications. Even SoundExchange, the nonprofit organization that collects the royalty payments and initially lobbied for the changes, filed a request for a rehearing.  Its general counsel, Michael Huppe, explained to Bloomberg News, "Nobody got everything they asked for." The board's order does not ensure a rehearing, notes a report at Digital Media Wire, but is a first step towards considering a rehearing.

NPR is leading the fight against the new royalty rates, Ars Technica reports. It has said that the new rates will force it to stop offering Web simulcasts. Ars Technica has details on NPR's filing with the Royalty Board:

"In NPR's filing, the organization argues that the decision is an abuse of discretion and 'unsupported by sufficient evidence.' NPR makes no attempt to be polite either, arguing that the judges did not consider fully -- 'or at all' -- the issues that have been brought forth regarding unreasonable cost concerns."

Absent a rehearing, NPR promises to appeal the decision to the U.S. Court of Appeals for the D.C. Circuit.

 

March 22, 2007 | Permalink | Comments (0)

March 21, 2007

Does a Provocative Pose Help or Hurt a Job Search?

Over at Counsel to Counsel, Stephen Seckler wonders whether a law firm will hire the photogenic female law student who posed for this photo that's now permanently cached on the Internet.

As for me, I wonder whether and how much the photo will impact the student's career.   Personally, I've always thought that a job applicant's good looks and sex appeal, (particularly, when the applicant is female)  are an asset in getting hired.  Down the line, perhaps, good looks can prevent career advancement because purportedly, employees do not always take attractive people, particularly, women seriously.  But in the short term, looks can get an otherwise weak candidate in the door to an entry level position.

What's your view?  How much do looks matter in the legal profession?  Do law firms give an adge to attractive job applicants, or conversely, discriminate against those who are less attractive? 

March 21, 2007 | Permalink | Comments (1)

An Opus on the Graying of the Legal Profession

If you thought issues like mandatory retirement, either for judges or at law firms, were simple or isolated, think again. Sure, mandatory retirement invokes all kinds of meaty questions, such as: How much respect and dignity do older lawyers deserve, particularly when or if  such deference adversely impacts law firm profits or interferes with the advancement of a younger crop of attorneys, eager for their turn to take the reigns? But mandatory retirement is just a small piece of the larger issue of the graying of the legal profession, which in turn requires consideration of continued competence in light of physical or mental illness or loss of mental capacity. Age discrimination. Appropriate training and respect for a younger generation of lawyers.  The impact of generational differences on the smooth transition of power from older to younger lawyers. 

David Giacalone tackles these issues and more  in comprehensive fashion in this lengthy post at f/k/a.  And you're wondering why you haven't seen more on this topic in the blogosphere, Giacalone surmises it's because bloggers are disproportionately comprised of younger attorneys for whom these issues don't yet matter.

I'm not exaggerating to say that Giacalone's piece is one of the most significant and important pieces of writing to hit the blogosphere.  And though there hasn't been broad discussion of age issues within the blogosphere to date, Giacalone's masterpiece is bound to get one started.  To get the ball rolling, let's hear from you.  As the boomer generation of lawyers age, what consequences do you foresee for the legal profession?

March 21, 2007 | Permalink | Comments (0)

Warning: Blogging Can Render You Ineligible for Malpractice Insurance

Initially, I thought that this headline, Law Firm's Website Makes It Uninsurable, was some kind of joke. After all, who ever heard of an insurance company turning a firm down because it blogs? But following the links further, I came to this article, Before You Blog, Check With Your Insurance Carrier. Even with disclaimers, professional liability issues may lurk (NJLJ, March 20, 2007), which offers further detail. From the article:

Law firms of all sizes have turned to blogs to showcase their expertise, but at least one New Jersey firm has put the plan on hold out of liability concerns.  The reason: Its malpractice carrier said blogging would make the firm uninsurable.  James Paone II, of Lomurro Davison Eastman & Munoz, says that when he called Executive Risk Specialty, a unit of Chubb, he was told "this is not a risk they are interested in undertaking."  Though the reasons were not specified, Paone says he took the no-go message to mean the insurer anticipated that the blog might contain postings that could be construed as legal advice. He says he is still pursuing the idea and awaiting the carrier's fuller explanation. Chubb did not return calls by press time.

The article suggests that clear, visible disclaimers that a blog does not provide legal advice or create an attorney-client relationship may convince Chubb and other insurers that blogging does not pose any potential liability risks.

My concern with Chubb's suggestion that blogging may give rise to malpractice liability is that it opens the door for the bar associations to regulate lawyer blogging, setting standards for disclaimers and even reviewing postings. Thus far, in many jurisdictions -- though, notably, not New York -- lawyers could argue that blogs are no different from law review articles and newspaper columns, which are not subject to bar scrutiny. But if blogs are deemed to create malpractice liability, where law review articles and newspaper columns are not, the distinction can serve as another justification for bar regulation of blogging. And that's a path that I'd like to avoid ...

March 21, 2007 | Permalink | Comments (164)

Morgan Stanley Gets Big Win

Morgan Stanley received some good news today: A Florida appeals court overturned a $1.57 billion award against the investment bank for defrauding billionaire investor Ron Perelman by concealing material information from him in the course of handling the sale of his company.  (Summary of earlier case available here.) But what was most memorable about the Morgan Stanley case wasn't the underlying allegations but, rather, the company's (and its law firm, Kirkland Ellis') obstruction of discovery by failing to comply with the plaintiff's discovery requests for past e-mail that eventually lead the trial judge to declare a partial default judgement and instruct the jury to simply assume that Morgan Stanley had "engaged in massive fraud."

The appeals court decision did not address whether the trial judge's issuance of a partial default, but instead, found that the plaintiffs had failed to prove damages. The court held that under Florida law, plaintiffs were entitled to the benefit of the bargain or the difference between the represented value of the stock and its actual value on the date of transaction. Plaintiffs' expert, however, failed to account for the actual value of the stock, thus giving the plaintiffs a better deal than they would have attained even if Morgan Stanley's representations had been true. And because plaintiffs did not quantify compensatory damages, the court found that the claims for punitive damages could not stand either. Thus, the court reversed the verdict and remanded the case to the lower court with instructions to enter judgment for Morgan Stanley. 

Judge Farmer dissented. Farmer reasoned that failure to show the stock's actual value was not fatal because plaintiff's theory of damages was that Morgan Stanley's misrepresentations had essentially rendered the stock worthless, thereby obviating the need to prove actual value. 

Was the appellate court's reasoning regarding damages correct -- or was this just an end run to reverse the trial court's partial default against Morgan Stanley for discovery violations? After all,  even if damages were inappropriately calculated (which, from my quick read, seems to be a fair assessment), the more appropriate remedy would be a remand or a new trial, with instructions to recalculate damages, rather than an out and out judgment for Morgan Stanley. One thing is sure, however: With the loss of a judgment of this magnitude, plaintiffs won't let the case end here, but will seek review before the Florida Supreme Court.

March 21, 2007 | Permalink | Comments (1)

March 20, 2007

Lawyer Finds Success as Novelist

I admit it: I get a vicarious thrill every time I read about a lawyer who finds success as a novelist. There but for the grace of God -- or lack of talent -- go I. Here in Boston, we've had our fair share of lawyers-turned-novelists: George V. Higgins, Jeremiah Healy, Barry Reed, Michael Fredrickson, Margaret McLean and Sabin Willett, to name just a few. Now, there is another: William Landay.

As Boston Globe writer David Mehegan reports today in  his article, His Cases Have Become Mysterious: Lawyer-turned-novelist digs up dirt in old Boston, Landay, 43, went straight from his job as an assistant district attorney to a career as a novelist. His second book, The Strangler, has just been published. A take-off on the Boston Strangler murders in the early 1960s, it includes what the article calls "thinly disguised fictional versions of superlawyer F. Lee Bailey and Attorney General Edward W. Brooke."

Landay's first book, Mission Flats, won an award for best first crime novel. The Boston College Law School graduate says his work as a prosecutor supplied some of the raw material for his books and that he learned from George Higgins that trial transcripts are good studies in dialogue. For now, though, he is done with practicing law and is planning his next book. "I'm that lucky guy who is doing exactly what he wants to be doing." Call it a vicarious victory for every lawyer who aspires to authordom.

March 20, 2007 | Permalink | Comments (0)

The 'Perfect Storm' of Labor Law

It is a great headline, says Michael Fox at the blog Jottings by an Employer's Lawyer. Not mine above but one that appeared recently in the Dallas Business Journal warning, Labor Lawyers See Gray Storm Gathering. The article reported that labor lawyers see a perfect storm brewing for age-discrimination claims, fueled by the clash of economic reality and legal reality. The components:

• Baby boomers aged 42 to 60 make up the largest group in the workplace, with 77 million men and women in the United States.
• As baby boomers climb the corporate ladder, they become more expensive to employ.
• As employers look at ways to keep costs down, they'll look at reducing their biggest expense: people.

The story lacks much in the way of substance, says labor-lawyer Fox. But that, he concludes, "doesn't mean there is not a lot of truth to it." One thing for sure, he adds: "It is a great headline."

March 20, 2007 | Permalink | Comments (0)

Help: Neutral Term for 'Tort Reform'

My previous post today mentioned Illinois Lawsuit Abuse Watch, an organization seeking to bring "balance, fairness and common sense to our civil justice system." Of course, when it comes to the civil justice system, one person's idea of "balance, fairness and common sense" is certainly not another's. Groups such as I-LAW often refer to themselves as promoting "tort reform," and bloggers and journalists often run with this label. But "reform" is a word that suggests improvement for the better, so to call revision of the tort system "reform" is tacitly to endorse it.

In an interview last year, George Lakoff, a fellow of the liberal Rockridge Institute think tank, argued that use of the phrase "tort reform" is part of the way conservatives have "cleverly framed the public discussion." He said:

"[T]he very phrase 'tort reform' evokes a frame. In two words, it communicates that something is the matter with the tort system, which requires reform or correction. In this respect, the phrase is similar to another effective conservative phrase, 'tax relief.' Once the public accepts these phrases, they have bought into the idea that they need to be relieved from the affliction of taxes and that they need to fix the tort system. The debate then turns to the question of how and how much. At that point, progressives can’t win the debate; the best we can do is limit the losses."

So what should we label the debate over changes to our justice system? Lakoff's suggestion is to replace "tort reform" with "destruction of the civil justice system."  For its blog about civil justice, the Drum Major Institute uses a name that Ralph Nader helped popularize, Tort Deform. These names certainly succeed in reframing the debate, but they get us no closer to neutral than where we started.

Even the Wikipedia tort reform entry is tagged with a dispute over the neutrality of the title. So  for those of us who wish to refer to the debate in a neutral manner, what should we call it, if anything? Help us, readers, come us with a neutral phrase for the often-acrimonious discussion about civil justice in the United States.

March 20, 2007 | Permalink | Comments (5)

Doctors Distrust Many Medical Experts

Are medical experts promoting junk science through their courtroom testimony? They are in Illinois, says a survey released yesterday by Illinois Lawsuit Abuse Watch (I-LAW), a group advocating for a bill (HB 1896) that would set tougher standards in Illinois for admissibility of expert testimony. As reported yesterday in the Madison County Record, the survey of 176 Illinois doctors showed that almost two-thirds "had personally seen or heard statements by a medical expert witness in a courtroom that they believe to be inaccurate or based on questionable science."

Should we accept this survey at face value? Obviously, I-LAW has an agenda -- not just promoting this bill but "tort reform" in general. And, obviously, the survey's respondents, doctors, are not generally known for their appreciation of the tort system. On the other hand, the survey was conducted by the Center for Survey Research at the University of Virginia, an independent academic research facility. So we can assume, at least, that it fairly well reflects the opinions of Illinois doctors.

Among the survey's other findings, as reported by The Record:

• Almost all Illinois physicians believe there is a problem with medical experts who provide testimony on issues beyond their specialty (97%) and on cases with which they have little or no experience.
• Illinois physicians are almost twice as likely to believe lawyers who argue a case place "a lot" of importance on a physician's willingness to adapt medical findings to support the lawyer's case (66%) compared to the physician's qualifications within a particular medical specialty.
• Nearly all physicians surveyed (97%) believe it is unethical for medical experts to receive payment contingent upon the outcome of their testimony.

Among other things, the Illinois bill would prohibit an expert from receiving compensation contingent on the outcome of a case and would require that an expert "only offer expert testimony with respect to a particular field in which the expert is qualified."

March 20, 2007 | Permalink | Comments (0)

March 19, 2007

Judges' Opinion: Law Reviews Are Irrelevant

According to this New York Times Sidebar column by Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, as evidenced by the declining number of citation to law review articles in judicial opinions. Though some might attribute the decline of law reviews to the increased popularity of blogs (which courts continue to cite with growing frequency), there are other factors at play, such as the larger issue of whether legal scholarship has grown out of touch with the realities of law practice. From Liptak's article:

Articles in law reviews have certainly become more obscure in recent decades. Many law professors seem to think they are under no obligation to say anything useful or to say anything well. They take pride in the theoretical and in working in disciplines other than their own. They seem to think the analysis of actual statutes and court decisions — which is to say the practice of law — is beneath them. The upshot is that the legal academy has become much less influential. In the 1970s, federal courts cited articles from The Harvard Law Review 4,410 times, according to a new report by the staff of The Cardozo Law Review. In the 1990s, the number of citations dropped by more than half, to 1,956. So far in this decade: 937.

Indeed, it's the apparent obscurity of law reviews that may have contributed to the rise of popularity of blogs. As the article explains:

The assembled judges pleaded with the law professors to write about actual cases and doctrines, in quick, plain and accessible articles.  “If the academy does want to change the world,” Judge Reena Raggi said, “it does need to be part of the world.”  To an extent, her plea has been answered by the Internet. On blogs like the Volokh Conspiracy and Balkinization, law professors analyze legal developments with skill and flair almost immediately after they happen. Law professors also seem to be litigating more, representing clients and putting their views before courts in supporting briefs.  Law reviews, by contrast, feel as ancient as telegrams, but slower.

Naturally, the Volokh conspirators have some insight on this question.  Orin Kerr's quick thoughts are here.  First, Kerr notes that that electronic databases have enabled scholars to readily access original sources, thereby obviating the need for reliance on law reviews.  And second, he says that it's not such a bad thing that judges are smart enough to know and brave enough to say that today's academics, the "emperors of scholarship," often aren't wearing any clothes:

I only read a very tiny fraction of the published legal scholarship, but my sense is that a lot of law review scholarship is not terribly serious about engaging with the law. If judges aren't paying any attention to such scholarship, then good for them: they know enough not to be fooled by fancy academic pedigrees and prestigious journals. Silliness in the Harvard Law Review is still silliness, and it's a good thing if judges recognize that.

And Dale Carpenter has an even more provocative view: He suggests that the failed Bork nomination may deter lower-court judges with higher aspirations from citing certain law review articles to avoid association with what may later be regarded as an extreme political position.

Finally, if courts do plan on moving away from citing law review articles in favor of blogs, perhaps then The Bluebook should reconsider its current citation format for blogs, which has rankled Christine Hunt of the Conglomerate. Specifically, Hunt writes that:

According to Rule 18.2.4, if the blog is a solo author blog, then you do not include the author's name.  So, if I want to cite to a post by my colleague Larry Solum on Legal Theory Blog, the cite will not contain his name.  In addition, the citation will not contain the title of the post although almost all blog posts have titles, and the titles have very interesting information in them.  However, the citation will include the time of the day of the posting, although that information will be irrelevant for almost all blog posts.  The format is thus:     Legal Theory Blog, URL (Month Day, Year, Hour:Minutes CST). As I say in my article, any Bluebook historian will tell you that the rules that have changed most often are the rules regarding author's names. From last names and first initials only to last name, first name and middle initial to "the author's full name as it appears on the publicaton," iterative changes to how we provide credit reflect the fact that credit is as important to legal scholars as to the Dustin Hoffman character in Wag the Dog. So, I recommend to all law review editors out there who are no doubt using this rule regularly to exercise their discretion to adopt a more enlightened citation format for blog postings!

The Bluebook Rule makes Professor Bainbridge grateful to have named his blog after himself, while Cathy Gellis opines that Howard Bashman of How Appealing "seems to have accepted  his Bluebook-induced fate with such equanimity."

March 19, 2007 | Permalink | Comments (2)

Wired GC Unveiled

American Law Media affiliate blogger the Wired GC has been posting anonymously for more than two years. But now, he's finally revealed his identity -- he's John Wallbillich, formerly vice president and general counsel of a major natural gas pipeline joint venture and, now, founder of a newly announced venture, Lex Vista Partners, which "offers independent, senior-level legal advisory services focused on improving corporate performance." But fortunately for us, even though his identity is known and his job has changed, Wallbillich will continue to blog at the Wired GC and even explore some new issues that "might have been off limits before."

March 19, 2007 | Permalink | Comments (0)

Why Aren't Corporations Drawing the Line on New Associate Costs?

Ever since large law firm salaries for new associates jumped to $160,000 back in January, we've heard commentary from a variety of constituencies, ranging from (see this post) law firm recruiters, warning that increased billables will place more pressure on associates, to lawyers, arguing that increased salaries demand concommitant salary raises for the judiciary, to (see this post) law firm economists, suggesting that associate salaries are proportionately lower than ever when viewed in the context of their relationship to profits per partner, to law firm marketers who view increased rates as opening opportunities for less expensive, midsized firms. But in all this cacaphony, we've not heard from the ones who will ultimately foot the bill for these rate hikes:  the law firms' clients.

Now, Susan Hackett, general counsel of the Association of Corporate Counsel, tries to rally her silent constituents with this provocative article that implores Where Will In House Counsel Draw the Lines on Assoicate Costs?  At the outset, for corporate clients who may be in denial that associate pay hikes mean higher rates, Hackett does the math:

Be conservative and say that an average sophisticated law firm pays an extra one-third of an employee's compensation in benefits. So that's the newly announced first-year salary level of $160,000, plus another $50,000 or so, taking us to $210,000. Then there's overhead, including a portion of the law firm's high-market rent, top-notch administrative support, computer, library and other office technologies, and that fancy art-filled lobby (so crucial to not only impressing clients, but to attracting those top first-year associates). So let's add another $100,000 for overhead, round it off, and say that now our highly recruited first-year associate costs the firm $300,000 a year.  That doesn't take into account the cost of the wining/dining/cocktail-cruising summer associate program and the cost of the firm's high-power recruitment team that brought the first-years into the fold. And it doesn't factor in the cost of attrition: For every ten of those first-years, less than half (usually more like a quarter or a third) will make it to partnership and profitability before they're either pushed out or run screaming from the building. So let's say -- again, conservatively -- that the $300,000 cost of a fully loaded first-year associate, when combined with the very real costs of attrition and recruiting, brings us to a nice "blended" cost of about $400,000 a year. Add to that the fact that most big firms operate on a lockstep salary system for associates, so a raise for the first-rung associates necessitates a corresponding raise for every other successive class. So your first-years aren't the only ones getting more expensive: The entire associate portfolio just went up in cost.

And Hackett makes no bones about who pays for increased costs. She asks:

Do you think that when the decision is made to up first-year salaries that the partnership votes to take less money to pay for it? Or do you think that the associates will be expected to "earn their keep"? (The latter is a nicer way of saying that clients will be billed for the overworked first-year associates' time and efforts.)  If you assume that every one of those associates will bill 2,000 hours that can actually be invoiced to a client (as opposed to a certain amount of time -- probably 500 hours in the first year out of 2,500 -- that will be counted somewhere but written off as uncollectible for whatever reason: incompetence, client objections, learning curve, pro bono, firm events, you name it), that means that their 2,000 hours will have to be billed at an average of $200 an hour in order to reach the break-even point. And most corporate counsel with large firm legal costs will tell you that they are being charged much more than that per hour for the privilege of these associates' time.

Hackett tries to persuade in-house counsel that they have options. She reminds companies that they can hire lower-cost partners outside of major metropolitan areas who "bill[s] $250 an hour, and who can do the same work in half the time of that $200 associate or his $800 partner. And the Internet makes lawyers from around the world as accessible as those next door." Finally, she urges corporate counsel to take charge of their budgets. They must demand to know how expensive first-year associates bring value and expertise to the clients, and they must vote with their feet if firms can't adequately respond. Will Hackett's arguments convince in-house counsel and corporate clients? Or do in-house counsel believe that hiring a large firm is a matter of security -- just like no one ever got fired for hiring IBM, is it likewise true that no one ever gets blamed for hiring a Cravath or a Simpson Thatcher or a Skadden? What's your view?

March 19, 2007 | Permalink | Comments (1)

Blawg Review #100

Blawg Review reached an important milestone this week with the publication of Blawg Review #100, authored by the still anonymous Editor, with the help of former Blawg Review hosts Colin Samuels of Infamy or Praise and Jen Burke of Transcending Gender. Blawg Review #100 offers a summary of all 100 issues of Blawg Reviews past and highlights each past host's blog. Plus, Blawg Review reveals a preview of the future, with upcoming "all star hosts" like Professor Bainbridge, Arnie Herz, Kevin O'Keefe and even David Lat.

Blawg Review #100 (which was released over the weekend rather than on its usual early Monday morning) has already received rave reviews from around the blogosphere, but I'm compelled to add my own thoughts. In looking over Blawg Review #100, I realized that virtually every past Blawg Review alum is still actively blogging, an amazing feat when given that all of these former hosts hold a "day job," either as busy practicing lawyers, consultants or law students. With that kind of commitment, Blawg Review is assured of a bright future. Moreover, as I wrote here before, Blawg Review continues to serve as an oasis of equality in an otherwise stratified profession, a place where the most experienced or well-known law bloggers serve as hosts right alongside newbies and a place where any interesting blog post can gain wide exposure by virtue of inclusion in Blawg Review. Indeed, I've discovered a number of new favorite blogs through Blawg Review.

Blawg Review shows no sign of fizzling out any time soon, either. As the sidebar shows, Blawg Review is booked solid through Sept. 23, with other vacancies opening up around January 2008. 

March 19, 2007 | Permalink | Comments (0)

March 16, 2007

The (Law) Reviews are In!

We wrote here last month about the about-to-be-released documentary, A Lawyer Walks into a Bar..., which follows six aspiring lawyers as they prepare for and take the California bar exam. Well, the film made its world premiere this week at the South by Southwest Film Festival in Austin, Texas, and blogger Suzanne Dupree Howe was there. Offering a brief glimpse at the blog Counsel to Counsel, Howe reports:

"The packed theater was filled with many lawyers and non-lawyers who gave the film a rousing reception. This hilarious, emotional and compelling documentary features many noted attorneys such as Joe Jamail, Robert Shapiro, Alan Dershowitz, Nancy Grace, and Scott Turow, who all give their perspectives on practicing law as a profession. I hope the movie gets picked up by a distributor. Every person that's ever taken a bar exam will relate to the emotional roller coaster ride that these six people undertake. Keep an eye out for it -- it's destined to be a hit among the legal crowd."

Al Gore, watch out!

March 16, 2007 | Permalink | Comments (1)

Headhunter Pays Prospects a Bonus

Here is a new twist in the high-stakes game of legal recruiting -- if you get hired, the headhunter pays you a $10,000 bonus. That's the pitch announced yesterday by Lateral Link, a recruiting firm founded by three Harvard Law School grads.

They call themselves a "Web 2.0" recruiting firm. What that means, as they explain it, is that they don't make cold calls to cull prospects. Instead, they rely on their Web site as a recruiting tool and build a database of both jobs and candidates. The efficiencies they achieve allow them to pay the bonus.

Of course, as with every good deal involving lawyers, there is the fine print. Proviso #1 is that you get the placement bonus only if the base salary of your new job is at least $135,000. Proviso #2 is that the placement service is only available to "elite" attorneys. "In order to become a member of the Lateral Link network," the Web site explains, "attorneys must have graduated from a top law school, or have exceptional professional credentials."

And then there is the question of whether this is kosher. Right there on the company's Web site is an article, originally from the Los Angeles Daily Journal, that suggests the bonus practice may be unethical by recruiting-industry norms. The article quotes Marina Sirras, president of the National Association of Legal Search Consultants, who, when asked about the bonus, replied: "Wow. That is definitely against our code of ethics. That is a no-no, and I consider it very unethical."

March 16, 2007 | Permalink | Comments (1)

Keeping Track of 'Track Changes'

Every lawyer who uses Microsoft Word should take a few moments to read "Staying on Track with Track Changes," by legal bloggers and technology pros Tom Mighell and Dennis Kennedy, appearing in the current issue of Law Practice Today. As they point out, the "track changes" feature in Word is an enormously useful tool when lawyers are collaborating on a single document. But it amazes me how many lawyers fail to realize that this entire history of collaboration can end up being stored invisibly in the document as metadata.

Mighell and Kennedy review some of the more notable horror stories of how metadata can come back to haunt a document's author. But the point, as they explain, is that "such information could be potentially embarrassing, revealing, or compromising." Their article sets out the issues to be aware of in using the track-changes feature and then presents a round-up of Web sites for learning everything you ever wanted to know about it. They write:

"The ability to monitor the revisions made to the legal documents you create is critical, and the Track Changes feature is a terrific tool for that purpose.  But because we are often dealing with our client's confidences when we draft these documents, it is crucial to not only understand how Track Changes works, but also how its misuse can result in the inadvertent disclosure of privileged or otherwise privileged information."

The bottom line, of course, is that what goes into a document as metadata should come out of that document before you send it as final.

March 16, 2007 | Permalink | Comments (2)

Reverse Discrimination at Law Firms

A recent article by Ross Todd in The American Lawyer examines the provocative question: Are Law Firms' Diversity Efforts Discriminatory? The article reports on a recent research paper released by Curt Levey, who argues that actions by corporate law departments to pressure outside counsel to hire minorities may violate anti-discrimination laws. In the article, Levey cautions law firms that seek to accomodate clients:

"Whether you are using racial preferences because your clients want you to or [because] you want to, you almost certainly are risking liability," Levey said...."Not only may a law firm be liable for discrimination, but so may be the individual employees and partners at the law firm that participated in the discriminatory decisions," writes Levey in his paper titled "The Legal Implications of Complying with Race- and Gender-based Client Preferences."

Levey's suggestion that law firms may face liability for reverse discrimination has triggered discussion among legal bloggers. At Blog of the Legal Times, Richard Roberts asks:

If the legal restrictions against firms complying with demands of Wal-Mart and other clients for a certain racial make-up are as clear as argued, when are the lawsuits going to start? During my years as an employment litigator, I saw employees eager to bring Title VII claims, yet thus far law-firm associates are not suing. How long is this relatively placid situation going to last?

In response, Paul Secunda of Workplace Blog offers this advice:

My comment is that I'm not sure how clear the legal restrictions are in light of voluntary affirmative actions cases like Weber and Johnson, which both provide for the permissibility of such race and gender AA plans under certain conditions.  It is not clear whether those conditions can be met in the law firm context, but I think there is at least a reasonable argument.  Of course, this argument is only in play if law firms are willing to admit that they are engaging in such voluntary affirmative action programs.  If not, and race and gender considerations are the motivating factor behind law firm hiring decisions on an ad hoc and irregular basis, the only thing keeping reverse discrimination suits being brought by whites and men may be the potential backlash such associates would face from other law firms as perceived troublemakers.  Of course, it might also be hard to isolate race or gender as the determinative or motivating factor leading to the hiring of a given minority or female candidate in a specific instance and it would seem that both pattern and practice and disparate impact claims are not ideally suited for situations where males and whites still make up the majority of law firm employees.

Finally, as expected, there's a lively discussion here at the WSJ Law Blog. What surprises me in this discussion is that there's no mention of the client's unfettered right to an attorney of his or her choosing, which frequently trumps other considerations. For example, just last term, the U.S. Supreme Court held that a defendant's constitutional right to effective assistance of counsel under the Sixth Amendment is so sacrosanct that violation of the right is grounds for overturning a conviction, even in the absence of showing of actual prejudice. Likewise, in the civil arena, lawyers are exempt from noncompete clauses because these would interfere with a client's right to choose an attorney. Thus, when a lawyer departs a firm, under most ethics codes such as this one, the firm must inform the client that he or she has the right to follow the departing lawyer.

As described in this earlier earlier post, law firms are hiring more minority candidates, even if they are purportedly less qualified (based on the narrow criteria of grades) to satisfy their clients. What if a corporate client charged with criminal SEC violations wants a firm with minority attorneys? What if a corporate client wants to hire an African-American attorney to defend it against charges of racial discrimination? Don't clients have that right -- or does federal discrimination law prevail? That's the question that needs to be addressed here.

March 16, 2007 | Permalink | Comments (0)

March 15, 2007

U.S. Attorney Firings: Just Another Consequence of At-Will Employment ?

When it comes to fending off lawsuits alleging wrongful termination, the "at will employment" defense is virtually impenetrable. But is it enough to spare employers, including law firms or the president of the  United States, from criticism in the blogosphere? 

As this round-up of posts suggests, that Mayer Brown had the legal ability to eject partners at will didn't shield the firm from criticism about its mercenary decision to cast aside loyal partners in the name of increasing profits. When it comes to the president, however, the at-will defense buys slightly more deference. For example, commentors in this discussion at the WSJ Blog are split on whether the Bush administration's ouster differs from Clinton's decision to fire all 93 U.S. Attorneys at the beginning of his presidential term. In other words, the post addresses whether firing U.S. Attorneys is simply a legitimate exercise of presidential power or was, in this case, more insidious.  Likewise, some of the Volokh conspirators haven't blogged about the U.S. Attorney firings because, as discussed here by Orin Kerr, "I'm having a hard time figuring out just how big a deal it is." Kerr continues:  

On a more serious note, I haven't written about the U.S. Attorney's story because I'm having a hard time figuring out just how big a deal it is. Parts of it are obviously very troubling: I was very disturbed to learn of the Domenici calls, for example....At the same time, several parts of the story seem overblown. U.S. Attorneys are political appointees who serve at the pleasure of the President, and the press seems to overlook that in a lot of its reporting. Also, I know one or two of the Administration figures named in some of the stories, and based on my knowledge of them and their character (although no secret details of the story — I have not spoken with anyone about it) I have a feeling that they're getting a bad rap.

Others, however, aren't impressed by the at-will defense. The round-up of news stories from How Appealing primarily criticizes the terminations as politically motivated. And at the Washington Post legal blog, Andrew Cohen devotes a three-part series to Gonzales, concluding in this third piece that the terminations are simply the final chapter in the story of a man who "was proven to be unqualified for the job of Attorney General got it anyway and made a complete mess of things." 

As for me, I can accept that U.S. Attorneys, like most other lawyers, serve at will. But though the terminations may have been perfectly legal, what's galling to me is that Gonzales wasn't forthright about the reasons. If the administration, through Gonzales, chose to exercise its perogative to fire U.S. Attorneys who weren't carrying out the administration's political goals, they should have said so. Instead, they took the cowardly route, claiming that the prosecutors were fired for subpar performance, when that wasn't the reason at all. That's simply not fair.

At this point, it's not clear whether Gonzales will resign. If he does, Mark Grabin at Balkinization offers a list top 10 replacements.

March 15, 2007 | Permalink | Comments (6)

Ghostwriting Is OK, so Long as It's Disclosed

Over at the Legal Profession Blog, Alan Childress has an interesting post on the ethics of ghostwriting legal briefs for pro se litigants.  Childress discusses a recent ruling out of a federal district court in New Jersey holding that undisclosed ghostwriting violates legal ethics rules and Rule 11 of the FRCP and, as such, "should not be permitted in federal court in New Jersey." 

According to the post, courts typically do not enforce their rules as stringently against pro se's, so where pro se's are assisted by an undisclosed attorney, they gain an added advantage.

The court's rationale makes sense, in some respects. For example, if an attorney won't represent a client because he believes the claim is frivolous, he shouldn't be able to circumvent Rule 11 by having the client sign the pleadings. On the other hand, requiring disclosure of attorney assistance can have a chilling effect on a lawyer's willingness to provide "unbundled legal services," i.e., legal services on an a la carte basis, with litigants picking and choosing what they need. There are times when a litigant has a legitimate claim or defense, but can't afford to hire a lawyer on a full-service basis. So an attorney might be willing to act as a "consultant," on a limited basis, by providing a pro se with templates or reviewing pleadings. But while an attorney might do this off the record, he might not want his name associated with the pro se's filing, which may not match the quality of the attorney's usual, for-fee work.

What's your opinion on New Jersey's rule against ghostwriting? Extra points for reading the decision and seeing what the other courts say about this practice.

March 15, 2007 | Permalink | Comments (1)

More Help for Women in the Profession

The issue of retaining women in the legal profession is a recurring theme, one that we've posted about at Legal Blog Watch here and here. Today I've discovered a new project -- Ms. JD -- which endeavors to address the issue of women in the legal profession and "change the face of the legal profession.

According to its mission statement, Ms. JD was formed in response to the rates "at which women opt out of the legal profession," as well as the lack of representation of women in the upper echelons of the profession. To address these problems, Ms. JD will be an online community that provides a forum for dialogue and networking among women lawyers and aspiring lawyers. In addition:

Ms. JD seeks to improve the experiences of women in law school and the legal profession. Obstacles to equal participation hinder not only women in the law but also their colleagues, clients, children, and communities. Ms. JD consequently strives to give voice to why it matters that women continue to face these barriers. In doing so, Ms. JD spreads the word: women’s victories are everyone’s victories.

As one of its first events, Ms. JD is sponsoring a national conference at Yale Law School on March 31, 2007, on What does it mean to be Ms. JD?

March 15, 2007 | Permalink | Comments (0)

March 14, 2007

Is Fair Use Law Sexist?

Excuse this dramatic oversimplification of a thesis Georgetown law professor Rebecca Tushnet explores in depth in her 34-page law journal article, but it comes down to this: fair use law favors exploitative sexualization of women. In the article, "My Fair Ladies: Sex, Gender, and Fair Use in Copyright," she explores the principle of copyright law that protects a work as fair use when it is "transformative" of a prior work. She finds that when parody uses female sexuality to make its point, judges are more likely to see fair use.

"Current fair use opinions treat sexualizing a text as automatically constituting relevant commentary on the original, unlike other forms of reworking. Many of the most well-known cases of parodic and transformative use involve sexualization and often mockery of women's (or dolls') bodies. Women's bodies are to be commented on, so the presence of a woman's body in a work makes it fair game for fair use. In other words, when a woman's image becomes public, it is so public that ripping her clothes off is a natural critical response."

Not so fast, responds William Patry at The Patry Copyright Blog, who writes that he does not see the empirical evidence to back up Tushnet's thesis. "The availability of fair use for sexually-themed works has had a mixed reception in the courts," he says, citing several examples. Still, says Patry, the article deserves more careful attention than he can give in a brief blog post. "I intend to study her article in depth before coming to an actual conclusion."

Of course Patry, senior copyright counsel for Google, may have difficulty finding the time to do that now that Viacom has hit the company with a $1 billion copyright suit.

March 14, 2007 | Permalink | Comments (0)

When an Upgrade Goes Downhill

An upgrade to software is supposed to improve it, right? By the time a company upgrades to version 8, the bugs should pretty much be gone. Not so, reports J. Craig Williams at May it Please the Court, for the latest version of Time Matters time-and-billing software from LexisNexis. Over the weekend, Williams upgraded from version 7 to version 8. Yet on Monday, he reports, he still had the same problems he had Friday.

One of the most annoying glitches, Williams says, is that every time he opens a completed billing slip, the dollar amount drops to zero. "That's a bit of a problem for a law firm that sends invoices to its clients each month," he writes. "Even though our clients don't complain, it really has a disastrous effect on cash flow." And that is only one of several problems with the software.

"Despite Lexis's claims that the upgrade fixes the software's bugs, even the best of intentions go wrong -- things that worked in prior versions don't work in this new version.  Ouch.  Please, don't get me started -- there are a host of other problems, as well -- but too long a list for this post."

His several requests that the company fix the billing-interface bug have brought no results, Williams reports. Now, his patience has run out. Not only is he planning to switch software but he is encouraing others not to buy it "and generally start a boycott." Adds Williams: "I'm voting with my feet, and my blawg."

March 14, 2007 | Permalink | Comments (0)

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