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July 31, 2007

The State of Law Professor Blogging

Professor Daniel Solove has his annual report on the state of law professor blogging in this post at Concurring Opinions. In 2007, there are 365 law professor bloggers (one for each day of the year!), with a change of 58 new bloggers and six departed since October 2006. As in the law blogosphere, male law prof bloggers outnumber the women, with 268 men and 93 women -- or a breakdown of 74%/26%. And new professor bloggers joined in similar proportions. 

The ranks of blogging professors have nearly tripled since 2005. Back then, Solove notes that there were only 130 law professor bloggers -- 28 female and 102 male. The schools with the top number of bloggers are Chicago (with 18), Georgetown (17), San Diego (9) and Illinois (8) -- though it's not clear whether they each have their own blogs or participate in group efforts (which involve less time commitment).

There's other information I'd like to see in the study. How many law professor bloggers are tenured versus not -- and does that impact blogging decisions (are law professors more likely to blog to increase visibility and concommitantly, the chances of tenure, or are they less likely to do so for fear that they won't be viewed as "real scholars"? )? How many of the law professor blogs have been cited in law reviews -- and do law professors view citation as a benefit of blogging worth mention? I imagine that, eventually, we'll see more about the impact of blogging law professors on legal scholarship -- though, ironically, a more comprehensive study will probably appear in a traditional law review or journal rather than a blog.

July 31, 2007 | Permalink | Comments (1)

A Marketing Idea That Cooks

Larry Bodine posts here about a new marketing initiative "cooked up" by Barnes & Thornburg. The firm published a 318-page cookbook entitled "Great Tastes of the Law," composed of recipes from firm lawyers. All proceeds from the $16 book go to charity.

The book is an interesting concept  -- and likely sets the firm apart from others. Plus, it's potentially a great conversation piece; a client may notice an interesting recipe that may start an interesting personal conversation with a firm lawyer. On the other hand, the cookbook might also ask law firm attorneys why they spent so much money on a billable expense account lunch charged to clients, when they could have cooked an equally good meal at a fraction of the price.

Has your firm used a somewhat unusual marketing idea? If so, what was it, and what kind of returns did it generate, either monetary or good will?

July 31, 2007 | Permalink | Comments (0)

You May Not Want to Start Marketing With Facebook Just Yet

Perhaps if you work at a U.K. firm, you best not take my earlier suggestion about using Facebook as a marketing tool. As Wired GC posts here, 70 percent of London firms surveyed are restricting employee access to social-networking Web sites like Facebook. One exception is Allen & Overy, which initially followed the trend but lifted the ban after employee complaints. As for Wired GC, he wonders whether lawyers are really using Facebook to build professional networks -- and do they bill their time doing it?

What are the trends in the United States? Do any large firms here ban access to professional-networking sites -- and are associates using them for business ... or pleasure?

July 31, 2007 | Permalink | Comments (1)

July 30, 2007

Is SJC Nominee in Trouble?

That is the question media writer Dan Kennedy asks at his blog Media Nation about Margot Botsford, Massachusetts Gov. Deval Patrick's nominee for a seat on the state's highest court, the Supreme Judicial Court. I, for one, don't think so. Botsford, currently a judge on the state's Superior Court, is highly regarded among lawyers in Massachusetts and has an impressive record of achievements to support her.

The question arises because, one day after Gov. Patrick nominated Botsford, the Boston Herald reported that her husband, lawyer S. Stephen Rosenfeld, last year donated three times the legal limit to Patrick's campaign fund. Rosenfeld is also well known within the state's legal community and was chief of staff and legal counsel to former Massachusetts Gov. Michael S. Dukakis. This news led blogger Kennedy to comment:

"Botsford is well-qualified and progressive, but this has the aroma of a quid pro quo. You could argue that she's not responsible for her husband's political donations, but come on. As a judge, she can't make political donations anyway. (Or at least she shouldn't.) And why didn't someone at the Patrick campaign flag the excess donations and return them?"

From the state's legal community, support for Botsford's nomination is strong. Massachusetts Bar Association President Mark D. Mason issued a statement in which he said:

"Botsford’s keen intellect and extraordinary abilities as a jurist enhance the outstanding reputation of our state's highest court. She is highly regarded and respected amongst jurists and attorneys throughout the commonwealth."

The president of the Boston Bar Association, Jack Cinquegrana, had like praise:

"[Botsford] is a true scholar of the law and a noble public servant who is universally admired for her brilliance, her extraordinary work ethic, and her commitment to justice."

My prediction is that her nomination will -- and should -- sail through.

July 30, 2007 | Permalink | Comments (0)

BlawgWorld 2007: I Still Don't Get It

When TechnoLawyer Publisher Neil J. Squillante and Editor Sara Skiff released the first edition of their BlawgWorld  e-book in November 2005, I wrote at my LawSites blog that it was a worthwhile experiment, but one that should be shelved. I explained:

"[H]aving now seen the final product, it is clear that the concept simply did not work as a book -- blog postings frozen in rigid pdf pages seemed drained of whatever vitality they once might have had."

I also expressed discomfort at the way it was promoted, seemingly making the bloggers who contributed essays pawns in expanding TechnoLawyer's membership. Thus, with the release today of the second edition of this e-book, BlawgWorld 2007, I was not surprised to receive an e-mail from Squillante pointing out changes in this new edition. "I agree with you that the first edition had flaws," he wrote, "but rather than shelve it, we addressed the flaws."

Well, in my opinion, they did and they didn't. Let's start with the good. Squillante and Skiff deserve high praise for the design and format of BlawgWorld 2007. The book employs a navigation system that takes full advantage of the features of PDF. The concept is "three clicks from anywhere to anywhere." That holds true, enabling the reader to find and get to articles quickly and intuitively. In addition to intuitive navigation, the book's pages are nicely designed. Blog essays include information about the blog and the blogger and even a thumbnail of its main page. Essays are published with all links intact so that the reader can jump from book to web and back.

To some extent, this design addresses my concern about rigid PDF pages draining blog posts of their vitality. But the premise of this book (as Squillante explains in the video here)  is that is serves as the best way for lawyers to discover legal blogs and choose the ones they might regularly read. I still don't see how it does that. Myself, I am able to evaluate a blog only by reading several postings over a period of time. To take one self-selected post and add it to a compendium of posts from other bloggers seems to serve no practical purpose other than to stroke the egos of the bloggers who are included.

Then there is still that discomfort aspect. This time, BlawgWorld is being promoted as two books in one. The second book -- which is not a separate book at all -- is the TechnoLawyer Problem/Solution Guide. This is described as "the product guide reinvented" and a "revolutionary new sponsored resource." The key word here is sponsored. Although positioned as a collection of questions and answers about common technology and management problems, it is really a collection of advertisements. The answers are not objective, they are provided by vendors to promote their own products and services. Here, for example, is a question: "Does a case management solution exist specifically for personal injury practices?" The answer, "Look no further than Needles." Let's call this what it is -- a huge advertising directory.

Squillante says that this e-book costs much more than the first one to produce, so he had to sell advertising. Rather than "turn the eBook into a magazine with big garish ads interspersed with the blawg essays," he chose this approach, which he says was inspired by the yellow pages. He explains: "Participating legal vendors were required to ask a question (Problem) free of superlatives that a law firm might actually ask, and then answer that question (Solution) using 250-300 words."

With 45,000 downloads, the popularity of the first BlawgWorld exceeded all expectations. Squillante expects to see the number of downloads for this second BlawgWorld reach at least 50,000. So even though I don't get it, plenty of people apparently do. Clearly, this second edition is an improvement over the first in many respects. If some readers find it useful in learning about and selecting blogs, then BlawgWorld has achieved its purpose.

July 30, 2007 | Permalink | Comments (49)

Praise for ABA Journal Web Site Relaunch

The headline that best describes the ABA Journal's unveiling last week of its new Web site may be this one from Mark Obbie: A Sleeping Giant Stirs. I first noted the head-to-toe redesign of the site a week ago on my LawSites blog, but now that I am back from the Maine woods, I have had a chance to look more closely at the site and at other bloggers' comments. Opinions appear to be unanimously enthusiastic. Overnight, the ABA Journal's Web site went from Edsel to Ferrari.

The overhaul was spearheaded by two former colleagues of mine at ALM, Ed Adams, the magazine's new editor and publisher, and Molly McDonough, the magazine's assistant managing editor/online. My LawSites post describes the site's major features, which include regularly updated legal news stories drawn from multiple sources online, a directory of more than 1,000 law-related blogs, articles from the magazine, RSS feeds and more. But here I wanted to collect some of what others are saying about the new site. Here is a sampling of what I found:

  • Blawg's Blog: "[A]t first glimpse, it looks to me like the ABA has done a very nice job in putting together its new site. It has created another law portal, however, which makes this move pretty interesting. My initial reaction is that the ABA has moved into direct competition with and FindLaw (and maybe a Lexis web property like It also obviously offers some of the same features and functionality as and Justia, to name a couple more."
  • Dennis Kennedy: "I like the direction that the ABA Journal is going with the website and the print publication. In fact, I like it so much that I've recently agreed to take over the legal technology column for the publication starting this fall."
  • Ernie the Attorney: "Very impressive new look! Also note that the Journal is now listing legal blogs (which they term 'blawgs'), including this one."
  • InhouseBlog: "This is sure to be a powerful new tool for in-house counsel - check it out and add it to your blog reader."
  • LawBeat: ", watch your back. The ABA Journal today launched a new Web site that kicks's butt."
  • Mediator blah... blah...: "Best of all is The Blawg Directory which indexes more than 1,000 law blogs. The directory tells you about the author, what they cover, and includes excerpts from the 10 latest posts."
  • MyShingle: "[T]he ABA has finally provided a really useful product with the newly launched, online ABA Journal. The site makes ABA Journal articles and legal news available, and also contains one of the best topical blawg directories that I've ever seen."
  • New York Personal Injury Law Blog: "The American Bar Association has moved into the news and blog arena in a big way, as evidenced by their newly redone website. A quick view shows terrific free news feeds as well as a great new compendium of blawgs. They have obviously done their homework."

If the best headline about the new site was Mark Obbie's, quoted above, the most succinct evaluation of the overhaul may be this from Denise Howell at Bag and Baggage: "It's not the old site, which was, let's face it, as painful as a nitrous-free molar extraction."

July 30, 2007 | Permalink | Comments (9)

July 27, 2007

Another Law Firm Merger on the Horizon

For a while, it's been quiet on the biglaw merger front.  But this article, Law firm Kirkpatrick & Lockhart aims to keep growing (Pittsburgh Post-Gazette 7/27/07) reports that Pittsburgh firm Kirkpatrick & Lockhart Preston Gates Ellis , the product of a merger barely a year ago is looking to grow again by combining forces with Texas firm, Hughes & Luce, a Dallas firm of 150 lawyers.

There's more on the merger from this article in Texas Lawyer. Apparently, the firm decided to go public early about talks to stave off the rumor mill.  And combining with a Dallas firm, will give Kirkpatrick a foot in the Texas market, where it currently has only a small, 35-lawyer outpost.  The article reports that if the firms are able to negotiate a deal, the partners in each firm are expected to vote on the merger in November.

July 27, 2007 | Permalink | Comments (0)

Most Value Added Blogs

My colleague Bob Ambrogi's recent mini-series on the earliest law related blogs got me thinking about a related issue. Over time, has law blogging become more institutionalized and formulaic?  I remember in the early days of blogging how debates over various topics (even something as innocuous as the propriety of the term "blawg") spread contagiously between many blogs.  These days, blogging seems a bit more staid with many blogs simply  serving as conduits for snippets of other blog posts or articles, without any commentary. 

So here are my questions for you.  First, do you prefer those blogs where the writer offers opinions or ideas, or those that aggregate and convey information efficiently so that you can stay on top of new events?  And second, which law related blogs in your view provide the best "value added" commentary, advice and/or analysis?  (to clarify, I'm interested most in law related blogs, rather than more "political" blogs which by definition must provide commentary or they'll lose readership).

Comments are open for your feedback below -- or you can address this question on your blog and submit the link to your post. 

July 27, 2007 | Permalink | Comments (3)

Zealous Representation...or Intentional Infliction of Emotional Distress? You Decide...

Here's a recent story (7/27/07) about a New Jersey couple suing a doctor for asking "inhumane" questions during a routine deposition of a grieving mother taken during a medical medical malpractice case against the hospital for the death of her six-day-old newborn.

According to the story, Andrew and Phyllis Rabinowitz brought their newborn daughter to St. Barnabas Medical Center in New Jersey, where doctors discharged her.  Two days later the infant died and the parents brought suit.  During the deposition, Judith Wahrenberger, the attorney for one of the emergency room doctor asked Mrs. Rabinowitz whether she might have been involved in her daughter's death by handling the baby too roughly.  Rabinowitz's attorney Bruce Nagel objected to this line of questioning, but Wahrenberger continued.  Thereafter, Nagel brought suit against Wahrenberger, arguing that she had no basis for asking the question except for the inhumane and malicious desire to hurt the couple.  Wahrenberger initially claimed that an expert report suggested that the baby might have died from shaken baby syndrome, though apparently, the expert has since stated it was not.

So far, I've seen little in the way of defense for the Rabinowitzs' suit against Wahrenberger.  Legal ethics expert Stephen Gillers, quoted in the article, says lawyers have broad protection from these types of claims so that they can defend their clients vigorously.  Attorney Jeff Lewis comments here that the suit would probably be dismissed quickly under California's anti-SLAPP law.

I agree.  For starters, the question didn't seem out of line, irrespective of whether an expert report suggested that shaken baby syndrome may have caused the death or not.  The purpose of discovery is to explore all possible causes of a claim, and if it had turned out that Mrs. Rabinowitz had been rough with the baby, the hospital might have used that information to re-evaluate the medical records.  Moreover, while I understand Mrs. Rabinowitz's extreme grief, her lawyer should have prepared her for the deposition and provided counseling and personal attention to see her through this kind of questioning.

Finally,  I'm not sure why attorney Bruce Nagel felt that he needed to bring a lawsuit.  Had the questions truly been out of line, he could have halted the deposition and sought sanctions.  If there wasn't enough of a basis for sanctions, I don't see how there's enough of a basis for a cause of action against the lawyer involved.  Ultimately, there's got to be some kind of "back story" here that hasn't yet emerged. 

July 27, 2007 | Permalink | Comments (1)

Court Rules That Insurance Coverage Required for Dentist

Perhaps it pays for a professional to have a sense of humor, even if his insurance company doesn't.  That's the "[m]oral" of a recent lawsuit by a dentist Dr. Robert Woo against his insurer, Fireman's Fund for failing to defend him in a lawsuit brought by his employee, Tina Alberts as reported by AP in Tusk, tusk: Prankster dentist wins case against insurer.

The facts of the case, while the "tooth," are funny and somewhat unbelievable.  In the course of a dental procedure to replace two of Alberts' teeth with implants and while she was under anesthesia,  Woo installed two fake boar tusks in Alberts mouth, propped her eyes open and took photos. 

Before Alberts awoke, he completed the procedure and implanted the replacement teeth.  Woo didn't show the photos to Alberts because they were ugly, but staffers presented them at a birthday party.  Alberts subsequently quit her job, feeling too humiliated to return.  Alberts sued Woo for battery and invasion of privacy and also claimed that the boar tusk joke comprised part of an ongoing campaign of ridicule by Wo against Alberts because her family raises pot bellied pigs.  Woo's insurer refused to defend, finding that Woo's action was an intentional practical joke and not an activity undertaken in the ordinary course of business.  Woo settled with Alberts for $250,000 and then went after his insurer for failing to defend, winning $1 million at trial, but losing on appeal.

But in this decision issued yesterday, the Washington State Supreme Court reinstated the award.  Drilling down into the decision, the court found that Firemans had a duty to defend under Woo's professional liability policy because the act of implanting the boar's teeth, then removing them to implant the replacements was inextricably part of the professional service rendered.  The court also found that Woo's general liability coverage extended to the claims because the injury to Alberts arose from Woo's business practices.  On the other hand, the court determined that Fireman's did not have a duty to defend under Woo's employment insurance policy which only covered wrongful discharge.  The court determined that Alberts' claims for emotional distress and invasion of privacy were not in the nature of wrongful discharge, and that her injury was caused by the joke itself, not by a termination decision.   

The bottom line: where the root cause of a claim arises out of an insured's business practices or professional activity, the insurer has a duty to defend. 

July 27, 2007 | Permalink | Comments (1)

July 26, 2007

Study: CMOs Have No Impact on Sales

At his Law Marketing Blog, Larry Bodine reports on a study to be published in the Journal of Marketing that concludes that chief marketing officers at major corporations have no effect on their companies' financial performance. As reported in Advertising Age, the study looked at CMOs' impact on sales at 167 companies including Procter & Gamble, Microsoft and Apple over a five-year span. The Advertising Age piece says:

"The disheartening finding in 'Chief Marketing Officers: A Study of their Presence in Firms' Top Management Teams,' slated for the January 2008 issue, is sure to reignite the longstanding debate afflicting the suite: Should a CMO be judged on tangible or intangible metrics? On solid stats such as sales, or on more amorphous concepts such as brand equity or even awareness?

"The authors themselves -- Pravin Nath, a professor of marketing at the LeBow College of Business, and Vijay Mahajan, a professor in the department of marketing at the University of Texas at Austin -- admit the study is limited because it focuses on financial-performance metrics, such as sales growth and profitability, and not brand equity, and both were quick to offer caveats to the conclusion.

"The common financial metrics used to measure the performance of CFOs and CEOs don't apply as well to the CMO position, Mr. Mahajan argued. 'Those are very short-term,' he said. 'You cannot use short-term metrics to measure the performance of someone who is supposed to have a long-term impact.'"

Bodine does not address the study's implications for law firms, but it is sure to raise questions within firms' management ranks.

July 26, 2007 | Permalink | Comments (0)

$101M for Wrongful Conviction

In Boston today, U.S. District Judge Nancy Gertner ordered the federal government to pay $101.7 million for the FBI's role in wrongfully sending four men to prison for a 1965 gangland murder. As The Boston Globe reports, Gertner found that the FBI withheld evidence that the men had been framed. Two of the men spent three decades in prison, while two others died behind bars. "This case is about intentional misconduct, suborning of perjury ... the framing of innocent men," Gertner said. A complete copy of her 228-page opinion is available here. The Boston Globe has a number of other documents from the case here.

Among those who played a critical role in exposing the men's innocence was lawyer-turned-journalist Dan Rea, whose work on the case earned him the Massachusetts Bar Association's first-ever Excellence in Journalism Award. You can hear a February interview with Victor Garo, the attorney for one of the four men, conducted by Lu Ann Reeb at the Legal Talk Network (the same group that produces the podcast I cohost, Lawyer2Lawyer). Reeb worked as a producer with Rea in his reporting on this story.

July 26, 2007 | Permalink | Comments (2)

Judge Responds to Book's Portrayal

As we first reported here last month, the most talked about lawyer-written novel of the summer is Chambermaid, less for its substance than its subject. Author Saira Rao is a former law clerk to 3rd Circuit Judge Dolores Sloviter. Her novel, by all accounts, is an ad hominem attack on a fictional 3rd Circuit judge named Helga Friedman, who is depicted in the book as a "sociopathic, homicidal, bipolar jurist" and "toxic bitch." The urge is unavoidable to draw a link between the real Judge Sloviter and the fictional Judge Friedman.

So what does Judge Sloviter think about this? Philadelphia Inquirer book critic Carlin Romano asked her (Ex-clerk skewers Phila. jurist):

"Reached by phone at her home, Judge Sloviter is polite and dismissive about the book: 'All I know is it must present an unfavorable picture of me because I've gotten letters from law clerks and judges saying they commiserate, and that it's not true. I haven't read it, and I don't intend to.' ...

"'You know,' said Sloviter, a native Philadelphian who graduated from Philadelphia High School for Girls, Temple University and the University of Pennsylvania Law School (fourth in her 1956 class), 'I guess I've had maybe close to a hundred law clerks, and it's not surprising that one or two hated me.'

"Asked if, given the gathering storm, she might soon feel she has to read Chambermaid despite her plaint that 'I just have too much else to read,' Sloviter makes things clear: 'I haven't read it. I don't intend to. I really don't care. OK?'"

Another lawyer-turned-novelist and former Sloviter clerk, Lisa Scottoline, defends her former boss:

"'I think the world of Judge Sloviter.' She describes her as 'smart and kind and tireless' in the work she has done for women in Philadelphia. Scottoline has not looked at Rao's novel, but thinks Sloviter does not remotely deserve such treatment."

July 26, 2007 | Permalink | Comments (0)

July 25, 2007

Building Relationships to Build Business -- and Using Facebook to Do It

Lawyer-client intimacy sounds like something forbidden or inappropriate. But the kind of lawyer-client intimacy that Arnie Herz discusses in this post at Legal Sanity is anything but: Herz suggests that lawyers should try to forge a personal bond with clients as a way to build a healthy, lasting and trusted relationship. He writes:

As I’ve noted before, and as Keith Ferrazzi points out in his bestselling book, Never Eat Alone, many people shy away from the idea that intimacy is key to successful business relationships. By intimacy I’m referring to a willingness to get to know the human being behind the issue or need that comes across our desk (or the airplane call button). It’s basically the same kind of intimacy that fuels healthy connections to family and friends. Many lawyers find it hard to drop the mantle of authority and really get to know their clients as human beings who have fears, hopes and challenges. But, this kind of sincere human-to-human exchange is what compels prospects to become clients and compels clients to stay with us and refer us more business.

Interestingly, Herz's post on lawyer-client intimacy coincides with blog posts by Kevin O'Keefe and Ernie the Attorney about Facebook. Traditionally viewed as a social community, more professionals are turning to Facebook to connect with each other, O'Keefe writes here:

Facebook should not be dismissed as some web site or social community where our kids hang out. Not only am I seeing a growing number of innovative lawyers and business people networking via Facebook, but Facebook is also adding an executive team that ain't joining to keep things as is.
The Wall Street Journal reports (sub req'ed) this morning the latest to join Facebook is CFO Gideon Yu, formerly with Google's YouTube.  Mr. Yu's appointment follows the hiring this month of Chamath Palihapitiya, an investor for the Mayfield Fund LP venture-capital firm, as vice president of product marketing and operations. Blake Ross and Joe Hewitt, co-founders of open-source Web browser Mozilla Firefox, are joining Facebook as part of its acquisition of their Parakey startup.

Ernie Svenson compares the differences in the more whimsical Facebook and the serious networking tool Linked In in this in this post:

I think that the differences between Facebook and LinkedIn reflect a similar sensibility in the world of online marketing or networking.  It's important to have a professional appearance, and LinkedIn is wonderful in that regard. But, it's also important to show a more human side.  People like to deal with people they feel comfortable with.  Professional networks emphasize one's professional skills.  Social networks like Facebook emphasize the personal touches.  I've known Marty Schwimmer for many years.  I've read his blog for 5 years, and I trade emails with him regularly.  I know a lot about Marty.  But I didn't know, until he became a "Facebook friend" that he was taking bass guitar lessons.  Or at least that's what his 'status page' said last Saturday.  Maybe he was kidding but that's okay too.

Looking for ways to build connections with other lawyers and potential clients is a win-win for all. As Ernie points out, "people like to deal with people they feel comfortable with" -- which means that building connections can help make money. And more importantly, even if you don't get that new client or account, if you've built a relationship with a prospect, at least you can feel that you've come away with a new friend even if you didn't win the business. And that kind of consolation prize helps make marketing and even rejection more palatable.

July 25, 2007 | Permalink | Comments (3)

Can the Law Firm Generation Gap Be Bridged?

Can the generational gap between older lawyers, those in the prime of their career and those up and coming ever be bridged? Two recent items address this question. First up, Bruce MacEwen's post, Intergenerational Conflict? In Our Firm?, reminds us that there's another important matter that's sometimes overlooked with all of the attention given to the urgency of associate retention issues -- that matter being how to treat partners nearing retirement. Though the issue of older partners has come up in the United States, what with the debate over forced retirement and the Sidley Austin age discrimination law suit, MacEwen writes that U.K. lawyers are now confronting similar issues with the recent age discrimination case involving the law firm Freshfields, which we blogged about here.

For MacEwen, treatment of older lawyers isn't a purely legal matter but also an economic one and "one of simple humanity." He asks:

* How do we humanely treat individuals who have given, in many cases, their careers, to a firm but who are now on the declining curve of productivity?  What do we owe them?
    * Since few if any firms introduced their senior partners to the new world of 401(k)'s and self-guided defined contribution retirement planning in time for those partners to actually take their own future economic well-being in hand, how do we manage the transition to the inevitable?  How short is that transition?
    * There are senior partners and then there are senior partners.  We have the beloved, inspirational, profoundly respected, wise elders handing down orally and by example the finest traditions of the firm and of the profession; and we have the lingerers, the misty-eyed nostalgic, the rusty practitioners.  We all know the difference.  How do we handle the difference if equity demands disparate treatment and the law may require identical treatment?

In part, humane treatment requires both older and younger lawyers to understand each other. And as this article, Associates Punching the Clock (ABA Journal, August 2007), suggests, older and younger lawyers have different views, even on issues such as the appropriate time to start work. As the article describes, some firms are starting to mandate that lawyers arrive at the office by 9:30 or 10 a.m. Some lawyers -- many of them older - believe that it's important for colleagues to work similar hours to interact, while others feel that empty desks in the morning send a signal that there's not enough work. Other lawyers are starting to recognize that office facetime isn't as important, so long as the work gets done. Still, change is slow in coming:

“It may take 20 or 30 years, but at some point we may not have large groupings of lawyers in center city locations,” Krane says. “And it won’t be necessary for firms like mine to have 13 floors in an office tower.

Still, change in 20 or 30 years may not come quickly enough to help firms figure out how to deal with partners retiring this decade.

July 25, 2007 | Permalink | Comments (0)

N.Y. Advertising Laws Held Unconstitutional

Earlier this week, Nicole Black of Sui Generis was one of the first blogs to break the news that federal district court Judge Frederick Scullin ruled that some new attorney advertising rules violate lawyers' free speech rights. According to this New York Times story, the ruling resulted from a suit by Public Citizen on behalf of Alexander & Catalano, a personal injury firm in New York that referred to itself as a heavy hitter (a huge no-no not just under the newly issued New York rules but in Nevada as well). Among other things, the judge found that the limits were not justified, since there was no "statistical or anecdotal evidence" of consumer complaints about deceptive practices. 

So which of the New York rules are affected by the ruling? In a follow-up post, Black reports that Rule 1200.6(c)(1)(3)(5) and (7), which prohibited use of endorsements or nicknames and monikers, and Rule 1200.6(g)(1), prohibiting use of pop-up ads, were declared unenforceable -- at least, pending the state's likely appeal.

Meanwhile, there's still celebration in the blogosphere, which had criticized the New York rules early and often and perhaps helped contribute to the favorable result. Larry Bodine describes the ruling as a victory for the First Amendment. And David Giacalone interrupts his punditry to offer his congratulations to the Public Citizen team. At the same time, Giacalone adds this postscript:

I am a bit disappointed that Judge Scullin repeats the unproven assertion that “the public perception of the legal profession has been greatly diminished” by ads deemed “tasteless” or “obnoxious.” If the NY Bar Dignity Police are feeling unappreciated after the decision in Alexander v. Cahill, they should consider moving to France, where the new government is looking for people who do less thinking.

As mentioned earlier, Nicole Black predicts an appeal by the state, and I agree that she's probably right. At the same time, the online world is moving so quickly with even once "far-out" technologies regarded as unprofessional like YouTube being used by conventional institutions like the Supreme Court and presidential campaigns. By the time the appeal winds its way through the New York appellate courts, even those judges will be wondering why someone thought to make a big deal out of Internet pop-up ads.

July 25, 2007 | Permalink | Comments (4)

July 24, 2007

Poverty as a Defense to Crime

At Crime & Federalism, Mike Cernovich asks whether poverty should be a mitigating factor in criminal sentencing. He cites new research suggesting a link between lead poisoning and criminal behavior and another study showing a link between diet and criminality -- specifically, that people who eat diets low in essential fatty acids are more likely to commit crimes.

Given that children do not choose to live in lead-paint-tainted homes or to eat diets low in essential nutrients, what does this say if those children grow up to commit crimes? If someone slips a drug into your drink and you do something wrong, Cernovich notes, your involuntary intoxication is a mitigating factor at sentencing. Should not the same be true for children involuntarily intoxicated by lead or poor nutrition? As Cernovich puts it:

"Given that poor children are the ones who were most-frequently exposed to lead paint and the ones most likely denied essential nutrients, does it make sense to have a general poverty-as-mitigating-sentencing factor?"

And shouldn't schools be required to serve nutritious food in order to vaccinate children from certain crimes?

July 24, 2007 | Permalink | Comments (0)

What Is a Blog?

In posts here and here, I've attempted to identify the first legal blogger. In response, I have received e-mails from several bloggers suggesting either themselves or others as possibly the first. These e-mails highlight the primary problem with identifying the first legal blogger -- first you must define "blog." Two of the e-mails I received warrant mention, because they are both from people who have been active in publishing online for the legal community since the earliest days of the Web and who are both highly regarded for their work.

The first came from Bruce W. Marcus, a veteran legal marketing consultant who in 1994 went online with his newsletter, The Marcus Letter on Professional Services Marketing. He wrote, in part:

"The earliest blog serving the legal profession? The Marcus Letter on Professional Services Marketing went online in 1994, following several years when it was published in hard copy. It sprung from my first book on marketing professional services, in 1982. It offered some of the earliest advice in marketing and managing law firms -- as it does today-- and in analyzing the ramifications of the legal profession. Many articles have been reprinted elsewhere, frequently."

The other e-mail that warrants a mention was from Sabrina Pacifici, who writes the blog beSpacific and who, in 1996, founded the Web journal She points to an feature called Newstand, which made its debut in January 1997 and continued to run monthly. Here is how described this feature:

"In this column, we list selected articles from computer-oriented publications, such as Database, Online, PC World, PC Computing, Internet World, PC Magazine & Searcher as well as business magazines such as Forbes, Fortune & BusinessWeek. If you come across an article of interest that is not on our list, please choose 'Add Comments' at the bottom of this page, and tell us about it. All citations will be archived in the Library one month after posting."

Thus, well before the word "blog" was over coined, both Marcus and Pacifici had created Web pages that featured regularly updated content of interest to the legal profession. Which begs the question, what is a blog? I put that to Pacifici, and here was her response:

"Regularly posting current, topical material to the community, on law and technology related issues -- free, unsponsored, unbiased, independent. In any case, it predated 'blogs' per say, and fits the definition of regularly updated content. And since I am the only one, I think, who has been continually publishing on these topics to this community for 10+ yrs, it may merit a mention."

I don't know if anyone has heaped as much praise on over the years as I have. I have given it top rating in my book, The Essential Guide to the Best and Worst Legal Sites on the Web, and it was regularly selected as one of the "Best of the Web for Lawyers" in my former newsletter, as this March 1999 column of mine shows. But by that definition, I predated LLRX, since I have been posting my monthly column online since March 1995. I do not mean to take away from either Marcus or Pacifici their well-deserved status as trailblazers and innovators. I have the highest regard for the work of both, and they each deserve prominent places in the legal-Web history books. In my opinion, however, they were both publishing newsletters or e-zines online, not blogs, when they launched their respective features in 1994 and 1997. What's the difference? I'm not sure. Maybe it's frequency, maybe its intent. But for now I'm sticking with my original choice for first legal blog.

July 24, 2007 | Permalink | Comments (3)

July 23, 2007

Inside Lawyer Who Changed the Mind of the Supreme Court

Last month, we posted on the Supreme Court's rare reversal in agreeing to hear the detainee case that it had previously declined to review. As we wrote, some commenters opined that an affidavit submitted by the detainees' lawyers by a Pentagon insider about the "sham" nature of the military hearings may have swayed the court to change its minds. Today, The New York Times profiles Stephen Abraham, the lawyer who wrote the affidavit. Abraham is a civil lawyer in private practice but served as an Army intelligence officer in the reserves for 22 years. And soon, he will likely have "foonote in history" to add to his resume, as the Supreme Court's decision in the detainee case will clarify the legal rights of enemy combatants/detainees for the remainder of this administration and moving forward.

July 23, 2007 | Permalink | Comments (0)

Blawg Review #118

It's time for Blawg Review #118, hosted by Blawgletter, the business trial law blog with a sense of humor. Of course, this Blawg Review covers serious topics as well, such as revisiting the issue of the demise of the jury trial, proposed constitutional amendments by Balkinization and the Guam Bar's zero percent pass rate (OK, that one is kind of funny ... except for the three candidates who sat for the exam and flunked). So take a visit to Blawg Review #118 and stay tuned for next week, when David Lat at Above the Law takes his turn as host.

July 23, 2007 | Permalink | Comments (0)

Using Family Time to Change Course

Say what you will about all of the obstacles that women in the law face -- the glass ceilings, the gender discrimination and the problems finding work-life balance. Yes, women have it tough -- but on the other side of the coin, many are also able to take these impediments and use them to find greater career satisfaction.

Agreed, many women who leave the law entirely to raise children have a tough time coming back. But as described in this ABA Journal article, "Preparing for Re-Entry," having left the work world, many women find that they don't want to return to the same position. Instead, many women are exploring other opportunities while home with their children and developing a strategy to pursue them once they decide to return to the work world.

The article describes the experience of Tammy Von Buck, an L.A. mom who left a job as special education for public schools consultant to stay home. Von Buck, however, may be interested in a more traditional legal job when she re-enters. And Von Buck has gotten exposure to different practice areas such as zoning law through fighting for a permit with a local municipality for a home that she and her husband seek to build and corporate and regulatory law by helping her husband expand his business.

The ABA article offers tips to Von Buck on how she can decide what to do -- and the steps to get there, such as networking, volunteering and CLE. The article proves that stopping a job to stay home with your kids doesn't have to be the end of your working life but, instead, can be the start of something new and even more exciting. And whether by choice or just because of the way law firms operate right now, it's women who can take advantage of these opportunities more so than men.

July 23, 2007 | Permalink | Comments (1)

Are the Terms 'Law Firm Partner' and 'Entrepreneur' Oxymorons?

Steve Nipper, the IP lawyer behind Invent IP, directs readers to this interesting (if a bit dated) post from the Lazy Way to Succeed Blog entitled "Top Ten Signs That You're Made to Be An Entrepreneur." Though the post is humorous, it contains plenty of spot-on observations such as: You are anti-authoritarian; you have the uncanny ability to get others to do all the work; you are always seeing economic opportunity in everything; you would happily invest your home's equity and life savings in a startup; and you don't see lack of money, knowledge or experience as barriers.

With the exception of getting others to do work, I don't see much in these characteristics of an entrepreneur that resembles a traditional law firm partner. Do you?

July 23, 2007 | Permalink | Comments (0)

July 20, 2007

Duck Hunter Gets 30 Years

"Be kind to your web-footed friends," goes the old ditty, "for a duck may be somebody's mother." Now here is another reason to be kind to ducks: 7th Circuit affirms 30-year sentence for duck hunting. But as blogger Doug Berman admits, his title is a bit misleading in characterizing the 7th Circuit's decision yesterday in U.S. v. Vitrano, given that the duck hunter in question was a felon under a domestic abuse injunction with a penchant for pipe bombs. Berman provides this explanatory excerpt from the court's opinion:

"Thomas Vitrano pleaded guilty to one count of possessing a firearm as a felon and one count of possessing a firearm while subject to a domestic abuse injunction [based on possession of] a Remington 870 shotgun that Vitrano had taken with him to go duck hunting."

To make matters worse, Berman notes, at Vitrano's sentencing, the government presented evidence that "he sent multiple functioning pipe bombs disguised as a birthday present to his former girlfriend's house." In other words, the flat-footed may have had more to fear from this defendant than the web-footed.

July 20, 2007 | Permalink | Comments (1)

More on the First Legal Blog

Earlier this week, based on some archive diving, I offered a tentative identification of the first legal blogger. That honor went to Walter Olson, who launched his blog Overlawyered on July 1, 1999. While no one has since come forward to stake an earlier claim, Olson yesterday acknowledged that he could have been first, writing, "I actually don't remember whether there were any other law-related blogs when I started out eight years ago." He adds that, for several days after launching, he was his blog's only reader, "since I waited until a few posts were up before I began notifying friends about the site."

Meanwhile, the legal profession's favorite haiku-writing blawger, David Giacalone, came up with one to mark the occasion:

digital age
aging digits
at the keyboard

Soon, it appears, we may have to launch an old-timers' club for blawgers. We can all get together on weekends and play virtual bocce.

July 20, 2007 | Permalink | Comments (1)

Term Limits for the Supreme Court

As Lee Gesmer observes at MassLawBlog.Com, when the framers of the Constitution gave Supreme Court judges life tenure, the average life expectancy was 50 years. The framers never anticipated that justices would sit as long as they do today. Gesmer's observation is drawn from an article in the Cornell Law alumni magazine, "Reforming the Court: How Long is Too Long," by Cornell Law professor Roger C. Cramton. The article, in turn, is based on the book Cramton co-authored with Duke Law professor Paul Carrington, Reforming the Court: Term Limits for Supreme Court Justices.

Gesmer recounts several interesting facts taken from the article:

  • Between 1970 and today the average length of service on the Supreme Court went from 15 to 26 years.
  • During that time, the average retirement age for a Supreme Court justice rose from 68 to 79.
  • With a life expectancy of another 30 years, John Roberts could still be chief justice in 2037 and beyond.
  • Before the recent vacancies created by the death of Chief Justice Rehnquist and the retirement of Justice O’Connor, the court’s membership had been unchanged for 11 years.

The book and article propose term limits for Supreme Court justices of 18 years. After a justice's term expires, he or she could keep busy riding the federal circuits. To Gesmer, this sounds like a good idea: "I agree that Supreme Court Justices should not spend 30 or 40 years, into their 80s (and with modern medical technology, maybe their 90s or longer, who knows?), in such a position of power and influence." Is a constitutional amendment to this effect likely? Don't hold your breath, says Gesmer.

July 20, 2007 | Permalink | Comments (0)

Friday Funnies -- Legal Edition

Legal Blog Watch comes to you today direct from Boise, Idaho, where I am attending the Idaho State Bar annual meeting. The visit gave me the chance to meet up with three Boise-based blawgers, Steve Nipper of The Invent Blog, his partner Bob Shaver of Patent Pending Blog and Brad Frazer of the blog Internet Law. The visit also clued me in to a new development in one of Nipper's many side projects. For some time now, Nipper, Matt Buchanan and Doug Sorocco have maintained a patent humor site known as IP Funny. Now, they have relaunched the site as What the Funny ... Patents. As the name suggests, the site has the patent on funny patents. Recent finds include the leash with sound, the pooper stick and the well-intentioned human gas filter.

If funny patents at least warm you up for a lighter weekend, InhouseBlog kicks it up a notch with a pointer to Say What?!, the blog that collects the legal humor of U.S. District Judge Jerry Buchmeyer as it appeared for many years in the Texas Bar Journal. (You can listen to our June 2006 podcast featuring Judge Buchmeyer here.) Over the years, he has collected many funny snippets from transcripts, pleadings and other sources, such as this quick hit sent to him by a lawyer who received it in response to her request for disclosure:

Q. State the legal theories, and in general, the factual bases of the claims or defenses on which you will rely.

A. Respondent does not have any legal theories and, in general, does not have any factual bases of the claims or defenses of Respondent.

At least the lawyer who answered is honest, if not all that bright.

July 20, 2007 | Permalink | Comments (0)

July 19, 2007

Law Firm's 'Chow for Charity' Program: Scraps for the Poor or Meaningful Charity?

Of course, we all know that there's no such thing as a free lunch -- especially if you're a summer associate at Simpson Thacher, with a $60 expense account for lunch and an option to limit yourself to a $15 lunch and give the remaining $45 to legal aid. In that situation, your free lunch isn't free; instead, it's a veritable microcosm for everything that's wrong with charity in America, as Daniel Gross writes in this provocative article, Fifteen Dollars' Worth of Smug: What a New York law firm's charity-lunch program reveals about America (Slate, 7/17/07).

Gross profiles the Simpson Thacher Chow for Charity program, where summer associates can elect not to enjoy a $60 per person lunch with a firm lawyer. Instead, if they choose to eat with the lawyer at a more down-scale joint and spend $15 or less each, the firm will donate the difference ($45 per person) to a nonprofit legal group like Legal Aid. Gross points out that the program reflects a number of important trends, including (1) A Touch of Conscience (where most companies pay lip service to concerns like global warming or poverty); (2) The New Guilded Age (where fat and happy law firms think nothing of the absurdity of giving students a $60 allowance for lunch); (3) Defining Public Service Down (a situation where most people claim interest in community service but don't want the lower incomes that go with it, so they find a win-win situation like doing pro bono at a large firm); and (4)  It's Good To Be the King (describing how partners set priorities and realize that the $15 lunch is quicker and gets associates back to billing more quickly and spares partners from socializing). 

PG at Blog de novo comments that Gross' economics are skewed -- because parnters aren't really king of the hill. The post comments that in comparison with those in the investment industry, partners at firms are really like day laborers rather than capitalist owners. PG has it part right -- law firm partners aren't owners of capital, but they think they are, which perhaps makes their situation even more unfortunate. But it doesn't refute Gross' main point, which is that the Chow for Charity lunch is a partner-driven concept, not something arrived at by consensus with associates or the bar associations.

Nuts and Boalts says that Gross completely misses the point in his piece and takes us through a play-by-play response. N&B believes that any money that the program saves on lunches is a good thing, because the extra goes to charity. Moreover, because associates don't routinely spend $60 per lunch but the firm always pays the $45 difference, N&B points out that the program does cost the firm money. And N&B also says that pro bono at firms isn't ornamental -- but that they peform a substantial amount (for instance, Simpson says it does 50,000 hours of community service each year). 

As for me, I'm on the fence about Gross' post. I do agree with the trends that Gross tracks, and he's certainly right to question law firms' motives and the hypocrisy and snobbery of many of these giving systems. At the same time,  I can't decide if these drawbacks are outweighed by the concommitant results. After all, if students are going to be working at large firms for the summer anyway, why not give them a chance to help generate money for a legal aid group? A $45/day contribution for 10 weeks comes to $2,250 per associate; and if the firm has 50 summer associates, that's $112,000 for a legal aid group (which goes a lot further than using a summer associate to do the work pro bono; $112,000 could hire one, maybe two full-time legal aid staff attorneys). 

Do charity and pro bono have to hurt? Is it only valuable if it entails sacrifice? Who contributes more to pro bono -- the summer associate at Simpson who gives up a lunch or the law student who works for $2,250 for the entire summer at a legal aid group? What's your view?

July 19, 2007 | Permalink | Comments (1)

How Much Is a Patent Worth?

Should patent lawyers be worried about job security? Maybe so, if there's any truth to a recent study by two researchers who found that for most public companies, the profits from patents are overshadowed by the cost of securing patent rights and protecting them through ensuing litigation. The New York Times covered the study by James Bessen and Micheal Meurere in this article,
A Patent Is Worth Having, Right? Well, Maybe Not

From the article:

The two researchers have analyzed data from 1976 to 1999, the most recent year with complete data. They found that starting in the late 1990s, publicly traded companies saw patent litigation costs outstrip patent profits. Specifically, they estimate that about $8.4 billion in global profits came directly from patents held by publicly traded United States companies in 1997, rising to about $9.3 billion in 1999, with two-thirds of the profits going to chemical and pharmaceutical companies. Domestic litigation costs alone, meanwhile, soared to $16 billion in 1999 from $8 billion in 1997.  Things have probably become worse since then. For instance, patent litigation is up: there were 2,318 patent-related suits in 1999, and 2,830 in fiscal 2006 (though that’s down from the peak year, 2004, when 3,075 were filed). Mr. Bessen said awards in patent cases also seemed to be up, though he was less confident in that data. Worse, he says, companies doing the most research and development are sued the most.

Of course, the study is not without critics. John Duffy, quoted in the article, opined that
Mr. Bessen’s data is controversial. Duffy, a law professor at George Washington University, opined that the study undervalued the profits generated by patents, thus skewing the results. And Duffy added that patents also benefit society at large -- benefits that are not reflected in the analysis.

Wired GC isn't surprised at these results, pointing out that they explain why many firms have moved to expand their IP practices -- where you "bill to file, prosecute, get the patent, watch for infringers, send out cease & desists, and file again (only this time it’s a lawsuit). Then you wade into discovery unlike anything you’ve ever seen, and likely settle at some point." And while all this money is being spent, Wired GC asks "meanwhile, has the client done anything to actually monetize the patent?"

But others in the blogosphere are more critical of the study. For example, Chicago IP Litigation Blog wonders whether study results were skewed by a few companies with weak cases:

I suspect that much of the increased patent litigation costs come from companies that are bringing questionable cases based upon inflated damages theories or refusing to settle infringement cases against them despite the fact that the facts do not support their case.  One of the most important skills in patent litigation is self-reflection.  You have to be able to take a step back and review your case with a disinterested eye to truly determine your strengths and weaknesses.  An outside counsel who has the ability and the courage to do that for a company is an invaluable asset, who will likely save you far more than he or she will ever cost the company in legal fees.

Kevin Noonan views the study (and the NYT report) as a continuing assault on innovation at the New York Times. Noonan writes that the Times and the Bessen report reflect only one side of the story and, indeed,

is at odds with the results of a study by the European Commission reported in 2005 and directed to the very question of the economic value of patents in Europe (the study was entitled "Study on Evaluation the Knowledge Economy - What are Patents Actually Worth?").  The study was comprehensive, surveying 9,000 patent owners who had used the European Patent Office to obtain patents between 1993 and 1997.  The study showed that the median value (half the respondents reporting more and half less) of the patents produced was €300,000, and 10% of the respondent patent owners reported values of €10 million or more.

Noonan also rejects the NYT article's implication that "innovation is damaged by patenting." Noonan writes that patents provide incentive for investors that will not fund innovation without the security of a patent.

The NYT article and the study don't seem as negative about the value of patents but, rather, whether unnecessary legal costs and litigation are diminishing their value. My own takeaway from the article and the study isn't so much that the patent system needs re-examining, as it is the methods that lawyers have used to implement it.   

July 19, 2007 | Permalink | Comments (1)

A Picture of Copyright Law

If you've never really understood copyright law, then take a look at this neat pictorial by Erik Heels that reduces the field of copyright law to a tidy little Venn diagram (hat tip to Denise Howell for the link). Basically, the diagram summarizes three types of uses of copyrighted materials -- completely unregulated, fair use and exclusive copyright ownership -- and shows the overlap between these areas. Of course, it's the overlap that generates treatises like this one.

So here's a challenge for you: Could you summarize your practice area in just three circles?  And if not, why not?

July 19, 2007 | Permalink | Comments (0)

Drive-Thru Legal Services

Here's a press release on an interesting-sounding legal services business model: Drive Thru Legal. According to the press release, Jerry Mowery, a Los Angeles-based business transactional attorney, predicts that he'll save clients money simply by "taking the shark" -- or lawyers' egos -- out of legal transactions and, thus, cut down on costs. 

I visited the Drive Thru Legal Web site, and the proposed flat-fee pricing model isn't all that different from many of the other flat-fee or consumer-oriented sites that have cropped up over the past years. But what is different is the packaging and the marketing: Mowery expands the focus of his service from consumer-oriented markets to larger business clients who may be fed up with paying high fees for routine services. The pricing seems reasonable, though charging $19 for acquiring a federal EIN number (something that's readily obtained for free) strikes me as nickel-and-diming, something that clients concerned about legal fees may not appreciate.

Mowery plans on taking his company national by 2008, so look for a Drive Thru Legal coming to your region soon!

July 19, 2007 | Permalink | Comments (3)

July 18, 2007

The First Online Law Degree

Thomas Jefferson School of Law is making history, of sorts, by offering the first online degree from an ABA-accredited law school. As Elizabeth Amon reports at Legal Pad LA, the San Diego school now offers an LL.M. degree online through its Walter H. and Dorothy B. Diamond Graduate Law Program in International Tax and Financial Services. Amon writes:

"The program will be led by Professor William H. Byrnes, IV, a former associate director of international tax at the global tax and accounting firm now known as PricewaterhouseCoopers. 'Online interactive learning legal education is still a frontier, requiring a law school with a commitment to lead in uncharted waters, to be the creator of best practices for others to follow,' said Professor Byrnes."

The program may be online, but it will nonetheless cost you hard cash -- tuition is $1,000 per credit hour. But for that you learn all about such subjects as money laundering, international tax, offshore financial centers and cybercrime -- all from the comfort of your home or your Caribbean tax haven.

July 18, 2007 | Permalink | Comments (5)

Scalia: Overturn 'NYT v. Sullivan'

Supreme Court Justice Antonin Scalia has set his sights on that cornerstone of First Amendment law, New York Times v. Sullivan, legal affairs writer Dahlia Lithwick reports this week in the online magazine Slate. Actually, Norman Pearlstine, lawyer and former editor-in-chief of Time Inc., reported the news in his new book about anonymous sources, Off the Record. After discussing the ruling, Pearlstine adds this parenthetical: "(In an interview, Justice Antonin Scalia told me that given the chance, he would probably vote to reverse New York Times Co. v. Sullivan.)"

Any any law school graduate knows, that was the case that set the actual malice standard for libel of a public official. The decision has its lovers and its haters -- and you can prettily easily figure out how they line up on either side. But of greater interest to Lithwick than Scalia's interest in overturning it is his saying so on the record.

All notions of judicial restraint aside, Lithwick's reaction is to paint Scalia's candor as "vastly preferable to the loaded silence of his colleagues." She writes:

"[M]aybe some of the justices really are operating according to some broad ideological agenda. Maybe the new Roberts Court is in fact committed to overruling decades' worth of 'bad cases.' If Scalia is willing to confess to that kind of project, I'd rather hear the battle plans than not. It's precisely the sort of candor that has been most lacking at judicial confirmation hearings, where each nominee instead takes the fashionable line that precedent is all but sacred."

Her point, as she describes it, is this: "If the Roberts Court is poised for a protracted seek-and destroy mission, better to operate in Scalia's sunshine than in the dark." Of course, a seek-and-destroy mission that publicizes itself is less likely to succeed. Perhaps that suggests that justices who reveal too much about their battle plans end up shooting themselves in their feet.

July 18, 2007 | Permalink | Comments (1)

Harry Potter and the Leaky Web

Despite what the New York Times calls "the most elaborately orchestrated marketing machine ever mobilized for a book," copies of the final Harry Potter novel have already made their way to the Web, several days in advance of the book's Saturday release. At blogs such as Schneier on Security and Boing Boing, the topic is whether publishers could or should do more to prevent such leaks. But so far the legal community has had little to say about the legal issues raised by the leak.

One lawyer, Texan Mike Young, put out a press release today in which he asserts that the leak "is further evidence that existing copyright protections are too old and outdated to protect intellectual property rights." Clearly, technology is outpacing the law here. But what should be done about it? Other than Young's statement, I've found nothing else today among legal bloggers and commentators weighing in on this. So here's your chance: What does the saga of Harry Potter and the Leaky Web teach us about IP law, privacy law and media law, if anything?

July 18, 2007 | Permalink | Comments (1)

Put the Fax out of Its Misery

It is time to put the fax machine out of its misery -- or, more accurately, put ourselves out of the misery of the fax. "Third Wave" blogger Chuck Newton says it in his post, Are Faxes Going The Way Of The Dinosaur? They Should!, but we all know we've been thinking it for a long time now. I have not owned a fax machine since I can't remember when. I admit I do keep up one of those fax-to-e-mail accounts for the amusement of the legal and business dinosaurs who have yet to discover the e-mail attachment. But most of what I receive from it is fax spam.

Sure, once upon a time the fax itself seemed -- dare I say it -- third wave. Newton relates a story from 1987, when a Texas ice storm kept him from traveling from Texarkana to Lufkin to file a motion. Instead, he faxed it to the copy store by the courthouse and had the owner carry it to the clerk. The court was so taken aback that it held Newton in contempt and issued a capias for his arrest. When Newton finally got before the judge to explain the fax, "the judge was just dumbfounded."

Whatever the wonder of the fax then, its time has come and gone. As Newton writes:

"I have been thinking that fax technology is dead, and I do not want to use it any longer.  I do not want to pay eFax more money. I do not want a separate phone line or number. We all have our cheap scan snap scanners. There is probably something out there better than PDF, but it is what is durable now. I only maintain faxes because there are a few lawyers and clients (and institutions) that just refuse to adjust to that which is easier, better and cheaper. They are stuck in 1987 Lufkin, Texas."

So, what do we need, a petition? Can't we all just get together as a profession and declare an end to the fax?

July 18, 2007 | Permalink | Comments (0)

July 17, 2007

Judge Dismisses KPMG Indictments

Yesterday, federal district Judge Lewis Kaplan dismissed charges against 13 defendants in a large criminal tax shelter action, finding that the pressure that government prosecutors placed on the defendants' employer KPMG to cut off legal funds violated the defendants' constitutional right to counsel  (Charges Dropped Against 13 in KMPG Case, NYT, 7/16/07). As this post from the Blog of the Legal Times notes, the judge didn't mince words about who was to blame for the dismissal:

[The prosecutors' actions] foreclosed these defendants from presenting the defenses they wished to present and, in some cases, even deprived them of counsel of their choice. This is intolerable in a society that holds itself out to the world as a paragon of justice. The responsibility for the dismissal of this indictment as to thirteen defendants lies with the government.”

Peter Lattman summarizes the history of the case and the legal issues in this WSJ Blog Post.

Tom Kirkendall's post at Houston's Clear Thinkers offers more choice tidbits from Judge Kaplan's decision. And Ellen Pogdor discusses some of the implications of the judge's decision at White Collar Crime Blog. Among her comments:

And more importantly, now the court is not only dismissing the matter on the basis of  its prior conclusion, but is additionally finding that the prosecutor's conduct "shocks the conscience in the constitutional sense."  This is definitely more detrimental to the prosecution should they decide to appeal.

But professor Ribstein worries that the decision dismissing the indictments may have worse consequences for the defendants than if they'd have been convicted. From this post:

Dismissing the 13 indictments ironically is good for the government because it lets them appeal the dismissals rather than suffering likely reversal even if they were able to prove guilt. It therefore exposes these defendants to still more hardship and uncertainty at the hands of prosecutors whose conduct Judge Kaplan has deemed “intolerable.”  And all this in a case in which it was hardly clear the defendants had done anything illegal, or at least that justified a criminal sanction.

As a lawyer, I'd rather lose a hard-fought case on the merits than win by luck or unfair bias. Why don't prosecutors feel the same way?

July 17, 2007 | Permalink | Comments (0)

D.C. Judge Rejects Jury Pool for Want of Diversity

This past Sunday, the Washington Post reported about how  D.C. Superior Court judges are responding to concerns about jury diversity. Surprisingly, the story -- which raises important questions such as the meaning of the Constitutional requirement that a jury reflect a cross section of the community or whether a nondiverse jury will produce biased results  --  hasn't attracted much discussion in the law blogs.   

According to the Post story, back in the spring, D.C. Superior Court Judge Neal Kravitz sent back a pool of 70 prospective jurors because the racial composition of the group -- 61 whites, eight blacks and one Asian -- didn't align with the racial and economic population within the District. The District of Columbia is 80 percent African American, though demographic studies show that more whites are moving into the city.

There isn't much data available on how the court locates and calls District residents potentially eligible for jury service. Thus,  lawyers from the public defender service have been asking judges to allow them to examine court data on jury pools -- and this month, D.C. Superior Court Judge Boasberg ruled that the defense is entitled to information about how jurors are identified and summoned. The Public Defender's Office is hopeful that access to this date will help identify "problematic patterns." 

Legally, the composition of the jury does not need to match the exact racial composition of the forum jurisdiction. But as this post from Diversity.Inc queries, What does [D.C.'s recent action] mean for districts across the country where jury pools don't match demographics? Are all-white juries biased?

July 17, 2007 | Permalink | Comments (0)

Large Firms Should Job-Share for Work-Life Balance

With lawyers working 60- to 80-hour weeks, there's enough work for two lawyers rather than one. And that's why Deborah Epstein Harry, founder of FlexTime Lawyers, proposes that large firms implement job sharing for lawyers, as she describes in this article, highlighted at Counsel to Counsel. Epstein Harry writes that with job sharing, each lawyer could work part of the week, with a day of overlap and weekend time negotiated between the two lawyers sharing the job.

The solution seems so obvious that I don't quite understand why job sharing isn't more pervasive at law firms. Any ideas?

July 17, 2007 | Permalink | Comments (1)

Are More Firms Using Macs? An Update One Year Later

Nearly a year ago at this blog, I asked, why aren't more law firms using Macs? The question generated a good deal of discussion: Most commenters praised the advantages of Macs over PCs; others reasoned that Macs hadn't gained more traction in the legal profession because law schools push PC technology, and bar associations haven't done more to educate lawyers about Macs' ability to protect client data from viruses.

Now, a year later, it seems that perhaps the tide is turning towards Macs. I myself have crossed over the line, after I found myself rebooting my creaky PC at least seven times a day. And as Mac Lawyer Ben Stevens writes in this recent post (7/16/07), Macs continue to gain traction in the legal profession, a trend that may accelerate now that Microsoft has introduced a new operating system. Citing this article from Lawyers Weekly, Stevens predicts:

And this year might not be business as usual for law IT departments. Many PC users must switch to a new computer operating system within the next two years. Unlike previous transition periods, there may be competition this time for Vista, the successor to Microsoft’s market-leading Windows XP operating system. And the most user-friendly challenge comes from Apple Inc.’s Macintosh line.

So, now what do you think about moving to a Mac?

July 17, 2007 | Permalink | Comments (3)

July 16, 2007

Might Lawyers Adopt 'Radical Honesty'?

To be honest, I doubt it. And I note that Diane Levin never even goes there in her post at Online Guide to Mediation about the Radical Honesty movement. Levin picks up on A.J. Jacobs' Esquire piece, "I Think You're Fat," in which he tells about his experiences with being all honesty all the time. Levin wonders, quite candidly, whether lying doesn't have its place:

"[I]s lying really always wrong? What if it serves noble ends? Isn't deception just a social lubricant, allowing us to get along? Shouldn't we lie to prevent harm to another? If lying is always wrong, then are studies in human behavior ethically indefensible? What about undercover police work? Or the bluffing, puffery, and lowballing that can characterize negotiations? (And let's not even get started on deception in mediation.) Despite what we tell our children about lies, deception may be indispensable."

Levin is a lawyer, but you'll note she never even asks whether lawyers could get by without lying. We may be shocked -- shocked, I say -- whenever lawyers are portrayed as dishonest, but we can certainly be far from forthcoming in our dealings with each other. What if we were radically honest? Imagine walking into a negotiation and starting with your bottom line:

"While our claim asks for $1 million, my client would be thrilled to get $50,000."
"Deal. I was authorized to go as high as $500,000. After all, the product was poorly designed."
"Hey, I appreciate your honesty."

Somehow I don't see it. Deception, at least in law, seems enshrined in granite. And that's the truth.

July 16, 2007 | Permalink | Comments (1)

Totenberg's Courtside Lap Dance

OK, there have been no reports of lap dances by NPR legal affairs correspondent Nina Totenberg -- so far. But as legal tabloidist David Lat continues his gossip mongering investigative reporting regarding Totenberg, I half expect the lap dance item to turn up any day now. Last month, Lat solicited readers to submit tales -- his word -- about the distinguished reporter's "diva-licious behavior." So far, he has unearthed a series of shocking facts about her: She once chewed gum, she asked someone to vacate her assigned seat at the Supreme Court and she dries her nylons in the bathroom.

Surprisingly, this wallowing in mud muckraking was picked up over the weekend by The Washington Post, which obtained this response from Totenberg:

"I'm flattered that I have reached the stage in my career that my taking my assigned seat has become an event big enough to inspire such embellished storytelling. If I had known asking someone to vacate my seat was such a big deal, I would have also asked him to bring me a Starbucks and a bagel."

But Mark Obbie at LawBeat is not amused:

"The effect, predictably, is that of the class clown mocking the smartest kid in the room. She's fair game, of course. But the anonymous blogger comes off as a mere shin-kicker. Kind of like me mocking the anonymous blogger, who seems to get a lot of traffic on his site, at least among his target niche of spoiled brat law students."

On second thought, maybe Obbie is amused. Myself, I don't get it.

July 16, 2007 | Permalink | Comments (2)

Who Was the First Legal Blogger?

Howard Bashman at How Appealing points to Saturday's Wall Street Journal article noting the 10th anniversary of the birth of blogging:

"We are approaching a decade since the first blogger -- regarded by many to be Jorn Barger -- began his business of hunting and gathering links to items that tickled his fancy, to which he appended some of his own commentary. On Dec. 23, 1997, on his site, Robot Wisdom, Mr. Barger wrote: 'I decided to start my own webpage logging the best stuff I find as I surf, on a daily basis,' and the Oxford English Dictionary regards this as the primordial root of the word 'weblog.'"

But WSJ writer Tunku Varadarajan is quick to add that the dating of the first blog and the naming of the first blogger "are imperfect exercises."

So too with the first lawyer blog. No one seems quite able to identify the first legal blogger. Just a month ago, in writing Blawg Review No. 111, Bill Gratsch admitted that he did not who was first, but that when he compiled his first Blawg directory in January 2003, he found only 57. I launched my LawSites blog in November 2002, and there were already a number of legal blogs underway. In fact, I wrote a two-part column in December 2002 and January 2003 rounding up 62 of the "blawgs" then being written. The aforementioned Bashman was on that list, as were several other bloggers still at it today: Bag and Baggage,, Ernie the Attorney, HIPAA blog, Howling Point, Inter Alia, Jottings By An Employer's Lawyer, Jurist, Lex Communis, Mad Kane, Ninomania, Rory Perry's Weblog, SCOTUSblog, Sneaking Suspicions, TalkLeft, The Buck Stops Here, The Dark Goddess of Replevin Speaks, The Shout, The Talking Dog, Tins, Trademark Blog, Votelaw and West Virginia Legal Weblog.

But who was the first legal blogger? I snooped around the archives of some of the longest-running legal bloggers that I know of. Here are the birthdates I found, from youngest to oldest:

So it would appear that the prize for oldest legal blog goes to Overlawyered.

July 16, 2007 | Permalink | Comments (16)

July 13, 2007

Issue Spotting the Whole Foods CEO's Pseudonymous Online Life

With the bar exam just around the corner, it's probably too late to add this doozy of a fact pattern about John Mackey, the co-founder of Whole Foods who had an online pseudonym -- Rahodeb -- under which he posted 1,100 entries on Yahoo Finance's bulletin board touting his company's stock and also criticizing Wild Oats Markets, a rival that his company went on to buy. Mackey's postings were made over a seven-year period - - and apparently, intervening events like the prosecution of Enron honchos for making false statements never made any impression. 

So, what's wrong with this picture? Steve Bainbridge takes a stab at some of the issues in need of analysis in this post:

1. Did any of the posts contain material misrepresentations or omissions that might constitute securities (or wire) fraud?
   2. Did any of the posts contain libelous statements?
   3. If the answer to either of the above is yes, can legal responsibility for such statements be attributed to the company?
   4. What impact will this have on the merger? Note the stakeholders potentially affected: The FTC, the DOJ, Wild Oat's board and top management, Wild Oat's shareholders, Whole Foods' shareholders.
   5. Your very high profile CEO is now a laughingstock. E.g., one Yahoo board poster wrote: "What a hoot! It's so Nixonian! Maybe he needs some animal fat in his diet. I've known vegans who suffered from teeth and gum disease; now we know a vegan who's suffering from 'foot-in-mouth' disease.

In this post at Law Biz Blog, Ed Poll mentions some of the same issues as Professor Bainbridge, as well as one "of even greater significance":

Whole Foods has portrayed itself as, ethical, honest and concerned primarily about the well-being of its customers. As one analyst opined, the company probably has enough "points in the emotional bank" to weather this storm but this maelstrom certainly chips away at their reputation and our confidence in them.

And finally, we have this take  from the Insurance Coverage Blog:

This bizarre story [about Mackey] is a reminder for insurers to redouble their sensitivity to Internet-related risks.  Additionally, it is also a reminder to carefully police their own employees' Internet activity.  Even the bright, sophisticated, and successful fail sometimes to exercise good judgment online.

July 13, 2007 | Permalink | Comments (1)

Spam Filter Causes Lawyer to Miss Court Date

After having relied on the often unreliable postal service in Washington D.C. and slow mail filtering in my office building (often delaying delivery by up to a week), the availability of e-filing in the firm where I practice was huge cause for celebration. But perhaps I rejoiced too soon. Because after reading this horror story, Spam filter costs lawyers their day in court (Washington Post, 7/13/07), I've realized that not even my beloved e-filing systems are impervious to error.

As the article reports, a Colorado law firm that was being bombarded with pornographic and offensive spam directed its IT administrator to fix the problem. He changed the firm's firewall settings to block spam from reaching desktop computers. But because the administrator failed to "whitelist" certain permissible mail, the system also began blocking e-mail from the U.S. District Court for the District of Colorado. And wouldn't you know it -- the day that the spam settings were changed, the court sent the firm notice of a hearing in a civil lawsuit. The system blocked the message, the firm missed the hearing and the judge ordered the firm to pay attorney fees and expenses of the lawyers who showed up. 

This post at Spam criticized the court's sanction as excessive. From the post:

The firewall software was installed on May 21, 2007 the same day the court issued the initial Minute Order.  The court seems to go through an awful lot of trouble to prove its point (e.g., calling the IT administrator as a witness, examining the firewall log).  The court even seemed peeved that some other courts were whitelisted but it was not [writing that] as of the date of this hearing on June 20, 2007, Mr. Rea still had not whitelisted this court's domain name even though he previously whitelisted the court domain names of the Colorado State Courts prior to May 21, 2007. . . . See Barracuda Spam Firewall log sheets attached to Mr. Rea's affidavit which shows e-mails from Colorado State Courts were not blocked because they were whitelisted (docket no. 137-2)

Meanwhile, Jim Calloway offers solutions on  how firms can avoid this problem in the future. Calloway advises:

OK, here's a law practice tip you can take to the bank, folks. if you practice in any CM/ECF court, your spam filter needs to have a whitelist feature and you need to use it for every court that may send you an e-mail notice. Like it or not, once you have "agreed" to receive notices via e-mail, you just can't plead "my spam filter ate my homework." If your spam filter cannot do that, then you need a new one. Sometimes it might be as simple as adding a sender's address to your contacts to get it whitelisted.  I'm not saying it will be that easy for everyone. I about blew a gasket the other day when my spam filter told me there was a limit of 250 and I had to delete someone to be able to add someone. But you don't have a choice. The argument that it is too big a burden to manually maintain a whitelist was not persuasive to this judge nor will it be to others.

July 13, 2007 | Permalink | Comments (1)

Outsourcing Expert Witnesses?

Medical expert testimony for litigation doesn't come cheap in the United States, with expert fees costing as much as $1,000 an hour. But now, lawyers have found that they can solve the problem of high expert costs in the same way that they deal with other high costs: through outsourcing and offshoring. As this article states, US Lawyer Finds Medical Experts in India (7/12/07), U.S. lawyer Dorothy Clay Sims has started using medical experts in India for help in legal cases:

Sims has reduced [medical expert costs] by hiring medical experts in India for a fraction of the price, and she makes the service available to other American lawyers through an Internet-based business called MD in a Box. The U.S. lawyers pay $90 an hour for the medical consulting.  The process works through a real-time link to an Indian doctor by computer. Sims describes a typical case in which a U.S. orthopedic surgeon disputes her client's claims in an American courtroom.

"I have my computer with me, and my doctor in India is listening to the orthopedic surgeon the whole time, through a microphone plugged into my laptop," said Dorothy Clay Sims. "He is then sending me instant messages saying, "that is not true. It is actually such and such or so and so." And I look down at my screen and I will just say exactly what the doctor said from India."

Offshoring medical consulting sounds like a great idea. At a minimum, the availability of lower-cost service could perhaps introduce some competition to the expert industry and put a little downward pressure on rates. And low-cost medical testimony up front could give lawyers more information early on about the viability of case, perhaps leading to early settlements. Of course, there are also  practical hurdles. For example,  would you videotape a deposition with the doctor -- or could you outsource the entire deposition process to lawyers in India? And I guess you'd have to submit the video deposition in court. 

For a round-up of recent IT outsourcing developments by firm, see this post by Ron Friedmann.

July 13, 2007 | Permalink | Comments (4)

July 12, 2007

Innovation: Here, There and Everywhere

Innovation abounds in the legal profession, it seems, if this week's coverage is any indication.

First off, Ron Friedmann at Strategic Legal Technology points us to yesterday's release by the College of Law Practice Management of the four winners of its InnovAction Awards 2007, honoring excellence and innovation in the management and delivery of legal services. And the envelope please:

As if that were not innovation enough, the Financial Times of London came out this week with its second-annual survey of Innovative Lawyers, covering "cutting-edge practice in the legal profession." This year's survey includes the first FT Law 50, ranking the top 50 most innovative European law firms. (Topping the list: Allen & Overy, Clifford Chance and Linklaters.)

There is a lot to read in the FT's coverage. But for those who prefer the CliffsNotes version, Bruce MacEwen offers his summary of the survey at Adam Smith, Esq. He writes:

"The sheer variety is what's most impressive to my eye.  Linklaters came up with a way of helping finance vaccination programs overseen by the World Health Organization and UNICEF, among others, under which $1 billion of bonds have been issued and another $3 billion are expected to be issued over the next few years. ... Clifford Chance took on climate change by attempting to do for carbon and emissions trading what Michael Milken and Drexel did for junk bonds:  Standardize the disclosure and documentation to make the market more liquid.  CC also claims to have invented the world's first convertible Islamic bond, consistent with Sharia law."

The FT sums it up even more succinctly: "Innovation and lawyers never used to be comfortable bedfellows, but there is growing evidence of radical change in the legal market."

July 12, 2007 | Permalink | Comments (1)

Distrust for Business Outweighs That for Lawyers

Saturday marks the start of the annual meeting of the American Association for Justice (f/k/a Association of Trial Lawyers of America), and the AAJ is setting the stage with today's release of a survey showing that voters distrust large corporations far more than they do trial lawyers. "Americans are deeply worried about their nation's future," the survey says, "and concern about corporate misconduct is a major source of their anxiety."

The survey, conducted for AAJ by Peter D. Hart Research Associates, explored voters' attitudes towards the civil justice system. It found that most voters see large corporations as preoccupied with the bottom line and irresponsible towards consumers and workers. Among voters' most significant concerns: huge payouts to corporate CEOs at the expense of rank-and-file jobs, defaults on pension obligations and refusals to pay for medical treatments.

The survey's executive summary contrasts voters' concern about corporations with what it describes as their "muted response" to criticisms frequently leveled against the civil justice system. Only a third of voters see a serious problem in trial lawyer fees, and only a quarter worry that jury awards are too high in personal injury and medical malpractice cases. More to the point, voters rank both of those below all of their concerns about big business. From the summary:

"Americans believe that the civil justice system provides essential safeguards for them at a time when corporate misconduct is such a serious problem. They tell us that making sure corporations are held accountable when their actions harm consumers, employees, or communities (70%) should be a much higher priority for the civil justice system than limiting the amount of compensation that juries can award for pain and suffering."

Holding big corporations accountable -- that, no doubt, will be the rallying cry as plaintiffs lawyers from throughout the United States convene in Chicago this week.

July 12, 2007 | Permalink | Comments (0)

Avvo: Hear All About It

If you are growing tired of reading about the controversy surrounding the new lawyer-rating site Avvo, perhaps you'd rather hear about it. If so, you can have your fill thanks to two recent podcasts.

In yesterday's edition of the legal-affairs podcast Lawyer2Lawyer -- which I co-host along with fellow blogger J. Craig Williams -- we interview Avvo's founders, President and CEO Mark Britton and VP of Products & Marketing Paul Bloom. The two discuss their reasons for launching the site, their responses to criticisms and their future plans. They also respond to points made during our first program on Avvo, posted June 18, on which they declined to appear.

In that first episode, we discussed Avvo with guests John Henry Browne, the Seattle attorney who is one of the named plaintiffs in the class action lawsuit against Avvo; Carolyn Elefant, my co-contributor here at Legal Blog Watch and also author of the blog; and Denise Howell, author of the blog Bag and Baggage.

Denise Howell hosts her own podcast, This Week in Law, and Avvo CEO Britton also joined her as a guest. In a 90-minute program, Howell interviews Britton and then leads an informal roundtable discussion about the site with legal bloggers Ernie Svenson, Dennis Kennedy and Mazyar Hadayat.

July 12, 2007 | Permalink | Comments (0)

July 11, 2007

Two Types of Expression of Rebellion in the Law

I realize that many people don't want to serve on juries, but Daniel Ellis went too far in trying to escape his obligation, as described in this article, Prospective juror incurs wrath of Cape Judge (July 11, 2007). According to the article, Ellis told the judge that he was homophobic, a racist and a habitual liar, presumably to avoid jury service. The judge's reaction? Decidely unhappy:

In 32 years of service in courtrooms, as a prosecutor, as a defense attorney, and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service," Barnstable Superior Court Judge Gary Nickerson told Ellis, according to a preliminary court transcript published in the Cape Cod Times.

Whether Ellis disagrees with forced jury service or was simply trying to make a joke, he now faces perjury charges for his little rebellion.

On the other hand, John S. Koppel, an appellate attorney at the U.S. Department of Justice, is expressing his rebellion, or at least personal disagreement, with his employer's policy in a most courageous way. In this opinion piece in the Denver Post (7/10/07) (hat tip to Trial Ad Notes), Koppel writes:

As a longtime attorney at the U.S. Department of Justice, I can honestly say that I have never been as ashamed of the department and government that I serve as I am at this time. The public record now plainly demonstrates that both the DOJ and the government as a whole have been thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful. The unconscionable commutation of I. Lewis "Scooter" Libby's sentence, the misuse of warrantless investigative powers under the Patriot Act and the deplorable treatment of U.S. attorneys all point to an unmistakable pattern of abuse. In the course of its tenure since the Sept. 11 attacks, the Bush administration has turned the entire government (and the DOJ in particular) into a veritable Augean stable on issues such as civil rights, civil liberties, international law and basic human rights, as well as criminal prosecution and federal employment and contracting practices. It has systematically undermined the rule of law in the name of fighting terrorism, and it has sought to insulate its actions from legislative or judicial scrutiny and accountability by invoking national security at every turn, engaging in persistent fearmongering, routinely impugning the integrity and/or patriotism of its critics, and protecting its own lawbreakers. This is neither normal government conduct nor "politics as usual," but a national disgrace of a magnitude unseen since the days of Watergate - which, in fact, I believe it eclipses.

Koppel also realizes that his expression of his opinion may cost him:

I realize that this constitutionally protected statement subjects me to a substantial risk of unlawful reprisal from extremely ruthless people who have repeatedly taken such action in the past. But I am confident that I am speaking on behalf of countless thousands of honorable public servants, at Justice and elsewhere, who take their responsibilities seriously and share these views. And some things must be said, whatever the risk.

I'm still not sure whether I completely agree with Koppel's position, but I can applaud the guts that it took for him to put it out there. It's not often that we see lawyers willing to speak their mind, knowing of the consequences that will follow. 

July 11, 2007 | Permalink | Comments (2)

Law Students Making a Mark on the Law

Many of us would like to leave a mark on the law -- our own little precedent that in some way, large or small, changes the outcome of a case or the way law is practiced. Many lawyers spend half of their careers or more working to leave that mark, while a very lucky few create that impression in law school. In this post at Volokh, Eugene Volokh carries a brief interview with Janet Hoeffel, author of a very successful student law review. Hoeffel's article,  "The Dark Side of DNA Profiling: Unreliable Scientific Evidence Meets the Criminal Defendant" (Stan. L. Rev. 1990), has been cited by over 25 cases and over 90 academic works. Wow!

Hoeffel is awfully modest about her achievement. For example, of her decision to write the article, Hoeffel (now a law professor at Tulane) says:

I would love to say I had high and mighty goals in mind in my decision to write a Note. Nope. A mere requirement of the Stanford Law Review. I have always been a good worker bee -- I do what I am told. I reach for the next brass ring as I was taught. I published the Note because the Review accepted it and I was flattered.  I have to tell you, though, that the topic was so hot that I completely burned myself out trying to constantly update the article. I skipped class and worked long hours into the night. Again, the ideals driving me were not high and mighty -- mere perfectionism. If I was going to publish it, it had to include every last speck of information out there on DNA, down to the most recent news article. I never in a million years dreamed the article would prove to be so useful.

The article has helped Hoeffel advance her career as well. She became an instant expert on the topic, and as a staff attorney at the Public Defender Service, she did trainings on DNA. And the article helped her get a position as a professor because it was the only piece of scholarship she'd written in 10 years.

Obviously, I'm a major fan of blogs -- but I don't think that even today that a well-written student blog could provide the same basis for success as Hoeffel's article did (though it would be much easier to update!). What's your view -- will blogs eventually replace the importance of the law review article?

July 11, 2007 | Permalink | Comments (0)

Not Every New Grad Earns $160k

With most of the media outlets focusing on the stratospheric $160,000 salaries for this year's crop of first-year associates, it's easy to forget that the majority of law firm graduates don't earn anywhere near that much. This National Law Journal article, Most law grads face lower pay and debt (7/9/07), discusses the plight of law school graduates from non-top-tier schools, many of whom are saddled with debt and can find only lower-paying jobs. The article suggests that the problem is one of expectation: With so much focus on "eye-popping salaries," many students come to expect them as the norm. From the article:

[Students]do not have an accurate perception of the job market," said Emily Spieler, dean of Northeastern University School of Law. "They have very restricted views." A big challenge — and responsibility — for law schools is to dispel the notion that six-figure salaries at megafirms are the norm, she said. "They perceive those jobs as having high status and high pay and do not understand what they entail."

The article reports that in reality, about 80 percent of law graduates work at firms with fewer than 100 attorneys and, thus, are making far lower salaries that those in the news.

Students don't find much help from career offices, as they often focus their efforts on top-tier firm placement. After all, top firm placement is one factor that drives high rankings in U.S. News and other ratings systems.

I agree that law schools need to do more to manage expectations and help teach students who aren't getting Biglaw interviews how to find jobs. For example, consider this experience of a top student at Ohio State College of Law:

Currently working for an in-house department at a large insurance company in Chicago, she graduated in the top third of her class, was a member of law review and participated in the school's moot court competition. She has $70,000 in student loan debt, she said, and makes about $50,000 annually. She sent out more than 100 résumés and letters before and after she graduated, she said. "I could get in the door; I just couldn't land the job."

Perhaps this woman's law school should have told her that networking and relationship building are usually far more effective than sending resumes blindly. And since this woman was "getting in the door," apparently, she needed more assistance on how to sell herself effectively. Many of the commenters at Above the Law agreed, pointing out that interview skills can make a considerable difference in landing a position.

But even more, why would a law school -- or anyone, for that matter -- consider this woman's situation unfortunate? Granted, she's earning one third what a Biglaw associate makes, but I'm guessing that she works half the hours. Moreover, as an in-house member of an insurance company, this woman's future employment opportunities are unlimited: Depending on the types of matters she's handling, she can move to a law firm that handles insurance defense or personal injury or tort work -- and get the job on her own terms. Of course, that's after her $160,000 peers have burned out and left in search of jobs like the one she has now.

A career in the law is a marathon, not a sprint. Those with the drive, persistence and the ingenuity to find a winning strategy midcourse or even in the last stretches will always find some form of success. Why don't law schools teach that?

July 11, 2007 | Permalink | Comments (1)

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