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« March 2007 | Main | May 2007 »

April 30, 2007

New Supreme Court Precedent: Using Video to Illustrate a Decision

The Supreme Court issued an 8-1, precedential decision in Scott v. Harris, effectively establishing a flat rule that a police officer in a high-speed chase that poses a threat to the safety of others does not violate the Fourth Amendment even where the officer places the fleeing motorist at risk of injury or death. But equally precedential about the opinion was the Court's venture into the YouTube era, through posting a video of the chase on the Court Web site and inviting the public to see for itself that the tape definitively showed that the driver posed a threat to public safety.

Bloggers' initial reactions to the Supreme Court decision are starting to come in.  Orin Kerr has an inside track on the decision, as he served as co-counsel to police officer Scott, as he describes in this post. Kerr notes that  the Court's rule for high-speed chases is broader than that sought in Scott's brief. And in an earlier analysis, Kerr explains why the lower court's characterization of the facts of the case, though contrary to what's depicted in the video, are legally irrelevant to the outcome.

Over at SCOTUS Blog, Lyle Denniston elaborates on the Court's creation of a flat rule for high-speed chases. New York Personal Injury blogger Eric Turkewitz comments on the Court's use of the videotape, suggesting that video might have helped in pornography cases, where the best standard that Justice Potter Stewart could muster is I know it when I see it. 

Finally, Dave Hoffman at Concurring Opinions offers this interesting post, The Death of Fact-finding and the Birth of Truth, which argues that what's really at stake in Scott v. Harris is "whether trial courts, or appellate courts, are to have the last say on what the record means. Or, more grandly, does litigation make findings of fact, or truth?"

There's sure to be much more commentary on Scott v. Harris in the days to come. Maybe even some video commentary ...

April 30, 2007 | Permalink | Comments (0)

Naming Names as a Criminal Defense Strategy

As the Blog of the Legal Times reports, today was just another day in court for Deborah Jeane Palfrey, the madam charged with running an illegal prostitution ring that included some of the nation's most powerful men as its clients. And Palfrey's already started naming some of her clients, not as blackmail, or even in an effort to raise funds, but instead, because she claims that they have information that would exonerate Palfrey, according to this Washington Post story, Alleged Madam Says Strategy Paying Off (April 30, 2007).

Palfrey claims that she's not guilty of federal racketeering charges for running an illegal escort service because the women who provided the service -- all independent contractors -- only engaged in lawful activity such as massages, and that to the extent that the women provided extra service, they violated their contracts with Palfrey. Palfrey's claims seem plausible -- according to the article, she holds a bachelor's degree in criminal justice and studied law. Further, she'd already been arrested for running a prostitution ring in California over a decade ago and spent 18 months in jail. So presumably, she'd have taken additional caution to comply with the letter (if not the spirit or intent) of the law the second time around.

Palfrey argues that her former customers can attest that her service didn't provide illegal service. And that's the reason that she claims that she wants them identified:  so that they can testify in her defense. Of course, it probably doesn't hurt Palfrey's case that some of her clients may try to exercise their connections to make Palfrey's case go away in order to keep their names out of the public eye. 

It's hard to feel sorry for Palfrey's clients, though the judge assigned in the case seems determined to protect their identity as long as possible. After all, they must have known after Clinton's Lewinsky affair or Jessica Cutler's Washingtonienne blog that no one in Washington can keep a secret, especially when it comes to sex. 

April 30, 2007 | Permalink | Comments (0)

Billion-Dollar Babies

So much for the predictions of the demise of Am Law 100 law firms due to lack of work-life balance, diversity, associate attrition and other issues purportedly troubling today's firms. Apparently, these issues are barely a blip on the firms' collective radar screen. According to the just-issued Am Law 100 revenue rankings summarized in this chart and this look behind the numbers, more firms are prospering than ever before. Among other things, it's a bonanza year for billion-dollar law firms. Eleven firms generated more than $1 billion in revenues in 2006, up from seven firms that hit the billion-dollar mark in 2005. Firms new to the party include DLA Piper US, Greenberg Traurig, Kirkland & Ellis and Mayer, Brown, Rowe & Maw, which apparently ensured its staying power with its recent partnership purge. And other firms bolstered earnings through the most pedestrian of alternative billing arrangements: the contingency fee.

With earnings like this, it's not surprising that firms can keep notching up associate salaries to provide the fuel that drives the law firm engine. But just as we're reaching the point of peak oil when it comes to our nation's energy supply, are firms likewise embarking on a peak associate supply, where there simply aren't enough bodies to sustain law firms' work and profits? 

April 30, 2007 | Permalink | Comments (0)

Blawg Review #106

This week, you can take the fast track around the blawg-o-sphere with the race-themed Blawg Review #106, hosted at Iowa attorney Brett Trout's Blawg IT. Some great pit stops include Enrico Schaefer's post discussing how the billable hour puts a lawyer's interests at odds with those of his client, a post at Techdirt on a recent decision forcing Recording Industry Association of America (RIAA) to pay legal fees for litigants it wrongly sued and Nicole Black's post mortem on the Duke lacrosse rape case, along with a video that sums up the case. So take a spin or two with Blawg Review #106. This is one race where all participants are winners. 

April 30, 2007 | Permalink | Comments (0)

April 27, 2007

Blogger, Wiley Resolve Fair Use Fight

Last week, the Journal of the Science of Food and Agriculture published a widely reported study concluding that alcohol enhances the antioxidant properties of fruit. Blogger and doctoral candidate Shelley A. Batts found this of interest, noting on her blog, "Alcohol as health food? Surely you jest!" In her post about the study, Batts included a chart and a graph from the published results, giving due credit to the source. No sooner did she post than she heard from lawyers for John Wiley & Sons Inc., publisher of the journal, threatening her with legal action. She complied with the request and took down the material, but found herself wondering about the boundaries of copyright law.

"What really constitutes fair use? This is taxpayer-supported research, which should be available for all. If a blog properly gives credit, isn't plagiarizing, and correctly summarizes data, isn't that fair use?"

Lots of other bloggers certainly thought so, registering an uproar of protest over Wiley's threat and calling for a boycott. See the catalogs of responses here and here. Apparently, the protest registered. Yesterday, Batts received a note from Wiley calling the whole incident a "general misunderstanding."

"We apologise for any misunderstanding. In this situation the publisher would typically grant permission on request in order to ensure that figures and extracts are properly credited. We do not think there is any need to pursue this matter further."

A victory for fair use? Or a nod to public relations? In either case, good reason to toast with a fruit daiquiri.

April 27, 2007 | Permalink | Comments (1)

Taking the Supreme Court on Faith

We wrote here earlier this week about the Catholic connection -- University of Chicago law professor Geoffrey R. Stone's post at the American Constitution Society's ACSBlog in which he suggests that religious affiliation may be the key to explaining last week's Supreme Court decision in Gonzales v. Carhart, upholding a federal law prohibiting so-called partial birth abortions. Since then, both a colleague and a former student of Stone have taken him to task for the post.

First came visiting Chicago law professor Richard Garnett, who is also a senior fellow with the Center for the Study of Law and Religion at Emory University and chair-elect of the Law and Religion Section of the American Association of Law Schools. In a post at the law school's The Faculty Blog, Garnett said that Stone missed the mark in drawing the distinction between religious belief and morality.

"[I]t is not clear why the claim 'human fetuses are moral subjects and this fact constrains what should be done with and to them' is any more 'religious', or any less 'moral', than the claim 'all human beings are moral equals, regardless of race, and should be treated as such in law.' What's more, even if it were true that the former claim is 'religious' (certainly, for many, it is religiously motivated or grounded), it does not violate -- indeed, I do not think it even implicates -- the 'separation of church and state' that our Constitution is thought to require."

Garnett's critique was followed by that of former Chicago law student Jan Crawford Greenburg, legal correspondent for ABC News, who, in a single post, pairs Geoffrey Stone with Rosie O'Donnell and blasts them both for linking justices' Catholicism to their jurisprudence.

"That’s not how they taught First Amendment law when I was at the University of Chicago. Nor did they tell us to jump to baseless conclusions without any evidence -- such as suggesting religion drove those justices. Or that different religious views influenced the protestant and Jewish justices to vote against the law.

"Why not speculate that the five justices in the majority happen to like baseball -- and therefore are more inclined to appreciate rules? That's no less relevant or 'telling,' as Stone put it, than their religious views."

So does faith influence the Supreme Court? And if so, should we nonetheless have faith in the outcome?

April 27, 2007 | Permalink | Comments (0)

Celebrating IP Day -- Or Not

Call me a day late and a dollar short. Yesterday, I've learned, was World Intellectual Property Day. At the blog Patent Baristas, Stephen Albainy-Jenei serves up this explanation: The day is organized by the World Intellectual Property Organization to encourage people to think about IP in everyday life. It is celebrated every year on April 26 as the date in which the convention establishing WIPO took effect in 1970. This year's theme: encouraging creativity.

If you, like me, missed the festivities, it is not too late to sample them, if only vicariously through the posts of celebrants. Start with WIPO itself, where its IP Day page has a poster, a postcard and a round-up of IP Day activities around the world. We learn here, for example, that Azerbaijan commemorated the day with, among other things, a video recording the day's activities at the State Agency for Copyright. In the United Kingdom, the law firm Pinsent Masons marked the day by giving away free IP legal advice. Here in the United States, President Bush prepared a special greeting for the day, in which he recognizes "the vital importance of protecting intellectual property." In Anaheim, Calif., Disney Bioscience waited until yesterday to announce the first-ever cloning of a cartoon character, as reported by IP Kat. And at the home of more flexible IP rights, Creative Commons, the organization offered a PDF flyer and a wiki page addressing how it encourages creativity.

Not everyone, unfortunately, was in the spirit. A Paris organization, Paris ACTUP, held a counter-celebration. In Canada, University of Ottawa law professor Michael Geist decried the day as "little more than a lobbyist day with creators, users, and the facts once again getting lost in the process." And Techdirt offered suggestions for alternative ways to celebrate World IP Day, focusing on how IP laws are used to encourage monopoly and stifle free speech.

Party poopers, no doubt. I'm just sorry I missed all the fun.

April 27, 2007 | Permalink | Comments (0)

April 26, 2007

Who's More Ethical: the Lawyer With the Client Who Lied or the Lawyer Who Withheld Evidence of the Lie?

Mike Cernovich stimulates an interesting discussion in this post. Specifically, he asks, "When you are a defense counsel in a civil case who discovers that a plaintiffs' claim is fraudulent, do you have a duty to disclose this to the trial court?" Cernovich's question arises out of this article, Citing Fraud, Judge Tosses Case After Video Shows 'Paralyzed' Woman Walking at Law.com (4/26/07), which reports on a case where lawyers defending a medical malpractice case obtained video evidence that a woman claiming to have been paralyzed through a doctor's negligence could walk. The defense attorneys obtained the tape in April 2005 but didn't disclose it until January 2007, when they moved to dismiss the case for fraud. The plaintiffs lawyers opposed the motion, but also complained that if the defendants had shown the video earlier, they wouldn't have invested 21 months worth of litigation time, cost, doctors fees and judicial resources. In response, defendants claim that they wanted to gather additional evidence to ensure that they would prevail on a motion to dismiss based on fraud.

Cernovich sees nothing wrong with the defendants' strategy. He writes:

So long as the defense lawyers disclosed their finding to the client (thus allowing the client to make to decision whether to incur further legal fees defending the action), I think they made the right choice.  By sitting on the evidence for a while, they prevented the plaintiffs from explaining it away.

In my view, neither attorney acted particularly well, at least based on the information provided in the report. I'm not sure how plaintiffs could have spent 21 months on a case and not realized that their client was not really paralyzed. Didn't they review her doctors' reports or medical records? Didn't they speak with caregivers and other witnesses, at least some of whom would have observed her walking around? 

At the same time, the defendants didn't act much more honorably. Forcing opposing lawyers to invest time and money on a case involving a client who wasn't injured as badly as she claimed just to gain a strategic advantage is irresponsible. Had the defense lawyers notified opposing counsel about the clients' fraud, the lawyers might have discharged the client themselves. The parties may have agreed to a voluntary dismissal. Or they might have arrived at a lowball settlement that would have cost the defendants less than having their firm defend a case for 21 months, when they intended to dismiss it anyway.

The comment section is open, so please share your thoughts.

April 26, 2007 | Permalink | Comments (10)

Lawyer Sues the Pants off Dry Cleaner Over a Pair of Pants

No matter what kind of pun you apply to this lawsuit -- either suing the pants off a mom-and-pop operation or taking them to the cleaners -- lawyer and administrative law Judge Roy Pearson's $65 million lawsuit against a neighborhood dry cleaner for misplacing his pants is simply not funny. As detailed in this commentary piece by Mark Fisher in the Washington Post (4/26/07), here's what happened. In 2005, Pearson dropped off a pair of pants at Custom Cleaner on May 3 to wear them to his new job May 6. The pants weren't ready when promised or the next day. A week later, the cleaners produced a pair of pants that it believed belonged to Pearson, but Pearson claimed they were not his. So Pearson wrote to the store, demanding $1,150 to buy a new suit. And then, Fisher writes, "Two lawyers and many legal bills later, the Chungs offered Pearson $3,000, then $4,600 and, finally, says their attorney, Chris Manning, $12,000 to settle the case."

So how'd the suit get this far? Pearson claims that he relied on signs in the store, stating "satisfaction guaranteed." The cleaners' failure to satisfy Pearson put them in violation of D.C.'s consumer protection law that provides for damages of $1,500 per day, which at 12 violations per day (not sure how Pearson arrived at that figure) eventually add up to $65 million. And Pearson even tried to expand the suit to include violations on behalf of all D.C. residents, a claim that led the judge to express concern that Pearson is acting in bad faith.

I can't even imagine the toll that this case has taken on the couple who own the cleaning store. I hope that they're represented by an attorney who's honorable enough to make them realize that not all lawyers are like Pearson. As for Pearson, I can imagine the appropriate remedy for a lawyer who persists in pursuing $65 million for a pair of lost pants: How about a lost license to practice law? That seems like a fair trade.

April 26, 2007 | Permalink | Comments (34)

Justice Kozinski Gives a 'Shout-Out' to Howard Bashman

Howard Bashman's blog, How Appealing, has received one shout-out from the 9th Circuit. And today, Bashman posts about a somewhat less desirable mention from another 9th Circuit member, Judge Alex Kozinski. At a recent talk before a law class, Kozinski had this to say about blogs and Bashman:

I just think it's so self-indulgent, you know. Oh, I'm so proud of what I'm saying, I think the world instantly wants to know what I'm thinking today. People wake up thinking, hmm, what does this person, whoever the blog, the question is -- I wonder what great thoughts have come into his mind this morning that I can feel myself edified by. I can't really have breakfast, really enjoy my day until I hear the great thoughts of Howard Bashman -- I don't think so. I go for months without ever knowing what Howard has to say. So I don't know. I find it sort of self-indulgent. And I find it so grandiloquent.

I guess one could say the same of Kozinski's judicial opinions that he's said about blogs. Moreover, with this opinion, Kozinski will find himself in the minority: Given the popularity of Bashman's blogs, there are apparently hundreds of lawyers who can't go without reading How Appealing on a daily basis. 

April 26, 2007 | Permalink | Comments (0)

Limits Proposed for Guantanamo Lawyers

Causing unrest, security risks,  hunger strikes, protests and disobediance are hardly the activities that we commonly associate with Biglaw attorneys. But that's precisely what the large firm lawyers, and, indeed, all the lawyers, who represent Guantanamo detainees have been accused of by the Justice Department, according to this New York Times story, Court Asked to Limit Lawyers at Guantánamo (4/26/07). As a result, the Justice Department has proposed new restrictions on lawyers' contact with their clients at Guantanamo. Restrictions include: limiting lawyers to three visits with existing clients and permitting military lawyers and intelligence officers not involved in the case to read lawyers' mail to clients and allowing government officials to decide, on their own, to deny lawyers access to evidence used to determine a detainee's enemy combatant status. The Justice Department defends its actions, arguing, “There is no right on the part of counsel to access to detained aliens on a secure military base in a foreign country.” The detainees' lawyers have harsh words for the ban, and rightly so. Neil H. Koslowe, a lawyer at Shearman & Sterling in Washington, is quoted in the New York Times article, calling DOJ's claims about lawyers' actions a “McCarthy-era charge” that was not supported by the evidence.

Having allowed Guantanamo detainees to retain lawyers, DOJ ought to extend all of the rights attendant to the right to counsel, whether a constitutional right exists or not. Irrespective of whether the detainees have a right to counsel, the lawyers who represent them have the right and, more importantly, the obigation to zealously represent these clients within the bounds of the law. By limiting lawyer access to clients, DOJ impedes lawyers from representing clients in the manner demanded by the Code of Professional Responsibility. 

You can learn more about the lawyers who represent Guantanamo detainees in Ari Kaplan's documentary videos, Like Snowflakes in December.

April 26, 2007 | Permalink | Comments (0)

Florida Bar Fights Over Cats and Dogs

At f/k/a/, David Giacalone continues his coverage of The Florida Bar's entry into the brave new world of regulating lawyer animal-tizing, er, advertising. By way of background, back in November 2005, the Florida Supreme Court affirmed the Bar's decision to prohibit the law firm of Pape and Chandler from using a pit bull as a mascot, finding it both demeaning and misleading (apparently, the Bar felt that consumers might confuse lawyers with pit bulls). Several months later, in February 2006, the Florida Bar's Standing Committee on Advertising held that the Panter Law Firm could not use a panther as a logo, for reasons similar to those given in the pit bull decision.  The Panter firm appealed to the Board of Governors, which reversed the Standing Committee's decision on a voice vote. Giacalone agrees with the outcome, but points out that the decision provides little guidance on what logos are permissible.

What next? Will Florida lawyers be required present expert evidence from veterinarians on a certain breed's temperament in order to justify use of an animal logo or mascot? Will someone challenge The Florida Bar's decision as discriminating against dogs in favor of cats? Ironically, in trying to elevate the dignity of the profession through regulation of ads, The Florida Bar is making lawyers look more and more like an animal that no one wants to resemble:  the dodo.

April 26, 2007 | Permalink | Comments (1)

April 25, 2007

Might Virginia Tech Be Liable?

Two recent articles explore this question. Associated Press writer Larry O'Dell (via the Houston Chronicle) recalls the lawsuit brought by victims and family members after a disturbed student at the Appalachian School of Law murdered three victims and wounded three others. They eventually settled for $1 million. Similar lawsuits against Virginia Tech are likely, O'Dell writes, but could be very difficult to win.

"Along with the similarities in the two cases, however, there is one significant difference: While the Appalachian School of Law is a private institution, Virginia Tech is a state school and therefore enjoys a level of immunity.

"How much immunity is a question that likely will be tested in court."

In an article published on FindLaw,  Brooklyn Law School professor Anthony J. Sebok considers possible legal grounds for holding Virginia Tech liable. He concludes:

"If an investigation reveals negligence by Virginia Tech, and it can plausibly be argued to be gross negligence, then perhaps the wounded victims and the families of the deceased will be able to recover for the damages they actually incurred. But the law -- thanks to the archaic sovereign immunity doctrine -- sets the bar too high. Proof of negligence, even short of gross negligence, should be enough."

It is a conclusion, he says, that is "not very reassuring for the families or the surviving victims," and that "raises important questions about whether we want to insulate the state from accountability in court for its mistakes."

And it is a conclusion that leads David Nieporent at the blog Overlawyered to suggest that crime does pay. The school's potential liability is a question that is academically legitimate to explore, Nieporent says. "But at the same time, the article illustrates that the trial lawyers of the sort Overlawyered complains about every day are not revolutionaries; they're just doing what they've been taught in law school. Namely, find a legal theory under which one can blame third parties."

Sebok, meanwhile, is careful to caution that the shooter, Cho Seung Hui, is the one "most responsible" for the shootings. "No one can or should assume that anyone else bears responsibility for what he did," Sebok says. "Only after a careful investigation can that sort of judgment be made."

April 25, 2007 | Permalink | Comments (0)

Publicly Traded Law Firms

Here's one item sure to attract the interest of plaintiffs' securities lawyers: Publicly traded law firms. As Bruce MacEwen writes at his blog Adam Smith, Esq., it will be a reality next year in the United Kingdom. And a newly published paper and a planned symposium put the focus on the concept's feasibility for firms on this side of the pond.

The paper, Law Firms, Ethics, and Equity Capital: A Conversation, published yesterday by Georgetown Law School's Center for the Study of the Legal Profession, collects correspondence among MacEwen, Georgetown law professor Milton C. Regan and University of Illinois law professor Larry E. Ribstein, in which they discuss whether current ethics rules would permit firms to sell financial instruments and debate the arguments for and against. (MacEwen and Ribstein support the concept; Regan "is more ambivalent.") The symposium, which Georgetown will host in April 2008, will focus on the prospects for public investment in U.S. firms.

"The importance of these issues to our profession in the 21st Century demands that our approach not be determined by inertia, free-floating (and in my opinion, irrational) fear, or an undue reverence for tradition," MacEwen writes. To which he adds: "Let the conversation begin."

April 25, 2007 | Permalink | Comments (1)

A Proffer You Can't Refuse

Deciding which of his enemies to murder was all in a day's work for Chicago organized crime boss Joey "the Clown" Lombardo. As the Chicago Tribune reports, a federal court document unsealed last week shows that Lombardo "decided how everyday mob business would be handled -- and which of his organization's enemies would be hit." Reporters Jeff Coen and Matt O'Connor write that the document reveals:

"Lombardo was involved in everything from shaking down movie and pornography distributors to securing union payoffs and the killing of a former chief of the Cook County sheriff's police at a sandwich shop."

The 63-page document makes for good reading -- and good cripts, says J. Craig Williams at his blog May It Please the Court. "One of the mobsters identified in the document in the case  has already inspired a character played by Joe Pesci in the 1995 movie, Casino," he notes.

But Williams was not able to find the document through any of the news reports that covered its release. So he went hunting and dug up a copy on his own. It is called the "Government's Santiago Proffer," and you can read it here. He recommends it to anyone who is "an aspiring screenwriter, or otherwise just curious about The Mob."

April 25, 2007 | Permalink | Comments (0)

Jobs Well Done?

Not likely, says an April 22 report in the San Jose Mercury News, which says it examined the backdated stock options grant to Apple CEO Steve Jobs and found "scant evidence, if any, to support criminal charges against the Silicon Valley icon."

"Despite Apple's disclosure that Jobs approved widespread backdating at Apple, there is no evidence he directed the backdating of his own grant or covered it up afterward, based on a review of regulatory filings and interviews with lawyers intimately familiar with the grant who asked not to be identified."

As Carolyn Elefant wrote here yesterday, that appeared to leave Jobs above the fray. But that was before the SEC announced that it had filed charges against former Apple GC Nancy R. Heinen and settled charges against former CFO Fred D. Anderson. (Here is the SEC's complaint.) And that was before Anderson, SEC settlement in hand, turned and pointed the finger at Jobs. A statement issued by Anderson's attorney Jerome Roth says:

"Fred was told by Steve Jobs in late January 2001 that Mr. Jobs had the agreement of the Board of Directors for the Executive Team grant on January 2, 2001. At the time Mr. Jobs provided Fred this assurance, Fred cautioned Mr. Jobs that the Executive Team grant would have to be priced based on the date of the actual Board agreement or there could be an accounting charge.

"He further advised Mr. Jobs that the Board would have to confirm its prior approval in a legally satisfactory method. He was told by Mr. Jobs that the Board had given its prior approval and the Board would verify it. Fred relied on these statements by Mr. Jobs and from them concluded the grant was being properly handled."

These developments appear to leave Apple, the company, home free, writes Roger Parloff at Fortune's Legal Pad blog, and lay the bulk of the blame on Heinen.

"Not far from the San Andreas Fault, a new fault line opened up in Silicon Valley yesterday — one that residents are actually thrilled to have discovered. We’ll call it the It’s All Nancy Heinen’s Fault."

But Jobs' status remains clouded, Parloff says.

"The cloud over Jobs stems from the written statement released by Anderson’s lawyer yesterday, which says that Anderson explained to Jobs the accounting implications of backdating in January 2001, at the time Jobs was backdating a 4.8 million-share grant to the company’s executive team, and 11 months before Jobs himself was granted 7.5 million backdated options."

And after reading the SEC complaint, Parloff is not sure he is happy with laying all the blame on Heinen. Meanwhile, as the U.S. Attorney's Office continues to investigate the case, one former SEC general counsel tells Associated Press that the combination of Anderson's accusations and the pending investigations leave Jobs' culpability in question. Ralph C. Ferrara, now a partner with LeBoeuf, Lamb, Greene & MacRae in New York, tells AP technology writer May Wong:

"That statement and the disposition of the SEC does leave Steve Jobs in legal limbo. It leaves him not knowing if he'll be swept up in heaven with Apple or cast into hell."

Will investigators ever get to the core of Apple's backdating scandal? Will Jobs be fully vindicated? For now, the only answer is: Stay tuned for further developments.

April 25, 2007 | Permalink | Comments (0)

April 24, 2007

When Is It Quitting Time?

With so many associates unhappy at firms and on the way out, those who remain likely wonder how they can decide when or whether to quit. If you find yourself facing that decision, check out Guy Kawasaki's interview with Seth Godin on Godin's new book, "The Dip: A Little Book That Teaches You When to Quit (and When to Stick)." Naturally, Kawasaki's first question to Godin is, "How does someone know when it's time to quit?" Here's Godin's answer:

It’s time to quit when you secretly realize you’ve been settling for mediocrity all along. It’s time to quit when the things you’re measuring aren’t improving, and you can’t find anything better to measure.  Smart quitters understand the idea of opportunity cost. The work you’re doing on project X right now is keeping you from pushing through the Dip on project Y. If you fire your worst clients, if you quit your deadest tactics, if you stop working with the people who return the least, then you free up an astounding number of resources. Direct those resources at a Dip worth conquering and your odds of success go way up.

Godin's book seems to have been written mostly for entrepreneurs, whose success frequently depends on their ability to figure out when stick and when to quit. But I imagine that it will also find traction with law firm associates and many lawyers generally who face these questions throughout their career.       

April 24, 2007 | Permalink | Comments (0)

What's the Penalty for Publishing Bar Questions?

The National Conference of Bar Examiners (NCBE) is on a mission to discover who posted 41 multiple-choice questions from the 2006 MultiState Bar Exam (MBE) on a Web log, according to this article, EarthLink Subpoenaed for Customer Records When Anonymous Web Posting Reveals Bar Questions (4/20/07). The NCBE, represented by Fulbright & Jaworski, has obtained a subpoena directing EarthLink to reveal the identity of the poster. The NCBE claims that the poster violated U.S. copyright laws that protect the exam questions, as well as a warning on the exam that states that "unauthorized disclosure of the contents" can result in criminal penalties, cancellation of test scores or denial of a bar application. 

Professor Maule has harsh words for the anonymous poster. He writes:

Posting the questions on the internet is foolish and dishonest. Doing so is an act of ignorance, not only about the restrictions but also about the consequences. Simple common sense tells a would-be lawyer that exam questions ought not be disclosed. The copyright law protects the owner of the copywritten material. Violating the copyright illegal; even if it does not violate the criminal law, it breaks the civil law.

The issue isn't as clearcut, however, for Alfred Yen in this post at Madisonian.net. Yen writes:

As far as the merits of this individual case go, it seems pretty likely that the posting of 41 questions is infringement. That case is particularly strong if the poster repeated the questions verbatim (darn, that would be hard to do). But what if the questions are merely summarized? Or what if the questions aren’t summarized, but merely discussed in ways that reveal their substance? I can understand that the NCBE doesn’t want its questions disclosed, but - as they appear to acknowledge - they can’t stop people from talking about the exam. If that’s true (and it surely is), what about those who write about the exam? Does anyone know what other standardized testing services do about this problem? Do they only go after the mass posters of near-verbatim repetition? Or do they try to stop all disclosure?  And, do they only use the notice and take down procedures, or do they file real copyright litigation?

As for me, quite frankly, I don't see what all the fuss is about. For starters, the poster only posted the questions, not the answers. If viewers don't know the answers, then what's the harm? Moreover, some of the MBE questions are so obtuse that I'm not certain that a group of law professors would always agree on the right answer. Moreover, I assume that the NCBE owns hundreds of multiple-choice questions and that it doesn't give the same exam year after year. And indeed, the NCBE couldn't give the same test, because exam takers who flunk and need to retake the exam, presumably, don't get the same combination of questions each time around. So again, what's the harm in posting questions that won't benefit test takers?

I realize that test takers agree to the warning that they won't reveal exam questions, and for that reason, I understand professor Maule's point about how those who violate that pledge are acted dishonestly. But test takers don't have a choice but to make that agreement, or they can't take the bar. To me, whomever posted the exam questions wasn't acting in defiance of NCBE's regulations; rather, he or she was trying to generate some discussion over the questions or give others an idea of what's in store on the bar. Perhaps the poster violated the forced pledge, but given that NCBE hasn't been harmed, I don't think that a severe penalty is warranted.

April 24, 2007 | Permalink | Comments (6)

Another GC in Trouble, This Time at Apple

Just when it seemed like the spate of stories on embattled in-house counsel had finally died down, yet another surfaces. This time, the subject is Nancy Heinlin, Apple's former GC, whom the SEC plans to sue over her role in backdating 2001 Apple stock options, according to this AP story (4/24/07) and this coverage at the WSJ Law Blog.

The AP article reports that Heinlin intends to fight backdating charges, according to her attorney Cristina Arguedas. Arguedas argues that the options at issue were not backdated, but that the grant dates were moved to later dates and higher prices because of delays in reaching a final deal with Steve Jobs. But Arguedas contends that issuances at later dates and higher prices complied with Apple's accounting policies.

Unfortunately for Heinlin, that's not the extent of the story. As this San Jose news story explains, the option grant was "documented through false minutes of a board meeting that didn't occur."

Elizabeth Nowicki of Truth on the Market harbors concerns about the fictious meeting as well. She writes:

Some academics have questioned whether backdating constitutes fraud.  The SEC’s complaint lays out the facts responsive to that query very well.  Essentially, the SEC says that Heinen knew she was acting for purposes of deceiving others when she drafted board minutes for meetings that never took place and when she omitted information from other board minutes to avoid the auditors figuring out that the options were backdated.  Heinen did something deceitful that materially impacted Apple’s financial statements (by understating expenses dramatically).

But Nowicki also has a "huge, huge" problem with the directors, who willingly signed on to documents with dates that differed from the actual date of signature. She writes:

TWhen Heinen faxed to her directors resolutions that were dated six months prior, surely the directors asked questions.  If someone asked me to sign a document today that was dated January 1, 2007, I would ask why the date does not match today’s.  Yet the directors signed off of the backdated resolutions like a pack of lemmings.  That slays me.  (Actually, what slays me is that the Apple directors, who facilitated Heinen’s fraud, are not front and center in the SEC’s enforcement actions.  Heinen papered the backdating; without the board sign-off, Heinen could not have consummated the fraud.)

For now, however, it appears that Steve Jobs will remain above the fray in the Apple backdating scandal. And to me, that's a fair result when corporate counsel aren't doing their job. 

April 24, 2007 | Permalink | Comments (0)

Lawyers Down Under Also Down

Most of us are already familiar with the sad fact that lawyers in the United States are more prone to depression than any other profession. But I was surprised to learn from this post at Legal Pad that 16 percent of Australian lawyers suffer from severe to moderate depression, which ranks them as the most depressed of Australian professionals, just above insurance underwriters. And the study also found that at least a third of these unhappy lawyers turn to drugs and alcohol to ease their pain. 

Still, Australian lawyers aren't quite as unhappy as their American counterparts. This post at Legal Underground cites studies showing that 19 percent of Washington state lawyers and 26 percent of North Carolina lawyers displayed signs of clinical depression.

April 24, 2007 | Permalink | Comments (0)

April 23, 2007

The Faith-Based Supreme Court

Call it the Catholic connection. As University of Chicago law professor Geoffrey R. Stone points out in a post at the American Constitution Society's ACSBlog, religious affiliation may be the key to explaining last week's Supreme Court decision in Gonzales v. Carhart, upholding a federal law prohibiting so-called partial birth abortions, otherwise known as "intact dilation and evacuation" or "intact D & E."

In its decision upholding the law, the majority noted that Congress had made several findings to support the legislation. The majority accepted those findings, even though, as Hazard writes, every other federal court that reviewed them found them to be "unreasonable, unbalanced, polemical, and unsupported by the facts." If so, how then to explain the decision? Hazard offers what he calls a "painfully awkward observation":

"All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is 'immoral' and may be prohibited even without a clear statutory exception to protect the health of the woman."

For Hazard, who served as a law clerk to Justice William Brennan in 1973, the year he joined the majority opinion in Roe v. Wade, last week's decision stands in stark contrast to Brennan's struggle to separate his personal religious views from his responsibilities as a justice. As did Justice Ginsburg in her dissent in Gonzales, Stone quotes from the Court's 1992 decision Planned Parenthood of Southeastern Pa. v. Casey, where it said:

"Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code."

To which Stone adds: "It is sad that Justices Roberts, Scalia, Kennedy, Thomas and Alito have chosen not to follow this example."

April 23, 2007 | Permalink | Comments (3)

Are You Ready for Litigation Avoidance?

Should litigation be the first resort of lawyers or the last? At his blog Human Law Mediation, Justin Patten considers this question after reading an article in The Telegraph about U.K. entrepreneur Chris Gorman and the protracted litigation in which he and a business partner were accused of "stealing" a chain of card and gift shops. Gorman and his partner won the case, but not before going through what The Telegraph called a "public ordeal," a "great spectacle" and "a bruising personal experience for those concerned." As the article quotes Gorman:

"My biggest frustration was that there was £10m costs between the four parties. No one gained anything from it. Think what the money could have done for charity."

Precisely. Which leads Patten first to an observation and then a question. The observation:

"Litigation is and for the foreseeable future will be a necessary step for many firms but it should be a point of last resort than a 1st point of call. The key question to ask here is whether there was an alternative to litigation. (I think Gorman indicates there was.)"

For Patten, that observation raises the question:

"Are lawyers really ready to embrace litigation avoidance? I wonder if the lawyers most likely to see the benefits of this will be the in-house lawyers who may be more aligned to the commercial needs of their firm than those lawyers in private practice."

As for lawyers' readiness to embrace litigation avoidance, I suspect we all know the answer.

April 23, 2007 | Permalink | Comments (0)

Non-dad Must Pay Child Support

We have all heard of deadbeat dads, but what about a non-deadbeat non-dad? At his blog May it Please the Court, J. Craig Williams comments on the case of a Florida man who learned too late he was not the father of the son he thought was his. As originally reported in The Christian Science Monitor, through a DNA test 16 months after his divorce, Richard Parker learned that someone else had fathered the 3-year-old boy. Facing court-ordered child-support payments of $1,200 a month for 15 years, he immediately turned to the courts, claiming fraud by his wife. His case took him all the way to the Florida Supreme Court, which issued its decision in February in Parker v. Parker. Williams tells what happened:

"The Florida justices ruled 7-0 against Richard Parker. The Court ruled Parker must continue to pay $1,200 a month in child support. Parker's child support payments will total more than $200,000 over 15 years to support another man's child. Unfortunately, however, Florida has a one-year statute of limitations to prove fraud after a divorce, and Parker didn't file in time."

Is this the correct result, Williams asks, or should the biological father pay for the child's support? For Parker, the question may still be more than academic. The Monitor reports that the Florida Legislature last year passed a law that allows men to use newly discovered paternity evidence to overturn a court order to pay support for someone else's child. Supporters of the law see it as a major step toward justice for deceived ex-husbands, the Monitor reports, but critics say it poses a potential danger to the well-being of mothers and children.

April 23, 2007 | Permalink | Comments (5)

A U.K. Ranking of U.S. Firms

Bill Gratsch at Blawg's Blog points us to rankings of U.S. law firms published last week by the U.K. periodical Legal Week. Under the headline International Ambition Drives as US Top 50 Rakes in $40bn in 2006, the publication reports that income at the top 50 firms grew by an average of 12.2 percent in 2006, while profits per partner rose 11.4 percent. At the top of the list was Skadden Arps Slate Meagher & Flom. The publication reported that it had revenue last year of $1.9 billion, a 20 percent increase over 2005. In profits per partner, Skadden ranked 10th at $2.15 million. In that category, top ranking went to New York firm Wachtell Lipton Rosen & Katz, with partners earning profits of $3.9 million. The firm with the greatest percentage of growth over the prior year was Dechert; its 2006 revenues of $728.8 million represented a 26.7 percent increase over 2005.

Among other key points Legal Week reports:

• "Internationally-committed firms were among the strongest performers, with Dechert, Jones Day and Fried Frank Harris Shriver & Jacobson experiencing the strongest profits growth."
• "Domestically-focused firms were hampered by a slowdown in New York securities listings, a drop in top-tier commercial litigation and a series of salary wars over the 12-month period, which have all hit profit growth."
• "Regionally, New York firms were generally outpaced by national rivals in terms of both revenue and profits growth. Firms based in Pennsylvania, including Philadelphia-based Dechert and Pittsburgh-based Reed Smith, saw the biggest growth in both turnover and profits."
• "The results ... demonstrate the depth of the US legal market. The 50th-ranked firm, Chicago’s Sonnenschein Nath & Rosenthal, would be placed 10th in revenue terms in the UK’s top 50 league."

Download the full list.

April 23, 2007 | Permalink | Comments (19)

A Note of Thanks

While I was off spring-breaking with my family last week, Law.com editor Jennifer Moline filled in for me here at Legal Blog Watch. Thanks to her, I was able to disconnect from the blogosphere for a few days without suffering the DTs. Allow me to extend a note of sincere gratitude to her for all her extra effort.

April 23, 2007 | Permalink | Comments (0)

April 20, 2007

Virginia Tech Tragedy and the Law

As our nation continues to mourn the victims of the senseless Virginia Tech massacre, many bloggers' thoughts turn to the question of whether this tragedy could have prevented or whether others like it can be prevented in the future.  While now's not the time to assign blame (and indeed, without additional information, we really can't make any definitive judgments), here's a list of some of the issues that will be generating additional discussion in the weeks to come:

Restrictions on universities. At Overlawyered, Walter Olson offers a round-up of articles that describe various laws such as the Buckley Amendment (FERPA), the HIPAA medical-privacy law and disabled-rights law, which constrain universities from inquiring about the mental health of students, notifying parents about suicidal tendencies or taking other action to deal with mentally ill students who may pose a threat to themselves or others. In particular, Olson recommends Tamar Lewin's New York Times piece Law Limits Options When Students Are Mentally Ill and links to this thread at Volokh discussing anti-discrimination laws.

Gun Control Laws. Naturally, the Virginia Tech shootings have revived debates over gun control, including this appeal by Walter Shapiro in Salon magazine entitled Repeal the Second Amendment.

The Limits of Technology. After the tragedy, some have argued that Virginia Tech could have made better use of technology and communications systems to warn students of danger following the first two killings in the dorm. But as Ryan Singel writes here in Wired, though improvements in communication systems are critical, the problem of notification is only partly attributable to technology. There's also the importance of making sure that the recipients of the communication actually take the message seriously. As another post stresses, at the end of the day, technology isn't going to ever protect us fully against these kinds of unexpected acts of horror.

Silent Blogs. April 30 has been designated as One Day of Blog Silence, to honor the Virginia Tech victims, as well as "all other victims of the world." But Diane Levin of Mediation Blog won't be participating. As she writes here:

Why be silent? What is the point? Why not use this as an opportunity to speak out? To rage against the machine? To stand up for whatever cause you believe in that will reduce human suffering or end violence? Provide better treatment and interventions for the mentally ill? Increase safety on college campuses? Take action against handgun violence? End the war in Iraq? The crisis in Darfur? Any one of the thousand conflagrations that burn around the world?  Or, better yet, get away from the keyboard and actually do something?  It will be business as usual at this blog on Monday, April 30. I won't be silent.

April 20, 2007 | Permalink | Comments (3)

The Future of Bankruptcy Law in the Aftermath of the BAPCA

Two years ago today, the Bankruptcy Abuse and Protection Act of 2005 was signed into law and took effect in October 2005. The Act implemented several significant changes to existing bankruptcy law, such as making it more difficult for individuals to file for Chapter 7 bankruptcy and imposing more onerous due diligence requirements on debtors' attorneys. Because of its anti-consumer slant and added burdens on attorneys, many consumer groups and lawyers vigorously opposed the BAPCA.

But has all the doom and gloom that was predicted come to pass? Bankruptcy law guru Catherine Vance provides an extensive analysis of the post-BAPCA world in this blog post, HAPPY BIRTHDAY, BAPCA!, up at the Bankruptcy Litigation Blog. Citing a survey by the Commercial Law League's Bankruptcy Section, Vance reports that consumer attorneys' practices have shifted as a result of BAPCA. She writes:

Almost 47 percent said that they had increased what they charge clients, and the follow up question that asks for details on pre- and post-BAPCPA fees shows that the increases are primarily confined to consumer debtors’ attorneys.  No surprises here; no one really expected that consumer debtors’ attorneys would keep their rates the same once BAPCPA took effect.  A third of the respondents said they had changed their client mix as a result of BAPCPA.  Again, a review of the comments some respondents provided shows that this is largely a consumer practice phenomenon.  For some, the shift had to do with the proportion of chapter 13 cases relative to chapter 7 cases, so, for these practitioners, the shift wasn’t away from consumer work.  Others, however, stated that their firms had affirmatively determined that they would do no more consumer debtor work, and some cut out all debtor representation, including those debtors would proceed under the new chapter 11 provisions for individuals. BAPCPA has had an effect on pro bono representation as well.  A third of respondents said that pro bono representation had ceased because of BAPCPA, and nearly 13 percent said the amount of pro bono work they do has decreased.   In a related question, 28 percent of respondents said they had noticed an increase in pro se filings.

Vance also notes that some creditors' lawyers are pulling out of reaffirmation work because of the BAPCA amendments. 

At the same time, in spite of BAPCA or perhaps because of it, some solos regard this as a great time to be a bankruptcy lawyer because (a) there's always a base need for bankruptcy attorneys, no matter the economy, and (b) with lawyers leaving bankruptcy law, there's more opportunity for those who enter this practice area. And as this Business Week article points out, new technology tools and datebases have emerged to help lawyers deal with BAPCA's additional requirements and keep up with the latest developments. 

April 20, 2007 | Permalink | Comments (1)

Law Firms and Pay-to-Play Marketing: Are the Costs Worth It?

Larry Bodine of the Professional Marketing Blog shares some really neat and creative law firm marketing ideas. First up is  what Bodine terms  the best lateral partner announcement, ever, featuring the slogan "They're Back!" alongside a photo of an attorney with arms thrown jubilantly in the air. The ad, which proclaims the return of two partners to Long Island, N.Y., firm Meltzer, Lippe, Goldstein & Breitstone, is intended to attract other laterals by showing that the firm is such a terrific place that even those who've left eventually return. The ad cost $2,000 to run. The second marketing idea is this cocktail party giveaway, an attractive ceramic coaster featuring copies of paintings of various cities by the hosting lawyer's father. The coasters include a one-page description of the scene as well as the firm URL.

These are really nice perks, but not something that all lawyers can readily afford. At the same time, a $2,000 ad or the cost of 200 coasters is modest compared with what some firms are spending on marketing. As this article, Shelling Out for the Spotlight (ABA Journal, May 2007), describes, firms are paying megabucks for "pay to play" marketing opportunities such as participation in a roundtable discussion or inclusion in a corporate counsel publication. 

Are all of these extras necessary for firms to compete for clients in today's competitive environment? Are firms paying for these marketing measures because they produce results or just to keep up with their competitors?

April 20, 2007 | Permalink | Comments (0)

April 19, 2007

How to Exit Your Firm With Grace

Stephen Seckler at Counsel to Counsel points to his colleague Carey Bertolet's article about quitting with grace. Seckler says the article is helpful for associates at large firms who hope some day to build their own practice at a smaller firm.

"Building your relationships with partners and associates while you are at a large firm is probably the most important thing you can do for your career in the long run," he says. "Partners at large firms can become excellent referral sources for clients who cannot afford large firm fees. They can also become referral sources for conflicts work. If your goal is to go in-house someday, these individuals can also be an important source of information about companies that need in-house counsel."

April 19, 2007 | Permalink | Comments (0)

Small-Town Lawyer Intimidated by Big City

Norm Pattis of the Crime & Federalism blog is a small-town lawyer, but he was visiting Georgetown this week for a seminar on 1983 litigation. While visiting Washington, D.C., Pattis checked out the buildings, impressed with the broad facades of the granite behemoths. In particular he was struck by the imposing structure of the Jones Day building.

"I am not sure whether to admire the audacity," he posts. "Imagine buying a former government building with a view of the Capitol. That is a firm with a blue chip on its shoulder. It probably has a committee to manage issues relating to image and decorum."

April 19, 2007 | Permalink | Comments (0)

In-House Lawyers Turn to Early ADR

Justin Patten at the Human Law blog points to a post at the Online Guide To Mediation highlighting the trend for in-house lawyers to use alternative dispute resolution, including mediation.

Mark LeHocky, general counsel at Dreyer's Grand Ice Cream, advocates the use of ADR to keep costs down and prevent disputes from "metastasizing."

April 19, 2007 | Permalink | Comments (1)

April 18, 2007

Supreme Court Upholds Federal Law Banning 'Partial Birth' Abortions

The Supreme Court issued a 5-4 decision today in Gonzales v. Carhart, upholding a federal law that bans "partial birth" abortion, without providing any exceptions for medical necessity or health of the mother. The New York Times, Law.com and others carried the story (see Appellate Blog for a running round-up).

As this summary from Jurist points out, Carhart represents the first time that the Supreme Court has affirmed a complete ban on an abortion procedure. In part, the Court deferred to extensive congressional findings that concluded that partial birth abortion was never justified by medical necessity. But pehaps in an effort to temper the scope of the ruling, Justice Kennedy, who authored the majority, noted that petitioners could still attempt to challenge the legislation on an "as-applied" basis, through presenting facts showing that a partial birth abortion is a medical necessity in a particular case. Justice Ginsburg read her dissent from the bench, criticizing the majority's decision as "alarming," and a departure from precedent like Planned Parenthood v. Casey and Steinberg v. Carhart, which both recognized that states could not proscribe the abortion procedure where necessary to protect a woman's health.

There's discussion, but not much surprise over the ruling, from the blogosphere. Most, including Justice Ginsberg herself, attribute the Court's apparent change in position on partial birth abortion to the new composition of the Court (Ginsburg made note of the changed composition in the final paragraph of her dissent). For example, SCOTUS Blog points out that:

Alito's replacement of retired Justice Sandra Day O'Connor made the most difference in turning the Court around from its 2000 decision in the Stenberg case. O'Connor was in the majority in that decision, as were the four dissenters in this new decision.

And there are also some unusual "takes" on the decision that go beyond the typical "woman's right to choose" vs. "government's right to protect the fetus." Ilya Somin at Volokh examines the federalism question of whether Congress has authority to regulate abortion procedures under the Commerce Clause. And even more interesting, Steph Tai at Concurring Opinions ponders how the Carhart Court's willingness to defer to Congressional findings to resolve scientific uncertainty might apply in other cases such as those involving global warming, where scientific and legal findings are intermingled.

April 18, 2007 | Permalink | Comments (0)

Lawyers Face Withdrawal When CrackBerry Goes Down

Last night's BlackBerry outage triggered frustration, panic and withdrawal symptoms amongst its many users, according to this Reuters article, A Night Without 'CrackBerry': Curse or Blessing? (4/18/07). What's amusing, however, are that the comments on the outages sounded more like those of addicts forced to go cold turkey rather than professionals missing a communication device.   Consider these remarks:

At the U.S. Capitol, where lawmakers and staffers rely on the BlackBerry to keep plugged into shifting legislative and political battles, the temporary outage was crippling.  "I felt like my left arm had been amputated," said Joe Shoemaker, communications director for Assistant Senate Democratic Leader Dick Durbin of Illinois.  White House spokesman Tony Fratto opened a morning briefing with reporby apologizing for missed e-mails.  "I think we're 14 hours into no BlackBerrys. So you can imagine how things are over there," he said.  Charles Ross, a criminal defense lawyer in New York, said the outage left him feeling "vulnerable and uncomfortable," and caused him to miss a breakfast appointment with a colleague.

Others, however, took advantage of the downed service as an opportunity for a free eventing. And of course, the BlackBerry outage didn't affect all lawyers, including Future Lawyer Rick Georges. It's not that Georges has disclined himself against a BlackBerry addiction; rather, he's a Treo user, who can find his fix from a bunch of different e-mail systems rather than one proprietary dealer.

April 18, 2007 | Permalink | Comments (1)

GE Wins Best In-House Legal Department Award

The Wired GC reports that General Electric's in-house legal department was selected as tops in the nation by Corporate Counsel magazine. In particular, GE drew praise for its use of technology. Matters are logged into the legal department's tracking system, and lawyers are required to evaluate the case within 60 to 90 days. Lawyers also have access to an integrated database that will identify any legislation or case law that could affect the dispute. Through this system, the litigation  team can decide, early on, whether it’s best to settle or take the case to trial.

Initiatives such as this allowed GE to reduce litigation costs from $120 million in 2002 to $69.3 million in 2005. And it's that reduction in costs that Wired GC perceives as critical for law firms chasing corporate business. Because regardless of what we hear about how cost doesn't matter or that corporate clients will pay whatever legal bills they receive, GE's case shows that corporations are thinking differently.

April 18, 2007 | Permalink | Comments (0)

Prior Good Acts Yield Lesser Sentence

When it comes to sentencing, it sometimes seems that last-minute remorse, in the form of cooperation with prosecutors (case in point -- Enron's Andy Fastow and his six-year sentence) buys more leniency than a long history of good deeds. But one District of Columbia Superior Court judge, Ricardo Urbina, takes a different approach. In sentencing local businessman Douglas Jemal on one count of wire fraud (a jury acquitted him on corruption and tax evasion charges), Judge Urbina gave Jemal five years of probation and a $175,000 fine, but no jail time, as reported in this article from the Washington Post (4/18/07). But what's interesting was Urbina's rationale for the sentence. After considering 200 letters from Jemal's supporters, citing good deeds ranging from helping homeless get back on their feet to providing meeting space to the local police department, Urbina concluded that Jemal's past generosity warranted a lesser sentence. The Post article summarized Urbina's rationale:

The judge said he compared two disparate groups in reaching his decision: convicted felons-turned-cooperators for whom prosecutors urge reduced sentences and community members who attested that Jemal's generosity changed their lives.  "They have committed numerous, numerous crimes," Urbina said of the informants. "They have lived such a corrupt life that it now helps them buy their way out of trouble."  By contrast, Jemal had demonstrated a genuine selflessness, he said, helping homeless men get work, giving plane tickets to poor workers for family visits, even giving his beloved dog to a woman suffering mental anguish.  One thing is clear: Mr. Jemal has devoted much of his adult life to good, charitable causes," Urbina said. "When I compare the valuable and worthwhile services [repeat offenders] provide to society and I see what Mr. Jemal has done over the course of his lifetime, it is inconceivable to me that I should impose the penalty proposed here. . . . Being fair means being fair."

Doug Berman at Sentencing Law and Policy Blog picks up on this story, as does White Collar Crime Blog, which commends Urbina for "recognizing that an individual who decides to go to trial should not be punished simply by making this choice. If cooperation can yield probation, then perhaps asserting one's constitutional right to a jury trial should also allow for probation." As Judge Urbina expresses, this boils down to fairness. If sentencing guidelines allow for consideration of prior bad acts, why not prior "good acts" as well?

April 18, 2007 | Permalink | Comments (1)

April 17, 2007

Survey Names Most-Admired Law Firm Leaders

At the Adam Smith, Esq. blog, Bruce MacEwen posts about the results of a survey distributed recently by Edge International, which asked law firm leaders two questions: Which law firm managing partner/chair/CEO, outside of your own firm, do you admire most for their leadership? Why does that individual stand out in your mind?

Check out the top admirees here, and read why MacEwen says that while the identities of the "winners" are fascinating, far more significant to him is why those individuals were deemed standouts.

April 17, 2007 | Permalink | Comments (0)

Still Flying Solo at Age 100

Centenarian Richard Bird has been running his own law firm for more than 60 years. The 100-year-old lawyer graduated from Harvard Law in 1933 and continues to this day to work 9 to 5, Monday through Friday. Carolyn Elefant at the MyShingle.com blog doesn't cover up her admiration when she posts: "When you start a firm, sometimes, it's hard to imagine lasting 60 days or months."

April 17, 2007 | Permalink | Comments (0)

What About Law Department-Sanctioned Pro Bono?

A recent article about Gregory Bower, the general counsel of the United States' Government Printing Office, mentioned the issue of departmentally sanctioned pro bono. "As a federal agency, the GPO doesn’t engage in pro bono work," the article states. "Bower points out, however, that he encourages his lawyers 'to engage in pro bono work on an individual basis and as allowed by federal law.'"

Rees Morrison, of the Law Department Management blog, posts that some law departments, as an entire law department, commit to support a pro bono activity. "For the legal departments of US government agencies, the distinction between departmental support and personal support is crucial," Morrison writes. "For private corporations, I doubt there is a similar divide."

April 17, 2007 | Permalink | Comments (0)

April 16, 2007

N.Y. Advertising Rules Challenged

Looks like New York's controversial advertising rules that took effect earlier this year are going to trial, as reported in this article, NY Firm Takes Suit Challenging Lawyer Advertising Rules to Trial.  Northern District Federal Judge Scullin denied the state's motion to dismiss the plaintiffs lawyers' challenge to the constitutionality of the rules.  Plaintiffs include Public Citizen and the law firm of Alexander & Catalano, which argue that the rules place onerous restrictions on commercial and noncommercial speech and, in doing so, regulate the content of the ads rather than their accuracy.  The ads also prohibit use of monikers such as "heavy hitter" that tend to imply that a particular result will be achieved.  Several firms, including Alexander & Catalano, had used these and similar mottos, but have stopped for fear of violating the new rules.

The trial is scheduled to begin June 18. 

April 16, 2007 | Permalink | Comments (0)

Clients With Bad Lawyers Get Good Treatment From 6th Circuit

Defendants facing the death penalty in the 6th Circuit may want to consider hiring the worst lawyer they can find. Perhaps that sounds counterintuitive, but according to this article from the Cincinnati Enquirer (4/16/07), ineffective assistance cases accounted for 54 percent of all appeals won by death row inmates in the 6th Circuit.

An Enquirer analysis found that in the past seven years, 15 death row inmates prevailed on appeals of their sentences based all or in part on claims of ineffective assistance of counsel. Some of the mistakes are egregious, while others just seem trivial. For example, in some cases, lawyers never spoke to their clients or failed to hire experts, read documents or interview their own witnesses. Those are serious infractions. But the article also mentions that two lawyers broke out in laughter during arguments before the Ohio Supreme Court. It's hard to see how failure to maintain proper decorum in court could justify overturning a capital sentence (presumably, these cases involved other misconduct or incompetence).

But is the problem incompetent defense lawyers? Or are courts using minor errors as a way to overturn death sentences? And finally, there's a possibility that the article doesn't consider: Might a clever but overworked defense attorney commit error intentionally to spare his client a capital sentence? Perhaps in some instances, providing ineffective assistance of counsel provides the accused with the most effective defense against a death sentence.

April 16, 2007 | Permalink | Comments (1)

The Guardian Blogger Behind the Duke Lacrosse Story

These days, the wrongfully accused don't need a guardian angel as much as a guardian blogger. And it seems that the recently exonerated Duke lacrosse players accused of rape found a guardian blogger in Brookly College professor KC Johnson, profiled in this article, Midnight blogger exposes a scandal (4/16/07). Johnson, who provided a blow-by-blow account of the Duke lacrosse rape scandal at his blog, Durham in Wonderland, helped uncover various irregularities and misconduct that eventually played a role in the dismissal of case against the Duke students.

According to the article, the blog became an invaluable tool for the students' lawyers involved, said James Cooney, the lead lawyer for one of the three accused. For example, Johnson's blog showed that the photo identification procedures used by DA Mike Nifong were "wildly irregular" after contacting every district attorney in North Carolina as well as 10 police departments. And Johnson also discovered that a woman working on Nifong's re-electrion campaign had supported burning down the house where the alleged rape took place.

Now with the case over, Johnson will wind down his blog in June. And as with many bloggers, he'll be writing a book along with Stuart Taylor of The National Law Journal about the incident. What a testament to the power of the blog.

April 16, 2007 | Permalink | Comments (1)

Dog Writes Blawg Review #104

This week's Blawg Review #104 isn't for the dogs: It's from one! That would be Rosemary, the dog belonging to indefatigable  independent lawyer Sheryl Schelin, aka "the Tall One," who hosts Blawg Review #104 at the The South Carolina Law Blog. With Rosemary as our guide, Blawg Review #104 treats us to a romp around the blogosphere, with posts on employment law and client relations. But perhaps the best insight comes from Rosemary herself, who writes:

Frankly, I have a question about this saying. “Working like a dog.” Have you people seen most dogs work? I don’t know about the dogs where you’re from, but around here, me and my posse hang loose and have the fine art of chillin’ at the beach down, man. We spend our mornings getting the kids and grownups off to school and work, of course, and yes that’s hectic, but then we’ve earned the first of many daily naps. On the bed, on the couch, in the sunny spot out on the porch… frankly, I think you people would be much better off if more of you worked like we do. Which is to say, very little. And with frequent naps.

April 16, 2007 | Permalink | Comments (0)

April 13, 2007

How to Handle Bloggers - Not!

"Big, powerful law firms like Nashville's King & Ballow really ought to hire someone with journalistic and new media experience to advise them on how to handle clients who complain about things published by bloggers," says media relations consultant and blogger Bill Hobbs. "Then they wouldn't do stupid things like issue threats of libel suits that they can't win against bloggers who, it turns out, have lots of friends willing to make the law firm and its client look bad for it."

Hobbs is referring to the demand letter the firm sent to blogger Katherine Coble after she posted an item on her blog critical of executive-search firm J.L. Kirk & Associates. The letter gave her two days to take down her blog entry or be sued for damages. Instead, Coble posted the letter, and that set off what a Knoxville News Sentinel blog called "A historic worldwide blog swarm on Tennessee." The blog Nashville is Talking has the full play-by-play.

Ironically, King & Ballow should have known better. As TV reporter Sharon Cobb points out, the firm is known nationally for its defense of the news media and of the First Amendment. According to the firm's Web site, it represents more than 300 daily newspapers and more than 100 radio and TV stations. I've met members of the firm and been impressed with their media (and new media) savvy.

So why did this media-savvy firm take this route? It hasn't said, but Hobbs describes why it was a mistake:

"[B]y threatening to sue Coble, King & Ballow and JL Kirk Associates have made it MORE likely that the comments that [they] don't like will be read by lots more people than it otherwise would have, and will be republished countless times on the Internet in more places than JL Kirk Associates can possibly afford to pay King & Ballow to threaten to sue."

Knoxville lawyer Rob Huddleston agrees, calling the demand letter "a real blunder." He explains:

"Yes, the practice of issuing demand letters as a way of getting what a client wants without having to resort to actual litigation is widely used. However, you can't treat every case the same. You need to know when something is going to be attractive to media -- local, state, or (in this case) global. ... If this case is going to make the media take notice (taking into account that mainstream sources oftentimes are agitated to action by bloggers), then you have to be perfect in your actions."

I agree with him when he says that this is a prime example of a case in which J.L. Kirk should have "let sleeping dogs lie." Meanwhile, the Media Bloggers' Association (to which I belong) has taken up Coble's defense. Its general counsel, Ron Coleman, has sent King & Ballow a preliminary reply. 

April 13, 2007 | Permalink | Comments (0)

Law.com's New Legal Search Tool

Law.com yesterday launched a new search tool, called Law.com Quest, that allows more focused searching of legal sites than would a general search site such as Google. The goal, of course, is to deliver more relevant results. Quest provides two options for searches: search only the Law.com network of sites or search a broader collection of legal Web sites and legal blogs.

I posted my initial impressions yesterday on my LawSites blog. In the interest of full disclosure, this blog is owned by Law.com and my LawSites blog is part of the Law.com blog network. That said, I found Quest to be a significant improvement over previous options for searching the Law.com network of sites, which includes all ALM national and regional publications. As I wrote yesterday:

"A nice feature is the ability to filter search results by date ranges or by the content source or type. For example, if you search within the Law.com network, you can then filter results to show only those from the National Law Journal or The American Lawyer, or you can choose to see only results that come from court decisions or blogs. If you use the broader "legal Web" search, you can filter results by selected courts and regions."

I particularly like the addition of the broader legal Web search. Law.com staff members select the Web pages and blogs to include in this search. That can be good, in that they can separate the wheat from the chaff. At the same time, it would be nice to know which sites it is searching -- and which it is not. But, as I wrote on my blog, that is a minor irritant in an overall significant enhancement to the Law.com site. The new search tool's most striking feature is its ease of use, facilitated by filtering. Law.com plans to add more sites to the broader search option. That broader search, combined with Quest's search of ALM articles, court decisions and features, should make this a popular search tool for legal professionals.

April 13, 2007 | Permalink | Comments (2)

The Right to Bare Arms, Etc.

We've stayed away from the discussion of Brooklyn Law School student Adriana Dominguez, confident that David Lat at Above the Law would give full coverage to her uncovered exploits. But the incident brings up an intriguing question, already raised here and here,  as to whether Dominguez's decision to pose nude should have any bearing on her character and fitness to practice law. Here is where we need the deliberative perspective of a constitutional scholar, a challenge Eugene Volokh readily accepts by reminding us that even law students have First Amendment rights. He explains:

"[I]t seems to me that it would be a clear First Amendment violation for a state bar to consider this in the character and fitness evaluation. The government, even in its capacity as licensor, generally may not penalize you for exercise of your First Amendment rights; and making sexually themed videos is part of your First Amendment rights just as is making other videos. ...

"The government has been historically granted some extra latitude when it comes to licensing lawyers. ... But these are narrow exceptions to the broad protection that lawyers, alongside other citizens, enjoy; before lawyers may be disciplined, disbarred, or denied bar membership based on their speech there needs to be a pretty powerful explanation of why the speech may undermine the administration of justice. No such explanation seems likely here."

Another blogger, Ann Bartow at Feminist Law Professors, put forward a similar position, even more succinctly, when she wrote: "I don't think nudity is an ethical violation."

So there you have it: the lawyer's right to bare arms -- or anything else.

April 13, 2007 | Permalink | Comments (2)

Imus-t Dissent

Let it not be said that blogger Norm Pattis is shy about expressing his opinions, and on the firing of Don Imus, his position is that the shock jock was lynched. Yes, he argues, Imus showed racial insensitivity -- but let's be honest about the fact that we live in a racially insensitive society. Says Pattis:

"What Imus teaches is that we cannot talk about the things that divide us. Too much truth, too much honesty is dangerous. It is better to engage in symbolic chatter. Let Oprah and Al Roker have prime time slots and let them speak politely about things. But don't let them provoke. Keep it all clean, mild, and compressed toward a center that does not hold. Avoid real issues in the name of getting along while the lights are on."

The fact is, Pattis argues, race does matter, a lot. That is why there is disparity in drug sentencing and inequality in housing and education -- real issues tearing away at our society's health. "But rather than focus on these, rather than engage in any meaningful discussion of race," he writes, "we lynch Imus."

April 13, 2007 | Permalink | Comments (3)

April 12, 2007

Can Duke Students Sue?

Now that the criminal charges against the Duke lacrosse players accused of rape have been dismissed, some are wondering whether the Duke defendants should sue or move on with their lives. And there's already some discussion about the possible basis for an action.

As this AP story describes, generally, prosecutors have immunity for what they do inside the courtroom, but "that protection probably doesn't cover some of Mike Nifong's more questionable actions in his handling of the case -- such as calling the lacrosse players 'a bunch of hooligans' in one of several interviews deemed unethical by the state bar." Several experts quoted in the article believe the Duke players have a good case. From the article:

"I think their chances of success suing Mr. Nifong are reasonably good, despite what we call prosecutorial immunity," said John Banzhaf, a professor at the George Washington University School of Law....

Other actions Nifong took outside of the courtroom could open him up to a lawsuit, Banzhaf said. Nifong, among other things, directed the police lineup at which the accuser identified the three players; the lineup has been criticized as faulty. The bar has also accused Nifong of lying in court about having turned over all DNA test results to the defense.

"When he acts as an investigator and advises police, or makes representations to court which may be false, in all these situations he does not have absolute immunity," Banzhaf said.

But  another attorney quoted in the article, Norm Early, a former Denver district attorney, opined that he did not believe that Nifong's actions alone would sustain a lawsuit. 

So far, attorneys for the accused students have advised their clients about their options regarding a suit, but as yet, no decisions have been made.

April 12, 2007 | Permalink | Comments (1)

Lawyer Seeks $11,000 an Hour

No, that's not an extra zero or two in the headline: According to this article, Carnival Like Hearing on $93 Million Attorneys Fees Request, litigator Willie Gary is seeking $93.1 million in attorney fees, or an hourly rate of $11,000, for his representation in a $10 billion trade secrets case against Motoroloa that ended in a mistrial. According to the article, Gary claimed that the mistrial resulted from Motorola's violation of the court's sequestration order preventing witnesses from reading or hearing other witness testimony before taking the stand.

At least one lawyer, plaintiffs attorney Walter "Skip" Campbell, testifying for the plaintiff, said Gary is worth $11,000 per hour because of his status as one of the country's top litigators. But another attorney  conceded that he was not aware of any attorney paid $11,000 per hour for a case that ended in a hung jury. And to complicate matters, Gary and his colleagues offered affidavits stating the number of hours they worked but did not present billing records.

It's unfortunate that the plaintiffs case was derailed by Motorola's lack of compliance. For that, sanctions are undoubtedly justified. And without question, Gary is entitled to payment for his time. But without knowing what the actual outcome would be had the case gone to trial, a fee request of $11,000 is difficult to justify.

April 12, 2007 | Permalink | Comments (0)

Law Firm Teaches Lessons on How to Deal With Bloggers -- NOT!

You'd think that the flak that Baker & MacKenzie suffered 'round the blogosphere, following an overbearing cease-and-desist letter against Boing-Boing would have taught other law firms how to protect their clients' interests in cyberspace without making fools of themselves. But now, as Professor Bainbridge and many other bloggers report, another law firm, this time Nashville firm King and Barlow, has drawn the ire of other bloggers for threatening a libel action against blogger Kat Coble unless she removes something that offended one of the firm's clients. You can find the details of the incident at Nashville Is Talking

As for the commentary, not surprisingly, most bloggers are criticizing King and Barlow's approach. Bill Hobbs shares the stats from Technorati and Google on how much negative attention King and Barlow has attracted. And he writes here that law firms need to realize  that the "severe blowback" from heavy-handed demand letters "damage the company's reputation far worse than the blog post that offended them."

Likewise, Rob Huddelston of Voluntarily Conservative agrees that the letter was ill conceived, and he faults both the law firm and its clients. From his post:

In any case, this is a real blunder by King & Ballow. Yes, the practice of issuing demand letters as a way of getting what a client wants without having to resort to actual litigation is widely used. However, you can't treat every case the same. You need to know when something is going to be attractive to media - local, state, or (in this case) global. This goes for civil suits (as the one being threatened against Kat), criminal suits, and even juvenile cases (because the media can request access on certain hearings there, too). If this case is going to make the media take notice (taking into account that mainstream sources oftentimes are agitated to action by bloggers), then you have to be perfect in your actions.

King & Ballow were not perfect here. Not by a long shot. They ignored the relevant federal caselaw regarding libel, opinions as free speech, truth as an absolute defense, and 1st Amendment litigation in general. And surely they knew (or should have known) that Kat would take this public. Anyone familiar with Kat's writings (and you have to assume that the associate who wrote this letter at King & Ballow would be so familiar, having referred to specific posts of the blog) knows that she doesn't take crap from anyone. They should have known that she would expand this conflict, and the public relations blowback against JL Kirk and King & Ballow would be more than significant.

However, the real culprit here is JL Kirk & Associates. They should have let sleeping dogs lie....

And the incident even provoked a post from uberblogger Instapundit, who links to the cease-and-desist letter.

As for me, I agree that the firm miscalculated, big time. But I don't fault the client. It's an attorneys' job to advise clients about all of the repercussions related to cease-and-desist letters and not merely opine on whether there's a viable legal basis for the claim. Here, King and Barlow was woefully undereducated in the politics and dynamics of the blogosphere, and as a result, it couldn't advise its clients about the consequences of sending a cease-and-desist letter. The best advice comes from Francis Pileggi at Delaware Litigation: Lawyers who ignore the blogosphere do so at their peril.

April 12, 2007 | Permalink | Comments (5)

Wanted: Lawyers for Soldiers

Our country's soldiers may protect our nation, but at the same time, they also need protection themselves, specifically, legal protection, as professor Jonathan Turley argues in this USA Today piece, What our soldiers really need: lawyers. As Turley writes:

For decades, our military members have been barred from suing for medical malpractice and other forms of negligence by the government. Whether it is a military doctor cutting off the wrong leg or a military gasoline station cutting a brake line, military personnel are not allowed to seek legal relief as other citizens can. The result is that they are victims of grotesque forms of negligence that have not been widely seen in the civilian world for more than a hundred years. In the civilian system, the threat of lawsuit serves a critical deterrence of negligence by the government, companies and others. A rational actor will avoid liability costs by taking measures to minimize accidents.

Turley explores the historical basis for barring tort actions by service members and argues that as a resut, there is " little deterrence for military negligence beyond self-regulation, bad publicity or a political scandal."   

What's your opinion about Turley's position? Would opening the door for tort claims by soldiers increase litigation and costs to taxpayers? Or would the the threat of legal liability help deter  situations such as the current fiasco at Walter Reed?

April 12, 2007 | Permalink | Comments (2)

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