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December 28, 2007

Happy New Year to All!

This is my last post for 2007, as Legal Blog Watch will take a break from posting until January 2, 2008. So, I'm echoing my colleague Bob Ambrogi's wishes to our readers, blogging affiliates and the staff at for a cheerful, healthy and prosperous New Year! See you all on the other side! 

December 28, 2007 | Permalink | Comments (0)

Do Beautiful Lawyers Have More Beautiful Careers?

Being beautiful can have beautiful benefits, according to this story, The Beauty Premium.  Obviously, you'd expect beauty to pay off in industries like entertainment or even news media.  But as this story notes, beauty makes a difference even in professions like law.  From the article:

Dr Hamermesh, together with Jeff Biddle, found the difference also applied to professions. They examined the wages of lawyers, using data from the same law school for graduating classes of 1971-78 and 1981-88 and found that those rated attractive on the basis of their graduation photographs went on to earn higher salaries than their less well-favoured colleagues, reports The Economist.

But does beauty carry the same benefits in the legal profession with the advent of blogs?  As we've heard over and over again, most recently from The New York Times, blogging is a low cost, high return marketing tool.  After all, a blog's success is generally judged not by the beauty of its author, but by its content and its character.  If blogs can catapult lawyers to success, does beauty matter as much?

December 28, 2007 | Permalink | Comments (6)

More 'Best Of' and 'Top 10' Lists in the Blawgosphere

Yesterday, my co-blogger, Bob Ambrogi posted ten Top 10 lists for lawyers.   And for the hardcore list junkies, here are some more "top 10's" and "best of's" from around the blawgosphere:

  1. Tax Girl offers her top ten picks for the top ten tax stories of the year.
  2. From Sentencing Law and Policy, an addendum of more top sentencing stories .
  3. White Collar Crime awards The Collar, to those "who deserve our praise, scorn, acknowledgment, blessing, curse, or whatever else you can think of that would be appropriate."
  4. Simple Justice awards the Criminal Defense Lawyer of 2007 Award to David Tarrell, for simply doing his job, albeit under the most trying of circumstances.

Finally, there's at least one honor yet to be awarded -- Blawg Review of the Year.  For information on nominations, see this post at Blawg Review.

December 28, 2007 | Permalink | Comments (0)

2008 Promises to Keep Google Trademark Lawyers Busy

Ah, the dreaded common usage, a fate that's equivalent of death for a trademark, and one which now threatens one of the most recognizable internet brands, Google. 

Back in October 2006, in an effort to save its brand from the graveyard of previously distinctive marks like baby oil or zippers, Google urged users to avoid using the term "google" as a substitute for the generic concept of performing a web search.  But as  Big Mouth Media reports, Google isn't winning in this "war of the verbs:"

This month we have seen sites like Slashdot and even the New York Times using phrases like 'Googling Oneself' in the way that might start Google twitching. A look at Google's own archive of news stories reveals that the phrase 'googled' was used more in 2007 by mainstream media than 2006. In 2007 news sites indexed by Google's own news engine used 'googled' some 2,300 times which compares to only 1,540 in 2006 or only 919 in 2005.

Big Mouth concludes with the prediction that "it seems more than likely that Google's trademark lawyers will be busy in 2008 as the search engine fights to protect one of the world's most famous brands."

Should Google fear the genericization of the term "google?"  Will common usage harm the Google brand?  Or is it simply the best form of flattery?

December 28, 2007 | Permalink | Comments (1)

December 27, 2007

Happy New Year!

This is the last day of 2007 in which I will be posting to Legal Blog Watch. Let me take this opportunity to wish the best for 2008 to all of our readers, to my co-blogger here Carolyn Elefant, to the editors and staff at and to the other members of the Blog Network. And let me offer a huge thank-you to all the thoughtful and opinionated blawgers who provided fodder for this blog throughout the year. May your blogging be bountiful in 2008!

December 27, 2007 | Permalink | Comments (1)

Hell Is What You Make of It

Hellholes Let us hope that when an advocacy organization such as the American Tort Reform Association releases its ranking of the worst Judicial Hellholes, most lawyers, trained as they are in critical thinking, would at least question its objectivity and factual basis. As I wrote here when last year's report came out, one man's hell can be another man's heaven. But some commentators pounce on the report as evidence of justice run amok, as did the editorial page editors of The Examiner, who cited the report to conclude: "Every day, defendants are forced to defend themselves from frivolous lawsuits that clog our judicial system and often leave them financially ruined -- even if they prevail in court or never even go to court."

Thus it was a Christmas Eve gift to read Adam Liptak's insightful deconstruction of the ATRA report in The New York Times. Liptak considers the report from the vantage point of whether its arguments make sense, are supported by evidence and are applied evenhandedly. In these respects, he concludes, "the report often falls short." Among the points he makes:

  • The report is a collection of anecdotes based largely on news stories, with no apparent methodology.
  • The report makes incomplete points, such as when it condemns judicial campaign contributions by plaintiffs' lawyers without mentioning contributions from business groups.

An ATRA spokesman responds to Liptak: "We have never claimed to be an empirical study. It's not a batting average or a slugging percentage. It's no more or less subjective than what appears in The New York Times." That stomach punch to the NYT made for a cute quip, says Mark Obbie at the blog LawBeat,  but it does not take away from the import of the comment:

'Never claimed to be an empirical study' is the equivalent of the old media standby, the 'unscientific survey.' Translated: 'We made this up. The rankings, comparisons, numerical trappings -- all meaningless.' Good to know!

While Liptak may be the most visible critic of the report, others expressed skepticism of their own. In its Dec. 18 story on the ATRA report, The National Law Journal noted that the report "is based on anecdotal evidence" and that ATRA "does not provide a methodology used to reach results." The American Association of Justice predictably called it a slick piece of propaganda. And the blog TortDeform mocked it with a fawning "fanmail" thanking ATRA for drawing attention "to the many injustices corporations have to face day in and day out."

Last year, I closed my post on the Judicial Hellholes report with the words of Harry S. Truman. They ring true still, so I repeat them here: "I never give them hell. I just tell the truth, and they think it's hell."

December 27, 2007 | Permalink | Comments (0)

Getting Respect for Public Defender Blogs

Therodneys2007smallcopythumbnailA year ago, we blogged here about the results of the first-ever public defender blog awards, which creator Greg Worthen of the blog Public Defender Stuff dubbed The Rodneys in honor of the comedian who gets no respect. Yesterday, voting began for the second annual round of Rodneys and will continue through Jan. 2.

Herewith is a brief guide to the categories, the nominees and the voting.

Write-ins are allowed so others can be nominated via comments to the nomination posts.

December 27, 2007 | Permalink | Comments (1)

The Top 10 'Top 10' Lists for Lawyers

With year's end come the inevitable top 10 lists. Here is a roundup of some of interest to lawyers, in no particular order:

  1. From Drug and Device Law blog, the year's 10 worst drug and device product liability cases and the 10 best.
  2. From Patent Troll Tracker, the top 10 silly patents issued this year, the most frequently sued patent defendants and the year's top 10 patent trolls.
  3. From the Association of Corporate Counsel, the top 10 ways to achieve good legal writing.
  4. From BTI Consulting, the top firms for client service. (See also: Humble Lawyers: The Key to Pleasing Clients.)
  5. From Bain & Company, the year's top management tools and trends. (See also: The State of Corporate KM.)
  6. From Sentencing Law and Policy, the top sentencing stories of the year.
  7. Time's top 10 crime stories and TalkLeft's response.
  8. Via Chuck Newton, Google's top 10 law school searches.
  9. From Insurance Coverage Law Blog, the top 10 coverage cases of 2007.
  10. Last but not least, from the ACLU Blog, the top 10 reasons we need an independent prosecutor.

Know of other law-related top-10 lists? Add them to the comments below.

December 27, 2007 | Permalink | Comments (2)

Five, Six, Seven, Eight, What Do You Appreciate?

If at first you succeed, do it again. Last December, two legal bloggers set into motion a year-end meme titled "Lawyers Appreciate ..." They tagged three bloggers with the meme, asking each of them to write a post starting with those words and then tag three additional bloggers. The meme took off, with lawyers appreciating collegiality, integrityclientshaiku and being appreciated, among other things. (I said lawyers appreciate civility.) So this year, the two bloggers -- Stephanie West Allen of Idealawg and Julie Fleming-Brown of Life at the Bar -- have revived it.  As Brown explains, the meme started Dec. 22 and will continue for at least 10 days, through Dec. 31.

Some of what lawyers appreciate so far in 2007: justice, friends, sunrises, passion, doctor jokes, a good fight, returned calls, family and, of course, year-end appreciation memes. Stephanie West Allen is keeping track of the posts at Idealawg.

December 27, 2007 | Permalink | Comments (0)

December 26, 2007

Hands Down, the Absolute BEST Lawyer Ad of the Year

I don't know whether Tom Goldstein of SCOTUS Blog intended this holiday greeting video as a marketing tool, but hands down, it's the best, absolute BEST lawyer advertisement of the year.  In a video just shy of three minutes, which appears to have been home-produced on a Mac, Goldstein subtly conveys that (1) he has direct access to, and is on a first name basis with, Supreme Court luminaries like Laurence Tribe and Solicitor General Paul Clement; (2) he's a go-to resource for media folks like Nina Totenberg and (3) he can (and does) respond to inquiries within seconds, using data that he carries, quite literally, in the palm of his hand.  For clients who need a first rate, cutting edge Supreme Court litigator, Goldstein's video makes a powerful case.

The genius of the video goes further, though, capitalizing on current trends.  Showing off an iPhone will make Goldstein the darling of the tech community,  a potentially rich source of Supreme Court litigation.  And with Apple presumably eager to combat the perception of the iPhone as a toy, rather than a serious business application, I wouldn't be surprised to see Goldstein's video featured in an iPhone commercial, thus giving Goldstein even broader exposure.

As I predicted earlier, videos represent a growing trend in online law firm marketing.  Lawyers (and marketers), watch and learn!

December 26, 2007 | Permalink | Comments (6)

Blogosphere Conversation of the Day: Does Avvo Help or Hurt Small Firms?

Last week, we posted news that a federal judge in Seattle dismissed a class action complaint filed by two lawyers against lawyer-rating and directory site, Avvo.  Having survived the lawsuit storm, Avvo's now the topic of a rousing debate (hosted here and here by criminal defense lawyer Scott Greenfield over whether the service helps, harms or has no impact at all on solo and small firm practitioners.  And you'll also find related posts on the topic by Kevin O'Keefe, Susan Cartier Liebel, Sheryl Schelin (who interviews Avvo CEO Mark Britton via podcast) and yours truly, at my home site, My Shingle

So don't be shy -- jump in and offer your views on Avvo.  And if you're aware of any other rousing debate making its way around the blogosphere, drop me a line, so that I can highlight it here at Legal Blogwatch.

December 26, 2007 | Permalink | Comments (1)

Is All That Associate Salary Green Nothing More Than a Red Herring?

Red and green are the hues of the holiday season, so it's not surprising that they color Bruce MacEwen's end-of-year opus, A Compensation Meditation.  As I read it, MacEwen's musings boil down to this: For all of the griping that enormous associate salaries generate, when viewed under the harsh light of rigorous economic analysis, associate "green" is nothing more than a red herring.

In his post, MacEwen tackles the "maddening" (his words) complaints over rapidly increasing associate salaries (we've discussed some of these issues previously at Blogwatch, here and here). For those who claim that "first years can't possibly be worth the amounts they're paid," MacEwen responds that comparative pricing, such as comparing the cost of a first-year at a large firm versus a law librarian, "confuses the presumed social benefits conferred by a slice of the labor market with what society at large ought to be willing to pay those who have chosen a career there."  Markets and business don't work that way, however, so law firms base salary on the expected return that the firm hopes to earn on the associate's labor over time. 

Moreover, as firms have increased in size, so too has the demand for associates from the upper ranks of top-tier schools, thus driving up the price for talent.  You can argue, as would I, that a far larger number of law school graduates than the top handful from elite schools, can excel at large firms and even perform better than their more well-credentialed peers.  But apparently, law firms aren't buying that argument, which accounts for today's scarcity-induced salary increases.

Next, MacEwen reaches what I consider the most compelling argument against associate salaries:  client complaints that salaries are too high. To this, MacEwen exclaims that "the only intelligent response to this is, 'Snap out of it!'"  He writes:

No sensible buyer cares about the cost of each, or any, specific component of what they're contemplating purchasing; they care about value for price(emphasis added). Here's a  concrete example:  If I'm debating whether to buy a BMW or a Lexus, do I care what the factory-line workers get paid?  For that matter, do I care what each CEO gets paid?  Not unless I'm hyperventilating about some tendentious socioeconomic cause—in which case we can stipulate my purchasing decision will not be made on the merits of value for price.

Because MacEwen sees no rational basis for clients' obsession with associate salaries, he hypothesizes that the reasons are psychological: In-house counsel are jealous and resentful that newbie biglaw associates earn more than corporate lawyers. 

MacEwen got it right when he said that "clients care about value for price" and that corporate counsel are resentful.  When a client pays for a new associate who took 80 hours to complete a task that an experienced lawyer could have dispatched in a fraction of the time, clients don't see value, they see billing abuse -- which is why they complain about price.  And if corporate counsel are resentful, perhaps it's because they believe that law firms are passing on the higher rates that they pay for new associates, without conferring any added value.

Complaints over associate salaries aren't a red herring at all.  Rather, they're symptomatic of a larger, growing perception among corporate clients that law firms aren't delivering sufficient value to justify the rates that they charge.  Seems to me that the quickest way to eliminate complaints about associate salaries isn't to educate clients about the law of supply and demand, or worse, to shut them up.  It's to deliver enough value so that price, quite simply, is no longer an object.

December 26, 2007 | Permalink | Comments (0)

Blawg Review #140, and a Roundup of Other Holiday Deals

With Christmas over,  bargains abound -- not just in conventional retail stores, but also in that great marketplace of ideas, the blogosphere.  So for those of you shopping around for new ideas or inspiration as the year winds down, here's a roundup of some of the best deals that the blogosphere has to offer:

In the spirit of The Twelve Days of Christmas, Blawg Review #140, hosted by Jonathan Frieden at E-commerce Law gifts links to twelve great blog posts, plus another handful of stocking stuffers. 

For the fourth straight year, Dennis Kennedy continues his annual Blawggies Award tradition, bestowing honors on the best law-related blogs of 2007, and sharing the results with readers.

When it comes to achieving a successful legal career, emotional intelligence (EI) matters more than credentials, pedigree or a high-powered network, writes Jane Genova at Law and More. And for those of us for whom EI isn't a natural gift, Genova gives us the gift of her e-book, Emotional Intelligence: Wisdom from the Jersey Girl for on the job, our own businesses and more.

If it's online exposure or recognition that you desire, Bob Ambrogi's article, To Get Noticed, Blow Your Horn is just the ticket.  Ambrogi identifies a bunch of Web sites launched in recent months, such as JD Supra, docstoc and Tractis (see also, my earlier post), all of which help lawyers get noticed, keep informed, manage contracts and get research help.

Susan Cartier Liebel is giving the gift of her expertise as the grand prize in her So You Want to Fly Solo contest, still running full throttle at her site, How to Build A Solo Practice, LLC.

If you come across any other online holiday bargains, or want to let us know about a gift that you're offering readers, please leave a comment below or email me at [email protected].

December 26, 2007 | Permalink | Comments (1)

December 21, 2007

Is Blogger 'daTruthSquad' a Lawyer?

That is what the New Jersey township of Manalapan would like to know and what a judge today will decide whether it gets to find out. In Superior Court in Freehold, N.J., today, lawyers from the Electronic Frontier Foundation will argue in favor of preserving the anonymity of blogger daTruthSquad, while lawyers for the township will seek to enforce a subpoena to Google (host of the blog via its Blogger service) demanding that it unmask the blogger and turn over his contact information, draft postings and e-mails.

All of this stems from a legal malpractice suit the township filed last June against its former attorney Stuart Moskovitz, alleging misconduct in handling the township's purchase of polluted land in 2005. According to an EFF Web page devoted to the case, the lawsuit became the center of "a lively debate in the regional press and among local bloggers," with blogger daTruthSquad emerging as one of the township's most vocal critics. The township asserts that the author of daTruthSquad is none other than Moskovitz himself and that by writing the blog he has violated a gag order the court imposed on the parties to the case.

It is not clear from the township's pleadings how it comes to this belief; the only explanation it provides is that the blog frequently refers to "da Mosked Man," which it says is "obviously the defendant, Stuart Moskovitz." For his part, Moskovitz has denied that he writes the blog. EFF says that the township has "no evidence to back up its accusation." It is for the court to sort this all out in today's hearing. Meanwhile, the EFF's page, Manalapan v. Moskovitz, collects all the pleadings in the case and rounds up several news reports and blog posts. Bashman also has a roundup of news reports.

December 21, 2007 | Permalink | Comments (0)

Grannies Pissed Off, but Not Guilty

OK, this story is a week old, but well worth mentioning. Five grandmothers charged with "unlawfully and intentionally causing substantial inconvenience to the United States" for protesting the war in Iraq won acquittal last week from a jury in Portland, Ore. The five, known as the "Seriously Pissed Off Grannies," faced charges of criminal mischief in the third degree after holding a silent vigil last April at the Army and Marine recruiting center in Portland.

As the National Lawyers Guild blog reports, as part of the vigil, the Grannies placed bloody handprints on the windows of the recruiting center using water-soluble red poster paint. While the Grannies argued that their protest was protected by the First Amendment, the prosecutor drew parallels to suicide bombers and terrorists. According to, District Attorney Seth Steward argued a guilty verdict was required to "protect our troops." He warned:

"Think of some evils that could happen and why it is important for the line to be drawn here. On September 11 some people drove planes into a building to prove a point. The defendants say their conduct is necessary to avoid imminent danger because people dying in Iraq. That is the same thing suicide bombers say."

Defense attorney Robert Callahan countered that the DA was trying to turn a simple bottle of poster paint into "a weapon of mass inconvenience." As the NLG blog says, "The jurors wisely chose to protect free speech rights and acquit." In fact, one juror later called the Grannies "heroes." Photos of the victorious Grannies can be seen at the Portland Independent Media Center.

December 21, 2007 | Permalink | Comments (0)

Lawyer Said to Have Stolen From Own Firm

A grand jury in Boston yesterday indicted former federal prosecutor Philip Giordano on charges that he stole at least $150,000 from a bank account he shared with his former law partners at the now-defunct firm Giordano, Champa & Powers. The Boston Herald quotes the Suffolk County district attorney's office as saying that, between January 2002 and September 2004, Giordano "paid himself thousands of dollars worth of compensation checks" and used a debit card linked to the firm's bank account to withdraw cash and pay for personal expenses.

A 1983 graduate of Syracuse University College of Law, Giordano was a special assistant U.S. attorney in New Jersey handling fraud cases from 1986 to 1991. Earlier, he was staff attorney with the U.S. Securities and Exchange Commission. He now has his own firm focused on corporate and securities law. He is scheduled to be arraigned Jan. 15 in Suffolk Superior Court.

December 21, 2007 | Permalink | Comments (0)

Presidential Campaign Roundup

Presbadge Legal Blog Watch has been following law-related developments in the presidential campaign (here and here). Here are some of the latest developments:

  • New Mexico Gov. Bill Richardson, Democratic candidate, became the first presidential hopeful to respond to the Sunshine Campaign survey regarding open government. Richardson said he supports open government and "would ensure that the obsessive secrecy of the Bush administration will be rolled back." He also supports a reporters' shield law, would reverse an executive order limiting release of presidential records and would "use the bully pulpit of the presidency to protect the First Amendment rights of all scientists, including federally funded ones, to release all information to the public in the absence of a compelling reason to withhold it." He is less strong on cameras in the courtroom, saying, "each court must make its own determinations on what it is most comfortable with in each circumstance."
  • Slate's Emily Bazelon asks the candidates to name their legal advisers. All do, except John McCain and Hillary Clinton. The lawyer candidates ignore Bazelon's request for their LSAT scores. Joe Hodnicki at Law Librarian Blog says Bazelon's list (which he erroneously attributes to Molly McDonough, who blogged about it) missed some names.
  • TechCrunch, the blog of recovering lawyer Michael Arrington, announces its own political primary to select the "Tech President" candidate. Voting opened Dec. 18 and will run through Jan. 18. Included is a summary of candidates' positions on key tech issues such as net neutrality, IP and the "Digital Divide."
  • Informed voter, are you? Try this holiday political quiz from Gail Collins in The New York Times.

December 21, 2007 | Permalink | Comments (0)

December 20, 2007

The State of the Blogosphere

With 2007 drawing to a close, I've noticed a couple of posts on the "state of the blogosphere" and predictions about the future. At Volokh, Orin Kerr remarks that 2007, for the most part "was a year of little growth or even a slight decline among law blogs." Kerr cites David Lat's Above the Law as the year's biggest success, but other than that, he senses that "there hasn't been a lot of growth in overall law blog postings and readership." Kerr offers two possibilities: Either blogging has hit a saturation point, or blogger enthusiasm is declining as some begin realize that blogging involves "a lot of hard work."

Daniel Solove picks up the conversation at Concurring Opinions. To some degree, Solove agrees with Kerr that blogging may have reached a saturation point. Solove explains:

Many blogs have very small audiences. Only a few law blogs have more than 1000 readers per day. My guess is that the number of law blogs with more than 1000 readers has not increased dramatically over the past few years. There are so many blogs that a person can read, and many folks have found their favorites now and are content.

Solove also offers some interesting predictions about the future of blogging. These include:

  1. Popular blogs will continue to grow their audience, and only a few new blogs will break into the upper echelons;
  2. More law professors and lawyers will blog, some temporarily as guest bloggers;
  3. More new and/or younger law professors will blog to advance their careers;
  4. Blog readership will grow steadily, albeit not exponentially, and most new readers will gravitate to established blogs.

Kerr and Solove raise some sound points, but I think that there's much that they've overlooked. Here are my predictions:

  1. We'll see many more lawyers, particularly those at small and midsize law firms, growing their business by starting blogs directed at local niche markets.
  2. With 2008 as an election year, we'll see a resurgence of blogs like Rick Hasen's Election Law Blog. Also expect added media attention on blogs like Doug Berman's Sentencing Law Blog, which covers sentencing issues such as capital punishment that may be potential fodder for presidential debates. SCOTUS Blog may also figure more prominently, as candidates are questioned about their views on potential Supreme Court nominees.
  3. 2008 will be a banner year for single-issue blogging, like David Rossmiller's coverage of "everything Richard Scruggs," Above the Law's coverage of Aaron Charney's lawsuit against Sullivan & Cromwell or Durham in Wonderland, covering the Duke lacrosse team rape case. Lawyers looking to write a "break-out blog" ought to identify a hot issue and run with it.
  4. With the increased availability of wireless Internet access, we can expect more live blogging of important trials and appellate arguments.
  5. Law firms will continue to flounder when it comes to PR in the blogosphere, as did Nixon Peabody with its response to the release of its theme song or Cohen Grigsby's troubles following a YouTube video featuring CG lawyers' immigration advice on how not to hire Americans or those firms that lobbed heavy-handed cease-and-desist letters. This year will be a learning year for law firms on how to protect their own reputation as well as that of their clients in the blogosphere. I predict that by the end of the year, law firms will surmount the learning curve, and we'll see more law firms using blogs in a more proactive way to promote their reputations.
  6. Finally, more lawyers will add video commentary to their blogs to add personality and differentiate them from the pack.

Now that my predictions are committed to writing, you can hold me to them at the end of next year. In the meantime, readers, what do you think lies ahead for blogging in 2008? 

December 20, 2007 | Permalink | Comments (6)

Will Martindale-Hubbell Go the Way of the Yellow Pages?

At the beginning of 2007, law marketing guru Larry Bodine urged lawyers to cancel their yellow pages ads, which had been rendered obsolete in an Internet era. Now, many law firms are considering that same advice when considering whether to retain a listing in the venerable "Yellow Pages for Lawyers," Martindale-Hubbell.

An informal survey of Philadelphia firms by Stacy West Clark of the Delaware Valley Law Firm Marketing Group found that "more law firms than not" had decided to either eliminate or scale back their use of Martindale-Hubbell, according to this recent article, Martindale-Hubbell Faces Challenges. With more and more corporate clients turning to the Internet as a source of information on law firms, some firms and their marketers question whether the costs of a Martindale listing are justified or are better spent on developing a robust Internet presence.

Martindale-Hubbell has been responding to concerns by rolling out different services that would make listings "indispensable tools" for corporate counsel. For example, Martindale now allows lawyers to post articles and to view traffic driven to the firm's Web site as a result of a link from Martindale. These services will offer a benefit to corporate counsel looking to find an attorney and also aid law firms in evaluating the usefulness of Martindale-Hubbell to their marketing efforts.

Barry Solomon, head of client relations at LexisNexis, which owns Martindale, views the new developments as a long-term effort, a work in progress. But will change at Martindale-Hubbell come quickly enough to keep it relevant in the Internet Age?

December 20, 2007 | Permalink | Comments (2)

Are Corporate Clients Entitled to Lawyers of Their Choosing?

Criminal defendants have a constitutional right to a lawyer of their choosing, and ethics codes hold sacred the concept of client choice. But ironically, clients who retain large law firms for representation may encounter some limitations on their ability to choose specific lawyers within the firm that they want to staff their case.

As Rees Morrison describes in this interesting post, corporate law departments have some say over staffing matters.  Morrison describes that a growing number of corporate law departments -- 20 percent, based on a recent survey -- prohibit first- and second-year associates from working on all matters.  And more than half of in-house counsel polled said that they make decisions about using lower-level associates on a case-by-case basis.

Thus far, law firms have, apparently, been willing to honor requests by corporate clients to preclude junior associates from working on certain matters.  But Morrison says that "law firms will blanch" if corporate counsel were to handpick a team to work on its matters.

Should corporate counsel act more aggressively to select individual lawyers within a firm that they want to work on a case?  And how accomodating is your firm to these sorts of requests, assuming that they're made?

December 20, 2007 | Permalink | Comments (1)

Pseudonymous Commenter Wins WSJ Law Blog Lawyer of the Year Award

Never mind that Loyola 2L, the pseudonymous, muckraking law student who comments on the poor job prospects for graduates of lower-tiered law schools at blogs like WSJ Law Blog and Above the Law may never beat out his peers from elite schools for a high-paying associate position.   In a recent contest at WSJ Law Blog,  Loyola 2L downed far more formidable competition, trouncing legal luminaries like Supreme Court Justice Clarence Thomas, former AG Alberto Gonzales and Pakistan's Chief Justice Chaudhry to win the coveted title of  WSJ Law Blog Lawyer of the Year.

In a profession where $180,000 salaries for new associates dominate headlines, Loyola 2L captured the perspective of the forgotten lower-tier law school graduate with comments like this one:

Two years ago I stupidly enrolled in Loyola Law School, thinking it would lead to a decent job,” he wrote. “Now I’m in massive debt and have been taught a hard lesson. … Students from tier 2 schools aren’t allowed to have good jobs, despite all the money and work we put into the education.”

Loyola's comments struck a chord with many blog readers who empathized with him or had endured a similar experience.  But he annoyed others who advised that his job prospects would improve if he worked harder.

Loyola 2L's experience teaches a valuable lesson that transcends his more limited point about the folly of taking on massive law school debt in a job market that offers no guarantee of financial success.  By commenting incessantly at heavily trafficked blogs with a built-in audience, Loyola drew attention to his message far more effectively than through more conventional means, such as writing an op-ed piece for a bar journal.  And in Loyola's case, even starting his own blog might not have given him as much exposure as comments, since it's unlikely that Loyola would have generated a broad reader base beyond his more limited constituency of dissatisfied law students.   

Could it be that the 2L in Loyola's name really stands for "to leverage," i.e.,  to leverage the power of popular blogs?

December 20, 2007 | Permalink | Comments (0)

December 19, 2007

Judge: Lawyer Rating 'Ludicrous' But Legal

A federal judge in Seattle yesterday dismissed the class action complaint filed by two lawyers against lawyer-rating site Avvo (as I noted earlier today at my blog LawSites). While observing that the rating of attorneys (and judges) has become "ludicrous," U.S. District Judge Robert S. Lasnik ruled that the opinions expressed through Avvo's ratings system are absolutely protected by the First Amendment. Here is the opinion's best sound bite:

Rather than seeing the Avvo ratings for what they are -- 'that and $1.50 will get you a ride on Seattle’s new South Lake Union Streetcar' -- plaintiffs Browne and Wenokur want to make a federal case out of the number assigned to them because (a) it could harm their reputation, (b) it could cost them customers/fees, or (c) it could mislead the lawyer-hiring public into retaining poor lawyers or bypassing better lawyers. To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action.

The judge, who also ruled that the Avvo system does not violate the Washington Consumer Protection Act, clearly thinks little of rating systems. At one point, noting his own selection as one of the leading judges in the United States by Lawdragon, he cites his parents' words of wisdom from when he was growing up on Staten Island: "That and five cents will get you a ride on the ferry." At another point, he pokes at the irony in plaintiff John Henry Browne's contention that his Avvo ranking of 5.5 must be inaccurate because he was designated a "Super Lawyer" by Washington Law & Politics magazine: "Why one should assume that the attorney rating system developed by Washington Law & Politics is any better than that used by Avvo is not specified, and the Court is not inclined to make such an assumption."

Avvo CEO Mark Britton, commenting on the ruling in a post at the Avvo Blog, picks up on the ludicrous theme to call the case preposterous. He writes:

As I have said many times before ... this is a case that never should have been filed. It was aimed at chilling and censoring the opinions of Avvo, consumers and even other lawyers. So preposterous was the case that I don’t need to give it any more ink here. Simply read Judge Lasnik’s decision -- it sums up the preposterousness better than I ever could.

Further reading:

December 19, 2007 | Permalink | Comments (1)

The Lawyer-Entrepreneurs Behind Swaptree

Take eBay and replace its cash-based e-commerce with a system of bartering and you have the basic idea behind Swaptree, a site launched in 2006 by two Boston-based entrepreneurs. While I'd heard about Swaptree, I had not realized that its two founders, Greg Boesel and Mark Hexamer, are lawyers and graduates of my alma mater, Boston College Law School. According to this short piece from the BC Web site, the pair graduated from BC in 1999 with joint JDs and MBAs.

While Swaptree is not the first bartering site, it is the first, according to a 2006 story in Business 2.0 magazine, to allow direct trades among more than two people. "Thanks to a nifty algorithm designed by Boesel, Swaptree can engineer three- and even four-way trades among users who want different things." This makes Swaptree like eBay, "but better," the article says.

Boesel and Hexamer launched their first business before they even graduated from BC. As law students in 1998, they created Sidebar Software, a company that markets the legal-research software tool CiteIt!. They initially started Swaptree with $200,000 raised from family and friends before receiving an infusion of $2 million in capital from additional investors. While Swaptree is free to use, the pair plan to make money through advertising. Another lawyer-turned-entrepreneur, Michael Arrington, has several reports on Swaptree at his blog TechCrunch.

Footnote: A quick search suggests that Swaptree may be just the place to locate or unload used law books.

December 19, 2007 | Permalink | Comments (1)

Survey: Companies Unprepared for EDD Rules

Almost half of corporate counsel say their companies were not prepared for new federal e-discovery rules that took effect in December 2006 under revisions to the Federal Rules of Civil Procedure. A fifth could not even say whether their companies were prepared. And in the year since the revised rules took effect, many in-house legal departments still misunderstand the requirements.

These are some of the findings of the LexisNexis Corporate Counsel Survey, which it conducted in October at the annual meeting of the Association of Corporate Counsel. The results -- released to coincide with the one year anniversary of the revised rules -- "bring to light how unprepared corporate counsel attorneys felt they were when new amendments to the federal rules went into effect a year ago, and that challenges still exist," said lawyer and LexisNexis Applied Discovery VP Courtney Barton in releasing the survey. Among its other findings:

  • In-house counsel say their biggest challenges in complying with the rules are internal, with 27 percent citing poor communications with their IT departments, 25 percent citing budgetary restraints, 21 percent citing lack of buy-in from upper management and 9 percent citing difficulty in finding skilled e-discovery staff.
  • Confusion persists about the rules and may even be escalating. Seventy percent of corporate counsel erroneously say the rules require production of documents in their native file formats -- 27 percent more than said that in the prior year's survey.
  • The new rules have upped the discovery workload for in-house lawyers. Nearly three-quarters of respondents said that their company has seen an increase of up to 20 percent in discovery workload.

Despite these negative findings, the survey concludes that many corporations are taking steps in the right direction to ensure that they are compliant with the rules. Eighty-two percent of respondents said they had a document-retention policy, two-thirds said they had implemented a formal legal holds policy, more than 40 percent said they had conducted employee training on compliance this year and a quarter said they had hired an EDD counsel or ESI coordinator. "Many corporate counsel have begun to take the fundamental steps necessary to ensure their companies are better prepared for discovery and litigation," said Barton.

December 19, 2007 | Permalink | Comments (0)

Judging a Book by Its Cover

Solobychoice You can't judge a book by its cover, they say. But who are "they" and have they seen the cover of Carolyn Elefant's forthcoming book? Elefant, of course, is my co-blogger here at Legal Blog Watch and longtime blogger in her own right at She is about to release her first book, Solo by Choice: How to Be the Lawyer You Always Wanted to Be. The book will not be available until Jan. 7 (although you can pre-order it now), but in the meantime, Carolyn has this advance look at the cover. Judging by the cover (and knowing Carolyn), the book looks like a winner.

December 19, 2007 | Permalink | Comments (0)

December 18, 2007

How Do Employers Feel About Binding Arbitration to Resolve Fee Disputes, Legal Malpractice Claims?

Employers' mandatory arbitration agreements are coming under close scrutiny in the aftermath of a high profile case involving defense contractor KBR's (a Halliburton subsidiary) attempt to compel Jamie Leigh Jones to arbitrate claims of rape and harassment against the company.  KBR contends that Jones' employment agreement requires arbitration of all disputes arising out of employment with the company.  (For discussion of the pros and cons of use of arbitration in the Jones case, see The Consumerist and Overlawyered.) 

Today, the Wall Street Journal carries this article on the increasing use of mandatory arbitration agreements by employers, and the WSJ Law Blog asks, are plaintiffs better off in court or arbitration? Daniel Schwartz of Connecticut Employment Law Blog clarifies that while many employers are using arbitration agreements, it's by no means a majority.  And Schwartz also points out that arbitration isn't right for every employer.  Meanwhile, the team at the Georgia Injury Lawyer Blog strongly objects to employer arbitration agreements, arguing that arbitration clauses inconvenience plaintiffs and deprive them of important rights to have their cases heard in court.

Of course, employers don't have a lock on use of arbitration agreements.  For example, this article addresses the legality of "Do Not Sue" agreements used by medical professionals.  And ABA Formal Opinion 02-425 holds that lawyers can ethically require binding arbitration of fee disputes and malpractice claims "if client has been apprised of advantages and disadvantages and given sufficient information about the provision -- and arbitration provision does not insulate lawyer from liability to which he'd be exposed under common law."  (Note -- some states may impose additional restrictions on lawyers' ability to force clients to arbitrate malpractice claims.)   

With malpractice claims against law firms on the rise, most law firms may find mandatory arbitration agreements beneficial, if only to keep the claims against them outside of the public eye and the public dockets.  So, I wonder: Are employers and lawyers consistent about their position on arbitration when it impacts them personally?  Do those lawyers who object to binding arbitration ever implement these provisions in their own retainer agreements?  And do those employers who favor mandatory arbitration balk about signing a retainer agreement that requires them to arbitrate fees?  I don't know the answer, so if you have any insight, please post a comment below.

December 18, 2007 | Permalink | Comments (2)

Wachtell's $10 Million Fee "For Services Rendered" Questioned

Yawn.  Yet another fee dispute, this one involving venerable Wachtell, Lipton, Rosen & Katz.  And at $10 million, the disputed amount pales by comparison to the recent $42 million contingency fee controversy between Alice Lawrence and the lawyers who represented her in litigation over her late husband's estate, which didn't generate much commentary despite a bang up post by David Giacalone.

There's not yet much detail available about the Wachtell fee controversy. According to this WSJ blurb, Wachtell's fees arise out of its role in advising the Bancroft family in connection with deliberations regarding the sale of publisher Dow Jones to News Corp.  From the article:

News Corp. gave the family $30 million to cover its fees. The remaining tally -- estimated at as much as $3 million above the News Corp. contribution -- is causing family members to ask advisers questions about the nature of the charges.  One item is a $10 million bill from Wachtell, Lipton, Rosen & Katz and its namesake attorney, Martin Lipton. Unlike most law firms, which bill by the hour, Wachtell simply submits an invoice for "services rendered."  Some family members argue Wachtell doesn't deserve the $10 million. As they see it, Mr. Lipton and his firm acted as little more than emissaries between the family and News Corp. They zero in on the fact that News Corp.'s unsolicited $60-a-share offer, submitted in April, didn't improve by the time the deal was sealed Aug. 1. Family members note that Wachtell didn't have a formal engagement letter with them.

Though the Lawrence and Wachtell fee dispute involved different subject matter (an estate and corporate transaction, respectively), at the same time, both cases have several common features.  In both cases, the clients complained that their lawyers didn't provide adequate value for the amount paid.  Lawrence argued that the extra $42 million awarded to her lawyers didn't provide her with any value, since she wound up with the same $60 million that she'd have obtained even without the lawyers' extra five months of work.  And the family in the Wachtell case contends that the firm doesn't deserve $10 million since the firm didn't improve on the deal already offered.  In addition, neither case involves the much maligned billable hour, which critics blame for most of the evils in the profession, including out-of -control rates and lack of value to clients.

I'm no fan of the billable hour and endorse new approaches to maximize value to clients.  But as the Lawrence and Wachtell cases show, even cases involving alternative billing can raise questions about whether the client received value at the end of the day.

Do you think that use of the billable hour would have averted the disputes in these cases?  Or were these cases ripe for controversy under any system because of a mismatch between the law firms' understanding of their role and the client's expectations?  And why are lawyers so interested in concepts like value billing (a topic which always attracts plenty of discussion) but at the same time, so blasé in commenting about the increasing cost of legal representation?  Is it because expensive legal fees are simply a fact of practicing law in today -- or do lawyers avoid criticizing high fee awards out of self-interest?

December 18, 2007 | Permalink | Comments (1)

How to Leverage Your Blog Posts

Leverage and grow isn't very useful or substantive advice for law firms seeking to identify the opportunities, or tackle the challenges associated with operating in a 21st century global economy, says Bruce MacEwen.  But for matters such as running a blog (which is far less complex than managing a 3,000 person enterprise), leverage and grow may be just the trick for success, according to Jane Genova of Law and More.

Genova points out that leveraging blog posts makes all the difference between a successful blog that generates business and one that may lead to lots of interesting discussion, but doesn't produce a dime of revenue.  So how does one leverage a blog?  Genova suggests:

  1. Choose certain posts (particularly those where you express an opinion) and transmit them to the media and those who can help to reel in business.
  2. Compile your best content into a self-published 35 page e-book to distribute for free, or even try to sell on Amazon (Matt Homann is already doing this).
  3. Be a guest on another blog to experiment with a different voice and obtain additional exposure.
  4. Identify business prospects and interview them for your blog.

Of course, not all bloggers want to leverage their blogs for business. Simple Justice's Scott Greenfield expressed in an interview with Lexblog that he blogs for fun, not for the purpose of marketing himself. 

Do you have any ideas for leveraging blogs?  Do you find that blogging for business takes the fun out of blogging -- or does blogging simply become a fun way to develop business? 

December 18, 2007 | Permalink | Comments (5)

Are All Public Servants Created Equally When It Comes to Private Sector Salary Potential?

The disparity between judges' salaries and those of their private sector colleagues is frequently invoked as justification for judicial pay raises.   In the absence of parity, many believe that judges will bolt for the private sector when financially expedient to so.  Indeed, the House Judiciary Committee cited the pay gap in support of a draft bill, released this past Wednesday, that would increase salaries in an effort to curb the growing number of federal judges who resign due to inadequate pay.

But can all federal judges command a stratospheric private sector salary?  Perhaps not, at least if the salaries of departing U.S. Attorneys are any indication.  Over at Above the Law, sharp-eyed David Lat noticed that Joseph Russoniello, who was recently named as U.S. Attorney for the Northern District of California for the second time (he previously held the slot from 1982-1990, according to Wikipedia) only earned $244,802 in his former position as counsel to Cooley Godward. As such, Russoniello won't experience much of a change financially with his new salary.  By contrast, Michael Mukasey, who earned $1,993,367 over 21 months while in private practice, will make just $186,600 as Attorney General.

Just as all new lawyers don't necessarily earn $160,000 a year, we shouldn't assume that all sitting judges will necessarily double or triple their salaries in private practice. There may be good reasons to increase federal judicial salaries (for example, to show added respect for the position or to keep pace with the cost of living); I'm just not so sure that the pay gap is one of them.

December 18, 2007 | Permalink | Comments (0)

December 17, 2007

'Quixotic' Campaign Against Criminal Code

The 7th U.S. Circuit Court of Appeals last week slapped hard the knuckles of Texas lawyer M. Engin Derkunt for his persistence in arguing that the entire federal criminal code is void ab initio due to a 1948 procedural mistake by Congress in enacting it. (Short version: The two houses never voted on the identical text.) At his blog Decision of the Day, Robert Loblaw describes U.S. v. Collins as a case in which the circuit "trashes another attorney (and rightly so)." Here is what Judge Richard Posner said about lawyer Derkunt:

Concerning Collins’s appeal, we can be brief. Apart from a perfunctory and indeed frivolous attack on the sufficiency of the evidence, Collins’s lawyer, M. Engin Derkunt of the Texas Bar, devotes his entire brief to arguing that Title 18 -- the federal criminal code -- is unconstitutional because of supposed irregularities in its enactment. We recently described an appeal in which Derkunt made the same argument on behalf of another client as 'unbelievably frivolous.' ... We affirm the judgment against his current client, without prejudice to the client’s seeking post-conviction relief on the ground of ineffective assistance of counsel, and we order Derkunt to show cause why he should not be sanctioned for professional misconduct in this court. We are also sending a copy of this opinion to the Texas Bar disciplinary authorities. His quixotic crusade -- 'Title 18: The U.S. Criminal Code - Void ab initio,' visited Nov. 7, 2007) -- is a profound disservice to his clients.

From the Web site Posner references,,  it appears that Derkunt is not alone in his crusade. The site features a habeas corpus petition filed with the Supreme Court in September by two other lawyers, James W. Parkman of Birmingham, Ala., and Barry A. Bachrach of Leicester, Mass., that makes the same argument that the code is void. An accompanying blog reports that the Supreme Court denied the petition Oct. 26, but the quixotic bunch has petitioned for rehearing. Given their track record in the courts, perhaps they should take their case directly to Congress, where they say the trouble all started in the first place.


December 17, 2007 | Permalink | Comments (0)

Fifth Amendment Protects PGP Passphrase

At his CNET blog The Iconoclast, Declan McCullagh reports on a Vermont federal magistrate's ruling preventing prosecutors from forcing a defendant in a child porn case to divulge his PGP encryption passphrase.

U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination.

At The Volokh Conspiracy (which has the text of the ruling), Orin Kerr says the the decision was wrong, at least given the facts of the case. For Kerr, the nub was that the defendant voluntary showed border agents the location of the pornography on his computer when they first questioned him. It was only later, when a forensic analyst went to look at the hard drive, that he was blocked by the drive's encryption. The judge rejected the argument that the Fifth Amendment did not apply because the testimonial fact of the encryption key was a "foregone conclusion" and not protected. But Kerr believes it was a foregone conclusion: "The subpoena is simply trying to get Boucher to take the officers back to where he had already taken them before: through the passphrase so they can access the files."

In a comment on the case at EDD Update, Craig Ball also has doubts the decision will stand. He also sees an important lesson here for computer forensic examiners to heed before they shut down a live system: "Look for evidence of encryption before you pull the plug.  If you find it, don't shut down, keep the screensaver from activating and get power to the machine pronto!"

December 17, 2007 | Permalink | Comments (0)

ABA Dethrones Gonzales as Lawyer of the Year

As Emily Litella would have said, "Nevermind." The ABA Journal, after it was met with criticism for naming former U.S. Attorney General Alberto Gonzales as 2007's lawyer of the year (See Dec. 13 Legal Blog Watch), took back his crown and redubbed him "newsmaker of the year." Here's the full statement from Journal Editor Edward Adams:

The ABA Journal posted an article titled 'Lawyers of the Year 2007 & 2008' on ABA, on Dec. 12, 2007.  The article defined that term as the year’s biggest legal newsmaker, identifying former U.S. Attorney General Alberto Gonzales as the major newsmaker of 2007.  The Journal regrets that we did not make this theme clear.

We appreciate the feedback we’ve received, and we’re acting on it.  So that there can be no confusion, the term 'Lawyers of the Year' has been changed in the headline and story to 'Newsmakers of the Year.'  The story is otherwise unchanged from its original version.

This article, like all in the Journal, is the work of the magazine’s editorial staff.  As is the magazine’s practice, it was not reviewed by the Journal’s volunteer Board of Editors, the ABA’s Board of Governors, or its officers, prior to publication.  The Journal will continue to strive to provide high quality news to its readership.

Just as the original story drew critics, so has this latest development. It has been discussed by bloggers from Wonkette to Legal Profession Blog. Of the posts I've read about it, the one that best nails this down is Mark Obbie's at LawBeat,  who says this was a matter of PR prevailing over journalism:

If the Journal weren't a house organ worried about the pressure on the ABA's august (read: stifling) leadership, would it have capitulated needlessly like this? I doubt it. That's the beauty of an independent magazine -- and the tragedy of one that is not. Just as the Journal tries to get a little zesty, it gets pulled back into the mire of Trying to Please Everyone and Not Make Waves.

The Journal's editors owed no apologies here or explanations beyond the content of its story. Time's Person of the Year has included such notorious picks as Joseph Stalin and Adolf Hitler. Its editors never had to backpedal or soft pedal. If a magazine makes a mistake of fact, it should correct it. But when it makes an editorial judgment such as this, it should stand by it. One has to wonder whether this change came from the Journal's editors or, as Obbie suggests, from the association's higher-ups. Given the many positive changes at the Journal since Adams took over as editor and publisher last year, I suspect it was the latter.

Footnote: Law Blog is getting into the Lawyer of the Year act. Guess who's one of the nominees.

December 17, 2007 | Permalink | Comments (0)

Raising Dollars for Defense, The Web Way

Just one day after launching a Web site to raise money for his legal defense, Drew Peterson shut it down. Why? Because that was all the time it took to raise the needed cash. Now the question is, Will Web appeals to fund legal cases become common for cash-strapped clients?

Joel Brodsky, the attorney for Peterson, a former police officer who is a suspect in the disappearance of his fourth wife, launched the site,, last Tuesday. The purpose, as the Chicago Sun Times reported, was to raise money for his legal defense. Peterson credited lawyer Brodsky for coming up with the idea. The Web site said the money would be used to hire a private investigator to help find Peterson's missing wife Stacy. Leftover funds would go into a trust fund for Peterson's four dependent children. The first day, the site had so many hits -- more than a million -- that it crashed. The next day, Brodsky closed it down and disabled its domain, saying it had already "met its short term goal."

Brodsky is not saying how much money the site raised. But given its apparent success, it is fair to believe that we will now see a host of copycat sites. No doubt, the Peterson site owes some of its success to the media swarm surrounding the case. That makes similar sites an obvious tactic for other high-profile defendants and even for civil litigants in closely watched cases. But even less notorious litigants could be successful in raising funds via the Web, although perhaps on a more modest scale.

So what think you? Is this a smart approach for helping to offset the high costs of lawyers and litigation? Are there ethical issues to be concerned about? Is there a downside to raising money this way? Has this been done elsewhere with similar success? Have Peterson and his lawyer opened a Pandora's box?

December 17, 2007 | Permalink | Comments (0)

December 14, 2007

Jones Day and How NOT to Handle a Gaffe

In the Internet age, when a law firm's gaffe can spread like wildfire, law firms need to learn how to engage in appropriate damage control. Jones Day's failure to understand the new rules of conduct in an electronic age led to widespread speculation about whether the firm was hiding a conflict of interest and nearly forced the recusal of FTC Chairwoman Deborah Platt Majoras, as described in these news stories, here and here

Here's the story.  On Wednesday, the Electronic Privacy Information Center and Center for Digital Democracy asked FTC Chair Majoras to recuse herself from merger review, saying that her husband, John Majoras is a partner with Jones Day, the law firm that is advising DoubleClick on antitrust issues relating to the acquisition.  The following day, the parties filed a supplement, showing a cached Web page from the firm that claimed that it represented DoubleClick in the U.S. antitrust proceeding. But the FTC and DoubleClick both said that Jones Day was not engaged to represent or advise DoubleClick before the FTC.

Apparently, the Web site was incorrect.  Moreover, in a statement released by FTC Chair Majoras, she declined to recuse herself, explaining that her husband did not work on FTC matters and further, was a non-equity partner whose economic interests would not be affected by the outcome of the case.

As Blog of the Legal Times points out, this is a lesson to law firms to keep Web sites accurate.  But this incident offers other lessons as well.  First, firms need to realize that removing a Web page won't hide evidence in our "cache and carry" world.  Second, once an error is recognized, firms must step forward to preemptively address the confusion so that it doesn't become the subject of Internet discussion.  Had Jones Day done so, it's unlikely that these stories would have gone as far as they did.

Then again,  what can be expected of a law firm that doesn't admit that it's headquartered in Cleveland? (See this earlier post).

Update - see the comment section for additional information on the Intervenors' petition before the FTC and further comment on this post.

December 14, 2007 | Permalink | Comments (6)

White Shoe Lawyers Rock at Pro Bono!

Usually, the payback for pro bono work is a feeling of satisfaction and perhaps some good PR.  So who would have thought that pro bono could get a law firm backstage access at Led Zeppelin's historic reunion concert?  But that was the reward for Skadden Arps for its work on a recent pro bono matter, according to this story at Condé Nast's When Led Zeppelin decided to reunite to honor Ahmet Ertegun, the founder of Atlantic Records who originally signed Led Zeppelin in 1968, Ertegun's widow turned to Skadden for assistance.  Carolyn Handler, an associate in Skadden's T&E department set up a foundation to manage and distribute the proceeds from the concert.  Handler's services were offered on a pro bono basis. 

To his credit, Ronald Weiss, the Skadden partner who also worked on the matter, called the high profile matter "a plug for the firm."  But as the article points out, Skadden is hardly a slouch when it comes to pro bono, it works on death penalty matters and has been funding public interest fellowships to law school graduates since 1988.

December 14, 2007 | Permalink | Comments (0)

Are Florida Judges Too Hotheaded?

Is it the Florida sun that saps any sense of reasonableness out of the profession?  First, it was the Florida judge who threatened to sanction and revoke the pro hac vice status of an out-of-state attorney for characterizing her ruling as a few french fries short of a happy meal.  Then, there's the Florida Peoples' Court judge who went overboard in reprimanding an admittedly disrespectful law student-litigant.  And of course, there's the Florida Bar's continued and unnatural obsession with preventing lawyers from using certain animal images, like pitbulls or sharks, in advertising.

So, it comes as no surprise to learn from LexBlog that the Florida Bar is pursuing a complaint against attorney Sean Conway for impugning a judge's integrity at his blog, by referring to her as having "an ugly condescending attitude" and questioning her mental stability after she forced lawyers to choose between unreasonable trial dates or waiving clients' rights to speedy trial. (Underlying story here, from the Florida Sentinel.  There's a bunch of comments on the subject at WSJ Law Blog in response to the question "should a lawyer lose his license for harshly criticizing a judge?"

I realize that civility in the legal profession is on the decline (perhaps another reason for increased lawyer depression, described in the last post).  At the same time, the attorney's conduct took place outside of the courtroom and his comments were aimed at correcting an unjust policy that placed criminal defendants at a severe disadvantage.  Moreover, for what it's worth, the judge herself is now on trial for alleged misconduct before the Judicial Ethics Committee.

Yes, we all recognize that the lawyer could have criticized the judge in a more tactful manner.  But does he deserve a formal reprimand or suspension of his license?  Hardly.  And issuance of a harsh penalty may chill other lawyers from speaking out against unjust policies in the future.

December 14, 2007 | Permalink | Comments (0)

Is Blogging an Antidote to Lawyer Depression?

The topic of lawyer depression is a recurrent theme in the profession, afflicting not just American lawyers, as this recent and widely discussed Wall Street Journal article describes, but also lawyers in
Australia and the U.K., as I've discussed in earlier posts.  According to the WSJ article, "19 percent of lawyers suffer depression at any given time, compared with 6.7 percent as a whole."  And one in five lawyers is a problem drinker, presumably resulting from misguided attempts to self-medicate. 

The Wall Street Journal has provoked thoughtful discussion around the blogosphere regarding the reasons for the disproportionate levels of depression among lawyers as compared to other professions.  The commenters at WSJ Law Blog identify the usual suspects:  pressure to meet billable hour quotas, stress caused by constant dealings with nasty judges and rude adversaries, inability to cut the golden handcuffs that bind lawyers to high-paying positions, worries about an over-saturated job market and burgeoning student loans and pangs of conscience at defending objectionable clients or having entered the legal profession for security rather than having followed one's heart instead.

Other bloggers offer their own theories:

Jim Calloway, Practice Management Adviser for the Oklahoma Bar (which according to Calloway, once experienced at least one lawyer suicide per month), notes that one study shows that many of the most successful lawyers tend to be pessimists and thus, are more prone to depression.  Blawgletter's Barry Barnett theorizes that perhaps depression is born of constant rejection.  He writes:

people with great creative gifts -- a group that includes the best lawyers -- feel the pain of birthing innovative ideas.  Imagine, therefore, the agony of rejection -- a common experience for lawyers.  Which experience in many cases may lead to the dullness of depression.

For How to Build A Solo Practice's Susan Cartier Liebel, lawyers are inclined to depression because they're regarded as a magnet to solve everyone's problems -- not just paying clients.  Moreover, lawyers exacerbate stress because they believe that if they don't handle all of these problems on their own, they are "somehow a failure."   

As for me, I think that depression derives from the gap between the theory of law practice and the actuality.  Many students go to law school believing that law training will empower us in some way -- perhaps to do something as lofty as effect justice or make new precedent, or as pedestrian as earning a nice living and supporting our family.  Instead, we find that law, far from empowering us, enslaves us instead, making us beholden to clients, to law firms and precedent.  In spending so much time serving others, we forget or lose ourselves.

For lawyers who aren't necessarily clinically depressed (which is a serious illness requiring medical intervention and professional help), but feeling angst or lingering malaise, one possible antidote (and by far, not the only one) is... blogging.  Whereas law practice enslaves lawyers, blogging empowers, giving lawyers a unique voice in a world where they usually serve as a mouthpiece for others, giving them control over a domain, even if it's just a tiny little piece of the Internet.  Most importantly, blogging builds connections and conversation with others, and eradicates the sense of loneliness and isolation that serve as a breeding ground for depression. 

So here's the statistic I'd like to see:  how many law bloggers are depressed?

December 14, 2007 | Permalink | Comments (1)

December 13, 2007

Hot Off the Press: 'Despicable Lawyer' Magazine

Despicablelawyer What did lawyer David Gotlieb do to deserve his face on the cover of the debut issue of Despicable Lawyer magazine? Proved himself a nice guy, apparently.

As Larry Bodine points out at Law Marketing Blog, look carefully at the fine print in the magazine's title and you'll see that it is actually called Not Just Another Despicable Lawyer. And the magazine is not just another marketing ploy, although marketing it is. It is the brainchild of the Minneapolis law firm Parsinen Kaplan Rosberg & Gotlieb and, as this announcement explains, it is intended to challenge readers with the question of just how despicable lawyers really are -- at least PKR+G lawyers.

The firm says it has an annual tradition of connecting with its clients via a unique communications vehicle that showcases the personal side of attorneys and staff. Explains the firm’s managing partner, Howard Rubin, "Clients want a relationship with real people. So here we are, warts and all." The magazine's cover teases to what's inside with headlines such as, "Outrageous Random Acts of Kindness" and "Shocking Test Results: Attorneys Have Hearts."

As for cover model Gotlieb, he says, "It’s assumed most lawyers are good at what they do, but I think clients respond to the fact that they’re working with a good person, too."

December 13, 2007 | Permalink | Comments (0)

Bounty for Blawger Now $10K

I wrote here last week about IP lawyer Raymond P. Niro's offer of $5,000 to unmask the anonymous author of the blog Patent Troll Tracker, as first reported by John Bringardner in IP Law & Business. Now, Niro has responded to some of the blogosphere buzz about him -- and doubled the bounty to $10,000. Niro's comments appear at the blog Patent Baristas.

The author of Patent Baristas, Stephen R. Albainy-Jenei, picked up on our post about Niro in a post of his own. Niro, saying he wanted to "correct a couple of misconceptions, responded in comments that Albainy-Jenei posted here. Among his points:

  • "I do not want to find out the name of the Troll Tracker in order to sue for patent infringement; rather, I want to know his name to expose him, so that he can’t hide behind anonymity and may ultimately be held accountable for what he says."
  • "Anyone that operates a website runs the risk of infringing Global’s patent if (as we believe) that patent covers the manner in which JPEG images are displayed on a website. Troll Tracker is no exception."
  • "As for silencing critics, I doubt that is possible. But anyone should be held responsible for what they say and have the courage to express their views by putting their names on whatever it is they publish."

In addition, Niro told Patent Baristas that he has raised the reward to $10,000 for information leading to the identity of the Troll Tracker. "It seems to me if you really have anything truthful to say, you are not afraid of identifying yourself," Niro said.  We will have to see whether $10,000 is enough to turn the Troll Tracker's friends into rats.

December 13, 2007 | Permalink | Comments (2)

NLJ, ABA Pick Lawyers of the Year

Chaudhry_iftikhar_illus It is that time of year, when both the National Law Journal and the ABA Journal name their picks for lawyer of the year. While the ABA Journal went for the obvious choice, the NLJ found its pick well off the beaten path.

Let's start with the NLJ, which gave a preview today of next week's print edition naming its choice for The Lawyer of the Year. As the intro says, Iftikhar Muhammad Chaudhry is not exactly a household name, but the NLJ's editors believe he should be:

Chaudhry, the chief justice of Pakistan who was dismissed from office by President Pervez Musharraf after the imposition of emergency rule, has been a strong voice for the preservation of the rule of law in Pakistan -- one of the United States' key allies in the war on terror.

Though currently held under house arrest, Chaudhry has spoken out against emergency rule and has inspired thousands of his lawyer-brethren to protest in the streets in their traditional black suits and ties. He has become an international symbol of an independent judiciary and of resistance to the excesses of military rule. Hundreds of attorneys have also turned out to protest on his behalf in cities across the country.

The NLJ also offers a runner-up: Maureen E. Mahoney, of Latham & Watkins, an appellate advocate who argued more Supreme Court cases during the 2006-2007 term than any other private lawyer.

Now to the ABA Journal, which went with the predictable if not necessarily popular choice for its Lawyer of the Year: Alberto Gonzales. The magazine explains:

The most talked-about attorney this past year by a mile, Gonzales, 52, rose from being the grandson of illegal immigrants to the first Hispan­ic attorney general of the United States. George W. Bush appeared to be grooming the man he affectionately calls 'Fredo' for the U.S. Supreme Court. But after Gonzales appeared veracity-challenged when testifying before the Senate Judiciary Com­mittee, he resigned in August.

On the magazine's list of runners-up: Michael Nifong, Lewis "Scooter" Libby, Howard K. Stern, Monica Goodling, Erwin Chemerinsky, David Addington, Patrick Fitzgerald, Michael Clayton and The Lawyer-Blogger.

Apparently wanting to free up time for the 2008 holiday season, the Journal's editors did not stop at naming 2007's lawyer of the year -- they went on to name the lawyer of the year for 2008: Michael Mukasey. Having inherited the mess left by his predecessor, "How he'll deal with them -- in the middle of a presidential campaign, no less -- promises to make him the top legal newsmaker of 2008," the editors predict.

December 13, 2007 | Permalink | Comments (0)

December 12, 2007

Don't Even Blog About Trademark or Copyright Infringement, or You'll Commit Infringement

Most reasonable people try to steer clear of copyright or trademark infringement.  After all, who wants to receive a nasty cease-and-desist letter if you can avoid it.  But now, it turns out that even the act of blogging about an alleged infringement will invite one of those C-and-D's anyway, as New York Personal Injury lawyer Eric Turkewitz (himself a recipient of a C&D in another matter) shares here.  As Turkewitz writes, Improv Everywhere started selling shirts with a parody of the Best Buy Logo.  Not surprisingly, they received a C&D from Best Buy's corporate department.  But then, a Web site called Laughing Squid blogged about it, and they too, received a cease-and-desist letter as well.  When the Laughing Squid blogger inquired about the reason for the letter, Best Buy corporate explained that the site hadn't just blogged about the event, but also promoted the shirt sale, i.e., the copyright violation.

Laughing Squid got smart.  Rather than deal with Best Buy's lawyers, most of whom don't understand the negative repercussions of a heavy-handed cease-and-desist letter (with this exception), the Laughing Squid blogger contacted Best Buy's PR department, and was impressed by their responsiveness.  Chalk up one more loss for the lawyers in the e-court of public opinion.

December 12, 2007 | Permalink | Comments (4)

The Solution to Poor Schools? Hire More Lawyers

The New York City school system has a novel idea for improving the quality of its special education programs:  hire more lawyers who can defend the schools more vigorously in special education hearings, so that they don't lose as frequently.  According to the New York Times(12/12/07), the city retained a team of private consultants to identify opportunities for saving money.  The consultants found that the city "had been forced to pay millions of dollars in private school tuition for students that could have been served by the public school system, (federal law requires reimbursement for private schools for children with special education needs that cannot be met through the public schools).  The consultants asserted that that many of the cases had been lost not because of the merits, but due to "staffing level deficiencies."  As a result of the recommendations, the city has doubled the size of its special education legal team by adding five lawyers and a dozen paralegals, a move expected to save the city $25 million a year. 

The article notes a recent Supreme Court case, Board of Education v. Tom F. that let stand a decision permitting a wealthy parent to obtain reimbursement for private school education under federal law, even where the parent did not give the public school an opportunity to address the child's needs and immediately places the child in private school.  The Second Circuit held that federal law does not require a student to remain in the public school to qualify for private school reimbursement. 

Presumably, the city would like to avoid paying for private school tuition where a parent doesn't even give the public school remedy a chance.  If that's the case, the city should try to change federal law to clarify that a public school solution is a prerequisite to obtaining reimbursement.  But hiring more lawyers to run up the cost of special education litigation and making it more difficult for parents to pursue meritorious claims seems like a backhanded way to reduce costs.  And worst of all, more lawyers won't improve the public school programs.  As Kim Sweet, executive director of Advocates for Children commented in the article: "I don’t think they are paying private school tuition because they don’t have good lawyers... I think they lose these hearings because they don’t have good programs.”

Is the New York solution appropriate?  Do parents abuse the special education system -- or do schools fail to meet their legal obligations?  Please submit comments below.

December 12, 2007 | Permalink | Comments (1)

Law Students Getting Hands-On Experience By Suing Their Law Schools

So what if law schools don't formally offer opportunities for hands-on training to students?  Law students are finding a way to get that training anyway by suing their alma maters, as reported in this article from the upcoming issue of the National Law Journal (h/t to Tax Prof Blog).  Most of the suits challenge policies which negatively impacted a student's grades or future professional opportunities.  For example, one claimed that a professor's use of questions from a commercial exam guide placed him at a competitive disadvantage on the test since the student did not use that particular guide to prepare for the test, while some of his classmates did.   Another student claimed that negligent use of exam software precluded him from submitting his grades in time to compete for a position on law review.  And a first year law student claiming a learning disability who was expelled because her GPA fell below the school's minimum average sued, arguing that minority students with similar GPAs were permitted to continue.  And there's also a class action against a Kentucky lawsuit, that alleges, among other things, a scheme to defraud students and false representation to the ABA.

Back when I was in law school, many of these actions would merit a complaint to the dean, a letter to the school newspaper, or perhaps, a note on the bulletin board (a classmate of mine took the last action when his Torts professor administered an exam consisting almost entirely of questions from a commercial review book).  But twenty years later, with increased tuition costs and diminishing job opportunities for new grads, the stakes are higher; with just a few, scant percentage points separating the fortunate few at the top of the heap from the rest of the pack.  And, in my view, as a society we've collectively become more litigious, turning to lawsuits to solve problems that we once addressed by asserting personal responsibility or through a stiff upper lip.

Perhaps these law students have legitimate claims; I haven't examined the details of the lawsuits.  Even assuming that the suits have some merit, in my view, the students (at least the ones balking about their grades) deserve to fail law school anyway because they've not yet mastered one of the most important lessons that a lawyer must learn:  that you don't file a lawsuit just because you can.  There are other considerations involved, including the impact of a lawsuit on one's business and long term goals, and whether the lawsuit will help effect real change or simply serves as an opportunity to vent.  Here, many of these students who blame their law school for limiting their opportunies are themselves jeopardizing their own future employment with this litigation.  Bottom line: No one wants to hire lawyers who may sue their employer down the road. 

December 12, 2007 | Permalink | Comments (1)

How Can Associate Survival Tips NOT Include Marketing?

In this article, Ten Survival Tips for New Associates, David Dummer, himself an associate at Weil, Gotschal & Manges proffers advice to new lawyers for successfully navigating their first job at Biglaw.  Though Dummer's tips are self-evident and seemingly benign (they basically boil down to make yourself useful, kiss up to support staff and learn the facts of the case), following Dummer's advice for "associate survival" can ultimately mean "career suicide."  That's because Dummer overlooks the most critical tools to ensure success in the law:  marketing, building relationships and making a name for yourself.

To be fair, Dummer doesn't omit the importance of marketing entirely -- he just gives it incredibly short shrift.  He says "seeds planted today can make it rain tomorrow," then lamely suggests that associates join community associations, and stay in touch with friends and classmates as ideas for business development.  Quite honestly, these kinds of activities aren't going to build the portfolio of business that new lawyers need to take charge of their careers.

Lifetime employment at Biglaw is now the exception rather than the rule.  With weakened financial markets, some firms are already warning of imminent layoffs.  And even in better economic times, associate attrition rates are at all-time highs because of dissatisfaction with Biglaw life or a desire for work/life balance.  Odds are high that new associates starting at a large firm today won't be there five years from now, and if they are, they may not be happy.  And associates' ability to either extract concessions from their firm or to find a better position depends on the amount of business they've been able to generate and the connections they've been able to create with others.  Let's face it -- most law firms will find a way to offer flexible hours to an associate who's generating several million dollars in business a year.  And if not, that associate can pick up his or her portfolio of business and leave for more accommodating pastures.

Dummer's tips may help associates "survive" at a large firm.  But they certainly won't do much to help them thrive -- either at a large firm, or more importantly, at a career in the law.

For some ideas on how associates can build the kind of business that will let them call the shots, see this post by Larry Bodine, and a longer piece at Lawyer Marketing.


December 12, 2007 | Permalink | Comments (0)

December 11, 2007

Avvo Adds Two Features

The lawyer rating site Avvo today announced two new features: "Avvo Answers," a Q&A forum in which lawyers can answer questions posted by consumers, and "Track Record," a free option by which lawyers can post and showcase their cases and deals. Avvo CEO Mark Britton provides more details at Avvo's blog. About Avvo Answers, he writes:

I call Avvo Answers our 'hat trick' (think hockey rather than magic ...) because it offers consumers personalized answers to their specific legal questions, while at the same time allowing lawyers to both help consumers and demonstrate their legal expertise to potential clients. Three victories for the legal marketplace that are pretty cool.

About Track Record, he says:

Consumers tell us they want to know the experience a lawyer has with cases like theirs, and lawyers tell us that they would like a place in Avvo to list their cases and transactional work. Track record delivers on this but takes it a step further in that it enables any lawyer who worked on a case to identify co-counsel or opposing counsel of the same case, providing both sides equal opportunity to express their own perspectives of the case.

One interesting outgrowth of this feature, Britton says, is that over time it will chart the connections between lawyers, who they worked with and who they opposed. It strikes me that there could be another interesting outgrowth -- over time, this could become a useful source for researching verdicts and settlements if lawyers post enough of them here.

December 11, 2007 | Permalink | Comments (0)

Decision of the Day: Mass. Expands MD Liability

The Massachusetts Supreme Judicial Court has decided that an auto accident victim can sue the driver's doctor for negligently prescribing him medication. TortsProf Blog calls it "an opinion with potentially broad implications," and Overlawyered describes it as a "gigantic expansion of liability."

"Gigantic" may be an overstatement, given that the high courts of at least two other states, Hawaii and Maine, have imposed liability on doctors in similar circumstances. Still, the potentially controversial nature of the decision, Coombes v. Florio, can be seen in the breakdown of the six justices who decided it: Three concurred, one concurred in part and dissented in part, and two dissented, including Chief Justice Margaret H. Marshall.

There is no majority opinion, but Justice Roderick L. Ireland, in his concurring opinion joined by two other justices, writes, "I conclude that a physician owes a duty of reasonable care to everyone foreseeably put at risk by his failure to warn of the side effects of his treatment of a patient." Dissenting Justice Robert J. Cordy said the case "might fundamentally alter the relationship between doctor and patient, and increase significantly the costs of health care."

At Overlawyered, Ted Frank predicts that the obvious outcome of this case is that "doctors will simply overwarn, and tell all of their patients not to drive." Dr. Dale Magee, president of the Massachusetts Medical Society, told The Boston Globe, "This is one more straw on the backs of practicing physicians who feel the liability challenges out there are being broadened." But a lawyer for the plaintiff, Peter L. Eleey of Quincy, Mass., defended the ruling: "When a doctor treats a patient and prescribes medication and other services, the doctor has a duty to warn that patient of the side effects of those treatments, and if he fails to warn the patient of those side effects and they result in an accident that injures or kills a third party ... he can be responsible to that third party."

December 11, 2007 | Permalink | Comments (1)

The Year's Top Legal Ethics Stories

At the blog Legal Ethics Forum, John Steele offers his picks of the top 10 legal ethics stories of 2007. He provides more detail, but here's the nutshell:

  1. North Carolina prosecutor Michael Nifong's botched handling of the Duke lacrosse case
  2. Judges and lawyers in Pakistan standing up for the rule of law
  3. JAG Major Michael Mori's zealous advocacy on behalf of Guantanamo detainee David Hicks
  4. Former Milberg Weiss lawyer Bill Lerach's guilty plea
  5. The Pentagon official who resigned after trying to shame U.S. firms out of representing Guantanamo detainees
  6. The e-discovery case of Qualcomm v. Broadcom, which pit lawyers against clients
  7. New ethics rules in New York and California
  8. BigLaw's abandonment of "guild behaviors" in associate compensation plans
  9. The Colorado ethics opinion taking down certain aspects of so-called collaborative law practice
  10. Dismissal of federal charges against defendants in the KPMG tax fraud litigation after the judge said the U.S. coerced KPMG into denying legal funds to the ex-employees

Steele adds a possible number 11, Dickie Scruggs, along with a host of honorable mentions in categories such as "Lawyers and Judges Behaving Badly" and "Law Firm Life."

December 11, 2007 | Permalink | Comments (0)

The Oscars of Legal Technology

Winners were announced today in the fifth annual Law Technology News Law Firm and Law Department Awards. LTN Editor-in-Chief Monica Bay reports the results at her blog, The Common Scold. The envelope please:

LTN also announced the finalists for its 2008 Vendor Awards, which Bay lists in this post. All the awards will be presented during a gala dinner in New York Feb. 5 during LegalTech New York.    


December 11, 2007 | Permalink | Comments (0)

December 10, 2007

Lawyer Presidential Candidates Roundup


Following up on our continuing presidential politics roundup, here's the latest on the lawyerly lives of the presidential candidates, as well as the legal issues involved in the upcoming campaign:

Why Obama Took the Road Less Traveled
As a Harvard Law graduate and a law review editor, Barack Obama could have had his pick of virtually any prestigious judicial clerkship.  Moreover, moving from Ivy League law school to clerkship to biglaw firm was (and still is) a traditional career path that would virtually guarantee a successful legal career.  And yet, as Tony Mauro writes in The Man That Got Away, Obama apparently never even pursued clerkship opportunities, spurning overtures from prominent judges like Abner Mikva of the D.C. Circuit, in favor of returning to Chicago to resume community and civil rights work.  Seems as if Obama's gamble paid off...

Rudy Giuliani:  From Prosecutor to President
This New York Times article reports on Giuliani's tenure as a United States attorney nearly 25 years ago.  Giuliani's ascension was "fortuitous," according to the article; a recently completed FBI investigation provided grist for several high-level Mafia prosecutions, while investigators were delving into Wall Street corruption cases that became another staple of the U.S. Attorneys' office under Giuliani's lead.  But the article quotes some as questioning Giuliani's judgment and ethics as a prosecutor. 

Right now, however, Giuliani is finding some shelter in ethics rules.  As Bloomberg reports, Giuliani has refused to release a full list of his law firm clients, citing confidentiality rules that prohibit him from revealing clients that he or his firm represents.  In any event, Giuliani has apparently identified the majority of the clients with whom he worked at his current firm, Bracewell & Giuliani, was well as at a separate consulting firm.

Will Today's Supreme Court Decision Change Hillary Clinton's Position About Retroactivity And Sentencing Guidelines for Crack Cocaine?
Last week, when Norm Pattis posted that Hillary is opposed to calls for retroactive adjustments to sentences for those convicted of possession of crack cocaine. According to Pattis, Clinton is the only Democratic candidate who's taken this position.  Today's Supreme Court decision in Kimbrough v. U.S. (see earlier post) doesn't directly address the retroactivity issue (at least, I didn't see it), but Professor Berman suggests that defendants who preserved the disparity argument may have grounds for seeking modified sentences in the aftermath of Kimbrough (while those who didn't preserve the argument are out of luck).  And in the same post, he also isn't sure whether the presidential candidates will "make much of, or ignore Kimbrough.  But the case may give Hillary Clinton an excuse to reconsider her own position on retroactivity without appearing like she's flip-flopping on the issue.

December 10, 2007 | Permalink | Comments (0)

Big Sentencing News

There's lots of news on sentencing in the blawgosphere today.  At 10 a.m., the Supreme Court released two significant sentencing decisions, Gall v. U.S. and Kimbrough v. U.S.  In Gall, the court held, in a 7-2 decision (Alito and Thomas dissenting) that appellate courts must use a deferential standard to review a lower court's sentence that falls below the range in the sentencing guidelines.  Gall involved a case where a college student had played a limited role in an ecstasy distribution scheme, from which he withdrew well before he was indicted.  Gall admitted his role and entered into a plea agreement.  A sentencing report recommended a sentence of 30 to 37 months.

The judge, upon consideration of several factors, particularly Gall's voluntary withdrawal, his relative youth and his subsequent  law-abiding life after pulling out of the conspiracy, sentenced Gall to 36 months of probation.  The Eighth Circuit reversed, holding that probation represented a disproportionate variance from the 30 months at the lower end of the sentencing guidelines.  The Supreme Court found that the Eighth Circuit should have accorded more deference to the judge who is in a "superior position" to make an assessment of the individual factors underlying a sentence. 

Similarly, the Court's decision in Kimbrough v. U.S., also gives the lower courts additional discretion at sentencing.  Kimbrough holds that a judge may "consider the disparity between the Guidelines' treatment of crack and powder cocaine offenses" in sentencing.

A couple of bloggers have offered some quick takes on the decisions.  At the Sentencing Blog, Doug Berman says that District Court judges are clear winners here, as well as the U.S. Sentencing Commission, which has been working towards rectifying the sentencing disparity between cocaine and crack offenses.  And both cases give defense attorneys new ammunition for arguing for below-guideline sentences (in fact, Berman even suggested that lawyers for Michael Vick and Conrad Black postpone sentencing in their clients' respective cases, though his advice came too late for Vick, who's already gotten 23 months and Black, who received 6.5 years).  As for losers,  Berman writes that the Supreme Court decisions limit the Circuit Courts' power.  And crack defendants sentenced within the old guidelines won't find relief unless they preserved the argument that the crack/cocaine disparity justifies a below-sentence guideline.

And what do the sentencing guidelines mean for white collar defendants?  Peter Henning at White Collar Crime Prof agrees that district court judges have more power, and says that defendants need to present strong sentencing evidence before the district court. Government prosecutors also need to realize that the guidelines won't be imposed by default.

SCOTUS Blog also offers this winners/losers summary on today's sentencing cases.

December 10, 2007 | Permalink | Comments (1)

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