Legal Blog Watch

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October 31, 2007

Law School Training, Revisited

In the aftermath of the Carnegie Report on legal education, which my colleague, Robert Ambrogi posted on here back in January, law schools continue to examine ways to change to the curriculum to make it more useful for law students. The latest coverage comes from this article in today's New York Times. And for many, the changes are long overdue. In the words of Harvard Law School Dean, Elena Kagan, quoted in the article, "When you haven’t changed your curriculum in 150 years, at some point you look around."

According to the article, the Carnegie Report "galvanized reflection" at many law schools. In December, Stanford Law School will host a meeting of representatives from schools that have designed more innovative curriculums. More interesting, many of these schools - such as City University of New York or University of Dayton - are not considered "top tier" by conventional standards, so it's gratifying to see that those at top schools are open minded enough, and concerned enough about improving legal education to look to these programs as models.

As for changes now taking place, Harvard and Vanderbilt law schools have modified the first year requirements to include a class on interpreting statutes and regulations. And Stanford and other law schools have made it easier to take and receive credit for graduate level classes in other disciplines such as medicine, engineering, technology and international relations.

Of course, changing legal education is an ongoing and evolutionary process - much like the process of changing the law itself. In an interesting piece by at The Conglomerate, Gordon Smith quotes from Lawrence Friedman on the "devastating obsoleteness of legal education." Though Friedman's words could have been written today, they were published back in 1965. Will it take another forty years to change legal education moving forward?

October 31, 2007 | Permalink | Comments (2)

Consolidation of Supreme Court Bar Generates More Amicus Briefs

The re-emergence of an elite Supreme Court bar has had widespread implications. As I discussed in this post, the consolidation of Supreme Court practices within a limited number of large law firms has contributed to the under-representation of minority lawyers before the high court. And there's another effect as well -- as this article from the ABA Journal (November 2007) describes, the Court has seen an increase in the number of amicus briefs filed by lawyers avid for a chance to participate in a Supreme Court case in any way possible. In 2004, 258 amicus briefs were filed, compared to 353 in 2005 and 333 in 2006. Given that the court has issued fewer than 80 decisions in the past few years, eighty additional amicus briefs is significant. As former Stanford law dean Katherine Sullivan, quoted in the article, explains:

With the shrinking docket, there are too many Supreme Court lawyers chasing too few cases on the merits. [...] So, many of us who have strong interests in the cases find ways to contribute by filing amicus briefs.

So desperate are firms to build Supreme Court credentials that many will prepare amicus briefs on a pro bono basis, or offer flat fees or alternative billing. And that's a good thing, because the value of an amicus brief to a client (rather than the client's lawyers) is questionable. According to this article by Tony Mauro from April 2005, the Supreme Court justices don't favor amicus briefs. And often, a large number of amicus briefs can be more of a burden, rather than a benefit to the Court.

October 31, 2007 | Permalink | Comments (0)

Law Firm Sues Former NYC Police Commissioner for $200,000 in Fees

No one ever said legal representation was cheap. But did Fulbright & Jaworski ever tell former NYC Commissioner Bernard Kerik that representation would be costly when they signed on to represent Kerik in an investigation soon after his nomination as head of Department of Homeland Security fizzled? That's the question that I have after reading this story, Bernard Kerik has one more legal problem on his hands. (NY Daily News, 10/31/07).

According to the article, Fulbright & Jaworski has sued Kerik for $202,384.04 for legal representation in connection with a federal investigation. Not surprisingly, Kerik argues that he never realized that his bill had gotten so expensive. From the article:

"Certainly, Mr. Kerik would never have authorized such continued services had he been aware of their sheer volume and related costs," attorney Chad Seigel wrote in the Oct. 21 email, which was attached to the lawsuit. In the email, Seigel claimed that Kerik had been overbilled by Fulbright & Jaworski, and that he would have hired a cheaper lawyer had he been aware of his bill.

While I empathize with Fulbright getting stiffed, I have to wonder about the firm's practices. For example, why did they go and run up a $200,000 bill without obtaining additional funds in advance. And didn't the firm provide Kerik with an estimate of fees, so that he could budget for payment? On the other hand, Kerik is a fairly sophisticated client who should have some idea of how much top-quality legal representation costs. Did Kerik go out and hire a pricey firm, figuring that his lawyers would write off his fees afterwards in exchange for the publicity generated from representing a high profile client?

Which scenario do you think is most likely?

October 31, 2007 | Permalink | Comments (0)

What's In A Name? Some Great Lawyer PR

I came across this press release announcing the launch of a new website, Heels.com, a new online retail shopping site for "high fashion, designer shoes and sexy high heels." So what's the connection to lawyers, aside from the fact that some firms have been known to host shoe parties?

Well, according to the press release, it turns out that the site's domain name, was originally created by patent attorney Erik Heels back in 1994 to promote his law practice. But because of the brand potential of the domain, Heels wound up partnering with Eric McCoy, director of operations at Heels (the shoe enterprise) to build the e-commerce site.

Talk about capitalizing on a name!

October 31, 2007 | Permalink | Comments (3)

October 30, 2007

Dare Not Ye Speak at Work

At his blog Jottings By An Employer's Lawyer, Michael Fox points to two interesting recent posts that underscore this simple proposition: When at work, you have no right of free speech. In the most recent of the two, Limits of Free Speech in the Workplace, Chris McKinney writes that employees are generally surprised to learn this. He urges companies to publish policies governing employees' blogging and use of social networking sites. Earlier, in his post Freedom of Speech in the Workplace: Think Again, Michael Moore makes similar points, noting that the Bill of Rights does not block private employers from "trampling constitutionally guaranteed freedoms."

Inspired by these posts on workplace speech, Fox offers a "mini-review" of a book by Vanderbilt Professor Bruce Barry, Speechless: The Erosion of Free Expression in the American Workplace. Even though Barry is president of the ACLU of Tennessee, Fox found his book to be balanced.

In addition to providing good insight into the current state of the law, he makes the argument that it would be good for society, including employers, if they could get over their basically reflexive anti-free speech reactions, while acknowledging there is little current legal basis to require them to do so, and conceding that freedom increases conflict which runs against [an] employer's 'enduring goals of employee compliance, conformity, complacency and efficiency.'

To that last note, Fox -- employers' lawyer that he is -- is compelled to add: "Perhaps a little too cynical view of modern employers."

October 30, 2007 | Permalink | Comments (0)

The "Inside Baseball" of E-Discovery

Everyone has baseball on the brain these days. At the new EDD Update blog, Craig Ball is no exception, only his focus is the "inside baseball" of e-discovery. In other words, if you're not an EDD geek, feel free to log off. But, as Ball says, if you can't talk at an insider's level about e-discovery at a blog devoted to e-discovery, then what's the point.

In his post, Acting on a WIM for SIS, Ball makes a pitch for something called WIM, or Windows Imaging Format. But before he explains why, he first explains something called SIS, for Single Instance Storage. "It's a de-duplication mechanism that rather smartly eliminates multiple identical instances of files in favor of pointers to a single instance of the target file," he says. "It's implemented to save backup storage space, and it's a great idea."

Now back to WIM, which Ball describes as a file-based system for creating a ghost image of a hard drive. Because it uses SIS, WIM is highly efficient, Ball says.

One of the uber-cool things about WIM is that, once a machine is imaged in WIM, the WIM image can be mounted as a virtual drive in the Windows environment. Plus, it can be mounted read only. That just seems to create so many possibilities for great desktop tools for e-discovery in small- and mid-volume cases (where vendors and budgets have left everyone to pretty much fend for themselves).

Problem is, Ball is unaware of anyone using WIM for e-discovery. Thus his post, all of which is to set the stage for his question: "Is anyone aware of folks using WIM in an e-discovery setting? Anyone see any problems with it?" If you have answers, head over here and share them with Ball.

October 30, 2007 | Permalink | Comments (1)

Is 'Super Lawyers' the Cheesiest?

Once upon a time, lawyer rankings were more subtle and, um, discreet. Sure, Martindale-Hubbell ranked lawyers, but it used esoteric letter codes that nobody but insiders understood and kept them camouflaged from the public in brick-like bound volumes. Nowadays, lawyer rankings have evolved (?) into a cacophony of voices loudly proclaiming who are the best and the brightest of the bunch. Lawyers have mixed feelings about these rankings, glad to make the list but reluctant to tout it too loudly.

In Condé Nast Portfolio, writer Karen Donovan (with whom I've worked in the past) does a great job of portraying the legal profession's ambivalence about one in particular of these rankings, Super Lawyers, which she says "may just be the cheesiest example of this phenomenon." Donovan attends a Waldorf-Astoria cocktail party held to celebrate the publication of the latest ranking of New York Super Lawyers. There, she encounters the man who is number one on the list, Theodore V. Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison. While Wells is happy to attend the party and calls the Super Lawyers publication "first-rate," he makes no mention of his designation as a Super Lawyer in his law-firm biography. Another lawyer at the reception asks Donovan not to use his name and calls the whole affair "a popularity contest."

Away from the party, Donovan found even less enthusiasm for Super Lawyers. Mark S. Edelstein, chair of Morrison & Foerster's real estate financing practice, said his selection as a Super Lawyer was "a tad embarrassing." He compared the ads lawyers buy in the Super Lawyers magazines to "selling toilet paper or something." Alan Ripp, a media-relations consultant to several law firms, said the ads make lawyers look "oily." "It's schlocky -- the worst kind of vanity on display," he said.

Well, at least it is an exclusive club. Isn't it? Not according to marketing consultant Micah Buchdahl, who tells Donovan that any attorney who wants to be a Super Lawyer can be, by virtue of calling a few friends and enlisting their votes.

October 30, 2007 | Permalink | Comments (2)

What We Can Learn from Baseball

Today, Boston will be celebrating the World Series win by its hometown team. Stephen Seckler, author of the blog Counsel to Counsel, lives just outside Boston and is -- it therefore goes without saying -- a Red Sox fan. But as a career consultant to the legal profession, he also sees in baseball and in the World Series a metaphor for life. He explains:

Baseball teaches us that losing is the norm. A batter who gets a hit one out of every three times he is up at the plate is considered a superstar. A team that wins ten games in a row is on fire. Winners are not individuals who 'win' all the time. Winners are individuals who know how to get past failure.

Consider this World Series, Seckler says. The Red Sox were down 3-1 in the ALCS playoff but came back to win the next three games. The Colorado Rockies, to get into the playoffs, did the unthinkable and won 13 of their last 14 regular season games.

What this teaches us is that even champion teams fail. Even the best athletes have bad days. No one is successful all the time. So what have you failed at lately? How have you made your comeback? How have you turned losing into winning?

If you're not convinced that baseball has anything to do with the legal profession, Peter Lattman at Law Blog reminds us that both Red Sox GM Theo Epstein and CEO Larry Lucchino are lawyers. Now let's just hope those legal skills help Epstein keep Mike Lowell in Boston.

October 30, 2007 | Permalink | Comments (0)

October 29, 2007

The Genarlow Wilson Story: The Importance of the Eighth Amendment and Good PR

By now, you've probably read elsewhere about the case of Genarlow Wilson, the seventeen-year old Georgia high school student and athlete who engaged in consensual oral sex with a fifteen-year old and was sentenced to ten years in prison under Georgia's mandatory minimum sentence guidelines, which consider him a "sex offender." Wilson spent the past two years in jail until this past Friday, when the Georgia Supreme Court, by a 4-3 ruling, held that Wilson's sentence constituted cruel and unusual punishment under the Eighth Amendment. In the interim, the legislature had changed its laws, making Wilson's crime a misdemeanor - and the Georgia Court found that the changes reflected evolving standards of decency.

Naturally, the blogosphere was abuzz with comments. There's an interesting post at A Public Defender
which wonders whether the Court should take its cues on "evolving standards of decency" from the legislature. He writes:

The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that. The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?

Ultimately, PD finds that the opinion is "result oriented" - though its a result that PD supports.

Some of the law professor blogs discuss whether decisions such as this one could lead to the "watering down" of the Eight Amendment. At Sentencing Law Blog, Doug Berman writes:

I am surprised and disappointed to see a few academic bloggers I respect expressing reservations about the Georgia Supreme Court's application of the cruel and unusual punishments clause in the Wilson case. Specifically, Eugene Volokh has this to say:

I think there are institutional problems with courts’ evaluating the length of confinement under the Cruel and Unusual Punishment Clause; it’s hard to see a good legal rule that courts can sensibly apply in a wide range of cases, and to my knowledge there isn’t the sort of textual or original meaning evidence that strongly points to requiring courts to engage in such a mushy judgment.

And

Laura Appleman adds this: If the claim of cruel and unusual punishment is used more frequently, and in less dire cases than it has traditionally been used (i.e., death penalty cases), are we weakening the doctrine? I'm not arguing that Genarlow Wilson deserved to remain in jail -- his 10 year sentence was ridiculous on its face. But I'm a little nervous about using the 8th Amendment as a tool to free him....

Berman addresses his colleagues' points, but concludes: "Can anyone argue (without using legalese) that it is not "cruel and unusual punishment" for Genarlow Wilson to be only one of this massive population forced to serve 10 years locked in a small cage for this behavior?"

Following the story locally, Georgia lawyer Maggie writes that the cruel and unusual punishment was a huge uphill battle, particularly because Joshua Widner, a similar litigant, had just lost on similar grounds. The court, however, distinguished Widner's case by pointing out that the legislative changes applied to Wilson's, but not Widner's case. Overall, Maggie hoped that Wilson would prevail, but did not expect it.

But equally significant as the constitutional question is the decision by Wilson's attorney BJ Bernstein to work this case like crazy in the media. Though I didn't follow this story over the past few months, some blog posts from the summer (such as this one, from Sex Crimes) reference news stories expressing skepticism about Berstein's use of the media -- and whether it was to draw attention to herself, or to help her client. Of course, the verdict on Bernstein's approach is now clear -- this article suggests that the media campaign worked, attracting a wave of public outrage against Wilson's sentence. That's not to say that the court succumbed to public opinion; however, often times, public opinion will force judges to look at a case more closely or creatively than they would with an anonymous litigant.

It's tough to say what mattered more at the end of the day: the Eighth Amendment or savvy PR. And of course, there was the legislative fix, that allowed the court to apply the Eighth Amendment solution. Lawyers should all heed the Wilson story, not just because of the law, but because it also provides a blueprint for winning the impossible case.

October 29, 2007 | Permalink | Comments (2)

Diversity in the Profession - and the Impact on the Supreme Court

News today includes not just one, but two stories dealing with diversity in the legal profession. This story, Coming soon to the Supreme Court: a rare appearance by a black lawyer reports that an upcoming appearance before the US Supreme Court by Drew Days III, a former solicitor general in the Clinton administration, will mark the first appearance of an African-American before the court in more than a year. Initially, the rarity of African-Americans surprised me, after all, I'd always regarded former Justice Thurgood Marshall as one of the Court's most impressive advocates. But according to the story, even in the 1940s and 1950s, when Marshall appeared before the court, he was unique.

So what accounts for the dearth of minorities at the court? The reasons from the article include:

continuing problems in recruiting and retaining blacks and other minorities at the top law firms; the rise of a small group of lawyers who focus on Supreme Court cases; the decline in civil rights cases that make it to the high court; and the court's dwindling caseload.

In my mind, perhaps the biggest factor that accounts for under-representation of black lawyers at the court is the rise of Supreme Court specialists, a phenomenon described in this piece by Tony Mauro. Mauro covers research by Richard Lazarus, who found that an increasing percentage of cases brought to the court come from "repeat practitioners," i.e., lawyers with multiple appearances before the court. (Lazarus shares more of his research on the success of Supreme Court experts at Volokh, which raises questions for another post). And with the exception of lawyers in the Solicitors' Office, the Supreme Court experts often work for large firms, where minority representation is low.

But minority representation won't remain low, if a group of Stanford Law students can effect change. According to this article, the students who comprise the Building a Better Legal Profession, are handing out “diversity report cards” to the big law firms, ranking them by how many female, minority and gay lawyers they have. According to Professor Michele Landis Dauber, adviser to the project, "many of the firms have atrocious, appalling records on diversity." The theory behind the report cards is that they will highlight for students those firms that are progressive and those that are not. And if elite students decide to spurn less diverse firms in favor of those with more progressive policies, the firms will have no choice but to change their ways, or lose quality candidates. The article notes one example of the report cards working: apparently a Stanford 2L (a white male) turned down a firm when he saw that it received an 'F' on diversity.

So while this law student initiative might, in the long run help cure the problem of diversity at the Supreme Court (by ensuring a larger minority representation at large firms that handle Supreme Court cases), the growing consolidation of the Supreme Court bar still troubles me - as much or more than the lack of diversity. I realize that in practice before lower level courts, connections and pedigree matter. But I'd always thought that it was different before the Supremes; that individual litigants and their solo or small firm attorneys had as much of a shot at justice at the Court as large corporations like Exxon. Solving racial diversity is one thing, addressing and ensuring the diversity of attorneys who practice before the Supreme Court is a much difficult problem.

October 29, 2007 | Permalink | Comments (1)

Women of Hollywood

Women may be hitting glass ceilings at large law firms, but they're gaining equality in the Hollywood arena. This story, Celebs in a mess call on these female power lawyers, features a trio of high-powered, female lawyers who top celebrity lists when it comes to representation for DUIs, hit-and-run and divorce and custody battles. Predictably, the article leads off with the ubiquitous Gloria Allred, but it also covers DUI specialist, Blair Berk, a Harvard Law grad and divorce attorney Laura Wasser, who recently dropped Britney Spears as a client. Wasser's background is interesting; prior to her celebrity divorce work, she worked at the Western Law Center for Disability rights. Perhaps the biggest problem for at least two of the lawyers (Berk and Wasser) is staying out of the spotlight and the scope of the paparazzi and maintaining some privacy for both themselves, and their clients.

What struck me about this article were the differences between a celebrity-based Hollywood practice on one level and a biglaw practice - which recently, sites like Above the Law have celebrated...and even "celebretized". In biglaw, prestige means a huge, "name brand" law firm and a large PPP (profits per partner) or a $160,000 starting salary. The Hollywood lawyers practice in small firms, many of which they've started themselves. And the Hollywood lawyers also practice in areas like DUI, divorce or plaintiff-side discrimination, traditionally regarded as "pedestrian" by the biglaw crowd.

What are your thoughts? Obviously, the skill set for success as a Hollywood lawyer differs from the skill set for success at biglaw. But which type of "celebrity" lawyer is more attainable - for women, and for lawyers generally?

October 29, 2007 | Permalink | Comments (0)

Blawg Review #132

This week, Grant Griffith welcomes you to his home, er, home office that is, for a visit with this week's
Blawg Review #132. In particular, Griffith sought out posts from home office and solo lawyers (one of my posts was included), but the posts included offer valuable advice and inspiration to all lawyers, no matter where they work. For example, Griffith's includes posts on Catharine Roraback's recent death, and a country lawyer involved in the landmark case Griswold v. Connecticut. And if you're feeling burnt out on the job, Brett Trout has some great advice on how to work more productively: take a beach trip!

Griffith concludes with a roundup of a number of the solo and small firm and home office blogs. Even if you work for a large firm or in-house, the information that the "solo practice" genre of blogs regularly provides -- on marketing, work-life balance and taking charge of your practice and clients -- is readily applied in any work setting.

October 29, 2007 | Permalink | Comments (0)

October 26, 2007

Five Tips for Success in Mediation

Settling a case in mediation has to be better than "losing" through the courts, says Justin Patten at his blog Human Law Mediation. And because success in mediation requires skill in negotiation, lawyers who master that art will be better able to help their clients reach a settlement. To that end, Patten offers five tips for how lawyers can ensure an effective negotiation:

Plan and prepare the right way.
Listen more than you talk.
Keep emotions in check.
Balance aggression against cooperation.
Make the first offer, generally.

Patten's post, of course, provides greater explanation of each tip. As to his last tip, he also points to a discussion at Settle it Now Negotiation Blog in which Victoria Pynchon "negotiates" disagreement over whether to make the first offer with Michael Webster of The Bizop News blog.

October 26, 2007 | Permalink | Comments (2)

Virtual Income, Real World Taxation

Will the IRS soon be opening an office in the virtual world of Second Life? At the blog Virtually Blind, which is devoted to the legal issues that impact virtual worlds, Benjamin Duranske explains:

Though it is widely understood that profits made running a business that deals in virtual goods or services are taxable, tax agencies have not yet seriously pursued enforcement, and there is an open question regarding when these profits are taxable. Two recent presentations suggest that enforcement is getting incrementally closer, both in the EU and the United States, and more interestingly, both commentators suggested that profits may be taxed even before they are converted to 'real' currency.

One of the two presentations focused on U.K. tax law and the other on U.S. tax law. The latter was by Bryan Camp, law professor at Texas Tech University, who said that profits made in virtual worlds could be taxable even before they are withdrawn as dollars. A video recording of Camp's presentation is available via the Second Life Cable Network. Is that a tax-collector avatar I see in the audience?

October 26, 2007 | Permalink | Comments (0)

Judicial Ideology and IP Cases

At The Patry Copyright Blog, William Patry points to a recently published article, The Effect of Judicial Ideology in Intellectual Property Cases, by two law professors, Matthew J. Sag of DePaul and Tonja Jacobi of Northwestern, and doctoral student Maxim Sytch of Northwestern's Kellogg School of Management. The three looked at Supreme Court cases decided between 1954 and 2006. In an abstract, they describe what they found:

We show that ideology is a significant determinant of cases involving intellectual property rights. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

One conclusion that copyright lawyer Patry found of particular interest was that the justices were significantly less likely to vote against the IP owner in copyright cases and significantly more likely to do so in trademark cases.

October 26, 2007 | Permalink | Comments (0)

October 25, 2007

Ruth Bader Ginsburg and the Politics of Dissent

Is dissenting from the bench a matter of passion or politics for Supreme Court Justice Ruth Bader Ginsburg? That's the provocative question that blogger Ann Althouse posed back in May, discussing this New York Times article by Linda Greenhouse on Ginsburg's unprecedented delivery of two oral dissents during the 2006-07 Supreme Court term. In Althouse's view, Greenhouse inaccurately described Ginsburg's dissents as emotional expressions of passion about issues like partial birth abortion and unequal pay in employment cases. By contrast, Althouse characterized Ginsburg's dissents as political; carefully calculated political moves designed to bring Americans' attention to the work of the court.

Earlier this week, Ginsburg shed light on her reason for oral dissents, as this post at SCOTUS Blog describes. Ginsburg said that she would give voice to her dissents if she believed that the Court veers in the wrong direction on important issues - but would not dissent routinely. Ginsburg's explanation for her dissents could be construed as motivated by politics (to bring about change) or passion (to show strong opposition to an ill-advised change of direction by the Court) or both.

But at Volokh, Orrin Kerr views Ginsburg's oral dissents as politics; and indeed, as so political they affect the balance of power between the Executive and Judicial branches. From Kerr's post:

If I understand Justice Ginsburg correctly, she wrote a legal opinion at least in significant part to push a different branch of government to enact a law closer to her personal policy preferences. If I am reading her speech correctly, she appears to be pleased that Congress is following up on her efforts. She's watching the House and Senate, and the passage of a bill in the House and introduction in the Senate is just what she had in mind when she wrote her dissent and read it from the bench. But then she seems less-than-pleased that President Bush has "clouded" the prospects of the bill's passage by threatening a veto.
I find this explanation troubling. It seems to me that a Justice's job in a statutory case is to say what the statute means and no more. If you dissent, then dissent. But trying to push Congress to enact a law that you like better isn't part of the job description.

In Kerr's view, Ginsburg goes beyond simply holding political beliefs which color her rulings. Rather, Kerr writes that Ginsburg "seems to believe that she has a legitimate interest in her capacity as a Supreme Court Justice to push co-equal branches of government to enact a new law that will be more to her personal liking."
And Kerr wonders: "If it is improper for legislators to try to influence the outcomes of future cases, why is it perfectly okay for her as a Supreme Court Justice to try to influence the outcomes of future legislation?"

Kerr's suggestions are interesting, to be sure. But Scott Greenfield at Simple Justice disagrees with Kerr, asserting that he took Ginsburg's comments out of context. Greenfield argues that Ginsburg advocated congressional action in Ledbetter because the Court had determined that it could not make allowances for a plaintiff who filed a complaint about unequal pay where the 180-day deadline for filing complaints was set by statute and could not be waived. In other words, Ginsburg was simply saying that there was nothing the Court could do to grant relief; if Congress did not like the result, it would need to make the fix. Greenfield found this advice a perfectly reasonable response, not, as Kerr suggests, an attempt to influence Congress.

Moreover, even if Ginsburg were attempting to influence Congress...so what? Realistically, what can a single judge on a Court that does not publicize its proceedings on TV do to force Congress to take action, or even to force Americans to force their representatives to take action? By contrast, a legislator can influence the outcome of cases either by changing laws and overriding a judicial decision, or using his or her power to approve judicial nominees who will produce the desired outcomes.

October 25, 2007 | Permalink | Comments (1)

A Genius Marketing Idea: Books for Dummies

The familiar yellow-and-black Dummies book series may be geared for dummies, but a Milwaukee, Wisconsin patent lawyer who's written five Dummies books, is anything but. This article, Patent attorney helps inventors and entrepreneurs protect their ideas, Greater Milwaukee (10/25/07) profiles attorney Jill Gilbert Welytok, an attorney and CPA whose childhood experience working for her dad's mail order business inspired her interest in patent law. Welytok's dad originally came up with the idea of attaching a fake fish to a wood plaque which would flop in response to nearby motion. But because he never patented the idea, competitors began producing the product as well. After law school, Welyok took a CPA exam (she'd helped with the books in her father's business as well). She worked as a tax attorney for a large firm for a while, but decided to sit for the patent bar so she could help small businesses protect their ideas. When Welyok's three children were born, she took time off from law practice and started to write Dummies books, five in total, on topics including "Nonprofit Law and Governance for Dummies" and "Sarbanes-Oxley for Dummies" (a surprising hit, albeit one that sounds like an oxymoron to me). Thereafter, Welytok opened her own firm, Absolute Technology which represents inventors and entrepreneurs.

The lesson of Welytok's story is clear: writing a few Dummies books may turn out to be a really smart idea to advance your career and build your practice.

October 25, 2007 | Permalink | Comments (1)

Morgan Stanley in Trouble, With A Capital "E"

Back in May 2005, we reported on a major lawsuit by financiar Ronald Perelman against Morgan Stanley, which resulted in sanctions for e-discovery violations, and ultimately, a $1.57 billion award against the investment bank. And even though Morgan Stanley received some good news in that lawsuit, back in March, when a Florida appellate court overturned Perelman's award, the fallout from electronic discovery violations remains.

According to this article from the Daily Business Review (10/25/07), Morgan Stanley is facing hundreds of potential lawsuits for allegedly concealing evidence from clients who filed arbitration claims. Originally, Morgan Stanley claimed that its servers were destroyed in the 9-11 attacks on New York, which destroyed its e-mail records relating to the claims. But apparently, the allegedly lost files resurfaced during the Perelman case. Morgan Stanley recently agreed to pay $12.5 million in a regulatory proceeding with the Financial Industry Regulatory Authority for failing to disclose the e-mails. The penalty includes $9.5 million for a claimants' fund, which will result in payouts of $3,000 to $5,000 per claim. But lawyers for claimants say that this money doesn't adequately compensate their clients for their losses. Lawyers now intend to file new cases on behalf of claimants for spoliation of evidence and are gunning for punitive damages. One lawyer has obtained the URL, SueMorganStanley.com, which directs prospective clients to his law firm site.

October 25, 2007 | Permalink | Comments (0)

Judge's Merciless Decision May Bring Positive Change

Who knows what Judge Sharon Keller, presiding judge of the Texas Court of Criminal Appeals was thinking when she wouldn't keep the court house doors open for twenty more minutes to accept a filing by a death row inmate's (Michael Richard) attorneys, seeking a stay of execution based on an decision earlier that day by the Supreme Court to review a challenge to the constitutionality of lethal injection. Perhaps, as she suggested in one explanation, Richard's attorneys should have simply gotten their appeal filed by five. However, given the time constraints, it's difficult to say that these attorneys were dilatory. Moreover, according to this account by Joan Cheever, what made the difference between life and death here (because Richard was executed that evening) was a computer breakdown, which prevented the lawyers from reproducing the required eleven copies needed for filing in a timely manner. This post by defense attorney Mark Bennett also explains how Keller might have made allowances to accept the appeal.

The controversy over Keller's actions continues to grow. Texas lawyer Robert Kraft notes the creation of the Judge Sharon Killer website. And not surprisingly, a judicial conduct complaint has been filed to condemn Keller for her actions. At Grits for Breakfast, blogger Scott Henson and his readers generally agree that Keller deserves sanctions, even though some readers (roughly 20 percent) believe that technically, she was right to enforce the rules, but morally, she should have made allowances. And now, news stories from the
New York Times, Austin American-Statesman and the Houston Chronicle are reporting that Keller's actions have galvanized 300 lawyers, prominent defense attorneys and judges among them, to seek changes in the Texas court's filing practices on death penalty cases. Specifically, they have asked the Court of Criminal Appeals to allow death penalty petitions and briefs to be filed electronically - a practice allowed by the U.S. Supreme Court and the U.S. federal district courts in Texas. Electronic filings would have prevented the problems experienced by Richard's lawyers and allowed for timely filing before the deadlines.

In this day and age where even my sixth grader can submit assignments to her teacher by e-mail, there's simply no excuse for courts not allowing the practice. It's too late for anyone to reverse Judge Keller's irreversible decision. Nor is there any way to force a "stick to the rules" judge to act with compassion when a life is at stake. But at least an electronic filing system with clear cut rules can facilitate last hour filings, and so that in the last hours of life, the fate of a death row defendant doesn't rest solely on the mercy of a merciless judge.

October 25, 2007 | Permalink | Comments (1)

October 24, 2007

The Oldest Lawyer?

The Boston Globe reports the death of Reuben Landau, who at 103 was believed to be the oldest practicing lawyer in Massachusetts. Before he became ill three weeks ago, Mr. Landau was still putting in a few hours a day from his Cambridge home. Three years ago, his lawyer-son Bill Landau, then in his early 70s, tried to convince his father that they both should retire, but Mr. Landau would have nothing of it. The Globe recounts what Bill told The New York Times in an interview at the time:

"'Dad, let's retire,' I tell him," Bill Landau said in a 2004 interview with The New York Times. "But he says, 'What would I doooooo?' Just like that. 'Doooooo.' How do you say no to a 100-year-old man? You can't."

No one in Massachusetts could say unequivocally that Mr. Landau was the oldest practicing lawyer in the state, but no one disputed it either. This led me to wonder: If Reuben Landau was the oldest practicing lawyer in his state, who is the oldest practicing lawyer in the United States? I searched Google for the answer, but without success. I did find this interesting New York Times article from 1899 noting that New York's oldest lawyer had returned to active practice at age 95 following an illness. The Times noted that he "fully retains his mental faculties" -- more than can be said of many much-younger lawyers. His death must have come soon after, because five years later the Times reported the death of New York's then-oldest lawyer, James P. Sanders, at 86. Tragically, he died not from old age but from asphyxiation due to a gas leak in his home. I also found this 2003 article from the Denver Bar Association speculating that Joe Berenbaum was Colorado's oldest practicing lawyer. Old? Heck, he was only 87 at the time. And there was this great 1927 news article from Wisconsin describing the U.S. Supreme Court appearance of 93-year-old Moses Hooper of Oshkosh, who stepped forward to present his argument before 87-year-old Justice Oliver Wendell Holmes.

But I was not, via Google, able to identify the oldest lawyer in the United States. So I turn to you, the blog-reading public. Can anyone out there help me with this?

October 24, 2007 | Permalink | Comments (7)

Top Law Schools: Chapman Beats Yale

I have to love any ranking of law schools that puts my alma mater, Boston College Law School, three places above Harvard Law and 24 places above that one in New Haven. And that's with BC coming in just outside the top 10, at No. 11, behind top-ranked schools that include Chicago and Michigan in the top two spots. Oh, and Brigham Young at No. 8.

This topsy-turvy top-schools ranking comes courtesy of Paul L. Caron at TaxProf Blog, who has been having great fun in recent weeks crunching numbers drawn from the Princeton Review's 2008 ranking of the Best 170 Law Schools. Two weeks ago, he blogged the lists of the Top 10 law schools in 11 categories posted on Princeton Review's Web site. Next, he extracted the data from the individual profiles of each of the 170 schools and came up with the top 25 and bottom 25 schools in each of six categories:

Finally, this week he crunched and crumbled the Princeton Review numbers even more to come up with what they show to be the top 50 law schools. He also lists the schools on his top 50 list with the greatest variance from their ranking by U.S. News. Chapman, for example, does not make the U.S. News top 100, but it ranks 32nd on Caron's list, ahead of Yale. Another lower-tier school by U.S. News standards, St. Thomas, is 38th on the Caron/Princeton list. As for Yale and Harvard, U.S. News puts them at first and second.

October 24, 2007 | Permalink | Comments (0)

Changes for Law.com -- and this Blog

We're sporting a new look here at Legal Blog Watch, and it is all part of a larger rejiggering of the Law.com blog network and even bigger changes at Law.com. Among the changes to the blog network:

On the Law.com home page, a new fly-out menu on the left lets you jump directly to the blog-listing and blogger biography pages.
A page now lists all the blogs both by categories and by name.
Another page now lists all the blogger's bios.

The changes to the blog network are more than skin deep. The network continues to expand with the addition of four new blogs:

Beyond the blog network, Law.com is making other other changes. Most notably, it has launched a new page devoted to international legal news. In November, it will launch a companion international news e-newsletter. Other new sections are in the works and will be launching soon.

Carolyn Elefant and I share the fun of posting to Legal Blog Watch, alternating days most of the time. We would love to hear any suggestions you have for improving this blog and the blog network.

October 24, 2007 | Permalink | Comments (0)

SoCal Lawyer Too Close for Comfort

As wildfires raged across Southern California, lawyers and law professors were among those forced to evacuate their homes and offices, as The National Law Journal reports. But one lawyer-blogger found himself uncomfortably close to the blaze this week, as he describes on his blog through words and dramatic pictures. J. Craig Williams, whose blog, May It Please the Court, is part of the Law.com Blog Network, lives in Irvine, Calif. On Sunday, he posted a horrifying set of pictures showing one fire's bright red flames and thick black smoke. Even more horrifying, he shot the pictures from his house, and the fire was across the street. As he wrote then, "Pretty scary stuff."

In a follow-up post on Monday, his house had survived, but the blaze had spread its devastation elsewhere. When he took the pictures the night before, he wrote, the fire had burned 20 acres. By the next morning, it had spread over 8,800 acres.

"Think about that for a minute, and do the math. That's burning at the rate of more than 10 acres per minute. Think about evacuating with fire and wind chasing you at that speed, and then think about trying to evacuate a 1,600 home complex (where I live) out of only three exits."

Craig appears to be OK. He is still posting to his blog, and on Monday he and I recorded a Lawyer2Lawyer podcast. I hope that Craig and his family remain safe and well. And I hope the same for all the legal professionals who work and live in Southern California.

October 24, 2007 | Permalink | Comments (0)

October 23, 2007

Are Lawyers Going to Become Obsolete?

Justin Patten of Human Law writes this post on the future of the legal profession, linking to this provocative series by Richard Susskind on the legal profession on the brink of change. Susskind's aim is:

to explore the extent to which the role of the traditional lawyer can be sustained in coming years in the face of challenging trends in the legal marketplace and new techniques for the delivery of legal services.

Susskind considers whether we have reached a point such that a lawyer's job can be carved up and either handled by computer or outsourced. Patten doesn't take a position, but does acknowledge that technology will impact law firms in ways not yet contemplated.

Susskind urges lawyers to familiarize themselves with new technology. In his view, lawyers who don't evolve and leverage technology and find ways to make themself useful in spite of it may be on their way out.

October 23, 2007 | Permalink | Comments (3)

Marketing Matters

There are a couple of marketing-related posts around the law blogsphere these days. First, there's some good advice from Larry Bodine that lawyers need to cut back on billable hours ... to increase marketing time. Bodine points out that time spent on marketing is time well spent; associates who can grow a book of business from $2 million to $22 million plant themselves firmly on the path to partnership.

Over here, Tom Kane offers some good tips for lawyers seeking to market a "preventitive law" practice. He cites an example of one small firm attorney who's had some success in doing just that.

While Bodine and Kane have good advice for lawyers at any size firm, there's some controversy over the value of this marketing advice from successful solo and small-firm lawyers. Over at Above the Law, some commenters perceived a post on these tips as a slight against large firms. In fact, I had some comments on the post over at my home site of

My Shingle. Personally, I don't think the tips are all that insightful, but they weren't intended that way. They were meant as quick, short, off-the-cuff advice for other listserve participants -- and don't reflect the sophistication with which many solo and small-firm lawyers market our practices.

October 23, 2007 | Permalink | Comments (1)

Lost Pants Morph Into Lost Business, Lost Lawsuit and, Now, Likely Lost Job

The saga of now former Administrative Law Judge Roy Pearson and his pants is a story of loss ... many times over. Back in April, we posted here about Pearson's $65 million lawsuit against a mom-and-pop dry cleaner for losing his pants. Since then, Pearson has lost his lawsuit, the owners of the dry cleaning shop lost their business (they decided to shutter it after the trauma of the lawsuit) and, now, Pearson will likely lose his job, according to this follow-up Washington Post story. The panel responsible for approving ALJ appointments is still deliberating on reappointing Pearson, but sources say that the panel is likely to vote against another 10-year term for Pearson. Among the factors considered in reappointment is Pearson's lawsuit, as well as Pearson's work as a judge.

Of course, I'm guessing that the panel is considering another factor as well: the likelihood that Pearson may sue if he receives an adverse decision.

October 23, 2007 | Permalink | Comments (0)

October 22, 2007

Bar's 'Inner Circle' Sways Supreme Court

The emergence in recent years of a Supreme Court bar -- an elite circle of veteran lawyers who focus on Supreme Court advocacy -- is no secret. But a new study says this bar is not only reshaping Supreme Court practice but also influencing Supreme Court jurisprudence. The study by Richard Lazarus, director of the Supreme Court Institute at Georgetown University Law Center, to be published in a forthcoming issue of the Georgetown University Law Journal, is reported by Tony Mauro in today's Legal Times. It portrays a Supreme Court bar of elite attorneys that "is quietly transforming the court and the nation's laws," Lazarus tells Mauro, to the benefit of "monied interests more able to pay for such expertise."

As evidence of this, Lazarus points to numbers showing that 44 percent of the nongovernmental petitions granted review last term were filed by these veteran advocates, as opposed to six percent in 1980. And a 2004 survey found that 88 percent of law clerks acknowledged giving extra consideration to briefs filed by this "inner circle" of lawyers. The influence of these lawyers, Lazarus believes, has helped tilt the court's doctrine towards big business.

But some of the members of this inner circle dispute Lazarus's thesis, Mauro reports. Greater success in the court for big business is due to the court's composition more than to lawyering, they say. Akin Gump's Thomas C. Goldstein, founder of SCOTUSblog, tells Mauro: "We advocates tend to think it's all about the lawyering. But the most important trend by far is the increasing conservatism and pro-business orientation of the justices themselves."

Lazarus, meanwhile, is calling on the Supreme Court bar and on the Court to take steps to reduce the imbalance in advocacy between the well-paid pro-business veterans and those representing other parties, such as criminal defendants and employment discrimination, tort and environmental plaintiffs, Mauro writes. "The advocacy gap in the court between those who can pay and those who cannot," Lazarus says, is "bad for the legal profession, the court, and its rulings."

October 22, 2007 | Permalink | Comments (3)

For One Lawyer, Blogging Brings Big Bucks

Few lawyers launch a blog with the goal of earning income from it. But if your blog begins to pull in a quarter-million a month in revenue, who's to complain? Such is the case with TechCrunch, the blog started by lawyer Michael Arrington. Arrington is what some people might call a "recovering lawyer." After graduating from Stanford law school in 1995 and paying his dues as a corporate lawyer at O'Melveny & Myers and Wilson Sonsini, he left law practice and became a serial entrepreneur, working with a string of Internet startups and founding two of his own.

In 2005, Arrington started TechCrunch, his blog about Internet startups, as a hobby. But, as the San Francisco Chronicle reported yesterday, he latched onto something big. "TechCrunch became the go-to site for the scoop on new Web companies," said Chronicle writer Sam Zuckerman. "And, as technophiles flocked to TechCrunch, advertisers followed suit. Arrington's blog morphed from a labor of love into a fast-growing business."

So fast that the blog now has a CEO and a full-time staff of eight. Wikipedia says it is the fourth most popular blog on the Interent, and the Chronicle reports that it brings in $240,000 a month in advertising, not to mention additional revenue from conferences and events. Even though Arrington started the blog as a hobby, it soon became clear to him "that I could make more money blogging than from anything else."

Lest every lawyer hope to replicate Arrington's success, be assured that his case is the exception, not the rule. For lawyers, of course, the pay-off from blogging is more likely to be indirect -- in the increased exposure it brings and, through that exposure, new business.

October 22, 2007 | Permalink | Comments (0)

Blawg Review Gets Down to Business

If it's Monday, it must be Blawg Review day, and today's honors fall to David Maister, that master of management of professional services firms. In Blawg Review #131, Maister, true to his trade, focuses on issues relating to the business of law, from marketing to leadership to economics and even to blogging.

October 22, 2007 | Permalink | Comments (0)

Law Profs Not Gaga About Google

Will the generation of lawyers that grows up on Google and Wikipedia know how to navigate a law library? During a three-day conference this weekend at the University of Texas at Austin School of Law, many professors expressed concern that law students are not prepared for the extent of research required to become a lawyer, according to a report in the student newspaper, The Daily Texan. One professor, Harvard Law School's Virginia Wise, said the turning point for her came in 2001, when the realized that all of her students were starting their research with Google. Others bemoaned the fact that students enter law school never having had to write a paper longer than five pages.

The law school's Tarlton Law Library convened the conference, Teaching the Teachers: Effective Instruction in Legal Research, largely in response to the National Conference of Bar Examiners' announcement last year that it would explore an add-on to the bar exam that would test legal-research skills. That, in turn, would require law schools to re-examine how well they teach legal research and writing.

At the University of Texas, educators are tackling the problem at the undergraduate level, instituting a requirement that all degree programs teach independent research skills. "Hopefully," explained Paul B. Woodruff, dean of undergraduate studies, "we can say in a few years that our graduates know what they can and can't do with Wikipedia."

What do you think? Is our dependence on Google robbing lawyers of fundamental research skills? Should law schools beef-up their teaching of research and writing?

October 22, 2007 | Permalink | Comments (10)

What Courts Can Learn From Failure

The criminal justice system is a work in progress. At any given time in any given court system around the country, you are likely to find an experimental project aimed at reducing recidivism or better managing drug cases or crafting alternatives to incarceration. When these experiments return positive results, their proponents are quick to tout their success. But what of the experiments that fail? Should they simply be swept under the carpet?

A program launched earlier this year by the The Center for Court Innovation, the independent research arm of the New York court system, and the U.S. Department of Justice's Bureau of Justice Assistance is focusing on studying these failures and encouraging a conversation about what the criminal justice system can learn from its mistakes. In a recent news bulletin, the center's executive director, Greg Berman, explained:

"[We] set out to jump-start just this kind of conversation, bringing together judges, probation officials, prosecutors, police chiefs and defense attorneys from across the country to discuss lessons they have learned from projects that did not succeed. These projects included efforts to change the behavior of prostitutes, promote drug treatment for addicts, and strengthen the supervision of probationers. The goal of discussing these initiatives was to send the message that failure, while not desirable, is sometimes inevitable and even acceptable, provided that it is properly analyzed and used as a learning experience."

The conversation kicked off with a roundtable discussion last January among 19 judges, court administrators, probation officials, prosecutors, police chiefs, defense attorneys and others. (A summary of the discussion and transcript is here.) Based on the roundtable and other research, Berman and two others then produced a "red paper" that further explored the topic, "Trial and Error: Failure and Innovation in Criminal Justice Reform." In his bulletin this month (which I received by e-mail and cannot find online), Berman writes that the process has so far provided four lessons about learning from failure:

Context matters. The causes of a project's failure are too complex to yield easy generalizations, he says. What works in one setting might prove disastrous in another.
The right people need to be at the table. Many projects fail because of agency leaders formulating decisions in a vacuum, without relevant information that could be provided by rank-and-file staff or local residents. At the same time, over-inclusiveness can cripple a program.
Many failures can be traced back to a lack of self-analysis. "It all adds up to a fine balancing act," Berman writes, "innovators must aggressively market their ideas and galvanize crucial allies without sacrificing introspection."
The definition of failure depends upon where you stand. What police see as success, for example, may be seen as failure by prosecutors and judges.

No one likes to admit to failure, especially not those who work in the public eye. But the people involved in this program deserve credit for recognizing that the criminal justice system can learn from its mistakes as well as its successes.

October 22, 2007 | Permalink | Comments (1)

October 19, 2007

Is a Law Blogger a Journalist?

When a legal ruling is mistakenly released into the public domain, does a lawyer, who is also a blogger, have an obligation to the court to remove the opinion -- or an obligation as a journalist to leave it up for readers? That's an interesting question posed by this scenario that unfolded over the past two days, involving an ALM blogger, How Appealing's Howard Bashman, and a 2nd Circuit decision in Higazy v. Templeton that Bashman posted on Thursday. As described here, in the Higazy case, the 2nd Circuit revised a lawsuit brought by an Egyptian student detained as a material witness after the Sept. 11 attacks. The student claimed that he had been coerced by an FBI agent to make a false confession. But the court withdrew its opinion several hours later because of concerns that the decision contained information filed under seal.

A 2nd Circuit clerk asked Bashman to remove the decision from his site, but he declined. Bashman explained his reasoning for declining the request in this letter that he sent to the ABA Journal:

No one from the Second Circuit has attempted to explain to me the so-called security concerns -- which as far as I can tell based on my own analysis apparently arise from certain statements attributed to Mr. Higazy in the opinion's factual recitation -- that led the Second Circuit to remove the opinion from its web site after the opinion had been posted there for all to see and access. Regardless, the Second Circuit official who contacted me admitted that the court was in no position to attempt to retrieve every electronic copy of the decision that the public had downloaded from that court's web site on October 18th, and thus it seemed clear to me that whatever security concerns there were had already been irreparably harmed by the Second Circuit's apparently premature public release of the decision.

When I posted the opinion at the "How Appealing" blog, hosted by American Lawyer Media, a respected publisher of legal news, there was no explanation publicly available anywhere or privately available to me for why the Second Circuit had withdrawn the opinion. In my role as a member of the news media, I determined that it would be inappropriate to take down my posting of the decision based on a general claim that the opinion, issued earlier in the day to the public over the internet, referred to information contained in an appendix whose contents remained under seal.

If there is a lesson here, it is that courts should not make publicly available over their web sites decisions that they do not want to make available to the public, and if a court does so, there is no way to "undo" a decision's public issuance.

Bashman's description of himself as a journalist raised the interest of Matthew Felling (see this post at the CBS News Public Eye blog). Felling wondered whether bloggers can convert themselves into journalists or "members of the media" simply by stating that they are. So Felling contacted Bashman, who described that although he is a practicing attorney, he also considers himself part of the news media because ALM both hosts How Appealing and pays Bashman for his blog. In addition, Bashman described that he reports on court rulings at "How Appealing" as they issue -- he does not simply provide commentary -- and, in addition, his blog generates an average of 10,000 readers a day.

In Felling's view, Bashman "fits the bill" as a journalist. But Felling asks:

Does readership define a journalist? Bashman added in a follow-up e-mail that he gets nearly 10,000 readers on “a typical weekday.” Does receiving money for writing make one a journalist, as Bashman does...But where is the line drawn? This isn’t a classroom discussion, a distinction without a difference, as we enter murky legal waters and a Federal Shield Law is considered on Capitol Hill.

I agree with Felling that what Bashman does at How Appealing is journalism, and I also agree that Bashman absolutely made the right call in leaving the opinion up at his site. But what if the facts were different? What if the opinion that had been passed on to Bashman had been unlawfully procured, and he posted it knowingly? As a journalist, I could understand the rationale for accepting the opinion and keeping it online, but as a lawyer, would Bashman owe additional duties to the court? My thought here is whether there might be situations where a lawyer's duty as a lawyer on the one hand and a journalist on the other might diverge. Which ethical rules does a lawyer-blogger-journalist answer to in that situation?

October 19, 2007 | Permalink | Comments (7)

You Can't Fight City Hall, but You Can Fight Congress

They say that you can't find city hall. But Rush Limbaugh, apparently, has enough influence to fight another political body -- Congress -- and come out on top, using the power of talk radio and eBay, not lawyers. As reported in this AP story, back in early October, 41 Democratic Senators wrote to Mark Mays, president of Clear Channel, the parent company of Rush Limbaugh's show, asking him to chastise Limbaugh for comments that he'd made about "phony soldiers" criticizing the war. Limbaugh denied having making this statement, so he turned the tables, posting the letter on eBay for sale as a "priceless memento" of the folly of Senior Majority Leader Harry Reid and 40 other senators, who attempted to "demonize a private citizen by lying about his views." The auction closed today, with a winning bid by Betty Casey of $2.1 million. The money will go to the Marine Corps Law Enforcement Foundation.

But could Limbaugh have sued Reid and the Senate, if he'd wanted to? Timothy Zick addresses this issue in this post at Concurring Opinions. Zick comments that Congress does have authority to issue congressional resolutions to condemn the actions of private citizens and/or other countries. But Zick says that Congress is not an ordinary speaker and should self-censor:

But Congress is no ordinary speaker. As no legal restraints apply to its many "symbolic" resolutions, it must determine for itself when and on what matters of foreign affairs it wishes to speak. Congress, in other words, must necessarily self-censor. On the world stage, as in the domestic market for political expression, Congress must be acutely aware of the ramifications of its expression -- for diplomacy and, in the case of the genocide resolution, even military operations. The President and Congress will not always agree on foreign affairs policies or agendas. Setting aside Congress's undoubted ability to speak to matters of substantive foreign policy and war, what if any norms or considerations ought to guide Congress when considering whether to issue symbolic resolutions on controversial matters like Japanese "comfort women" or Armenian genocide? Should it generally hold its collective tongue where the controversy does not concern any direct American interest? When it is particularly important that the United States speak with a "single voice"? When its expression may interfere with ongoing military operations, endanger lives, or result in the breaking of diplomatic ties? Or should Congress, like other speakers, rely upon the marketplace -- including presidential resolutions --to counter any purported ill effects from its expression, and speak boldly even in the face of likely hostile audience reactions?

Thomas Lifson has thoughts at the American Thinker. He writes that actions like Reid's have a chilling effect on speech, potentially even raising First Amendment issues.

In any event, at the end of the day, the legal issues don't matter, at least in this case -- because Limbaugh wound up with the last word.

October 19, 2007 | Permalink | Comments (3)

Lawyers in the Movies

If any lawyers in this audience are looking for an escape from work, you may want to avoid the movies for the next few weeks. Seems as if there's been a spate of lawyer movies over the past two weeks. Earlier this month, we had Michael Clayton, a George Clooney vehicle about a lawyer who cleans up problems, this time at a firm embroiled in a multimillion-dollar class action suit.

But at least in Michael Clayton, the lawyers, albeit morally bankrupt, aren't losers financially. Not so in this week's offerings. The movie Things We Lost in the Fire explores the relationship between a widow and her murdered husband's secret friend, a "down and out lawyer" living on skid row, according to today's Washington Post review. And Reservation Road seems like the most depressing of all for lawyers. It begins with an overworked attorney (Mark Ruffalo), who's talking on his cell phone, racing to get his son home when he hits and kills a 12-year-old and leaves the scene. The dead boy's distraught father (Joaquin Phoenix), intent on finding who killed his son hires -- of all people -- the Mark Ruffalo lawyer. Gee, how many ethics violations can you spot in just the description of the movie?

Lawyers seem to be popular fodder for movies, but hey, Hollywood, how about something a little more inspirational that gives lawyers reason to leave the office for entertainment?

October 19, 2007 | Permalink | Comments (2)

Lawyer May Pass the Bar, but Still Can't Enter One

Remember Doogie Howser, the fictitious teen doctor of the eponymous TV series? Now, the Los Angeles Times has this article about Doogie's real-life, law counterpart: Kathleen Holtz, an 18-year-old UCLA law grad and law review editor, who's awaiting the results of the California bar. If she passes, Holtz will become the youngest practicing attorney in California, if not the nation.

Under the legal drinking age during law school, Holtz had to pass on monthly law school beer bashes and "bar reviews" -- where students would visit bars around the city. Of course, many law students didn't realize that Holtz was underaged, figuring that she was 21 or 22 when, in fact, she was 15. And, Holtz reports, upon learning her age as many as 90 percent of law students turned hostile. According to the article, Holtz skipped high school, but based on the description of her law school classmate's reaction, it sounds like Holtz had her high school experience after all -- only in law school.

But all of that is behind Holtz now. She's been hired by a firm (which, according to the WSJ Law Blog, recruited Holtz at 17 and had some concerns about child labor laws). But after she passes the bar, she'll still have to spend three more years passing the bars ... until she's old enough to drink.

October 19, 2007 | Permalink | Comments (1)

October 18, 2007

Supremes v. Federal Circuit: Patently Perturbed

When it comes to patent law, the Supreme Court and the Federal Circuit have not been getting along lately. Three times in two years, the Supreme Court has overturned precedent established by the Federal Circuit -- the very court created to help bring uniformity to patent law. This week, FirstImpressions, an online companion to the Michigan Law Review, published a symposium that explores the state of patent law and the relationship between these courts. The symposium looks at the three cases -- KSR v. Teleflex, Microsoft v. AT&T and eBay v. MercExchange -- and considers their impact through five articles:

The Supreme Court and the Federal Circuit: Visitation and Custody of Patent Law, in which Rebecca S. Eisenberg of the University of Michigan Law School suggests that the Supreme Court's relationship to patent law is analagous to that of a noncustodial parent who spends an occasional weekend with the kids.
KSR v. Teleflex: Predictable Reform of Patent Substance and Procedure in the Judiciary, wherein John F. Duffy of George Washington University Law School argues that even with all the hype about KSR, its significance is still not fully appreciated.
Making Sense of KSR and Other Recent Patent Cases, in which Harold C. Wegner of Foley & Lardner says KSR is the most important Supreme Court ruling on "obviousness" in 40 years and suggests a renewed interest by the court in patent law.
Now That the Courts Have Beaten Congress to the Punch, Why Is Congress Still Punching the Patent System?, in which Robert A. Armitage of Eli Lilly & Co. considers why patent legislation has had such a tough time in Congress.
KSR's Effect on Patent Law, in which Stephen G. Kunin and Andrew K. Beverina of Oblon, Spivak, McClelland, Maier & Neustadt say that KSR will force both patent prosecutors and litigators to change their strategies.

Some patent lawyers say all this Supreme wrist-slapping has been felt by the Federal Circuit, as most notably evidenced by its August decision In re Seagate Technology, in which it overruled a quarter century of its own decisions and brought itself more in line with Supreme Court precedent. I recently participated in a roundtable on this issue (along with another Law.com blogger, Bill Heinze of I/P Updates), in which a comment made by Morrison & Foerster partner Alison M. Tucher may have hit the nail on the head. Said she: "Nothing concentrates the mind of a judge like being reversed."

October 18, 2007 | Permalink | Comments (0)

Lawyers (Are) (Are Not) More Depressed

In a 2005 guest post on Evan Schaeffer's Legal Underground, Raymond P. Ward wrote that lawyers are more prone to depression than members of any other profession. A few months later, Geoffrey G. Gussis echoed this at his InHouseBlog, saying that lawyers have three times the rate of depression as the general public. Ward's post cited a Johns Hopkins study that said that of 28 occupations, lawyers were the most likely to suffer depression. He also noted a Washington study that found that 19 percent of lawyers were depressed and a North Carolina study that found symptoms of depression among more than a quarter of lawyers. More recently, Carolyn Elefant noted here at Legal Blog Watch that an Australian study had found lawyers to be the most depressed of professionals Down Under. A Buffalo lawyer, Dan Lukasik, has founded a Web site devoted to this issue, Lawyers with Depression. The podcast I co-host, Lawyer2Lawyer, looked at this issue in July, with Lukasik as one of our guests.

Now, in the face of all that, along comes a study that says lawyers are not so depressed after all. Martha Neil of the ABA Journal points to a report published this week by the National Survey on Drug Use and Health that looks at depression by occupational category. Lawyers are way down at No. 11 on the list, tied with movers and just below salespeople. The people with the greatest incidence of depression, this study says, work in the personal care industry and the food preparation industry. Even entertainers and athletes have more depression than lawyers, says NSDUH.

This study focused on occurrences of major depressive episodes, not milder symptoms, which may account for its divergent findings concerning lawyers. It reports that 6.4 percent of lawyers had such an episode in the past year, with the incidents higher among female lawyers than male (8.2 percent for women and 4.6 percent for men).

If, even with this latest study, you aspire to leave law in favor of a less-depressing occupation, the professionals who report the fewest incidents of major depression are engineers, architects and surveyors.

October 18, 2007 | Permalink | Comments (0)

Judge Bans Term 'Patent Troll'

The blog Patent Troll Tracker reports that U.S. District Judge David J. Folsom, who sits in Texarkana, Texas, has entered an order barring the defendant in an upcoming trial from referring to the plaintiff as a patent troll. The term, ruled the judge, "has no probative value and would unduly prejudice the plaintiff."

The order makes sense, says the blog's anonymous author. "Juries don't like it when an attorney bashes the other side," he writes. "Much better in that case to just present the facts and let the presentation of those facts paint the picture." But should the jurors search the Web for the plaintiff's name, they may find themselves back at the Patent Troll Tracker blog, which has previously referred to him as a patent troll.

October 18, 2007 | Permalink | Comments (0)

Happy Conflict Resolution Day

Today is Conflict Resolution Day, an international celebration of conflict resolution. In honor thereof, allow me to point to Victoria Pynchon's post yesterday on her Settle It Now Negotiation Blog entitled Ten Settlement Conference/Mediation Traps for the Unwary. Pynchon became a mediator after 25 years as a trial lawyer, and in this post she shows that she understands the process from the vantage points of both the advocates and the neutral. Her 10 traps:

Leaving stakeholders at home.
Leaving too soon.
Failing to take clues from the mediator/settlement conference judge.
Failing to strategically use joint and separate caucuses.
Letting the judge or mediator act the bully.
Believing that any competent judge or mediator can help you achieve the best settlement.
Sidelining your client on the day of mediation.
Failing to use the mediator to help you bring reality to your client.
Failing to maximize the mediator's strategic skills.
Negotiating in the nano- and strato-spheres.

She explains each of these traps in greater detail. Reading them, I realized she could have easily have titled this post, "10 Tips for Success in Mediation."

In any event, happy Conflict Resolution Day!

October 18, 2007 | Permalink | Comments (2)

October 17, 2007

Finding Middle Ground in the Practice of Law

A few weeks ago, Jeremy Blachman (of Anonymous Lawyer fame) posted about Daniel Brook's new book, The Trap, which discusses the plight of well-educated young people who feel forced to choose between making piles of money or doing work that inspires, but not both. That's certainly an issue that rings true for many new lawyers, who profess to yearn for public interest jobs, but march off to Biglaw to repay loans.

But is the gap between doing well and doing good in law as unsurmountable as it once was? Mark Schmitt suggests not -- at least not as much as there was 20 years ago. Schmitt does acknowledge that in some ways, things have changed for the worse, with student debt far less manageable than it once was. But Schmitt also suggests that there are more opportunities for new college grads to do good. He notes that when he graduated from college, the only options at the career office were jobs at big investment houses. But now there are groups like Teach for America that allow grads to start out doing something good.

Schmitt also notes that nonprofits are paying more, at least for lawyers. He writes:

There's also been a major upgrade in nonprofit pay – at least the nonprofits I'm aware of – as the Baby Boom-generation leaders who had been trained in the Ralph Nader model of asceticism give way to younger leaders who are much more realistic about what people need to make a real career and pay student loans. One of Brook's examples is an ACLU lawyer, but that case proves my point – under its Gen-X president Anthony Romero, the ACLU ramped up its starting pay for lawyers from $36,000 to $59,000, which is not competitive with firms but enough to make it possible to be an ACLU lawyer if you actually want to be an ACLU lawyer, rather than just pretending that you might want to do something socially useful but can't.

I think there's a happy medium for most lawyers, between the extreme of what many regard as soul-less Biglaw on one hand and impoverished public interest on the other. I've certainly found that medium in solo practice, where I earn a good living through my specialization that gives me the ability to choose work -- renewable energy development, civil rights cases or blogging -- that gives me personal satisfaction. But it's taken me nearly 20 years to reach this point. And I think that over time, through trial and error, many lawyers also find their way into a job that enables them to do well and do good, all at the same time.

October 17, 2007 | Permalink | Comments (1)

Civility Starts at Home

Like charity, civility in the legal profession starts from home. At least, that's the approach that's being taken by the firms described in this article, At Firms With 'No Jerks' Rules, Abusive Attorneys Need Not Apply (10/17/07). According to the article, some law firms are attempting to promote a "jerk-free" environment and are cracking down on abusive lawyers regardless of how many hours they bill or how much business they generate. For example, at Perkins Coie, the firm has developed an internal policy for addressing negative incidents, providing a mechanism for attorneys or staff to raise a complaint in human resources. And at Duane Morris, partners who are abusive with co-workers or territorial with clients "have seen their leadership roles diminished or taken away and in some cases were asked to leave the firm."

I'm not confident that firms will stand firm in their conviction to penalize abusive partners who have a big book of business -- though at a minimum, they may find ways to insulate staff from the abuse. And I'm also not sure that associates will report abusive conduct, fearing repercussions. Still, if the legal profession wants to address civility in the legal profession, one logical place to begin is by looking to ourselves. (Indeed, this People's Court judge who flew off the handle at an, admittedly, obnoxious law student-defendant might take that same lesson to heart).

October 17, 2007 | Permalink | Comments (2)

Drought Means the Grass Is Greener -- for Law Firms

Georgia law firms are finding that even in the midst of a drought, the grass is still greener on their side of the country. As this article from the Fulton County Daily Report (10/17/07) describes, record droughts across Atlanta are leading to increased litigation over how scarce resources will be allocated. Already, Georgia is involved in three separate federal cases over allocation of water from Lake Lanier, a U.S. Army Corps of Engineers managed reservoir that serves as the primary water source for metro Atlanta and is now 13 feet lower than normal. Apparently, the Corps is taking heat from state government for giving priority to ensuring water flow to endangered mussel species over protecting the water supply for Georgians. And Georgia is also arguing that water consumption was one of the primary reasons for the construction of Lake Lanier -- a claim rejected by Alabama and Florida.

The article lists dozens of law firms -- from megafirms to public interest to solo practitioners -- feeding off these water-related disputes. Though water supply may have dried up, apparently, work for lawyers hasn't.

October 17, 2007 | Permalink | Comments (0)

October 16, 2007

Lawbreakers Exposed: The Criminals R Us

Even though crime is rampant in this country, vast numbers of lawbreakers remain free. That's a good thing, because how would we get the kids to soccer practice if we were locked up? Yes, the lawbreakers are us, but our criminal conduct, thankfully, is largely ignored. "American law is underenforced -- and we like it that way," writes Columbia Law School professor Timothy Wu in the introduction to his multipart Slate series, American Lawbreaking.

In the series, launched Sunday, Wu explores what he calls the "black spots in American law: areas in which our laws are routinely and regularly broken and where the law enforcement response is ... nothing." Oddly, he starts with an example that does not squarely fit his thesis, That Other Drug Legalization Movement, in which he examines how pharmaceutical companies push legal drugs as substitutes for illegal ones -- Ritalin as stand-in for cocaine, for one. Next, in How Laws Die, he considers the emergence of anti-smut laws and their almost total lack of enforcement -- good news for the 70 percent of men who admit to viewing porn. Next comes Tolerated Use: The Copyright Problem, in which he describes copyright as the second most violated law in the United States, after traffic laws, and one we all breach almost every day.

If all this lawbreaking is relatively innocuous, why should anyone care if it is tolerated? The reason, says Wu, is because we fail to understand this "tolerated lawbreaking" as a means by which our nation creates social and legal policy.

"Almost as much as the laws that we enact, the lawbreaking to which we shut our eyes reflects how tolerant U.S. society really is to individual or group difference. It forms a major part of our understanding of how the nation deals with what was once called 'vice.' While messy, strange, hypocritical, and in a sense dishonest, widespread tolerance of lawbreaking forms a critical part of the U.S. legal system as it functions."

[Hat tip to LawBeat.]

October 16, 2007 | Permalink | Comments (0)

Lawyers in and out of Love

Two stories in the news this week about lawyers in and out of love: one sordid, the other sweet.

First, the sordid. Writing for Legal Times, Nathan Carlile describes the nasty Washington, D.C., divorce battle between John Guttman, partner and former managing partner of the environmental boutique Beveridge & Diamond, and his wife, Nancy Lasater, a former solo practitioner who often represented firms on ethics issues. The sordidness stems from two sides. One is Lasater's allegation that Guttmann forged her signature to borrow from his firm's 401(k) plan in 1993. The other is the admission by Guttmann's successor as managing partner, Holly Cannon, that she and Guttmann began an affair six months before he filed for divorce. In fact, according to Legal Times, Cannon has contributed more than $300,000 to help pay Guttmann's divorce lawyers.

While the Legal Times story details love lost between lawyers, a New York Times piece tells of a lawyer and a love rekindled. The lawyer is Paul L. Mills, who as a 50-something trial lawyer in Los Angeles walked away and returned to a life -- and a woman -- he had long since left behind. That life was as the Manhattan street poet known as Poez, and that woman was an aspiring young singer named Suzanne Vega. Way back when, Mills had asked Vega to marry him, but when no answer came, he eventually headed west to law school, and she married someone else. Years passed, and a curious Mills' Google search for his former self led him to send a message to Vega. Vega, now divorced, replied. Four months later, Mills and Vega married, and Mills gave up law to return to Manhattan and his former life as the poet Poez.

October 16, 2007 | Permalink | Comments (1)

It's 'ODR Cyberweek'

Jason Krause's article in the current issue of the ABA Journal, Settling it on the Web, highlights the growing popularity of online dispute resolution. If his article leaves you wanting to learn more, here is your chance: ODR Cyberweek 2007 is taking place all this week with a series of programs about this developing field. Even better, it is all free and all online, so you need neither leave your desk nor open your wallet.

This is the 10th year running for this online conference, which is sponsored by the National Center for Technology and Dispute Resolution and the Internet Bar Organization. A number of scheduled programs remain for the week, including one on which I am a panelist, "40 ADR Web Sites in 60 Minutes," based on a presentation originally given by New Zealand mediator and blogger Geoff Sharp. Other programs this week will include panels on "Mediation Excellence in Cyberspace," "Conflict Resolution for the 'New Values' Worldspace" and "Taking Peacemaking Public."

Read all about it here, then register here. (And one more shameless plug for anyone in the Boston area: I am chairing an Oct. 18 Massachusetts Bar Association lunchtime panel, Online Dispute Resolution, with two leaders in the field as speakers.)

October 16, 2007 | Permalink | Comments (0)

Sex, Lies and Shenanigans

Item one: A judge in Poughkeepsie, N.Y., has received a public censure from the state's Commission on Judicial Conduct for telling a criminal-defense lawyer in open court that she had "a nice butt." The judge claimed in his defense that he was merely parroting a comment the lawyer's client had made, but the commission noted that the judge went on to poll other male defendants on whether they agreed with the evaluation, which he then repeated to the lawyer, adding, "Is that so bad?" [New York Daily News.]

Item two: The attorney for a Woodland, Calif., dentist charged with groping female patients' breasts is attempting to defend his client's dental license by arguing that the chest massages were medically justified. The attorney told an administrative law judge that rubbing a dental patient's pectoral muscles is an appropriate treatment for temporo-mandibular joint disorder, or TMJ. [Associated Press.]

Item three: A cheating husband's lawsuit against the florist who sent a thank-you note to his unsuspecting wife has been nipped in the bud. As J. Craig Williams noted in August, Leroy Greer sued 1-800-Flowers.com in federal court after his wife intercepted the company's thank-you note for roses Greer had sent to another woman. Greer's lawsuit alleged that the company violated its own privacy policy. But a federal judge in Houston last week dismissed the case, ruling that it should have been brought in New York. [On Point.]

October 16, 2007 | Permalink | Comments (0)

October 15, 2007

New Litigation Trends Survey Announced

This press release announces the results of the annual Fulbright and Jaworski Litigation Trends Survey -- and the release offers extensive coverage of trends. This year was a good year for corporations, with lawsuits down, both where corporations are the defendants or plaintiffs. From the release:

Based on interviews with in-house counsel at 250 major U.S. corporations, 17% of respondents said their companies had escaped the past year without having to defend a single new lawsuit, up sharply from only 11% in 2005-06. American corporations also appear to have backed off as plaintiffs – 65% of respondents said their company had initiated at least one lawsuit in the past year, down from more than 70% a year ago and an even steeper drop from 2004, when 88% of U.S. companies said they had initiated litigation. That litigation may have softened in recent months is evident on another front in the Fulbright survey: only 22% of in-house counsel said they expect to see the number of legal disputes their companies face increase over the next 12 months; a year ago, 33% said they were anticipating a rise in lawsuits involving their company. Even the government seems to have lightened up a bit: 48% of companies reported some regulatory proceedings brought against them in the past 12 months, down more than 4% from a year ago. Internal investigations fell even more sharply. By contrast, U.K. companies have experienced significant increases in both categories.

In the four years since Fulbright has conducted this study, this is the first year showing a decline in litigation.

Still, when suits are brought, the stakes are high. Forty percent of U.S. companies overall were hit with at least one $20 million suit or more, while 62 percent of companies with billion-dollar value or more were hit with a $20 million suit. In fact, the press release poses this question:

Is there a contradiction here? Could U.S. business litigation really be shrinking, even as companies face greater magnitude verdicts and settlements, and increase their budgets for disputes? Indeed, nearly 20% report that their annual litigation spending (apart from cost of judgments and settlements) is $5 million or higher.

The report covers dozens of other trends; for more information, view it yourself. And we'll try to cover some of the other important trends identified in the next few days.

October 15, 2007 | Permalink | Comments (0)

The Power of Corporate Green

I'm always amazed at the power that corporations have over the law firms that represent them. Recall back here almost a year ago, when a corporation even eliminated a large firm from its list of special counsel when the firm failed to meet the corporation's diversity requirements. Well, now, corporate power is also dictating firms' environmental practices. This article on Wal-Mart's efforts to promote environmentalism describes what law firms are doing to come on board:

Even Wal-Mart's law firms, gathered next door to the sustainability fest Oct. 11, got in on the act. Half their agenda was about sustainability. Two firms advertised their green credentials on placards -- including cafeteria silverware made from potato starch and two-sided copies.

As I questioned back here: Are firms going green because of concern for the environment and sustainability -- or because going green lets them make more green? And does it matter anyway?

October 15, 2007 | Permalink | Comments (0)

Blawg Review #130

New Zealand is a day ahead of us here in the United States -- and so the first portion of Blawg Review #130, hosted by Mediatorblahblah.blogspot.com, by New Zealand-based mediator Geoff Sharp, appeared early. But wait, there's a second part as well, over at Boston-based Diane Levin's Online Guide to Mediation. Quite honestly, there are just too many posts packed into this global edition of Blawg Review for any summary to do it justice -- you'll have to visit both hemispheres to view the posts yourself.

October 15, 2007 | Permalink | Comments (0)

More Clients Using Online Wills

Most probate lawyers will tell you that a self-drafted will is a disaster waiting to happen. But members of the public apparently aren't buying that advice -- at least, according to the statistics and personal stories described in this New York Times story, A Need for A Will? There's An Online Way. According to the article:

Between 2005 and 2006, downloads of Quicken WillMaker Plus increased nearly 33 percent, according to Nolo, the publisher. LegalZoom says sales of its estate planning documents are up 73 percent this year from last. And We the People, a storefront franchise that helps people fill out legal forms, has grown to 110 locations in 23 states from 25 locations in 2000, according to the company.

Many of those clients interviewed for the article turned to self-help after finding that lawyers weren't offering low-cost options. John Chuang prepared a will for $70 using Legal Zoom and said that he doesn't foresee using "overpaid" lawyers for any service except a lawsuit. Another mom just wanted a basic package, but found that lawyers were charging $350 for an initial consultation. She and her husband turned to Suze Orman's Will and Trust Kit, for $17.99. By contrast, Alan Rothschild, an estate-planning lawyer, said that lawyer-prepared wills can cost $800 to $1,000, with prices varying depending upon location and complexity of estates.

Perhaps like tax returns (which many taxpayers now prepare themselves with software), simple will documents will also become a self-help proposition. So what's a probate lawyer to do? Try to market a simple will package that's affordable to middle-income clients? Or focus their practice on high-end, complex trusts for high-value estates?

October 15, 2007 | Permalink | Comments (5)

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