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September 28, 2007

N.Y. AG's Porn Plan Raises Eyebrows

Leaked e-mails revealing the New York attorney general's plan to outsource evidence gathering for child-porn prosecutions are raising eyebrows among bloggers and causing defense lawyers to cringe, according to a report published yesterday in Wired. Some 700MB of internal e-mails from the controversial anti-piracy company MediaDefender were leaked two weeks ago via the file-sharing network BitTorrent

As Ars Technica reported then and Wired wrote about yesterday, the e-mails showed that the office of N.Y. Attorney General Andrew Cuomo had undertaken a project to have MediaDefender gather data about peer-to-peer users who access pornographic content. In one e-mail, an intelligence analyst in the AG's office explained how it would work:

"On your end, the peer-to-peer crawler will be identifying files matching the established search criteria from various hosts. This data will then be collected, filtered for New York resident ip addresses (to the accuracy limits imposed by geo-query tech). The data will then be transferred to us where; on our end, a separate piece of software will use that data to connect into the network and download the file from a host and store it on our servers for evidence retention and further analysis."

Ars Technica says that the e-mails are not sufficient to describe the full scope of the project. But, as Wired makes clear, whatever its scope, defense lawyers don't like it. As one lawyer told Wired:

"Generally it is not looked upon favorably when a prosecutor engages a private company to collect evidence in a case or to ... partner with in a criminal case. This raises grave ethical concerns regarding the propriety of that relationship between the prosecuting authority and the private company, and it also could potentially show favoritism toward that company in the future."

Wired said it was unsuccessful in its attempts to obtain comments on the e-mails from either the AG's office or MediaDefender. But MediaDefender is nonetheless on the defensive: Ars Technica reports that it has retained lawyers from the firm Sheppard Mullin to send take-down notices to Web sites that publish the leaked e-mails.

September 28, 2007 | Permalink | Comments (2)

Any Testimony on Judicial Conduct Rules?

The only public hearing on proposed rules governing complaints against federal judges was held yesterday in New York, but I can find no reports of what happened or who testified. Were you there? Did you testify? If so, leave a comment below and tell us what you said or heard.

The U.S. Judicial Conference -- the policy-making body of the federal courts -- issued the proposed rules governing judicial conduct and disability proceedings in June. The draft was derived from the so-called Breyer Committee report issued in September 2006 on implementation of the Judicial Conduct and Disability Act of 1980. When it published the proposed rules, the conference  issued an invitation for public comments to be filed by Oct. 15 and scheduled a single public hearing, set for yesterday at the federal courthouse in Brooklyn, N.Y.

My search of yesterday's news and blog postings found only one person who indicated he would testify at yesterday's hearing, Dr. Richard Cordero, a New York lawyer who runs the Web site and who describes himself as having been involved in 11 federal bankruptcy cases in the last five years. His 19-page letter criticizes the draft rules as "designed by federal judges to protect their own position above both the law and the other two branches of the federal government."

These are important rules that will set the process for determining whether a federal judge engaged in improper conduct. Surely, someone showed up yesterday in Brooklyn to testify. If it was you, let us know.

September 28, 2007 | Permalink | Comments (3)

Report: Arbitration a Trap for Consumers

Public interest advocacy group Public Citizen came out swinging yesterday against mandatory arbitration of consumer credit disputes and against one dispute-resolution company that hears many of these cases. In a 74-page report, The Arbitration Trap, Public Citizen looked at the use of binding arbitration by the credit-card industry. The conclusion: "Mandatory arbitration is a rigged game in which justice is dealt from a deck stacked against consumers."

The study focused on California -- the only state that requires public disclosure by arbitration providers -- and on one credit-card company and one arbitration company there, MBNA and the National Arbitration Forum. Among the most damning allegations:

  • In more than 19,000 cases involving NAF arbitrators, 94.7 percent were decided in favor of the credit-card company.
  • The decision to file for arbitration is made by the company, not the consumer, in 99.6 percent of cases.
  • A small group of just 28 arbitrators handled nine out of every 10 NAF cases in California, ruling for the credit-card company 95 percent of the time.
  • A Harvard law professor was blackballed as an arbitrator after she awarded a consumer $48,000.

It is a system, Public Citizen President Joan Claybrook said, in which credit companies hold all the cards:

"With binding mandatory arbitration, hearings are in secret. No transcripts are produced. Written explanations of decisions often are not provided so no precedents can be set and appeal is nearly impossible. Consumers can be forced to pay thousands of dollars in arbitration fees compared to several hundred dollars in filing fees in court."

The Institute for Legal Reform of the U.S. Chamber of Commerce was quick to respond, calling the report a "bogus attack" and a self-serving tactic by the plaintiffs bar to line its own pockets. ILR President Lisa A. Rickard said:

"The plaintiffs' lawyers' attack on the arbitration system -- a process that has helped consumers resolve disputes for more than 85 years -- is nothing more than their latest attempt to enrich themselves by opening the door for more class action lawsuits."

No response as yet from the NAF. See also these releases from Public Citizen's press conference:

September 28, 2007 | Permalink | Comments (3)

September 27, 2007

No Satisfaction, at Least for One Lawyer Who's Not on the Cover of this 'ABA Journal'

This month's issue of the ABA Journal features an article entitled The Pulse of the Legal Profession, which suggests that while lawyers may complain about stress and image, an ABA survey of 800 lawyers found that at least 80 percent are proud to be attorneys. And the survey also found career satisfaction increasing with age, with more than half the lawyers in practice for more than nine years satisfied with the legal profession (though, as a career consultant quoted in the article notes, it may be because by then they've become partner or found the right position). 

As other bloggers comment on this article, we'll revisit the survey results. But for now, we point out that there's at least one lawyer who's not satisfied with this story. The ABA's article is accompanied by a special cover, featuring 50 lawyers -- and still, Bob Noone has not made the cover of the ABA.

September 27, 2007 | Permalink | Comments (0)

Therapeutic Jurisprudence -- an Oxymoron or an Aspiration?

Being involved in a legal proceeding might drive many to seek therapy. But can legal proceedings also be therapeutic? That's a theory being explored by professor David B. Wexler, as described in this article (Science Daily, 9/25/07).

Wexler's research has focused on ways that law, as a "dynamic force with consequences and behavioral impacts," can be used in a therapeutic way. The article gives an example of how therapeutic jurisprudence works in practice:

Take for example the convict about to be placed on probation. Wexler says that instead of the old "you won't do this, you will do this. Goodbye, and I don't want to see you again," it may be more appropriate to engage the individual who is in the hot seat.

"It's about having a dialogue with a client. It's a more creative and flexible way of looking at existing law," he says. "I have seen examples of people who were more willing to accept judgment of the court if the court interacted with them in a certain way."

But it is not about negotiating law.

"Everything that is proposed here is possible under existing law," says Wexler, also a therapeutic jurisprudence consultant for the National Judicial Institute of Canada. "I see it as using the law in a somewhat different or creative way."

As described in this piece, it seems that therapeutic jurisprudence doesn't just help clients by making the legal process less stressful and outcomes more beneficial but it can help lawyers as  well. Therapeutic jurisprudence encourages lawyers to think creatively and makes them realize that the work they do has real potential for change. And perhaps that is enough to keep some unhappy lawyers out of therapy.

September 27, 2007 | Permalink | Comments (2)

Footnotes vs. In-Text Citation

Ever hunt through lengthy paragraphs of string cite  in search of a few sentences of argument? If professor Wayne Schiess of the Legal Writing Blog has his way, you won't have to deal with this problem any longer. In a blog post where form is also function (take a look -- you'll see what I mean), Schiess argues that "the legal writing community should stop using in-text references" and "use footnote form instead." 

What's your preference -- the footnote or the body of the brief for citation? I moved to the footnote camp for memos long ago and have been making the transition in briefs (though much of my work involves issues of first impression where there's not enough case law to string cite). Of course, as we move more and more towards a paperless profession, perhaps the in-text versus footnote debate will be rendered moot with use of hyperlinks.

September 27, 2007 | Permalink | Comments (5)

Have You Learned to Think Like a Lawyer?

At Future Lawyer, Rick Georges links to this post at the Law Librarian Blog, which highlights an upcoming journal article on thinking like a lawyer. The article posits that many lawyers aren't trained well enough in law school to synthesize cases or fail to use this skill to its full potential. As a result, they often aren't able to "produce the analysis needed to represent clients effectively."

This article seems to buck the recent trend, described in this earlier post of weaning lawyers away from studying theory to focusing more on practical skills. And in his post, Rick Georges ponders whether thinking like a lawyer is a good thing or bad thing. For Georges, the phrase "thinking like a lawyer" conjures up memories of Professor Kingsfield on the Paper Chase and Georges' own experiences with relationships gone badly because his significant other accused him of "thinking like a lawyer." 

Do you think law school teaches students to think too much like lawyers -- or not enough? And is thinking like a lawyer a skill that some are born with -- or one that can only be acquired through training and practice?

September 27, 2007 | Permalink | Comments (3)

September 26, 2007

More on Law Jobs -- or Lack Thereof

Our post here Monday, A Cold Slap for Law Students, discussed that day's Wall Street Journal report on the sad state of the legal job market, Hard Case: Job Market Wanes for U.S. Lawyers. While some commentators seemed surprise by the report, I was not. As I wrote, "Frankly, there is no news in reporting that the majority of lawyers earn modest salaries and that for many getting by is a struggle." Now I see that my colleague here at Legal Blog Watch, Carolyn Elefant, agrees. Writing at her My Shingle blog, she said of the report, "I can't understand why this is news to anyone."

But legal-placement consultant Stephen Seckler, writing at the blog Counsel to Counsel, sees it differently. While not disagreeing outright with the WSJ piece, he says it may overstate the case. He offers law students this reassurance:

"Most law school graduates do find legal employment and most are able to meet their debt obligations without living in poverty. More importantly, any one individual only needs one job. While it may be a tougher to find your place if you don't have the academics, you can still be successful if you work at it! It just may take a little longer and require a few more steps."

At his blog Adam Smith, Esq., Bruce MacEwen reads between the lines of the WSJ article and concludes that the real story is in the legal profession's split into parallel job markets. "There's a BigLaw market and there's a non-BigLaw market," he says. "They are two separate markets, bifurcated, that do not speak to one another." It is what the blog Empirical Legal Studies called a dramatic example of bimodal distribution, pointing to an NALP study charting the camel-like distribution of lawyer salaries. The NALP chart shows one hump for lawyers who top out at under $50,000 and another hump for their well-paid counterparts at large firms. MacEwen agrees with those who say law schools should be more up front about the job market, urging them to take a cue from securities law, which teaches: "You can do anything -- so long as you disclose it."

September 26, 2007 | Permalink | Comments (3)

Law Profs Blog Obama Interview

160pxobamabarack The three law professors who write ImmigrationProf Blog scored a blawgosphere coup, of sorts, getting U.S. senator and Democratic presidential candidate Barack Obama, D-Ill., to participate in an exclusive interview covering a range of tough questions on immigration law and policy. The three -- Kevin R. Johnson, Bill O. Hing and Jennifer Chacón, all on the law school faculty at the University of California, Davis -- submitted questions to Obama and published his answers.

"We prepared a list of questions for Senator Obama on a range of difficult immigration issues, including immigration reform, undocumented immigration, family immigration, local (anti-)immigration ordinances, the U.S. government's treatment of Elvira Arrellano, integration of immigrants into U.S. society, the deaths along the U.S./Mexico border, and his vote in favor of the Secure Fence Act."

The bloggers have asked other candidates to answer the same questions but so far have received only Obama's response.

September 26, 2007 | Permalink | Comments (3)

One Lawyer's Showdown With Jesse James

Jesse_james The thought of a showdown with notorious Wild West bank robber Jesse James conjures up images of six-shooters drawn on a dusty main street. But it appears that one brave Missouri lawyer sought recourse from James in a more lawyerly way, by taking him to court -- and won. James elected not to appeal but, outlaw that he was, twice later tried to shoot the lawyer who beat him in court.

A modern-day Missouri lawyer, James P. Muehlberger of Shook, Hardy & Bacon, last month discovered documents detailing the litigation. His discovery and the story it reveals are reported this week in The Kansas City Star [via Bashman]. The timing of his discovery could not be better, given last week's release of the Brad Pitt movie, The Assassination of Jesse James by the Coward Robert Ford.

As Star writer Brian Burnes recounts, Ford may have been a coward, but young lawyer Henry McDougal was anything but. The case stemmed from an 1869 bank robbery in Gallatin, Mo., in which two robbers shot and killed the cashier. As they made their getaway, one robber's horse bolted, forcing the pair to escape on one horse. The horse they left behind was identified as belonging to James.

Outside town, the bank robbers encountered Daniel Smoote and forced him to hand over his horse. The smitten Smoote wanted to sue James, but could find no lawyer willing to take his case, until he met McDougal, then 25 and a lawyer for just a year. McDougal sued for attachment of the horse James left behind. Surprisingly, James retained a lawyer and responded with legal maneuvers of his own, asking the court to quash service of the complaint. After nearly two years of legal gun slinging, James refused to appear for trial and the court entered judgment for McDougal's client.

That was not the end of the case for James. In 1871, he rode into Gallatin with the aim of shooting McDougal, but failed. A decade later, a second attempt to shoot McDougal was also linked to James. None of that hurt McDougal's career -- he went on to become president of the Kansas City and Missouri bar associations and to partner with the lawyer who founded Shook Hardy. Even in the Wild West, it seems, justice prevailed.

September 26, 2007 | Permalink | Comments (0)

Deal of the Day: Magna Carta

Magna_carta_thumb There could be no better way to impress your clients and empty your bank account than with your own original copy of the Magna Carta -- perhaps the most important legal document in history. As J. Craig Williams notes at his blog May it Please the Court, international auction house Sotheby's announced yesterday that it will auction one of the fewer than 20 known copies of the document during the week of Dec. 10. One of only two copies outside England, this may be the only Magna Carta ever likely to be sold, Sotheby's says. Dated 1297 and sealed by King Edward I, this copy has been on loan to the National Archives in Washington by its owner, The Perot Foundation, which bought it in 1984. Before that, the document had been owned for six centuries by a British family believed to have obtained it through their forebears, two distinguished lawyers.

Sotheby's expects the Magna Carta to sell for as much as $30 million. If that is outside your office-decorating budget, Williams suggests, you can always hold out in the hope of finding one at a garage sale for $1.59. Of course, you can always read it online.

September 26, 2007 | Permalink | Comments (0)

September 25, 2007

Supreme Court Adds 17 Cases to Its Calendar

This morning, the Supreme Court announced the 17 new cases that it's added to its calendar for the new term, as reported here at SCOTUS Blog.

The cases include some interesting issues, such as the constitutionality of requiring voters to show a photo ID before they may vote; the constitutionality of execution by lethal injection where the procedure poses a risk of pain and suffering in violation of the Eighth Amendment ban  on "cruel and unusual punishment"; and a Fourth Amendment case involving an unlawful search under state law that Volokh conspirator and Fourth Amendment guru Orin Kerr is interested in. We'll be covering many of these cases here at Legal Blog Watch, so stay tuned ...

September 25, 2007 | Permalink | Comments (2)

Law Firm Salaries: If You Can't Beat Them, Retreat From Them

When New York firm Simpson Thacher announced its decision to raise starting associate salaries to $160,000, most law firms raced to jump on the bandwagon. But as this article (9/25/07) reports, one midsize New York law firm, Duval & Stachenfeld, has taken an opposite strategy: It pays starting associates $60,000 -- or $100,000 below the going rate. Salaries don't stay flat, however, and by their third year, D&S associates can expect to match salaries of their counterparts at top firms.

There are several reasons behind D&S's approach. From the article:

The idea is that [the firm] will attract first-years from second-tier schools or less-competitive students at the top schools. Within two years, about half of those junior associates will prove themselves and hop on the gravy train of the top scale. Meanwhile, the hefty pay for mid-level and senior associates makes Duval & Stachenfeld an attractive option for unsatisfied laterals from top firms.

In addition, lower pay enables the firm to hire more associates and to mitigate clients' concerns that they're subsidizing the cost of training high-paid associates.

Given the realities of the the current legal market that my colleague Bob Ambrogi posted on yesterday, there are probably no shortage of applicants for positions at D&S, even with the lower pay scale. Moreover, it's a win-win situation for the firm, which gets the benefits of cheap labor by lawyers who are grateful for an opportunity to have a job at all.

Question for readers: Why aren't more firms taking this approach?

September 25, 2007 | Permalink | Comments (3)

What Google Docs Means for the Law

Wired GC has two posts on Google Docs that merit review. (Full disclosure: My husband works for Google, though not on this product, and even my sixth-grade daughter uses Google docs to edit a newspaper that she runs with some friends outside of school). If you're not familiar with Google Docs and how it works, this post from Wired GC offers a neat and simple explanatory video.

But why should you care about Google Docs or other open source, collaborative applications, for that matter? Wired GC responds here. He writes that Google Docs may make some users question why they've been paying so much for complicated collaborative software that Google has made available for free. And by making this application available at no charge, people become more comfortable with "software-as-a-service." Finally, Wired GC concludes:

Getting back to the law, note what is happening here. When you make working together easier, you don’t just do things better. You also do fewer things faster and therefore much cheaper. Much of the business model of the legal industry is based upon doing too many things slower.

Have you or your firm started exploring these kinds of collaboration tools? And is Wired GC right -- is the availability of fairly robust open source applications making lawyers rethink more costly models?

September 25, 2007 | Permalink | Comments (5)

Blawg Review #127

This week, trial lawyer and jury consultant Ann Reed hosts Blawg Review #127 at her blog, Deliberations. And the verdict on her voir dire-themed Blawg Review is unanimously favorable, as evidenced by this litany of positive commentary and trackbacks. Even the sometimes curmudgeonly David Giacalone of f/k/a/ offers a positive review of Reed's Blawg Review, finding Reed "not guilty" of
thematic excess

September 25, 2007 | Permalink | Comments (1)

September 24, 2007

Lawdragon's 500 Leading Lawyers

With the current glut of publications purporting to rank the best lawyers, it would be interesting for someone with lots of time on his hands to cross-reference them all and see who makes which lists. I do not have lots of time on my hands, so I will simply point out that there is yet another ranking to contend with: the third-annual Lawdragon 500, naming the 500 leading lawyers in America (as well as the 2,500 finalists).

Lawdragon's list includes private-practice lawyers as well as in-house counsel, law professors, judges and neutrals, government attorneys and public-interest lawyers. Among the latter, for example, are Martha Bergmark of the Mississippi Center for Justice, David G. Hawkins of the Natural Resources Defense Council and Bryan Stevenson of the Equal Justice Initiative of Alabama. In-house lawyers who made the list include Microsoft's Brad Smith, Gloria Santona of McDonald's Corp. and Merck's Bruce Kuhlik. Even some smaller-firm lawyers show up, mainly from the ranks of the PI bar, such as Boston's Neil Sugarman.

Lawdragon claims to have democratized its selection methodology. In addition to interviewing "thousands of lawyers," Lawdragon collects votes through an online ballot, "allowing lawyers who might be overlooked through traditional surveying techniques to be identified." Still, I suspect the enterprising cross-referencer would find many of the usual suspects, rounded up with the help of ambitious marketing staffs.

September 24, 2007 | Permalink | Comments (0)

Survey: In-House Spending Continues to Rise

The 2007 Law Department Survey released last week by consulting firm Hildebrandt International appears to have garnered virtually no commentary within the blawgosphere and, save for a brief mention in The National Law Journal, little coverage by the legal press. That may be because of this year's yawn-inducing findings: Yes, spending by corporate law departments continues to grow. But the overall rate of growth is just 6 percent, hardly a number likely to induce panic among CFOs.

The primary factor driving this growth was inside spending, which rose by 8 percent, and the primary reason for the growth in inside spending was higher compensation for in-house counsel -- up an average of 10 percent for in-house lawyers at all levels. Last year's survey reported an average increase in compensation of 7.5 percent. Notably, spending on outside firms went up by a paltry 3 percent, compared with rates of 5 and 6 percent in the prior two years.

Among other findings of the survey:

  • For every $1 billion of revenue, the median company spends $4.4 million on legal costs and employs 4.2 lawyers.
  • Total legal spending per inside attorney is $1.1 million.
  • Chief legal officers earn a median of $800,000 and an average of $900,000, while in-house lawyers at all levels earn a median of $200,000 and an average of $226,000.

The survey covered 202 companies from 20 industry groups. The median company in the survey has at least $10 billion in revenues and a law department with nearly 30 lawyers. Information on purchasing the full report is available here.

September 24, 2007 | Permalink | Comments (0)

Poetic Justice: Another Verse

Poetry is sweeping the profession. Just 10 days ago we reported here on the Aesop of law, the law school professor who published a book of humorous fables and verses drawn from real-life legal stories. As we noted, the book's forward is written by Pennsylvania Supreme Court Justice J. Michael Eakin, a jurist with a propensity towards poetry that he sometimes expresses in his opinions. For Eakin, his juridical muse drew judicial rebukes from two of his Supreme Court colleagues, as the New York Times reported in 2002, with then-Chief Justice Stephen A. Zappala saying that "an opinion that expresses itself in rhyme reflects poorly on the Supreme Court of Pennsylvania."

Now, showing no deference to that state court precedent, a federal magistrate-judge in New Hampshire has issued a ruling in verse of his own. U.S. Magistrate Judge James R. Muirhead found authority for his ruling in the writings of the esteemed jurist Dr. Seuss -- the case of Green Eggs and Ham, to be precise. As both the Boston Globe and report, the case involved an inmate who filed suit because prison staff kept serving him boiled eggs despite his protests that he did not like them. After the inmate filed a request for a preliminary injunction, in which he included a hard-boiled egg, the magistrate-judge issued this ruling:

    No fan I am
    Of the egg at hand.
    Just like no ham
    On the kosher plan.

    This egg will rot
    I kid you not.
    And stink it can
    This egg at hand.

    There will be no eggs at court
    To prove a clog in your aort.
    There will be no eggs accepted.
    Objections all will be rejected.

    From this day forth
    This court will ban
    hard-boiled eggs of any brand.
    And if you should not understand
    The meaning of the ban at hand
    Then you should contact either Dan,
    the Deputy Clerk, or my clerk Jan.

    I do not like eggs in the file.
    I do not like them in any style.
    I will not take them fried or boiled.
    I will not take them poached or broiled.
    I will not take them soft or scrambled
    Despite an argument well-rambled.

    No fan I am
    Of the egg at hand.
    Destroy that egg!
    Today! today!
    Today I say! without delay!

    SO ORDERED (with apologies to Dr. Seuss)

September 24, 2007 | Permalink | Comments (0)

A Cold Slap for Law Students

Today's Wall Street Journal report on the sad shape of the legal job market, Hard Case: Job Market Wanes for U.S. Lawyers, while by no means encouraging is at least refreshing -- refreshing for the dose of reality it offers. Amid constant blog and media coverage of Biglaw megasalaries, WSJ reporter Amir Efrati highlights what most rank-and-file lawyers already know: A law degree is by no means a license to print money. In fact, for the majority of law school graduates, these are tough times:

"Graduates who don't score at the top of their class are struggling to find well-paying jobs to make payments on law-school debts that can exceed $100,000. Some are taking temporary contract work, reviewing documents for as little as $20 an hour, without benefits."

Supply and demand help explain the slump, Efrati writes. More lawyers are entering the workforce while overall demand for legal services has slowed and, in some practice areas, declined. Solo and smaller-firm lawyers are hit especially hard:

"Evidence of a squeezed market among the majority of private lawyers in the U.S., who work as sole practitioners or at small firms, is growing. A survey of about 650 Chicago lawyers published in the 2005 book 'Urban Lawyers' found that between 1975 and 1995 the inflation-adjusted average income of the top 25% of earners, generally big-firm lawyers, grew by 22% -- while income for the other 75% actually dropped."

Efrati's article and related Law Blog post note that some law students are  unhappy with their law schools for failing to warn them about the sad state of the employment market. That strikes me as a  maneuver to shift blame from the students' own lack of due diligence before starting down the path of a legal career. Frankly, there is no news in reporting that the majority of lawyers earn modest salaries and that for many getting by is a struggle. As the article notes, the inflation-adjusted average income for sole practitioners has been flat since the mid-1980s. The bulletin in this piece is in the reality it offers. For many law students, apparently, reality is a cold slap.

September 24, 2007 | Permalink | Comments (1)

September 21, 2007

Conviction for a Murder Charge That Was Dismissed

Earlier this week, Scott Greenfield at Simple Justice posted here about a criminal defendant who nearly spent 30 years in jail for conviction on a murder charge that had previously been dismissed. The tragic events and inexcusable conduct that almost lead to this result included (a) a DA who proceeded to prosecute the murder case when she knew the charge had been dismissed; (b) a defense attorney who didn't read the file and didn't realize that the murder charge had been dismissed; (c) the judge, who refused to vacate the erroneous conviction when it was brought to his attention by a court clerk; and (d) the appellate court that wouldn't reschedule oral argument to accommodate the defense attorney's temporary loss of his eyesight. Fortunately, (d) didn't matter, as the appellate court vacated the conviction even though the defense attorney did not appear at oral argument.

Needless to say, Greenfield's post has made the rounds on the blogosphere. And in this follow-up post, Greenfield responds to some of the comments about the case.

September 21, 2007 | Permalink | Comments (2)

Web Sites and Transparency

Over at his Law Sites blog, Bob Ambrogi mounts to high horse to complain about a practice common to many bloggers: reprinting large portions of other articles, often with limited or even no attribution. Ambrogi notes that fair use notwithstanding, use of large portions of publication could run afoul of copyright law. One of the commenters also notes that a blogger who lifts material without attribution might be committing plagiarism. But beyond these problems, there's also the question of transparency of sources -- and Ambrogi offers a cure. From the post:

my belief is that bloggers should be fully transparent about their sources. The blogs I describe above could take a few small steps to remedy their lack of transparency. Assuming they have proper permission to reprint these articles, they should:

    * Insert an editor's note at the top of the post identifying the source. This need not be overly formal, just something along the lines of, "Here is an article from that I thought you'd find interesting. It was written by John Lawyer and is reprinted here with permission."
    * Use quotation marks, indentation or some typographical device to distinguish quoted text from your own comments.
    * Include a link back to the original article.

Of course, Ambrogi concludes by commenting that he prefers bloggers to excerpt "tantalizing tidbits" from the original article and then link back to the full text rather than quote the whole article itself. I agree. A good blog post, after all, isn't a carbon copy of something that's been written before, whether attributed or not. 

September 21, 2007 | Permalink | Comments (1)

Nine Tips for Representing Web 2.0 Startups

In this post, attorney-tech blogger Nelson Ireson predicts that consulting for Web 2.0 startups will become an increasingly complex area with pitfalls for the unwary. Ireson links to this article that lists nine tips that Web 2.0 companies and the lawyers who advise them must learn to avoid "legal suicide."

Ireson's favorite tip is one that counsels companies not to "ignore the bribes you have to pay." Ireson agrees that rather than fight with patent trolls over claims that could cost substantial money to litigate, companies should settle quickly and move forward. Other tips caution companies not to ignore the safe harbor provisions of the DMCA, which can insulate them from liability down the line, or keeping data forever to avoid being compelled to give up user information when subpoenaed by the court. 

Take a look at the entire article to review all nine tips.

September 21, 2007 | Permalink | Comments (0)

'A Lawyer Walks Into a Bar ...' Now on DVD

Back in February, my co-blogger, Robert Ambrogi, posted about on an upcoming documentary depicting six law school graduates and their struggle to take and pass the California bar exam. The film opened at the SXSW film festival last spring to great reviews, but if you missed it there, it's now available on DVD, as noted at Counsel to Counsel. For more information on the film, visit the Web site,

September 21, 2007 | Permalink | Comments (0)

September 20, 2007

Roberts Gets Lesson in Free Speech

In Chief Justice John Roberts' speech yesterday at the S.I. Newhouse School of Public Communications at Syracuse University, he was expected to offer some lessons about free speech. Instead, he may have learned a lesson or two about speaking freely, judging by reaction to the speech. The chief was at Syracuse to dedicate the third building in the Newhouse complex, a building whose exterior prominently features the words of the First Amendment. From reports of those who attended, the message of his speech came down to this: the First Amendment means nothing without an independent judiciary to uphold it. From that followed this secondary message: Term limits for judges threaten judicial independence and therefore threaten the First Amendment.

Legal Times correspondent Tony Mauro, who blogged live from the speech, noted that the connection between judicial independence and constitutional safeguards has been made before, "but not in such a direct way." Mauro summed up the message in these words: "Roberts' message to First Amendment practitioners seemed to be: mess with the judiciary, and we may not be there to watch your back."

Also in attendance was Slate legal-affairs writer Dahlia Lithwick, who agreed with Mauro's summary of the message -- calling it "less a lofty sentiment than a shot across the bow" -- and who saw in the speech an abundance of irony. Just last week, she noted, Roberts taunted a University of Montana Law School audience with this reference to his need to avoid speaking freely: "Of course, what you would find most interesting is what I can't talk about." More to the point, she continued, was the inconsistency between Roberts' comments yesterday about protecting free speech and his opinion in the so-called bong hits 4 Jesus case:

"The chief justice doesn't explain today how twisting the ambiguous language of 'Bong hits 4 Jesus' into a pro-drug message in order to suppress it protects us from the tyrannical linguistic preferences of the ruling elites."

An even harsher view of the speech came from Newhouse's own Mark Obbie, director of the school's Carnegie Legal Reporting Program. At his LawBeat blog, Obbie called the speech a punt -- and a self-absorbed one at that:

"Everything he said is true, germane, and important. But also a terribly crabbed and egotistical take on the First Amendment. In short, you can thank me for your freedoms -- so don't join the judge-bashers."

Even The Daily Orange,  an independent Syracuse student newspaper, was critical of the chief justice in an editorial today, saying his speech "resembled the kind of talk parents use when begrudgingly granting their children privileges to stay up late." With all this backlash, the lesson for the chief justice may be: Next time, speak less freely.

September 20, 2007 | Permalink | Comments (0)

Lawyers Spew 13.5 Tons of Hot Air

The nation's largest legal organization is taking on one of the legal profession's oldest problems: too much hot air. Lawyers, of course, have a reputation for spewing hot air. That reputation, it turns out, is well deserved. All tolled, a typical lawyer is responsible for 13.5 tons of greenhouse gases each year. Roughly a third of that hot air comes not from a lawyer's words, but from the reams of paper a lawyer puts out.

Writing for the ABA Journal, Debra Cassens Weiss reports that a typical lawyer uses 20,000 to 100,000 sheets of copy paper a year. The production of all that paper generates up to 4.5 tons of carbon dioxide and other greenhouse gases. On top of that, a lawyer generates six tons of carbon dioxide through electricity use and another three tons in commuting. All that makes for a lot of hot air and a big carbon footprint.

Hoping to reduce all that hot air, Weiss reports, the American Bar Association has teamed up with the U.S. Environmental Protection Agency to launch the ABA-EPA Law Office Climate Challenge. The challenge to law firms is simple: "Conserve energy. Support renewables. Stop wasting all that paper. Do something about global warming." The first firm to sign on was Arnold & Porter, which is working to cut its paper usage and which is offsetting its business travel through contributions to a carbon-offset fund.

To date, 20 law firms and legal organizations have signed on to the challenge. If this keeps up, lawyers might some day no longer be known for their hot air.

September 20, 2007 | Permalink | Comments (0)

Bizarre Lawsuit of the Day

A Pennsylvania man has sued search giant Google for $5 billion, claiming that when his Social Security number is turned upside down, "it is a scrambled code that does spell the name Google." The handwritten complaint filed in the U.S. District Court in Scranton alleges that the U.S. Justice Department "is heading the investigation into allegations of crimes against Humanity" involving Google's founders and that the plaintiff's "safety is in jepordy." The plaintiff asks the judge to order Google "to issue a first check of $250,000.00 and a second check in the amount that remains." The plaintiff also asks the judge to "deny all avenue of appeals for defendant(s)." In an accompanying request to proceed in forma pauperis, the plaintiff lists his possessions as one overdrawn checking account and one Burton snow board worth $200.

News of the case comes via the Techdirt Blog, which credits lawyer Eric Goldman for the heads up. Accompanying the complaint were various motions and supporting documents, all of which can be seen by way of Justia's federal filings.

September 20, 2007 | Permalink | Comments (1)

Small Firm Wins Big Honor

Who says size matters? At a black-tie dinner in London last week, the four-lawyer Miami boutique Cantor & Webb was awarded international recognition for its trusts-and-estates work, beating out two much-larger firms also nominated for the award, 400-lawyer Day Pitney and 650-lawyer Katten Muchin Rosenman. The international Society of Trust and Estate Practitioners honored the Miami firm as the inaugural recipient of its North American Private Client Team of the Year award. In announcing the award, the judges said:

"Cantor & Webb has a team which has a vast knowledge of estate planning structures in jurisdictions such as Mexico, Venezuela and the United Kingdom, are invaluable to private clients who seek financial security for their families. Their dedication to those clients and the industry make them this year’s winner."

While Cantor & Webb may be a small firm, its clients represent big money. The firm focuses exclusively in representing high net worth private international clients in tax planning, estate planning and related matters. It is an area of practice that STEP chief executive David Harvey says is seeing a resurgence. "With trillions set to pass between generations by 2040, the private client industry is booming," Harvey said. "With such a large amount of money in private hands, there is a need for good stewardship of assets." Here is proof that a small firm can be as good a steward as a larger one.

September 20, 2007 | Permalink | Comments (0)

September 19, 2007

Maybe Vanessa Hudgens' Lawyer Needs to Go to Ethics School

OK, I'll admit it. My daughters, ages 8 and nearly 11, are huge High School Musical fans, and my original reason for posting about HSM star Vanessa Hudgens' former lawyer suing her for $150,000 in fees was to curry favor with my daughters. But after reading more about the lawsuit, including her former attorney Brian Schall's complaint, I realized that the suit raises some interesting legal questions.

The suit opens with a commentary by Schall's attorney that:

Perhaps Vanessa Hudgens, the star of Disney's High School Musical and its sequel, needs to go back to school to learn a very basic lesson in contractual obligations.  If you ask a lawyer to work for you…you are—no matter how talented and successful you may be—supposed to pay the lawyer for his work."

But I wonder about some of the other issues. For example, according to the lawsuit, Schall advanced expenses to Hudgens for her activities as a singer and songwriter. Though my cursory research on California's ethics rules suggests that California is more liberal about permitting advancement of costs to clients than other jurisdictions, still, wouldn't Schall's payments give rise to a conflict of interest? After all, if Schall were fronting Hudgens' expenses for singing and songwriting, would that give him more incentive to negotiate a deal that might not be in Hudgens' best interest in order to secure repayment of his investment? 

Plus, as a matter of professionalism rather than ethics, I find it distasteful that Schall included the gratuitous comments about his former client "needing to go back to school" in his complaint. It may well be that Schall is right and that Hudgens has attempted to stiff him on his fee. But if that's true, Schall will prevail easily in a California court. He doesn't need to attack his former client with soundbites designed to attract the attention of the court of public opinion. 

September 19, 2007 | Permalink | Comments (3)

Excessive Force in a YouTube Age

Remember back just 15 years ago when we though that the videotaped arrest of Rodney King was a huge development that would forever change the way that excessive force claims were litigated? In a YouTube, video-enabled cell phone age, the Rodney King tape just seems so quaint and old-fashioned. Today, events like the recent tasering and arrest of University of Florida student Andrew Meyer during his attempts to question John Kerry at a campus event are covered from every angle by potential witnesses and citizen journalists, as these YouTube videos show. And sometimes, as Ann Althouse suggests, even the subjects of the videotapes record themselves -- a theory that's also corroborated by Beldar Blog.

So what are the implications of all of this visibility for excessive force claims? I remember that when the Rodney King videotapes came out, many experts predicted a slam dunk verdict against the police officers who'd been charged with use of excessive force -- though as we know, that didn't happen. Video testimony is powerful, but as with any other visual, the truth lies in the eye of the beholder; some focus on the police assault, while others focus on the arrestee's resistance. Again at the Beldar Blog, Beldar offers a frame-by-frame analysis of whether Meyer was tasered before or after he was handcuffed, which goes to the question of whether the officers reasonably believed that the taser was necessary to prevent Meyer from evading arrest. Take a look at the post and see whether you agree with Beldar's conclusions -- and let us know below.

September 19, 2007 | Permalink | Comments (1)

Law Firm Cure for the Boston Accent

What's a Boston law firm to do if your clients can't find their way around your hometown because of residents' accents? You could consider a merger or relocating your headquarters to other cities. Or you could take the approach of Hamliton Brook Smith Reyolds (HBSR) that's described here by Larry Bodine and send your clients "medication" to help them understand the locals. 

As Bodine elaborates, prior to the arrival of a number of HBSR clients in Boston for a trade show, the firm put together a gag marketing gift -- mints packaged in a translucent orange pharmacy bottle, with a label that explains their purpose:

Before taking the pill, "a Bostonian would say "I pahked the cah in Havahd Yahd," to the utter confusion of visitors.  After taking two of the pills, the visitor would hear "I parked the car in Harvard Yard."  Plus their breath would be minty fresh.  The dosage was "two tablets at first articulation of  'cah' or 'pahk.'" Visitors could order scrod at Legal Seafood or Indian Pudding at Durgin Park without concern.

Typically, law firms give out so much junk that recipients either dump it before they return home or pawn it off on their kids. Even if the HBSR gift meets the same fate, clients or prospects will assuredly remember it for being clever, funny and unique -- and that memory might be enough to trigger a phone call to HBSR when they're in need of a lawyer. 

September 19, 2007 | Permalink | Comments (2)

Bill Lerach Cuts a Plea Agreement

As this story from the San Jose Mercury News and multiple others report, class action lawyer William Lerach, formerly a partner in the indicted class action law firm Milberg Weiss, struck a plea agreement to pay $7.75 million for his involvement in a class action kickback scheme by which Lerach made undisclosed payments to class action plaintiffs in exchange for signing them up for representation. In addition, Lerach will receive a prison term of one to two years.

As the article reports, Lerach's securities actions were widespread and changed the nature of securities law practice. But because other firms copied Lerach's strategies, legal experts quoted in the article expressed doubt that taking Lerach out of the picture would reduce litigation.

A couple of bloggers have commented on the Lerach plea agreement. From What About Clients?, Holden Oliver says that his firm's lawyers and their clients never much liked the class action bar. But he concedes that Lerach and his team "were good at what they did--i.e., a new kind of economic terrorism aimed at corporations via research,pleadings and discovery--even if we hated it. If this new stuff is true, what a 100% waste of talent, energy and resolve."

At Houston's Clear Thinkers, Tom Kirkendall reminds readers of the irony of:

the circumstances under which it has been obtained. Lerach was facing a horrifying trial penalty if he chose to fight the charges. And as Larry Ribstein has repeatedly pointed out, it doesn't say much for our criminal justice system that the government is paying witnesses to testify against Lerach for the crime of paying his class representative clients. As Larry points out in his most recent post on the matter, the non-cooperation nature of the plea deal does not necessarily mean that the government isn't providing Lerach some form of hidden incentive for his plea.

September 19, 2007 | Permalink | Comments (0)

Calif. Bar Denies Access to Bar Review Results to Law Professor

As I've previously expressed here and here, I'm deeply skeptical about UCLA law professor Richard Sander's studies that purport to show that law school affirmative action policies harm minorities in the long run because many minority students admitted through preferential policies are not academically prepared and do poorly in law school. And according to Sander, even those fortunate enough to win jobs at prestigious law firms because of their elite law school credentials eventually fail because they lack the intellect and grades to succeed. Still, I'm even more appalled by the California Bar's decision to deny Sander access to student data collected from past bar exams so that Sander can follow up on his earlier study.

According to this article (9/19/07), the California Bar denied Sander's request for the data this past June, asserting that bar applicants provided data on race believing that it would be used for studies related to the exam and not on broader studies concerning the impact of affirmative action on minority lawyers. But to Sander, the bar results are necessary to his research, because they are "a measure of what law students have actually learned." Sander says that his study can help track how affirmative action is negatively impacting not just bar passage but law school learning. 

Why is the bar afraid to release its data? If Sander's study shows that minorities do poorly on the bar exam, isn't that a matter that the California Bar would want to remedy? Moreover, even if statistics show a disproportionately poor performance, that doesn't mean that minorities have "learned less" in the law school. Most lawyers, particularly those who have attended elite schools (which focus more on theory rather than black letter law), would disagree with Sander's basic premise that the bar shows what lawyers have learned. Were that the case, you wouldn't have multimillion-dollar bar review operations that spend six weeks pumping students full of the black letter, jurisdiction-specific law so that they can pass the bar. Sander's study needs to include control factors, such as what percentage of students who passed the exam took bar review courses that, more than anything, account for the difference in passing and failing the bar.

Too many lawyers believe that the bar is the old standard and that passing a bar exam confers competency. Sander's proposed study, while designed to prove Sander's point -- that minority lawyers who benefit from affirmative action are less competent -- might prove the opposite: that the bar exam isn't an indicator of anything except a good bar review class, disciplined study habits and well-honed test-taking skills. Perhaps that is what the California Bar fears the most.

September 19, 2007 | Permalink | Comments (1)

September 18, 2007

Football Ousts Ethics Exam at BC Law

Boston College takes its football seriously, so much so that it is punting a mandatory legal ethics exam from campus to free up parking spaces for a BC game against Florida State. According to Eagleionline, a blog for students at Boston College Law School (which I attended long ago), students scheduled to take the Multistate Professional Responsibility Examination (MPRE) at the law school on Nov. 3 were told yesterday that the exam would be moved to "other locations in Boston." Reportedly, BC police expect to park some 1,100 cars on the law school campus, which is separate from BC's main campus and football stadium. Ironically, because students from other schools could take the MPRE at BC, a law school official had encouraged students to get "the home field advantage" by signing up early for one of what were supposed to be 150 available seats. Let's hope the home-field advantage at least works for the football team, which so far holds the top spot in the Atlantic Coast Conference.

September 18, 2007 | Permalink | Comments (3)

Lawyers Gone Wild? Or Reporters?

In the never-ending boxing match over the fairness of the civil justice system, each corner paints itself as good and its opponent as evil. We see this regularly in the sparring that occurs between two heavyweights, the American Tort Reform Association and the American Association for Justice (the former Association of Trial Lawyers of America). But we have every reason to expect more balanced and considered reporting on the issue from news organizations. Which leaves me at a loss to explain the blatantly one-sided reporting that characterizes the current Examiner series, Lawyers Gone Wild. In this, the first of a planned five-part series, the Examiner presents four articles: Is There A Doctor in the House ... Who Hasn't Been Sued?, High-dollar Settlements Mark Class Action Cases, Little Relief: Litigation Costs Rising as Firms Face Fewer Suits, and Rogues Gallery of Class Action Attorneys.

With so much mud-slinging between the plaintiff and defense bars, there is need for fair and objective reporting about the justice system. Unfortunately, that is not what we get in this series. Without attribution, the reports refer to "outrageous settlements" and "out-of-control plaintiffs lawyers." When the reports do cite sources, they are almost exclusively lined up on one side of the debate. We hear from ATRA President Sherman Joyce and General Counsel Victor Schwartz, but not a word from anyone at AAJ. The report cites studies conducted by such conservative think tanks as the Pacific Research Institute, The Heritage Foundation and The Manhattan Institute, but turns a blind eye to contradictory research done by liberal think tanks such as the Drum Major Institute and the Rockridge Institute or even the decidedly neutral National Center for State Courts. Even Wikipedia presents a more balanced view of the issues than does this series. Is it the lawyers who have gone wild, or the reporters?

September 18, 2007 | Permalink | Comments (5)

Can't Make This Stuff Up: Law Edition

Former Philippines trial court judge Florentino v. Floro Jr. was fired from his seat on the bench last year after acknowledging that he regularly sought the counsel of three elves only he could see. You might have thought that would have ended his judicial career for good, but Floro is fighting back, waging a campaign to return to the bench. And advising him along the way, he says, are those same three elves. The Wall Street Journal has the full story.

Meanwhile, far from the Philippines, a Nebraska state senator has filed a lawsuit against God, accusing the deity of causing untold death and horror. According to Associated Press, Sen. Ernie Chambers filed the suit to make a point: that anybody can file a lawsuit against anybody. As for Nebraska's jurisdiction over God, Chambers notes that God clearly has sufficient contacts with the state given that the Almighty is everywhere.

Finally, in Indiana, prosecutors are investigating whether a convicted forger tried to stay out of prison by forging her own obituary. Just before the woman was to be sentenced, the local newspaper published the phony obituary reporting her death and cremation. Someone faxed a copy to the sentencing judge, to no avail. Authorities found the woman at her home, very much alive, and the judge sentenced her to four years in prison. She said she had no idea who placed the obituary. Associated Press has the story.

September 18, 2007 | Permalink | Comments (5)

The Mukasey Trivia Game

So not-Washington is attorney general nominee Michael Mukasey that news organizations and bloggers seem to be reveling in reporting little-known facts about him -- little-known facts such as the correct way to say his name. The Boston Globe reports today that the nominee is so unfamiliar on Capitol Hill "that legislators were unable to agree on the pronunciation of his name." It is, says the Globe, mew-KAY-see.

Meanwhile, U.S. News & World Report put its library staff to work to compile 10 Things You Didn't Know About Michael Mukasey. Among the items uncovered: In college, Mukasey dabbled in journalism, working a summer internship with UPI; he has a long-time friendship and professional relationship with Rudolph Giuliani; and even some Democrats like him.

Also in search of Mukasey trivia is the Wall Street Journal's Law Blog. Among its discoveries: In Seven Things to Know About Michael Mukasey, Peter Lattman says it's mew-KAY-zee, which puts a "z" where the Globe had an "s"; in Mukasey as College Journalist, Lattman provides more detail on the college-aged Mukasey's interest in journalism, including that he was editor of the editorial page of the Columbia College student newspaper; and, in Mukasey's Pedigree, Jamie Heller reports that as a teen, Mukasey "was better at praying than he was at basketball."

In other Mukasey trivia:

  • He once briefly represented Washington Post columnist (and law-school graduate) Ruth Marcus, as she explains here.
  • He wrote the thoughtful and funny opinion dismissing a Tommy Hilfiger trademark suit against a company whose pet perfumes had names that parodied Hilfiger's products, advising the plaintiff "to chill," as Marc J. Randazza notes at The Legal Satyricon.
  • He is neither a "craven ideologue" nor a "presidential lapdog," surmises Washington Post legal-affairs blogger Andrew Cohen, who argued adamantly for Alberto Gonzales to resign.
  • He believes the justice system is not well suited to trying terrorists, as he wrote Aug. 22 in the Wall Street Journal.

September 18, 2007 | Permalink | Comments (0)

September 17, 2007

The Trial of the Century, Part II?

If the 1995 OJ trial for the murder of his ex-wife Nicole Brown and her friend Ron Goldman was called the "trial of the century," will the criminal case against OJ for robbery at a Las Vegas hotel become the trial of this century? Apparently, unable to squeeze any cash out of a lawsuit against a restaurant owner who banned Simpson from his establishment or from sales of his book, If I Did It (which many consumers may boycott in deference to Nicole Brown's sister), Simpson devised another scheme: a private sting operation to recover what Simpson claims is his personal memorabilia from a dealer who had acquired it. Simpson and several companions barge into the dealer's hotel room, armed with guns, and asbsconded with all of the sports memorabilia in the room, even some that was not Simpson related.

This time around, it's lawyer Yale Galanter who faces the challenge of vindicating OJ Simpson. The first challenge? Whether Simpson will be released on bail, given that he's considered a flight risk after his attempt to evade arrest in his earlier case in the infamous white Bronco low-speed chase.

One thing is different this time around with OJ's trial. Back in 1995, there weren't any bloggers offering coverage, while this time, expect the blogosphere to be buzzing with commentary. But whether or how this will affect the outcome remains to be seen ...

September 17, 2007 | Permalink | Comments (0)

Bush Appoints New Attorney General

He may not have been on any of the early predictions for a new attorney general, but Michael Mukasey has won the nomination nonetheless as reported in this AP story, President Bush Chooses Retired Federal Judge Mukasey for Attorney General (9/16/07). According to the report, Bush chose Mukasey in part to avoid a confirmation fight. Mukasey has 18 years of experience as a federal judge, as well as specific experience with trials involving accused terrorists. But Mukasey, presently a judicial adviser to Republican adviser to presidential candidate Rudy Giuliani, does not always tow the conservative line when it comes to the war on terror. As Andrew Sullivan writes here, Mukasey supported alleged enemy combatant Jose Padilla's right to consult with counsel -- a position opposed by the Bush administration.

Judge Mukasey is apparently well known in legal circles, because at least two bloggers have offered personal commentaries based on their own experiences with Mukasey. At Balkinization, Jack Balkin comments that while he doesn't agree with Mukasey on many issues (Balkin finds Mukasey leans more toward compromising civil rights to where needed to protect national security), Balkin asserts that Mukasey is "highly qualified." Among other things, Mukasey has a "judicious personality" -- he listens carefully to all arguments -- and he "cares about the law and what it provides." Balkin believes that Mukasey will help address the crisis of morale within DOJ that hasn't been seen since the Watergate era.

Scott Greenfield also shares a story about Mukasey at Simple Justice. Greenfield writes that:

During his last year on the bench, I had a case before Judge Mukasey.  It went through a hard-fought suppression hearing, where my client risked the enhancement for obstruction of justice by doing the unthinkable, challenging the veracity of a federal agent.  The defendant, who had a criminal history level of 4, was tired of letting cops and agents lie about what happened without anyone taking them to task.  He was getting on in years, and wanted to take a stand.  It was a dream for a criminal defense lawyer, being in the position of fighting the good fight, risking everything for the truth with a client who knew which end was up and still willing to take his chances.   My experience before Judge Mukasey left me with three distinct impressions.  First, he was highly intelligent.  Second, he was a judge of integrity.  Third, he was definite federal judge material, meant in that slightly sarcastic yet pejorative sense.

Though Greenfield ultimately lost before Mukasey, he felt that Mukasey fairly considered all of his arguments. Greenfield notes that we can't expect "to get an AG whose concern for constitutional rights of defendants supersedes their support for law enforcement." But we'd be fortunate to get an AG like Mukasey who has integrity and intelligence and can serve as "an honest broker."

Do any other readers have a Judge Mukasey story to share? Feel free to post it below.

September 17, 2007 | Permalink | Comments (0)

Blawg Review #126

This week, Blawg Review #126 comes to Anita Campbell's blog, Small Business Trends. Which raises a logical question: Why is a business site hosting a law blog roundup? Campbell provides this response:

I’ve expressed my opinion before that “businesspeople can be better at business by learning more about the law. And lawyers can benefit from knowing more about business. Armed with knowledge, we are all better off.”  Besides, law blogs have some of the most interesting names for their blogs and I like to visit them if just for that reason.  Business blogs tend to have names that are straight forward and descriptive, but law blogs often are named for some humorous take on a legal phrase, or some play on words.

With that, Campbell rounds up a variety of posts, including a generous helping relevant to business clients, such as how to get the best out of your attorney, ensuring that a licensing agreement is not inadvertently converted into a franchise and settling IP disputes.

September 17, 2007 | Permalink | Comments (0)

Prosecutors Using MySpace

Lawyers aren't just using social networking sites like Facebook or MySpace for marketing and building business relationships, as noted in this earlier post. Rather, as Skelly Wright posts at Arbitrary and Capricious, lawyers for the prosecution are using photos and statements posted at defendants' personal Internet pages as evidence against them, while judges are taking such information into account at the sentencing stage. 

The full story comes from this article in the Arizona Daily Star (9/16/07), which provides some examples of how personal Internet information has been used in criminal cases:

Last week in Pima County Superior Court, prosecutor Jonathan Mosher used pictures found on a MySpace account against a robbery suspect. And on Monday, prosecutor Mark Diebolt is to ask Judge Stephen Villarreal for permission to tell jurors that a witness in a murder case picked Vladimir Soza as the bad guy after looking at a photo posted on MySpace.

Are materials from sites like MySpace or Facebook admissible in court? That's a question that defense attorneys expect to confront in the future. In the meantime, those who frequent social networking sites are well advised not to post information that could portray you negatively in court.

September 17, 2007 | Permalink | Comments (1)

September 14, 2007

In Monday's NLJ: Few Women Go Solo

Women lawyers prefer to fly in flocks, suggests the headline from an article to appear Monday in The National Law Journal, Women Choosing Not to Fly Solo. Writer Leigh Jones reports on a massive, decade-long study tracking the careers of 4,500 lawyers. Of the lawyers in the study who went solo, just a third were women.

This seems counterintuitive to the notion that a solo practice can be more family friendly than working at a larger firm. As my Legal Blog Watch co-author Carolyn Elefant puts it at her MyShingle blog: "You'd think that women looking for work life balance would find solo practice appealing, because when you work for yourself, you gain control over the hours you work and the hours you handle." The NLJ piece suggests that one factor keeping women at larger firms is that the reliability of steady pay and benefits outweighs the scheduling freedom that solo work can provide. Elefant has a different theory:

"My own belief is that women themselves are driving lawyers away from solo practice. As I posted here previously, when women demand equality in the profession, they're usually referring to equality at big law firms. Women who start and head their own practices, no matter how prominent, simply don't count. As a result, younger women don't view solo practice as an option."

Let me throw in one other thought: It is a fallacy to maintain that going solo is necessarily liberating. I can attest to the fact that many solos work hours equal to or greater than their larger-firm counterparts, and they do so without the safety net of partners and associates to fall back on. No doubt, a solo practice can be family friendly, but it can also be all-consuming. Whether you are trying to schedule a two-week vacation or simply slip away to your son's after-school recital, there is much to be said for having a partner to cover you.

September 14, 2007 | Permalink | Comments (1)

The Aesop of Law?

Dickinson School of Law professor Robert E. Rains is described in his professional biography as a prolific contributor to academic and professional journals, one of the law school's most widely published faculty members. His writings focus on serious issues of family, juvenile and disability law. But for some two decades, Rains has had a literary sideline, of sorts, writing humorous fables and verses drawn from real-life legal stories.

Now, Rains has compiled his fables in a book, True Tales of Trying Times: Legal Fables for Today. The book is published in the United States by independent publisher Willow Crossing Press and was just released in the United Kingdom by Wildy & Sons Ltd. The book's Web site describes it as a humorous collection of modern-day parables drawn from actual court decisions. "The fables are short in length and long in wit, each concluding with a moral drawn from the tale, presented in verse." Rains' wife, a "recovering attorney," and sister-in-law contributed pen-and-ink drawings to illustrate the fables. It is a book, says the Web site, that is "for everyone: not just lawyers, but people too!"

Rains tells The Carlisle Sentinel that he writes these fables in part as a way "to keep what's left of my sanity." Appropriately, the book's forward is written by Pennsylvania Supreme Court Justice J. Michael Eakin, who himself gained notoriety as Pennsylvania's "rhyming judge" after issuing opinions written entirely in verse. The moral of the story: What's good for the professor may not be for the judge.

September 14, 2007 | Permalink | Comments (0)

Nokia Trademarks Classic Guitar Score

Nokia_tune_3 What's a phone company to do when a classical 19th-century guitar score becomes its most popular and recognizable ringtone? Trademark it, of course.

Bill Heinze at I/P Updates delivers the news that on Sept. 4, Nokia received a U.S. trademark for "a sound comprising a C eighth note, E flat eight note, B flat eighth note, G quarter note, C eighth note and C quarter note." For the less musically inclined among us, that happens to describe the 14th bar of Gran Vals, a classical guitar piece composed by Spaniard Franciso Tárrega, described by Wikipedia as "one of the most influential guitarists the world has ever known." Unfortunately, perhaps, for Mr. Tárrega, his composition has also come to be known as the Nokia tune, thanks to its ubiquity as the company's default ring tone.

For its part, Nokia -- not to be crassly commercial about all this -- offers this sample of the song as it was meant to be played, by guitar rather than phone. For those who prefer their music in MIDI format, there is this version.

September 14, 2007 | Permalink | Comments (4)

How Football Parallels Copyright Law

Sports pundits are weighing in from every angle on NFL Commissioner Roger Goodell's decision to fine New England Patriots head coach Bill Belichick a half-million dollars for his team's videotaping of its opponent's defensive signals. But all we here at Legal Blog Watch care about is: What do the lawyers think?

One lawyer with an opinion on all this is Boston College Law School professor Alfred Chueh-Chin Yen. Writing at the blog, Yen finds -- as only a law professor could do -- parallels between the Patriots incident and copyright issues surrounding circumvention of digital rights management. One argument in Belichick's favor, Yen notes, is that deciphering signs is part of sports and perfectly legal. If deciphering signs is legal, the argument goes, what's the big deal about using a video camera to accomplish it? OK so far, but where is the parallel to circumvention of DRM? He explains:

"Both the Patriots and some circumventers have a 'legal' objective. The Patriots want to decipher the opponent's defensive signals, and some circumventers want to make fair use of a copyrighted work. The only 'offense' is using technology to accomplish otherwise legal ends. So, if we think (as some do) that penalties for circumvention should be lenient or nonexistent when fair use is the purpose, shouldn't the Patriots and Belichick get off with less severe punishment?"

Well, no, Yen says, in answer to his own query. The difference is that the Patriots had been called to task for this very offense before and had been given an express reminder this fall. The Patriots did not simply break a rule, Yen believes, but thumbed their noses at the league's authority. "With this in mind," Yen concludes, "I think the league has treated the Patriots and Belichick quite fairly."

September 14, 2007 | Permalink | Comments (1)

September 13, 2007

Law Professor Hired as Dean, Then Fired

A new California law school is off to a rocky start, with the hiring -- and then firing -- of prominent civil rights scholar and Duke Law School professor Erwin Chemerinksy as its first dean, as reported here (, 9/13/07). According to the report, Chemerinksy was asked to give up the position by UC Irvine's chancellor Michael Drake because Chemerinsky's liberal views were too politically controversial. Many quoted in the article expressed disappointment at UC Irvine's decision since a professor with Chemerinsky's reputation would have "given the school instant credibility" and made it easy to attract talented professors. And in fact, Chemerinsky had chosen an advisory board that included many prominent conservatives.

With so many blogging law professors, you'd think that UC Irvine might have tried to explain its decision in more detail, instead of just putting out a press release and "hoping that it all goes away." But that wasn't the case. As Ilya Somin points out here, citing a post by Brian Leiter, UC Irvine's statement "neither admits that Irvine made a serious mistake in rescinding Chemerinsky's offer for ideological reasons, nor provides any real justification for the school's decision." And Somin also agrees with those like Leiter, who denounced the university's decision to base hiring on ideology. (For a round-up of what others have said, visit this post at Point of Law as well as comments at the WSJ Law Blog.)

September 13, 2007 | Permalink | Comments (0)

Large Firms Going Upscale With Advertising

Foley Hoag, a traditional Boston law firm, is using a slick Madison Avenue approach to launch a new advertising campaign. While Madison Avenue is a traditional route for large corporations, it remains an unconventional approach for law firms.

And according to the New York Times piece on the ad campaign,  Foley Hoag officials admitted that they wanted a less conventional approach to highlight the firm's cutting-edge practice.

Still, from my own layperson's perspective, I can't say that the ads achieve their intent. For instance, one ad depicts a photo of a lawyer dressed in a business suit, floating in an inner tube on a mountain lake, his feet in scuba fins peeking out of the water. The tagline reads, "Immersion in your business and industry is key to our success." But the photo reminds me more of a fish out of water (like the

photo of presidential candidate Michael Dukakis in a tank) -- a lawyer who politely dips a toe into the business but remains on the outskirts, never truly plunging and getting his hands dirty (or taking the time to really understand the ins and outs of the business). 

Still, in one respect, the ad campaign is already a success: By garnering coverage of the ad campaign in the New York Times, Foley Hoag has already generated wide publicity for itself, free of charge.

September 13, 2007 | Permalink | Comments (0)

Will Day Care Centers Keep Dad-Lawyers at Work?

More often than not, the discussion of work-life balance at law firms focuses on working moms. But long workdays at a firm impact entire families, dads included. And as this post from JD Bliss points out, many lawyer-dads are grateful for on-site law firm day care, explaining that it's one of the benefits that keeps them at the firm.

Law firm on-site day care programs are discussed in further detail in this Legal Times piece, Can On-Site Day Care Stem Lawyer Attrition? The article reports on several Washington, D.C., firms that have opened on-site day care centers, which are touted as offering a win-win situation for parents and their children. And day care is a  good recruitment tool as well; at least some lawyers who worked at the firm as summer associates and noted the presence of children later chose the firm because of the availability of day care.

Still, does on-site day care really help achieve work-life balance -- or merely make it easier for parents to work longer hours while shifting the stress of the workday commute to their children? Consider this alleged benefit of on-site day care from the article:

An hour commuting in the car may not be high-quality time, but many parents like the idea that, instead of rushing to pick up their kid elsewhere, they get the entire ride home to talk about the new baby gerbils or the visit to the museum. When that's added to the drop-in convenience of an on-site center, employees might be encouraged to stay with the firm, at least until the children are in school.

As an adult, I don't relish an hourlong commute; why would a child consider this daily grind enjoyable?

Though on-site day care may not be the answer to work-life balance, there's hope for better solutions. As the JD Bliss post and Legal Times article show, child care is not just a woman's issue, which means that law firms may become more receptive to new ideas for achieving work-life balance.

September 13, 2007 | Permalink | Comments (1)

September 12, 2007

Blog Book Chronicles $33M Verdict

When Jane Daniel learned that she had breast cancer, it was not the worst thing ever to have happened to her. That honor, she writes, fell to a Massachusetts jury's decision to award damages against her and her fledgling publishing company of $11 million, which the judge trebled to $33 million. It was one of the largest damage awards ever in the state, comparable, Daniel notes, to the award against O.J. Simpson in the California wrongful death lawsuit brought by the families of Nichole Brown Simpson and Ronald Goldman. Here, however, there was no death or physical harm -- the lawsuit resulted from a contract dispute between a first-time author, her ghostwriter and their small publisher. It is the story, Daniel writes, "of the legal system run amok. It's about conduct incompetent at best and unethical at worst. But most of all it is a tale of betrayals of basic sanity on many levels of the judicial system that is entrusted with meting out justice in legal disputes."

Now Daniel is telling her story through a blog, BESTSELLER!, that she describes as "more than a blog, it's a real book being written in real time." Daniel lives just a town away from me, although I have never met her. In 1995, through her company Mt. Ivy Press, she contracted with Misha Defonseca and ghostwriter Vera Lee to publish Defonseca's memoir about surviving the Holocaust on her own as a young girl, in part through her "adoption" by a pack of wolves. The resulting book, Misha: A Memoire of the Holocaust Years, became a bestseller in Europe and attracted the interest of movie companies, but never sold well in the United States.

Disputes over copyright and authorship eventually led ghostwriter Lee to sue Daniel and her company in Superior Court in Boston. Other claims and cross claims were filed involving Defonseca and the literary agency affiliated with the former Boston law firm Palmer & Dodge. The jury returned an advisory verdict in favor of Lee and Defonseca, which the trial judge then trebled, finding Daniel and Mt. Ivy jointly and severally liable for $9.9 million to Lee and $22.5 million to Defonseca. In 2005, the state Appeals Court affirmed the verdict.

For Daniel, the verdict was beyond her comprehension. "I felt like the victim of a horrible automobile accident -- dazed, frightened, in shock, in pain, injured in ways I didn't yet comprehend." She writes:

"To slip too deeply into the machinations of civil litigation is to become a gnat ensnared in a web; once the process begins it may be impossible to escape. As the struggle runs its course, the pitfalls of human fallibility and institutional vagary are unforeseeable and uncontrollable. For that reason, no matter how just the merits or heroic the effort, the outcome will always be a crap-shoot."

No doubt, there are a number of sides to this story. The Appeals Court decision makes that clear. But in the eight chapters Daniels has posted so far, she provides an intriguing perspective on the litigation system as nonlawyers see it. While the story will most certainly reach an end, Daniel writes, she does not yet know what it will be.

September 12, 2007 | Permalink | Comments (1)

Second Life Gets More Mainstream

We here at Legal Blog Watch continue to be fascinated by the extent to which lawyers in bricks-and-mortar law firms are stepping into the purely digital world of Second Life. We've written before about lawyers launching practices there, forming bar associations there, opening law schools there and plugging books there. If you need any further proof that this alternative world is becoming a mainstay of mainstream law practice, consider these latest news items:

Word of these latest legal developments in Second Life comes by way of Virtually Blind blogger Benjamin Duranske, aka the avatar "Benjamin Noble," who is one of three co-chairs of the new ABA committee.

September 12, 2007 | Permalink | Comments (5)

Law Prof Unmasks Her Demons

Outwardly, Elyn R. Saks wears many badges of intellectual achievement: college valedictorian, Oxford scholar, Yale law school and USC law professor. Inwardly, however, she has battled schizophrenia and its demons for 30 years. Now, in a new book, The Center Cannot Hold: My Journey Through Madness, and in a Los Angeles Times profile this week, A Secret Life of Madness, Saks, 51, is revealing her secret. Her hope, reports the Times, is "to dash the myths surrounding an illness that affects 3 million people." The newspaper recounts a talk Saks gave this week to psychologists meeting in San Francisco:

"In her worst moments, the TV made fun of her, ashtrays danced and walls collapsed. Sure she was a witch, she burned herself as punishment with cigarettes, lighters and electric heaters. She believed she was single-handedly responsible for the deaths of thousands of people. The brains of close associates were taken over by aliens."

The disease began to haunt her when she was still a child, but it would be years before she would understand its true nature. After being hospitalized while at Oxford, she began sporadically taking antidepressants. In law school, after climbing out a window to dance on the law library roof, she was hospitalized again and put on a stricter medication regimen. But it was not until 1999, after she had been teaching law for a decade, that a diagnosis of breast cancer sent her into another spiral and the realization at last that she was schizophrenic. For Saks, that was a turning point.

When she eventually decided to write her book, she knew she might pay a price for her candor, the Times says. But she wanted to tell her story -- and not under a pseudonym. It is quite a story, and when she told it to the group of psychologists in San Francisco last week, it brought her a prolonged standing ovation.

[Hat tip to ABA Journal.]

September 12, 2007 | Permalink | Comments (0)

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