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May 30, 2008

Analysis of Legal Billing -- 76 Percent of Firms Are Discounting Fees

Recall those $1,000/hr billing rates that had the blogosphere buzzing last summer?  Turns out, they may really be worth only $900/hr  based on the results of a 2008 Fees and Pricing Benchmark Report released by Rain Today and summarized by Enricho Schaefer at Greatest American Lawyer.  According to the report, discounting is a common practice, with 76 percent of all firms discounting their published fees by an average of 9.9 percent.  And interestingly, larger firms are more likely to discount; 89 percent of firms with ten or more lawyers discount, versus only 59 percent of smaller firms.  Nearly half of the responding firms employ service guarantees which allow clients to reduce payment based on dissatisfaction with value received.

The 76 percent discount rate really surprised me.  Is discounting used as a marketing tool, where rates are artificially inflated then discounted so clients feel that their getting a bargain (just like in some discount clothing stores, the $99.00 price tag will be prominently crossed out and replaced by a $40 tag though it's likely that the item was never originally tagged with the higher price)?  Are firms desperate for business and willing to cut their rates to bring it through the door?  Or do firms wind up effectively discounting rates after the fact because clients ran out of money and can't pay the full bill.  Understanding the reasons that firms discount rates is critical to developing an efficient and trust worthy pricing strategy.

So what's your view on why so many firms discount?  Or do you think even more firms should be discounting rates?

May 30, 2008 | Permalink | Comments (1)

DOJ Civil Rights Division Sued for Discrimination

Charged with the task of enforcing federal anti-discrimination statutes the Department of Justice's Civil Rights Division often finds itself involved in a variety of civil rights actions around the country.  But for all of its experience in civil rights case, the Division now finds itself in an unfamiliar role in a discrimination lawsuit:  the role of defendant. 

The Blog the Legal Times reports that Joi Hyatte, a paralegal in the Civil Rights Division, has filed a suit claiming she was discriminated and harassed by managers who repeatedly passed her over for advancement because she is African-American. The complaint alleges that ex-voting section chief John Tanner and former section 5 unit chief Yvette Rivera recruited white and Hispanic candidates from outside the department for higher paying positions and did not offer the vacancies to DOJ paralegals, which violated standard hiring procedures.   And the department allegedly tolerated racially and sexually offensive conduct from three white male lawyers who mocked a Caucasian analyst for displaying pictures of prominent black civil rights leaders in her office.

So far, at least on the surface, the case doesn't look good for DOJ. John Tanner left the Justice Department last year after attracting congressional criticism for undermining the mission of the division, as well as for controversial remarks about the impact of voter ID laws on minorities.  And Rivera, for unexplained reasons, was demoted as acting section 5 unit chief earlier this year.

May 30, 2008 | Permalink | Comments (1)

Women Make Better Lawyers, Says Ad

Ever argue with a woman?  That's the slogan on an ad for the 100 percent women-owned Buffalo law firm, Schroder, Josephs and Associates (H/T: The ad, which concludes with the pitch line "Let us make the case for your company," cleverly makes the point that women lawyers are as good as, if not better than men.

But I'm not sure how effective the ad is since it seems to have reinforced gender stereotypes for some readers. For example, Adrants comments that:

On another level, maybe an all-female law firm is a very good thing. After all, while men are always out to "win," women are much more predisposed to discussion and compromise. And compromise plays a very significant role in settling legal issues.

Why would Adrants jump to the conclusion that female lawyers are more likely to settle a case? Indeed, Schroder's ad focuses on the firm's litigation skills and how clients rely on the firm to win (not settle) their cases.  It's kind of discouraging to realize that even when women aggressively pitch their litigation skills as Schroder does in its ad, some readers remain so wedded to gender stereotypes that they just don't get the message.  Even in the 21st century, is this what women are up against?

What do you think about the ad?

May 30, 2008 | Permalink | Comments (3)

Second Circuit Permits High School Bullying -- By Administrators

Let's say that a high school student disses a popular cheerleader on her personal blog.  Learning of the insults, the cheerleader rallies her buddies at school to make life hell for the blogging student by blocking her path in the hallways so that she can't get to the cafeteria in time for lunch or intruding on her while she's using the restrooms.  No doubt, most of us would express outrage at this kind of retaliatory schoolyard bullying. 

But as high school student Avery Doninger has learned the hard way, when it comes to bullying by administrators, different standards apply and nothing -- not even parental intervention or the power of the First Amendment -- offer any protection.

For those who haven't followed this story as closely, here's the background. Upset by the high school administration's decision to cancel a band contest, Connecticut high school senior Avery Doninger referred to the administrators as "douchebags" on her private blog. The concert was later rescheduled.  Meanwhile, Doninger's post went undiscovered until two weeks later when school superintendent Paula Schwartz's son stumbled upon it. At that time, school officials ordered Doninger to apologize to Schwartz and withdraw from seeking re-election as class secretary. Doninger refused to withdraw, so administrators forced her from the election. Even so, she won as a write-in candidate, but officials barred her from serving.

Doninger and her mother sued, arguing that the school's action violated Doninger's First Amendment rights and urging the court to enjoin officials from preventing Doninger from serving as secretary.  Doninger lost at the district court level and yesterday, the Second Circuit affirmed. The Second Circuit found that even though Doninger's conduct took place outside the school, it was forseeable that the post would reach the school and create a risk of disruption. Thus, the court concluded that the school's interest in maintaining order and discipline trumped Doninger's First Amendment rights to express her position at her blog.

I'm troubled by the "potential risk of disruption" standard. Indeed, under these facts, it's impossible to find any potential risk of disruption, since the blog post went undiscovered for two weeks! It wasn't until administrators learned of the post and barred Doninger from running for office that any disruption (if you can call it that) in the form of students writing Doninger's name in on the ballot in their own act of protest took place.

Like me, Scott Greenfield is also troubled by the broad potential for disruption standard. And he also lambastes these administrators for failing to recognize that Doninger's blog post, an act of civil disobedience, represents the type of citizenship standards that schools should reward, not punish.   

I've always believed that standing by silently without intervening as bullies taunt their targets makes us as culpable as the bullies themselves. By that standard, the Second Circuit just may be the biggest bully of all. 

May 30, 2008 | Permalink | Comments (7)

May 29, 2008

Same Sex Marriage in... New York?

We all know that Massachusetts and California are the only states to have legalized gay marriage, but The New York Times reports today that New York Gov. David Paterson has directed that state's agencies to begin to revise their policies and regulations to recognize same-sex marriages performed in other jurisdictions.

In a directive issued on May 14, the governor’s legal counsel, David Nocenti, instructed the agencies that gay couples married elsewhere 'should be afforded the same recognition as any other legally performed union.'

The revisions are most likely to involve as many as 1,300 statutes and regulations in New York governing everything from joint filing of income tax returns to transferring fishing licenses between spouses.

OK, that doesn't mean same-sex couples can marry in Manhattan -- or anywhere else in the Empire State. But it does address some of the messy issues that arise when a same-sex couple marries elsewhere and then lives in New York. The NYT cites legal experts as saying that the move would make New York the only state that did not itself allow gay marriage but fully recognized same-sex unions entered into elsewhere.

For a podcast debate of California's recent ruling on gay marriage and its implications for other states, see our Lawyer2Lawyer program recorded last week, with guests Tara Borelli, staff attorney in the Western Regional Office of Lambda Legal, and Brian S. Brown, executive director of the National Organization for Marriage.

[Hat tips to both Ashby Jones at the Wall St. Journal's Law Blog and David Lat at Above the Law for pointers to the NYT piece.]

May 29, 2008 | Permalink | Comments (0)

The Lawyer Who Was Dropped From a Window

1212042444_5056 Boston-area lawyer William M. Sheridan Jr. doesn't talk much about the day he was dropped out of a window. In fact, he doesn't even remember it. After all, he was only seven months old when it happened. But the drop was captured in mid fall in a dramatic amateur news photograph that went on to win international awards for the photographer. It all happened 30 years ago this week, and a piece published today in The Boston Globe describes the scene captured in black-and-white:

A father leans out of a smoke-choked second-floor window. Just released from his grasp, his infant son hurtles backward through the air, pudgy arms flung wide. On the sidewalk below, a throng of men stare up at the baby. One holds his arms up, fingers splayed, ready to make the catch.

Just moments before, the father had done the same with Sheridan's twin sister, Nichole. Minutes later, firefighters were able to rescue Sheridan's father and mother before the blaze destroyed their South Boston home. Sheridan, now 30 and a father himself, says he has no recollection of the event and has shown the photo to no one outside his family. According to his profile on LinkedIn, the Massachusetts School of Law graduate is currently enrolled in the graduate tax program at Boston University School of Law.

May 29, 2008 | Permalink | Comments (0)

Even More on the Mess in Minnesota

Loriswanson It has been more than two months since we've checked in on the messy union-organizing campaign in the office of Minnesota Attorney General Lori Swanson. (See previous posts here and here.) But now we have a reason to return to the Twin Cities, as Swanson has fired one of the staff attorneys who was active in that campaign, Amy Lawler.

When last we left off in March, Swanson had placed Lawler on administrative leave via this letter from Deputy AG Karen Olson, purportedly for Lawler's failure to follow-up on her own concerns about the ethics of filing lawsuits she was assigned to handle. But in what I described then as a classic case of bad timing, Lawler's suspension came on the Monday following the Friday in which she discussed the union drive in a piece that aired on Minnesota Public Radio and in an article on the online news site, -- an article that described her as one of only two staffers who would allow herself to be identified.

Now Swanson has fired Lawler, following an investigation by University of St. Thomas Law School dean Thomas Mengler, according to the Star Tribune. The dean issued a report Tuesday that Lawler's concerns about professional ethics were unfounded. Mengler conducted the investigation at Swanson's request; a separate probe into her office by the state's legislative auditor continues. A Swanson spokesperson said that Lawler was terminated based on the report's findings and because of "other issues." The AFSCME local involved in the organizing effort circulated a statement late yesterday condemning the firing, asserting, "If these top attorneys trample the Constitution, then who will protect our rights?"

May 29, 2008 | Permalink | Comments (0)

Two Useful Guides for Summer Interns

For law students venturing out into the real world this summer, here are two resources to pave your way:

  1. Transitioning from One-L to Summer Legal Work Podcasts. Suffolk University Law School's legal research and writing program has produced this series of 19 podcasts. Available through Suffolk's iTunesU, each podcast features a different legal writing professor from law schools throughout the United States. Each professor offers practical advice on real-world topics such as "creating a research file," "understanding your clerical help" and "professionalism in electronic communication." The series was produced by Kathleen Elliott Vinson, director of the school's Legal Practice Skills program, and Gabriel H. Teninbaum, assistant professor of legal writing. Suffolk Law's dean, Alfred C. Aman Jr., not only provides the introduction to the series, but also -- according to Jeff Lipshaw at Legal Profession Blog -- provides the musical background for each segment, drawing on his second life as a jazz drummer.

  2. Tips for summer associates. Launched just one month ago, the Career & Professional Development Blog, part of the Law Professor Blogs Network, is focused on providing advice to law students who are searching for public and private summer associate and law clerk positions and to lawyers who are making changes in their careers or seeking career alternatives. To that end, the blog's authors have already contributed a number of posts of particular use to law students starting summer jobs. Among them: Top Tips for Summer, 5 Stages of Working with Support Staff, Facebook Professional Success Story and 12 Bar Exam Tips.

May 29, 2008 | Permalink | Comments (0)

May 28, 2008

Studies Show Online Video Can Help Law Firms Snag Clients

The results of recent research by FindLaw suggest that adding an online video to a law firm Web site can help lure clients. FindLaw's studies show that when choosing a lawyer online, consumers visit an average of 4.8 sites before making a decision, as compared to just 1.8 sites when a Web page contains a video.  Moreover, an increasing number of Internet users -- 74 percent -- watch videos online every day, proof of this visual medium's online appeal.

On the other hand, many of my lawyer colleagues tell me that they can't stand video at law firm Web sites.  Some find the videos ostentatious or overdone, while others simply don't find that they add value.  I disagree.  Video simply captivates me by offering a peek at a lawyer's personality and demeanor -- characteristics that don't come across as effectively through a blog or a podcast.  As such, videos give insight into how a lawyer might argue my case before a jury or represent a client at the negotiating table.

What's your view?  Would video make a difference when you're hiring a lawyer? Should it?

May 28, 2008 | Permalink | Comments (5)

Can Outsourcing Violate Attorney-Client Privilege or Waive the Fourth Amendment?

Plenty of law bloggers are discussing a declaratory action by Bethesda, Md.-based law firm, Newman McIntosh & Hennessey, seeking a ruling on whether outsourcing privileged client documents for review to companies located outside of the country could result in a waiver of Fourth Amendment protection or attorney-client privilege. Joseph Hennessey, who drafted the motion, argues that foreign companies have no presumption of privacy because the National Security Agency can spy on them without constitutional constraints.  Thus, by sending client documents overseas, lawyers may waive their clients' Fourth Amendment protections against unlawful search, or compromise the attorney-client privilege.  The firm has also sought opinions from the District of Columbia and Maryland bars on whether lawyers who outsource documents overseas must disclose potential privilege waivers to their clients.

As Carol Shepard points out at Arborlaw, the case has enormous implications not just for the Newman firm, but for the entire practice of outsourcing.  She writes:

Here’s why this is a particularly interesting story to watch: A. large law firms are now relying heavily on the practice of outsourcing their legal document imaging and legal document review work to maintain their profit margins. B. The regulation of attorneys is almost entirely a matter of state law. I’m not aware of any federal controls over the attorney-client relationship or attorney-client privilege (except with regard to the recent encroachment on attorney-client communications in the representation of enemy combatants in connection with Guantanamo and Bush administration military tribunals).

At Ride the Lightning, Sharon Nelson asks, "This issue has long been a thorn, frequently debated by experts. You lower costs by foreign review but at what risk?"

I'm not sure the federal district court will address this question: Courts prefer to address real cases and controversies and dole out declaratory relief only narrowly.  From my review of the filings (available at the Newman Web site), the firm never states that it intended to outsource documents to Acumen, an India-based company, or had a contract in place to do so.  Thus, it's unlikely that the federal court is going to touch this matter.  By contrast, bar associations routinely respond to requests for guidance in this type of case, so we can expect a ruling from D.C. and Maryland on lawyers' obligations to their clients when offshoring documents. 

May 28, 2008 | Permalink | Comments (3)

More Proof That Blogging Is Good for You

A few months ago, I hypothesized that blogging could help lawyers beat the blues by giving them a tool to build connections and engage in conversation with others, and in so doing, eradicate the sense of isolation that can serve as a breeding ground for depression. Now, I've learned that there's actually scientific evidence that lends support to my hunch. Over at Lexblog, Kevin O'Keefe points to an article by Jessica Wapner in Scientific American that recognizes the therapeutic value of blogging.  Wapner posits that "self-medication may be the reason that the blogosphere has taken off." Not only can expressive writing like blogging help cope with stress, but it can produce physiological benefits such as improved memory and sleep and a boost in immune cell activity. In addition, blogging may trigger a dopamine release similar to stimulants like music, running and looking at art.

So go ahead and indulge in a daily dose of blogging -- it's good for you!

May 28, 2008 | Permalink | Comments (0)

Presidential Politics Roundup

It's been a while since our last Presidential Politics Roundup, but the primaries still continue as Hillary Clinton presses on in her bid to win the Democrat nomination.  Here's the latest law-related news from the election front:

Democrats Can Restore Some Delegates from Michigan and Florida: In a 38-page memo, lawyers for the Democratic National Committee advised that the Democrats can seat some of the delegates from Michigan and Florida at the nominating convention in August, reports the Associated Press. The DNC lawyers concluded that the Rules and Bylaws Committee was fully within its rights to strip all 368 delegates from the two states when they scheduled primaries in January, several weeks earlier than the February 5 date allowed by party rules.  Nevertheless, the Committee can restore at least half the delegates at this point.  And an option remains to restore 100 percent of the delegates by a recommendation of the Credentials Committee.  However, that would mean that a final decision would not be made until the first day of the convention, opening up the potential for a floor fight, which the Democrats would rather avoid. 

McCain and Obama Have Different Views on Judicial Nominees: Today's New York Times reports on the "stark contrast" between McCain and Obama when it comes to potential nominees (apparently, the Times considers Obama the presumptive Democratic nominee, since the story scarcely mentions Clinton's views).  Not surprisingly, McCain has indicated that he will stock the federal courts with conservative judges who reject judicial activism.  As for Obama, neither his wife nor Harvard Law Professor Charles Ogletree expect him to be especially ideological when it comes to judicial selection.

As for specific Supreme Court nominees, McCain is expected to look to Judge Michael McConnell who sits in Salt Lake City, or Washington lawyer and former deputy solicitor general Maureen Mahoney who argues frequently before the Court.  And Obama, who has stated that he would look for the qualities of an Earl Warren in a Supreme Court nominee, might turn to Governor Deval Patrick of Massachusetts or Harold Hongju Koh, dean of Yale Law School and esteemed legal scholar, for his Supreme Court picks.

May 28, 2008 | Permalink | Comments (0)

Sweet Lessons for Law Firms, From a Vending Machine

Following in the tradition of Forrest Gump, who discerned the meaning of life from a box of chocolates, Neil Squillante of Technolawyer shares some sweet lessons about law firm management that he's learned from observing the vending machine in his office.  For example, Squillante noticed that the vending machine operators don't increase the amount of popular items like Peanut M&Ms, even though they disappear in just a day or two after the refill.  The lesson here for law firms is to capitalize on trends as quickly as possible so as not to lose clients in the way that the vending machines lose dissatisfied, M&M-craving customers.  Likewise, firms should meet deadlines, recognizing that clients rely on them just as customers rely on the vending machine having their preferred candy available for an afternoon fix. 

Lawyers would do well to keep the vending machine analogy in mind.  After all, vending machines that don't work properly often get pounded or kicked.  You wouldn't want the same thing to happen to your law firm, would you?

May 28, 2008 | Permalink | Comments (1)

May 27, 2008

List du Jour: Law's Most Creative Moments

Lawyers love lists. But here is a new tack on an old idea: the 100 most creative moments in American law. Intrigued by the role played by innovation in law, Robert Blomquist, a professor at Valparaiso University School of Law, decided to try to rank law's most creative moments. He surveyed American law professors for their suggestions. Based on their replies and his own opinions, he compiled his list, which BoleyBlogs! calls "delightful." His top 10:

  1. The Constitution of the United States (1787) and the ratification debates (1787-1788)
  2. The Declaration of Independence (1776)
  3. The Bill of Rights (1791-1792)
  4. The Articles of Confederation (1777)
  5. The Ordinance of 1787: the Northwest Territorial Government
  6. Marbury v. Madison (1803)
  7. President Lincoln’s Emancipation Proclamation (1863)
  8. The Judiciary Act of 1789
  9. President Lincoln’s suspension of the Writ of Habeas Corpus during the Civil War (1861-1865)
  10. Brown v. Board of Education (Brown I & Brown II) (1954-55)

Of course, Blomquist being an academic, he felt compelled to wrap his list in a 95-page scholarly paper. The list takes up about six pages, the rest of the paper describes Blomquist's survey of law professors and provides his justifications for the rankings. There remains the question: What did he leave off that should have been on?

See also:

May 27, 2008 | Permalink | Comments (0)

Memorial Day Blawg Review

Patent lawyer Stephen R. Albainy-Jenei may have been a last-minute substitute to serve as host of Blawg Review #161, after work got in the way of the blogger who had originally signed up, but the founder of the blog Patent Baristas was easily up to the task. Knowing it would be the Memorial Day edition, he was reluctant to fill in, he writes, "out of fear that heart-felt remembrance can often lapse into misplaced jingoism." Fear not: no misplaced jingoism here.

After beginning by remembering our nation's war dead, Albainy-Jenei goes on to conduct the job at hand, reviewing the week's notable blawg posts. Consistent with the theme, he groups them by categories such as Constitutional Rights, Supreme Justice, Flag Waving, Military Drills and Land of the Free. To see a list of future hosts and to find out how to submit your own posts, visit Blawg Review HQ.

May 27, 2008 | Permalink | Comments (0)

The Most Influential Minority Lawyers

The National Law Journal begins this week's profile of the 50 most influential minority lawyers in the United States with this sobering reminder: Minority lawyers make up just 5.4 percent of partners at U.S. law firms. For minority women, the number is just 1.7 percent. That makes the accomplishments of these 50 all the more noteworthy. NLJ editors selected them based on "an avalanche" of reader nominations of candidates "who have had a national impact in their legal fields and beyond during the past five years."

Some on the list are familiar names within and without the legal profession: former American Bar Association President Dennis Archer of Dickinson Wright in Detroit, Yale Law Prof. Stephen L. Carter, former Solicitor General Drew S. Days III of Morrison & Foerster, Berkeley Law Dean Christopher Edley Jr., former presidential adviser Vernon Jordan of Akin Gump Strauss Hauer & Feld, former Dallas Mayor Ron Kirk of Vinson & Elkins in Dallas, IP litigator and co-chair of Wilmer Cutler Pickering Hale and Dorr William F. Lee, high-profile defense lawyer William "Billy" Martin of Sutherland Asbill & Brennan, Harvard Law Prof. Charles J. Ogletree Jr., and high-stakes litigator Theodore V. Wells Jr. of Paul, Weiss, Rifkind, Wharton & Garrison.

But the list also includes many who are, perhaps, less well known, but no doubt equally deserving of recognition. They include Paulette Brown of Edwards Angell Palmer & Dodge, who co-authored the landmark 2006 report, Visible Invisibility: Women of Color in Law Firms; R. Ted Cruz of Morgan, Lewis & Bockius, the first Hispanic to be Texas solicitor general and author of more than 70 Supreme Court briefs; John W. Daniels of Quarles & Brady, one of the first African-Americans to lead a top U.S. firm; Keith M. Harper of Kilpatrick Stockton, a Cherokee who heads his firm's Native American affairs practice group; Patricia Menendez-Cambo, co-chair of Greenberg Traurig's global practice group; General Mills GC Roderick A. Palmore, who, as GC at Sara Lee, spearheaded the Call to Action urging corporate law firms to diversify; and Anthony D. Romero, executive director of the ACLU.

Let me preempt my colleague Carolyn Elefant by noting that the list includes not a single solo or small-firm lawyer. Are others missing from this list who should be included? What are your thoughts?

May 27, 2008 | Permalink | Comments (0)

In BC Speech, Mukasey Defends Yoo

Attorney General Michael Mukasey gave the commencement address Friday at Boston College Law School, acknowledging the controversy over his appearance but nonetheless using the occasion to defend the government lawyers who are now under attack for their roles in drafting legal memoranda condoning the use of torture in interrogating enemy combatants. While Mukasey never mentioned John Yoo or anyone else by name, he referred extensively to Harvard Law Prof. Jack Goldsmith and his "indispensable" book, The Terror Presidency, to argue that, in the aftermath of Sept. 11, government lawyers were under pressure to be less "risk-averse." The text of his speech is published at the BC Law student blog, Eagleionline (and also on the Justice Department Web site). In it, he says:

Today, many of the senior government lawyers who provided legal advice supporting the nation’s most important counterterrorism policies have been subjected to relentless public criticism. In some corners, one even hears suggestions—suggestions that are made in a manner that is almost breathtakingly casual—that some of these lawyers should be subject to civil or criminal liability for the advice they gave.  The rhetoric of these discussions is hostile and unforgiving.

The difficulty and novelty of the legal questions these lawyers confronted is scarcely mentioned; indeed, the vast majority of the criticism is unaccompanied by any serious legal analysis. In addition, it is rarely acknowledged that those public servants were often working in an atmosphere of almost unimaginable pressure, without the academic luxury of endless time for debate. Equally ignored is the fact that, by all accounts I have seen or heard, including but not limited to Jack Goldsmith’s book, those lawyers reached their conclusions in good faith based upon their best judgments of what the law required.

Protests over Mukasey's speech continued up to the day of his appearance. Outside the law school, The Boston Globe reports, 25 protesters from a Catholic peace group gathered in protest, wearing orange prison jumpsuits and some with black hoods over their heads like those worn by detainees during interrogations. Within the campus, faculty and students distributed a handout describing their concerns over Mukasey's visit. While the handout acknowledged Mukasey's "distinguished legal career" and said that the law school was honored to have an attorney general speak at its commencement, it continued:

While he has been Attorney-General, however, the single most noted legal position represented by Mr. Mukasey in his public appearances and statements is his consistent refusal to acknowledge the illegality—under international and domestic law—of waterboarding and other extreme forms of interrogation practiced in the past by the current Administration.

Given this, they wrote, "it was startling" that the school had invited him to speak. At least some faculty members boycotted the event altogether, explaining in a note posted on Eagleionline, "This is still the Boston College Law School of Father Drinan and a host of others who care about social justice." Robert Drinan, of course, was the Jesuit priest who was dean of BC Law until his election to Congress on an anti-war slate in 1970, where he served four terms.

See also:

May 27, 2008 | Permalink | Comments (1)

Federal Judge an Unlikely Blogger

Gertner When the online magazine Slate launched its legal blog, Convictions, in March, a key feature was the blog's array of notable contributors drawn from all corners of the legal world. One in particular who stood out was Nancy Gertner, a U.S. district judge who sits in Boston. As I noted at the time, she was Massachusetts' first blogging judge, and she is one of only a handful of judges blogging anywhere. In her own introduction to her blogging, she called herself "an unlikely blogger," and noted that, as a judge, she is more limited than many in what she can say.

Today, The Boston Globe has more about this unlikely blogger. For one, she has little time to blog, given her "day job" and the seminar on sentencing she teachers one day a week at Yale Law School in New Haven. To date, she has a grand total of four postings. For another, she drafts her posts on her laptop and then edits them on paper before posting them online. She works on them in her office, at home and on the train between Boston and New Haven -- but never, she says, on the bench.

The article reveals that Slate senior editor Emily Bazelon first invited 7th U.S. Circuit Court of Appeals Judge Richard A. Posner to write for Convictions. He declined, already busy with his own blog. So Bazelon turned to Gertner, whose Yale seminar she had taken. Gertner promptly agreed.

Gertner says judges are too often silent on issues they should publicly address, such as how federal sentencing guidelines have led to what she and other jurists consider unreasonably long prison terms for nonviolent drug offenders. Judges must also do a better job explaining why the judicial code forbids them from discussing cases, she said, because their silence after controversial rulings is misread as arrogance or cowardice.

Gertner's status as a federal judge may, indeed, make her an unlikely blogger. But Gertner has always been a maverick, even before President Clinton nominated her to the bench in 1993. Given that, perhaps her blogging is not unlikely at all.

See also: Real Judges Have Blogs.

May 27, 2008 | Permalink | Comments (0)

ABA Announces Silver Gavel Awards

The American Bar Association has announced the winners of its 2008 Silver Gavel Awards for Media & The Arts, which honor "communications media that have been exemplary in helping to foster the American public's understanding of the law and the legal system." This year's four winners are:

Selected for honorable mentions were the book Monkey Girl: Evolution, Education, Religion and the Battle for America's Soul, by Edward Humes, which also covers the Kitzmiller case; a second Denver Post series on lost DNA evidence, Trashing the Truth: The Hidden Story of Lost DNA; a series of death penalty editorials by The Dallas Morning News; Thanks for Nothing, an investigation by The Nation magazine into military discharges for "personality disorder"; a Touro Law Center documentary, "Hitler’s Courts"; and a WMAR-TV Baltimore report, Mortgage Meltdown.

The awards will be presented during a special program Aug. 5 at the National Press Club in Washington, D.C.

May 27, 2008 | Permalink | Comments (0)

May 23, 2008

Barack Obama: The BlogHer Interview

Back in February 2006, the founding author of this blog, Lisa Stone, turned over the reins to Carolyn Elefant and me so that she could focus on her other "little project," BlogHer, the "community for women who blog." Since then, both Lisa and BlogHer have done very well, thank you. But perhaps their biggest coup to date is their exclusive, on-camera BlogHer interview with Sen. Barack Obama. Stone has the details of the interview, which was conducted by BlogHer contributor Erin Kotecki Vest. Stone has invited Senators Hillary Clinton and John McCain to sit down for their own BlogHer interviews.

May 23, 2008 | Permalink | Comments (1)

Folos: Med-Mal Crisis; Judicial Uncertainty

A post here last week, Study Debunks Med-Mal Crisis, discussed a new study conducted by researchers at Suffolk University Law School in Boston and published in the journal Health Affairs that questioned claims of a medical-malpractice premium crisis in Massachusetts. That prompted a post by Ted Frank at criticizing the study, describing it as based on "the chutzpah approach to empirical research." As you might expect, Frank's post drew a response from one of the study's authors, Suffolk Prof. Marc A. Rodwin, who wrote that Frank was not accurate in his post. Yesterday, Frank shot back, calling the study's conclusions "cherry-picked non sequiturs from the underlying data."

Earlier this week, in Somma: On the Bench or Off?, we wrote about uncertainty in New England over the status of U.S. Bankruptcy Judge Robert Somma, who resigned then un-resigned after his DUI arrest while crossdressing. News of that lack of news caused Mark Obbie at LawBeat to bemoan the dearth of shoeleather reporting in Boston's courthouses. "[I]t's downright lame that the papers are so out of touch with the courthouse crowd that they are either silent or publicly confess their cluelessness instead of digging up the news."

May 23, 2008 | Permalink | Comments (0)

How Do You Make a Lawyer Cry?

How do you make a lawyer cry? That's the teaser the blog Grits for Breakfast uses to introduce a San Angelo Standard-Times report that begins, "Attorneys and mothers alike wept on the Tom Green County Courthouse lawn, rejoicing in the reversal by an Austin appeals court of a San Angelo judge's decision to remove hundreds of children from a polygamist Mormon splinter sect." As Carolyn Elefant noted here yesterday, I was critical in an earlier post of legal bloggers' silence over Texas's wholesale removal of more than 400 FLDS children. With yesterday's appeals court ruling that the state had no right to seize the children, the blogosphere is at last breaking its silence.

Peter Tillers, for one, calls the case a "civil liberties disaster." Steven Ballard says the court "did the right thing in denouncing the outrageous government raid." Eugene Volokh describes the opinion as "a sharp and detailed rebuke of the Texas Department of Family and Protective Services," and considers the possibility of lawsuits against the department. Dahlia Lithwick finds parallels to Guantanamo, "as a noble effort suddenly got mired down in tricky factual disputes, cultural and religious clashes, and the practical necessity of warehousing hundreds of human beings for an indefinite period of time."

In my earlier post about the silence of the blogs, some of those who commented proved prescient. One wrote that the raid "has both the Left and the Right holding their breaths with uncertainty." Another said that the issues "are so complex and distasteful" that many blawgers are "adopting a wait and see attitude." Still another said, "the 'ick' factor overwhelmed the facts." With yesterday's opinion, it is now safe for bloggers to break their silence.

May 23, 2008 | Permalink | Comments (2)

Lawyer Seeks $108 Million From Ponzi Scheme

That dollar amount from a news report in the Jamaica Observer sure grabbed my attention, until I realized it was $108 million in Jamaican dollars. Still, even when converted to U.S. money, that is $1.5 million -- not hay by any standard. According to the report, that is the amount (plus interest) that a Texas lawyer loaned to the Jamaica-based company Cash Plus, with a promise of 10 percent per month return. If it sounded too good to be true, it was. On March 31, Jamaica's Supreme Court put the company into receivership and appointed a PricewaterhouseCoopers partner from New York, Kevin Bandoian, to manage it.

The lawyer, identified in the article as Sandra Robinson of Houston, is one of "scores" of lenders who have sued the troubled company, but hers is the biggest lawsuit to date in the recovery she seeks.

Robinson said in her affidavit, filed on May 14, that between January and August 2007 she loaned Cash Plus J$101,354,102.80, with the promise of a 10 per cent per month return on the money loaned. According to the affidavit, Robinson at March this year was owed J$98,500,000 plus interest.

Earlier this week, the receiver issued a report estimating that the company had only 16 cents to pay for every dollar it owed creditors. Bandoian's report made the company sound like a classic Ponzi scheme, as he wrote that "monies used for repayment appear to have come directly from the funds received from lenders, as Cash Plus did not appear to have sufficient income-generating activities to support the interest payments on these deposits and to pay staff and other operating costs."

The exact nature of the company's business seems muddy. In 2006, owner Carlos Hill rebuffed government pressure to register as a financial or investment company. At the time, the company reported its businesses as including prepaid calling cards, distribution services, telecom services, real estate management and construction. Hill was released on bail after his arrest last month on charges of fraud. News reports say documents found during the arrest connect Hill to billions of dollars in overseas financial institutions.

As for lawyer Robinson, the State Bar of Texas directory shows only one by that name in Houston -- listed as employed by the Houston Police Department.

May 23, 2008 | Permalink | Comments (1)

May 22, 2008

More on Gender Differences in the Legal Profession

Today, my news aggregator delivered two stories concerning gender differences in the legal profession.  First up is this Bloomberg story, which reports that male lawyers in the U.K. earn $38,000 -- or 32 percent -- more than female lawyers. As in the United States, U.K. female lawyers hold about 43 percent of practicing certificates, but they hit a glass ceiling when it comes to higher paying partnerships. The outlook isn't much better for minority lawyers, who on average earn 17 percent less than their white counterparts.

In another story relating to gender differences, the Las Vegas Review Journal discusses the differences in lawyers' perception of male and female judges' courteousness. In a survey of 378 lawyers conducted by the Review-Journal, male judges in Clark County, Nev., outscored female judges on courtesy. In fact, even the highest-ranked female judge still had lower courtesy scores than all but two men. One possible explanation offered for the disparity is that two-thirds of the lawyers surveyed were men and thus, may have favored male judges. Or, it may just be that when a male judge acts sternly or impatiently, he's merely regarded as firm or strict, whereas a woman who conducts herself the same way is labeled as strident or obnoxious.

Do you agree? In your experience, have you found male judges more courteous than female? Share your experience below.

May 22, 2008 | Permalink | Comments (1)

Texas Went Too Far in Polygamy Case, Court Rules

As my co-blogger Robert Ambrogi pointed out here, law bloggers did indeed miss a fairly big story when they, generally, failed to address the significant legal questions raised by Texas officials' removal of 416 children from a polygamist sect's compound. This afternoon, Texas Lawyer reports that the Texas' 3rd Court of Appeals overturned a lower court decision that permitted Texas' Child Protective Services agency to raid the polygamist ranch and seize the children from their homes. The appellate court found that the agency failed to produce any evidence to justify the removal. The ruling resulted from a writ of mandamus filed by the Texas RioGrande Legal Aid group on behalf of 48 mothers from the sect.

Let's see whether legal bloggers pick up the story now.

May 22, 2008 | Permalink | Comments (0)

Should Employers Love 'Love Contracts?'

As employees spend more time at the office, the number of inter-office romances has increased and so too, has the need of employers to protect themselves against any liability for sexual harassment claims that often result from a love affair gone wrong, reports Newsweek. Now, some companies are finding that protection in the form of a "consensual relationship agreement," or a love contract. Basically, a love contract is drawn up when a supervisor is dating a subordinate or when one of two co-workers is promoted above the other. In most cases, the contracts are drafted when management suspects that a couple is dating since they rarely self-report the relationship. The contract usually states that either party will seek arbitration rather than file a harassment grievance if the relationship sours. Given the sensitive nature of love contracts, they are often voluntary, with the parties often keeping mum about having signed. 

Some lawyers doubt that that love contracts will make any difference. At the blog, Rush on Business, Rush Nigut has this to say:

Sure certain office-romance relationships may start out consensual but it can quickly turn to harassment when one of the lovers calls it quits and the other won't give up the pursuit.  I tend to believe that the changed circumstances and conduct that occurred after the relationship breaks off still opens the company up to liability - love contract or no love contract.

Do law firms ever use love contracts?  Let us know in the comments if you're familiar with a firm that does.

May 22, 2008 | Permalink | Comments (0)

Why Lawyers Need a Good Psychology Class to Succeed

Maybe lawyers need more than just skills training to succeed in a law firm job. If these two recent articles are any indication, law students might benefit from a healthy dose of psychology courses as well.

Both suggest that lawyers' success hinges not just on legal acumen or business development skills, but also the ability to understand and avoid succumbing to the kinds of mind games that can doom a lawyer's performance.  For example, the ABA Journal discusses the recent work of Suffolk University law professor Andrew Perlman, who references sociological studies on group behavior to explain lawyers' tendency to discard their independent judgment and conform to group opinion when confronted with ambiguous questions, such as those involving ethics.  Perlman further contends that the hierarchical nature of law practice reinforces conformity, since those with low social status are more likely to comply with a directive from a higher authority.

Meanwhile, at My Shingle, I posted about a study concluding that a lack of control in a job situation has a fundamental effect on one's mental abilities and correspondingly, job performance. That's because a lack of power forces people to constantly re-evaluate and second guess themselves, thus redirecting their efforts from substantive tasks and diminishing their performance.  So many law firm associates may perform poorly simply because they're too busy worrying about whether they're pleasing their superiors rather than focusing on the substantive aspects of a task.

Psychology courses won't eliminate these types of forces from the legal profession. But if law students understand that they're susceptible to pressure to conform to even ill-advised group opinions or that a lack of power on a job can impair performance, at least they'll be better able to understand and deal with these issues when they arise.

May 22, 2008 | Permalink | Comments (1)

May 21, 2008

Liveblogging INTA

The International Trademark Association wraps up its annual meeting in Berlin today. J. Brian Beckham, a lawyer with the World Intellectual Property Organization in Geneva, Switzerland, has been liveblogging the meeting at Internet Cases, providing live coverage of sessions along with daily recaps. Other legal bloggers in attendance in Berlin include John L. Welch of The TTABlog, Marty Schwimmer of The Trademark Blog, Jeremy Phillips from Afro-IP, and at least part of the team from The IPKat. Many of them gathered Monday night for a "meet the bloggers" event.

May 21, 2008 | Permalink | Comments (0)

Cream of the Crop in Lit Support

Hat tip to Monica Bay at The Common Scold for pointing out Litigation Support Today magazine's presentation of its first-ever awards for excellence in litigation support. The four winners were:

  • Corporate Legal Department category: Beth Kellermann, litigation e-discovery manager for Apple, who worked her way up from law firm paralegal to head of Apple's e-discovery.
  • Private Law Firm category: Florinda Baldridge, director of practice support for Fulbright & Jaworski, honored for building a national department with a focus on cutting-edge technology.
  • Government category: Carl Kikuchi, branch chief for the Office of Litigation Support, U.S. Department of Justice, Civil Division, called a trailblazer in litigation support.
  • Industry Wide Category: Tom O’Connor, industry consultant, of the Legal Electronic Document Institute, recognized for his commitment and passion to helping the New Orleans legal community rebuild from hurricane Katrina.

The awards were named in honor of Betsy Ann Reynolds, formerly of Manatt, Phelps & Phillips, who died in October. They were handed out May 15 at the first International Litigation Support Leaders Conference held in Washington, D.C. (Watch a video of the ceremony.)

May 21, 2008 | Permalink | Comments (0)

ACLU Launches 'Blog of Rights'

It is only fitting that an organization dedicated to upholding the Bill of Rights should launch the Blog of Rights, because, as the blog's tag line says, "freedom can't blog itself." The American Civil Liberties Union envisions its new blog "as a marketplace of ideas and discourse on pressing civil liberties issues, from surveillance and extraordinary rendition to religious freedom and the rights of protesters," says Executive Director Anthony D. Romero in this introductory post.

To kick off the new blog (actually a renaming and redesign of an older blog), the ACLU has assembled a team of guest contributors to engage in a symposium on torture. Yesterday's offerings featured:

On tap for today are posts from Christy Hardin Smith of Firedoglake, Nicole Belle of Crooks and Liars, Digby of Hullabaloo, author Paul Verhaeghen, and ACLU Senior Legislative Counsel Chris Anders.

May 21, 2008 | Permalink | Comments (2)

In-House Lawyers to the Rescue

Cc200806_0001 An underdog came out on top in Corporate Counsel magazine's selection of best legal department of 2008. The in-house team at Qwest Communications won for "a classic job of making lemonade when they were dealt lemons," writes editor Anthony Paonita. The lemons came in the form of a multibillion-dollar accounting scandal that left angry investors suing to recoup more than $40 billion. As reporter Amy Miller writes, GC Richard Baer and his team took primary responsibility for handling the difficult negotiations with investors.

His recipe for making lemonade: humanize the company. "It was very important that plaintiffs lawyers understood that the company is made up of people, good people," Baer told reporter Miller.

The strategy worked. Qwest settled the suit a year later for $400 million, a mere 1 percent of the original claim. Then Qwest's lawyers took a deep breath. Investors who had opted out of the settlement filed additional lawsuits alleging nearly $2 billion in damages. So Baer and his most experienced litigator, Stefan Stein, crisscrossed the country last summer to negotiate. Last fall, all the remaining suits were settled for about $410 million.

Qwest's current CEO, Edward Mueller, describes it as some of the best legal work he has ever seen. And that is why the magazine chose Baer and his team for this honor. In fact, says editor Paonita, the Qwest lawyers made the choice easy. "[A]fter we met to evaluate and discuss their choices, a strange thing happened," he writes. "After disagreeing on almost everything else, we came to a rare accord on the winner."

See also: Next Best Legal Department: The Finalists.

May 21, 2008 | Permalink | Comments (0)

Somma: On the Bench or Off?

Judgesomma When last we left U.S. Bankruptcy Judge Robert Somma of Massachusetts, he was reconsidering his resignation from the bench. As you will recall, after news broke in February of Somma's DUI arrest while crossdressing, the judge, anticipating a "media frenzy," quickly submitted his resignation, effective April 1. But when area lawyers rallied to urge him to stay, citing his skill on the bench, he had second thoughts. In an April 1 letter to Massachusetts Lawyers Weekly, the judge wrote that the show of support led him to conclude, "contrary to my initial belief, that the media frenzy occasioned by this episode would not be an impediment to my continued service as a judge." He had "been communicating with the Court of Appeals" about his status, he told Lawyers Weekly, and was extending the effective date of his resignation to May 15.

That date has come and gone with no word of Somma's status. Yesterday, reporter Jonathan Saltzman at The Boston Globe went looking for answers, only to hit a solid wall of "no comments." Susan Goldberg, deputy circuit executive for the 1st U.S. Circuit Court of Appeals, told Saltzman she could not discuss Somma's status. Karen Redmond, spokesperson for the Administrative Office of the U.S. Courts in Washington, D.C., promised to get back to Saltzman, then never did. Somma's lawyer said he could not comment. At the Web site of the U.S. Bankruptcy Court in Boston, Somma is still listed as a judge. The 1st Circuit's site still has the Feb. 15 press release announcing Somma's resignation, but nothing more recent.

Somma's status is the subject of considerable speculation among bankruptcy lawyers in the region, Saltzman writes. Many of them gathered last week for a CLE conference in Boston, on the day Somma's resignation was to take effect. "All I heard was people asking whether anyone had heard anything," said Paul D. Moore, a lawyer who helped circulate the letter of support. "It's a small community, but I'm not aware of any news being shared with anyone."

May 21, 2008 | Permalink | Comments (0)

May 20, 2008

Law Firms Fighting Over Contingency Spoils

To the victor go the spoils in contingency cases, to paraphrase a famous quote. But real life isn't always as simple and as the Minneapolis Star Tribune reports, lawyers sometimes find themselves fighting over division of the spoils rather than enjoying them.

The article focuses on an intra-firm fee dispute involving the Minneapolis law firm Heins, Mills & Olson. The Heins law firm received a $103 million fee for its work as lead counsel in a nationwide class action suit against AOL Time Warner over false and misleading financial statements by AOL. After the win, several partners left the firm and filed suit for a larger cut of the fee, arguing that Heins and other lawyers on the firm letterhead had retained a disproportionate cut of the winnings. Eventually, the two departing lawyers each received $4 million, while Heins received $48 million and his wife Stacey Mills, an equity partner, took $32 million. However, Heins and Mills didn't keep the entire award as profit, but used a portion to cover taxes and pay down a line of credit that had been used to keep the firm going while the case was in suit.

Presumably, the departing lawyers had done the bulk of the work on the case, but the name partners had fronted the costs and perhaps, helped lure the clients. In this situation, what do you consider a fair split?

May 20, 2008 | Permalink | Comments (0)

D.C. Circuit Rules That Paper Money Discriminates Against the Blind

The Blog of the Legal Times reports that the D.C. Circuit, by a 2-1 decision, affirmed the ruling of the lower court that paper money discriminates against the blind in violation of Section 504 of the Americans With Disabilities Act. The court found that the plaintiff, the American Council of the Blind, had shown that the current design of paper money denies the blind "meaningful access" to use and the defendant Treasury Department failed to adequately support its claims that changing existing currency design -- for example, creating differentiated bill sizes -- would create an undue burden on the Bureau of Engraving and Printing.  Judge Randolph dissented, stating that the appeal was interlocutory and should never have been permitted.  However, Randolph also disagreed with the majority's assessment of the merits, finding that measures such as differentiating bill sizes would cost both the government and the private sector billions of dollars to alter ATM and vending machines and (horrors!) would render most current purses and wallets obsolete.

There are two interesting trivia points worth noting. According to Jurist, the United States is the only nation of some 180 using paper currency that produces same-size, undifferentiated bills in all denominations. And D.C. Circuit Judge David Tatel (who was not on the panel) is blind.

May 20, 2008 | Permalink | Comments (1)

Message to Gen Y: It's Your Problem, Not Mine

Let's just say that Dan Hull of What About Clients? doesn't mince words. In response to a marketing e-mail touting a 1-day seminar designed to help companies "attract and retain a generation of workers whose commitment seems more temporary than permanent," Hull replied thanks but no thanks. Hull writes:

It's your problem, Gen-X and Gen-Y. Not ours. Work, figure it out, ask questions, and we'll help you--but it's your job to adjust to "us" and the often hard adventure of learning to solve problems for your employer and its clients.

Should law firms bend over backwards to keep lawyers who can't or won't adjust? Or as Hull argues, do lawyers bear the burden of figuring out how to make the job work for them (and leave if they can't)?

May 20, 2008 | Permalink | Comments (0)

Blawg Review #160

Blawg Review #160 takes the form of a diary entry by hostess Ruthie's Law, who shares a behind-the-scenes look at preparing a blawg review. Ruthie writes that at the outset, she begged the pseudonymous Ed. to allow her to call issue #160 a "legal blog review." But ever the "uncooperative soul," (Ruthie's words, not mine!), Ed. refused, insisting that Ruthie use the proper term, Blawg Review. Second, if you've ever wondered which posts are submitted to Blawg Review versus selected, Ruthie reveals all, at least for this edition.

Whether you call it legal blog review or Blawg Review, don't miss this week's engaging issue.

May 20, 2008 | Permalink | Comments (0)

The Trickle-Down Effect of Wall Street Job Losses on Law Firms

When Wall Street goes, so goes New York City law firms.   At least that's what a recent report by New York City's Independent Budget Office suggests, reports Reuters. According to the IBO, an imminent local recession is expected to cause a loss of 33,300 jobs on Wall Street -- or about 7.1 percent of the sector's employment. So how does that impact law firms? Well, each job on Wall Street creates two to three jobs in other industries, from law firms to restaurants. Thus, job losses on Wall Street will inevitably impact the legal sector. 

For those of you who work in New York, are you seeing more signs that the economy is tanking? And if you work at a firm, do you feel secure at your job?  Send your comments below.

May 20, 2008 | Permalink | Comments (0)

May 19, 2008

A Second Chance for Judges to Comment?

What limits should be placed on a judge's freedom to speak to the news media and to defend his or her opinions in the court of public opinion? That question is very much in debate in Massachusetts, where a proposed change in the Code of Judicial Conduct would broaden the current rule to allow a judge to provide additional explanation for a decision at any time after issuing it -- a so-called second-chance opinion.

In January, the state's Supreme Judicial Court announced that it had appointed a panel to consider whether to revise the rule limiting public comment by judges. As it now stands, Canon 3B(9) of the code requires judges to "abstain from public comment about a pending or impending Massachusetts proceeding in any court." As I noted then at my Media Law blog, the rule came under fire most recently when one-time Republican presidential candidate and former Massachusetts Gov. Mitt Romney condemned his own judicial appointee for her release of Daniel Tavares, who was charged with shooting a Washington couple in November. Many observers believed the judge and the public were disadvantaged by her inability to explain her decision.

The ad hoc committee has published its proposed revision to the canon, and the proposal that is drawing the most controversy would allow a judge to add an explanation for a decision at any time after making it. The proposed commentary explains:

[A] judge, at any time, may supplement the court record by a written memorandum explaining his or her reasons for judicial action. For example, to educate the public, if he or she deems it appropriate, a judge may choose to issue a written memorandum in order to articulate in greater detail the rationale for the judge’s action at the time that action was taken. ... Canon 2 does not prohibit a memorandum of decision from being issued, even in response to public criticism, when that memorandum is based solely on the facts in the record and reflects the judge's reasoning at the time of the original decision, whether or not that reasoning previously was articulated.

Two members of the ad hoc committee have issued separate statements to express their disagreement with this proposed change. Juvenile Court Judge Jay D. Blitzman wrote in his statement that a judge's discretion to explain a decision should not be unfettered. He does not oppose supplemental memoranda, but believes the canon should provide clearer parameters about when they are appropriate. "Judges should be circumspect about when, and if, it is appropriate to file supplemental memoranda," he says.

Meanwhile, Harvard Law Prof. Andrew Kaufman says in his statement that the committee's reasoning in allowing second-chance opinions "is both disingenuous and wrong." While acknowledging that a judge has an interest -- perhaps even a First Amendment interest -- in self-defense against public criticism, Kaufman writes:

The strength of these interests is weakened by the fact that the judge already passed up, for any of a variety of possible reasons, an opportunity to explain, to educate, and to be accountable to the public. It is also weakened by the fact that the 'educate the public' justification is not altruistic. It is usually triggered by the desire to defend against public criticism.

The SJC is seeking public comments on the proposed changes to the judicial canon. It has set Aug. 22, 2008, as the deadline. The committee's report and the separate statements of Blitzman and Kaufman can be found here.

May 19, 2008 | Permalink | Comments (0)

BC Law Readies for Mukasey's Visit

Mmukasey This is the week in which Attorney General Michael Mukasey makes his controversial visit to Boston College Law School to speak at its commencement. I've had several previous posts (here, here and here) about the student and faculty dissent resulting from Dean John Garvey's decision to invite Mukasey, given his equivocation on the legality of waterboarding. The law school's Web site has nothing new to report about Mukasey's visit, but it has posted the commencement-week schedule. Mukasey speaks Friday in a graduation ceremony that begins at 2 p.m. at the law school's campus in Newton. (Today, by the way, is the 3L pub crawl, according to the schedule.)

But while the official law school Web site shows no evidence of the controversy surrounding Mukasey's visit, the law student blog Eagleionline yesterday published a draft of an upcoming article by BC Law Prof. Daniel Kanstroom, "On 'Waterboarding': Legal Interpretation and the Continuing Struggle for Human Rights." Kanstroom, director of the law school's International Human Rights Program, is far from equivocal in his stance on waterboarding and on Mukasey. From the abstract:

While some aspects of the 'waterboarding' debate are largely political, the practice also implicates deeply normative underpinnings of human rights and law. Attorney General Michael Mukasey has steadfastly declined to declare waterboarding illegal or to launch an investigation into past waterboarding. His equivocations have generated anguished controversy because they raise a fundamental question: should we balance 'heinousness and cruelty' against information that we 'might get'? Mr. Mukasey’s approach appears to be careful lawyering. However, it portends a radical and dangerous departure from a fundamental premise of human rights law: the inherent dignity of each person. ... [W]aterboarding is and was illegal. Official legal equivocation about waterboarding preserves the potential imprimatur of legality for torture.

Earlier, Eagleionline surveyed students about Mukasey's visit and found that half of those polled supported him speaking. At the same time, several students had concerns about the process used to select the commencement speaker. No word on whether Kanstroom will share a seat on stage with the AG.

May 19, 2008 | Permalink | Comments (0)

The Courtship of Jonathan Zittrain

Zittrain_conference Harvard Law School's conference Thursday and Friday was ostensibly about celebrating the 10th anniversary of its Berkman Center for Internet & Society. But as it kicked off Thursday morning, it seemed more like an elaborate Ivy League courtship ritual aimed at luring back its prodigal son Jonathan Zittrain. It wasn't enough that the title of the conference, "The Future of the Internet," also happens to be the title of Zittrain's book, or that he was the lead-off speaker. After the day began with a brief welcome from Harvard Law Dean Elena Kagan, IP law Prof. William (Terry) Fisher III took the stage and announced that Harvard had offered Zittrain a tenured position and was hoping to attract him back from Oxford University, where he is chair in Internet governance and regulation. Fisher quickly added that Stanford is also courting Zittrain. "Our task this week," he told the SRO crowd packed into the law school's Ames Courtroom, "is to try to persuade him to stay." With that, Dean Kagan and a bemused-looking Prof. Charles Nesson stood up on stage and urged the audience to join them in chanting, "We want Zittrain! We want Zittrain!"

All this happened just during the welcoming remarks and before anyone even got around to introducing Zittrain's talk. Before that would happen, there would be one more welcome, in which Zittrain would make a cameo appearance. Nesson took to the podium to deliver his welcoming remarks, but as he tried to get his laptop to launch a video on the enormous screen behind him, he was unable to make it work. Still looking bemused as he fumbled with the laptop, he faced the audience and offered a quote he attributed to "my mentor," media great Fred Friendly: "Technology is out to fuck you." Suddenly someone rushed to the podium, laid hands on the laptop, and the video started to play. That someone, it turned out, was Zittrain. The sole purpose of the video, after all that fuss, was to have a Second Life-like avatar named Eon (the name of Nesson's blog) make the introduction of Nesson.

At long last, it was time to introduce Zittrain's talk. Kagan and Fisher appeared to have a brief on-stage exchange about who would make the introduction, with Fisher emerging the victor. He launched into a long and carefully spoken homage that was almost lascivious in its praise for Zittrain. Finally he finished, and as he turned to bring Zittrain on stage, Kagan jumped back up and added a few further words. By this point, I was beginning to feel a bit uncomfortable, like a third person along on a first date -- one that wasn't necessarily going well. Not that this was a first date. Zittrain co-founded the Berkman Center with Nesson in 1997, was its first executive director and continues as the Jack N. and Lillian R. Berkman visiting professor for entrepreneurial legal studies at Harvard.

When Zittrain finally took to the stage, he offered no clue as to whether the arrow of Harvard's tenure offer had pierced his heart. The one certainty about his speech was that he no doubt sold a number of books that day. As a speaker, Zittrain is both thoughtful and entertaining. But by the time he finished his nearly 90-minute presentation, many in the audience were left a bit unsure of just where he saw the future of the Internet heading. At lunch afterward, everyone at my table agreed they would buy the book, if only to help themselves understand his ultimate point. CNET blogger Dan Farber at Outside the Lines has a good synopsis of Zittrain's speech, although even he resorts to quoting the book more than the speech. He did capture this great Zittrain line: "The Internet is a collective hallucination that works as long as we don't stare at it too carefully." Perhaps the same is true of law school courtship rituals.

Further reading: Dave Winer at Scripting News has video of pre-conference schmoozing and of Zittrain's speech.

May 19, 2008 | Permalink | Comments (0)

Other News from Harvard's Berkman

In another post today, I wrote about the courtship of Jonathan Zittrain during Harvard Law School's two-day  Berkman@10  Conference to celebrate the 10th anniversary of its Berkman Center for Internet & Society. In addition to revealing the law school's offer of a tenured teaching position to Zittrain, Dean Elena Kagan had another major announcement to kick off the event. The Berkman Center will no longer be exclusively a law school project and instead will be a university-wide, interfaculty initiative. "By becoming an interfaculty initiative at Harvard, the Berkman Center will expand its reach into other disciplines and take advantage of synergies across the university, all while retaining its home and roots at the Law School," she said. According to the Harvard University Gazette, the law school will remain Berkman's base of operation and Berkman will continue to operate its Cyberlaw Clinic, which provides free legal services on cutting-edge issues involving technology and the Internet.

Last month, the law school announced that Berkman's longtime executive director, John Palfrey, had been named to become head of the Harvard law library. Now, in what is sure to be a much sought-after position, Harvard has opened the search for a new executive director, a "dynamic" person to "play a vital role in building on Berkman's past, helping to guide us into Berkman '3.0.'" Here is the full job posting.

And lest I leave the impression that this conference was all-Zittrain, it was not. The event brought together a who's who of the Internet cognoscenti, both as speakers and attendees. Other speakers included Harvard Law Prof. Yochai Benkler, entrepreneur and journalist Esther Dyson, former FCC Chairman Reed Hundt, Viacom GC Michael D. Fricklas, Talking Points Memo publisher Joshua Micah Marshall and Wikipedia cofounder Jimmy Wales. And the attendees, who came from all over the world, were equally impressive.

May 19, 2008 | Permalink | Comments (0)

May 16, 2008

Two More Law Firms Shorten Their Names

The firms formerly known as Sutherland, Asbill & Brennan and Pillsbury, Winthrop Shaw Pittman have re-branded themselves with shorter names, reports the Fulton County Daily Report, via Blog of the Legal Times. Not only have the firms truncated their names to Sutherland and Pillsbury, respectively, but they've also renovated their Web sites, giving them a cleaner more updated look to match their sleeker names. 

Shortening names isn't new.  Many other firms -- including Skadden, Orrick and Bingham -- now use shortened versions of their names on their Web sites and marketing materials, even though they've kept the longer version as their legal name. 

May 16, 2008 | Permalink | Comments (1)

LA U.S. Attorney Indicts Missouri Woman for Role in MySpace Suicide

The U.S. Attorneys' Office in Los Angeles indicted Missouri woman Lori Drew for her alleged role in perpetrating a hoax on MySpace that lead to a thirteen year old neighbor's suicide, reports  Drew created a fake MySpace account and used it to impersonate a sixteen year old boy named Josh Evans to befriend, then humiliate Megan Meier, a rival of Drew's daughter.  Ultimately, Meier hanged herself after Drew-as-Evans sent her a note saying that the world would be better off without her.

In a case of first impression, Drew was charged with violating a federal law that prohibits unauthorized access to protected computers to obtain information to inflict emotional distress -- a law that has never before been applied to a social networking case.  State authorities declined to prosecute Drew after concluding that no state criminal statutes outlawed her conduct.

Notwithstanding the sympathetic nature of the facts here, two prominent law bloggers take the position that the indictment should not -- and ultimately will not -- stick.  At Volokh, Orin Kerr argues that the courts should dismiss the indictment, explaining that it effectively prosecutes her for what amounts to a violation of the MySpace Terms of Service: 

The indictment is not charging Drew with harassment. Nor are they charging her with homicide. Rather, the government's theory in this case is that Drew criminally trespassed onto MySpace's server by using MySpace in a way that violated MySpace's Terms of Service (TOS).  Here's the idea. The TOS required Drew to provide accurate registration information, not to harass or harm other people, and not to promote conduct that was abusive. She didn't comply with these terms, the theory goes, so she was criminally trespassing onto MySpace's computer when she was logging into her account. The indictment turns this into a federal felony conspiracy charge by arguing that she did this in concert with others to obtain information and to further tortious conduct — intentional infliction of emotional distress — violating the felony provisions of 18 U.S.C. 1030(a)(2).

Kerr suggests that the government won't be able to prove its case.  Because it's a criminal case, the government must show that Drew intentionally violated the TOS, which Kerr predicts will be difficult because it's likely that Drew, like most users, never read them.  In addition, Kerr argues that while Drew did intend to harass Meier, she didn't intend to take confidential information, which is another element of the statute.

For Jeralynn Merritt, the Drew indictment is nothing more than overreaching by the federal government. She argues that the federal charging document represents a growing trend towards the federalization of local crime:

Should a federal prosecutor in Los Angeles be entrusted with the power to punish a local incident that occurred in a different state?  We should not applaud the "novel" or "groundbreaking" interpretation of a statute that clearly was not meant to apply to harassing messages sent through bogus MySpace accounts.

Kerr's and Merritt's arguments convince me.  But they also make me realize that going forward, states should  enact criminal laws to prevent and deter this kind of conduct.  Otherwise, I anticipate that victims of harassment perpetrated by social networking sites will sue to hold them accountable for failure to protect site users or guard against fraudulent use.  I'd much rather see conduct like Drew's criminalized so that the perpetrator is held responsible rather than shifting the blame to the Web site owners, and forcing all of the rest of us users to bear the cost for their misconduct. 

May 16, 2008 | Permalink | Comments (1)

Lawyers Rank 17th on List of Best and Worst Paying Jobs

Forbes Magazine just released the latest list that should capture the attention of rankings-obsessed lawyers -- "The Best and Worst Paying Jobs List." With an average salary of $118,280, lawyers place 17th, below most medical specialists, CEOs and airline pilots.  Still, lawyers can take heart -- not only do their earnings surpass dishwashers, bus boys and salon workers -- but they also make more than Berkshire Hathaway CEO Warren Buffet, who pays himself a miserly $100,000 a year.

So does a career in medicine make more sense from a financial perspective than law?  Not necessarily.  The Forbes story explores some of the reasons not to become a doctor, including anticipated cuts in Medicaid reimbursements to doctors over the coming years and the cost of malpractice insurance

In addition, tuition costs for medical school are higher than ever, with most medical students graduating with a median debt of $135,000.  And lucrative specialties like dermatology or anesthesiology (the top paying position on the Forbes list) require extra years of training, which means that most doctors won't start earning money and paying down debt until their mid-30s.  By contrast, new law grads, at least those who matriculate to Biglaw, earn six figure salaries for on-the-job training.  So why do large firm lawyers complain so much, when at least at the outset, they're doing far better than new doctors?

Even with the stress of malpractice actions and reduced insurance payments looming, it's always been my impression that doctors felt more satisfied in their careers than lawyers -- even though both law and medicine are service professions with a focus on helping others.   Do you agree that doctors more content than lawyers --  and if so why?

May 16, 2008 | Permalink | Comments (5)

May 15, 2008

Twittering From the Courtroom

"There's a new kind of journalism coming from a Kansas courtroom this week," writes Anne Reed at her blog Deliberations. She calls it "Twitter journalism." Whereas blogging a trial already seems old-hat, Wichita Eagle reporter and multimedia producer Ron Sylvester is reporting a capital murder trial through a series of Twitter posts -- each capped at 140 characters.

As he explains at the Society of Professional Journalists blog Technolo-J, his "tweeting" of this trial evolved from his experiment last year live blogging an earlier trial, e-mailing his posts to the newsroom, where other staffers would post them online. But the workflow lagged, and he found himself filing faster than the staff had time to post. So this time, he decided to try Twitter as an experiment, thinking to himself, "Who would notice?" As it turned out, plenty of people noticed. "I didn't expect the reaction," he writes. "This is important to me, because they are local people, looking for local news. They're not readers or viewers or audience anymore -- in this world of social networking, they're my friends."

Back at Deliberations, Anne Reed sees this as another way in which Twitter is finding its way into the legal world. "Ron Sylvester is reporting jury selection with a fresh and direct style you don't often see," she says, "except on Twitter." 

May 15, 2008 | Permalink | Comments (0)

WIPO Elects Next Director General

Gurry In a hard-fought election decided by a one-vote margin, the World Intellectual Property Organization elected Australian lawyer Francis Gurry to be its next director general. Gurry has worked for WIPO in Geneva, Switzerland, since 1985, most recently as deputy director general in charge of patents. Before assuming that role in 2003, he was assistant director general and legal counsel. In the mid-1990s, he founded the WIPO Arbitration and Mediation Center and remained its director up to the time of the election.

The election was hard-fought, reports Intellectual Property Watch, with 15 candidates originally in the running after it became clear that the current director general would be pressured out over lack of confidence in his leadership. "But in the end, Gurry, considered a favourite as one of the most senior officials in the organisation who had nevertheless crafted a reputation for relative independence from the existing administration, prevailed." After the vote, Gurry told WIPO members, "I want to assure the membership that as of conclusion of this process my mind will be set on all members. I’m very much aware of the diversity of the organization."

More about Gurry here in his resume.

May 15, 2008 | Permalink | Comments (0)

Not All Quiet on the John Yoo Front

My, how the blogosphere buzz over John Yoo has quieted. Just a month ago, I posted here about the debate among legal and academic bloggers over whether the co-author of Bush Administration memoranda condoning torture should be allowed to retain his professorship at the University of California's Boalt Hall School of Law. Now, there is hardly a murmur about his tenure. But not all is quiet on the John Yoo front, with two noteworthy developments this week.

First, Yoo himself speaks out once again on the issue of presidential power, asserting that the central purpose of executive power is "to respond quickly and decisively to unforeseen crises and emergencies in foreign affairs." Sounds familiar, only he is referring in this case not to President Bush, but to President Thomas Jefferson. In a Boston University Law Review article, Jefferson and Executive Power, Yoo argues that Jefferson was "a bundle of contradictions," perhaps nowhere more so than in his views on executive power. Nonetheless, Yoo contends, "Jefferson's success as Chief Executive is closely intertwined with his broad conception of presidential power." He concludes by contrasting Jefferson with his successor, James Madison, whose narrow view of presidential power, Yoo says, was his downfall.

Elsewhere, the National Lawyers Guild, which last month led the charge for Boalt to dismiss Yoo, this week issued a statement calling on Congress to appoint a special prosecutor to investigate and prosecute Yoo and others for their roles in condoning torture. Along with the statement, the NLG published a white paper setting out the legal and factual arguments for prosecuting the memo writers under international and U.S. law. NLG President Marjorie Cohn recently testified on Capitol Hill that Yoo and others were "part of a common plan to violate U.S. and international laws outlawing torture."

May 15, 2008 | Permalink | Comments (0)

Study Debunks Med-Mal Crisis

Massachusetts has the fourth-highest median malpractice settlement payments in the nation. It only follows that Massachusetts doctors should pay the fourth-highest insurance premiums. Right? Turns out, Bay State physicians actually saw their inflation-adjusted malpractice premiums drop between 1990 and 2005. This is the finding of a newly released study conducted by researchers at Suffolk University Law School in Boston. Published this week in the May/June issue of the journal Health Affairs, the study "raises serious questions about claims that Massachusetts doctors are facing a medical malpractice premium crisis that threatens the viability of medical practice in the Bay State," say its authors. From the announcement:

Suffolk University Law School researchers Marc Rodwin and colleagues analyzed malpractice premiums from 1975 to 2005 using data from the state-regulated mutual insurer known as ProMutual Group. In 2005, inflation-adjusted malpractice premiums were $17,810 for the coverage level and policy type that physicians most frequently purchased, compared with $17,907 in 1990. Despite premium increases since 1995 or 2000 for all physicians, premiums were still lower in 2005 than 1990, when they reached a 30-year peak. Mean premiums increased only in three specialties comprising 4 percent of physicians: obstetrics, neurology and orthopedists performing spinal surgery.

Even in high-risk specialties, where insurers charge surcharges, the situation is not as dire as so-called tort reformers would suggest. In OB-GYN, for example, nearly one third of physicians paid lower premiums in 2005 than in 1990, the study found.

In The Boston Globe, the president of the Massachusetts Medical Society countered the study with this confounding statement: "The issue of the malpractice crisis is not purely a premium-based issue, although we certainly have documented the high cost of liability insurance is a major factor in [physicians'] perspective on the practice environment. I think to some degree looking at malpractice premiums ... may provide an unfair picture of what is really going on."

What I think he said is this: If the insurance argument isn't going to work anymore to deflect those nasty tort lawyers, we'll think of something else.

May 15, 2008 | Permalink | Comments (4)

May 14, 2008

Are Tort Reformers Going After the Wrong Target?

New York personal injury lawyer Eric Turkewitz takes a critical look at a lawsuit by numbers kingpin-cum-Rikers Island inmate Raymond Marquez, alleging that the New York City Department of Corrections' indoor smoking policy caused Marquez's bladder cancer.  Despite the fact that Marquez had smoked for thirty years before quitting around the mid-1970s, his lawsuit attributed his cancer to the second hand smoke that he endured between 1998 and 2001 while awaiting trial at Rikers Island for a crime for which he was subsequently acquitted.  On Friday, a jury returned a verdict in favor of the City.

Turkewitz comments:

When I first heard about the litigation, it sounded like a dog, and I don't know any reputable personal injury firm that would have taken it. And as it turns out, the suit was brought by the plaintiff's son, who happens to be a local attorney.

Because most reputable lawyers would have -- and indeed did -- decline this case, Turkewitz argues that it's unfair for the City to make the case a poster child for "ridiculous lawsuits" as it has done in recent press releases. 

Turkewitz makes an interesting point.  Some of the most notable examples of litigation-gone-wild -- such as Roy Pearson's $65 million pants suit against the dry cleaners or the $54 million suit against Best Buy for losing a woman's computer in the repair shop -- were brought by pro se litigants (though Pearson is a lawyer).   In many pro se cases, or cases where a plaintiff is represented by a friend or a relative, it's often because most sensible plaintiffs' lawyers turned the cases down.  For that reason, is it fair to use cases that no lawyer would have taken anyway as an example of what's broken in the tort system or as a basis for criticizing trial lawyers?

May 14, 2008 | Permalink | Comments (5)

Vista Won't See the Light of Day at Most Law Firms

It's been about two years since Microsoft launched Vista, a Windows-based operating system that has been so poorly received that even Wikipedia devoted an entire entry to "Criticism of Windows Vista."  Because of its many problems, Vista is being bypassed by many large corporations, reports Rick Georges at Future Lawyer.

As for law firms, this is one case where their complacency in adopting new technology plays to their advantage.  Georges writes that "until someone makes [law firms] adopt it, Vista will not likely see the insides of a majority of law firm computers." Thus, most law firms will be spared the headaches that other users have experienced with Vista.

May 14, 2008 | Permalink | Comments (0)

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