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September 30, 2008

IBM Seeks Patent on Absence of Patents

IBM, it appears, abhors an IP vacuum. By way of news-for-nerds blog Slashdot comes word that IBM is seeking to patent a tool for identifying areas within industries in which little patenting activity is taking place -- thus allowing businesses to step in and fill that IP void. Filed last week with the U.S. Patent and Trademark Office, IBM's application seeks to patent Methodologies and Analytics Tools for Identifying White Space Opportunities in a Given Industry. "White space," as the application explains, "is a term generally used to designate one or more technical fields in which little or no IP may exist."

The need for the invention, the application says, stems from the fact that existing processes for identifying white space -- such as Internet searches -- are labor intensive, time consuming and largely ineffective. Yet rooting out this intelligence could be "critical to the competitive advantage of a business entity," which could use this knowledge "to maximize the value of its IP" within that fallow field of patenting.  So how would IBM's invention address this? The abstract provides this description:

A method for analyzing predefined subject matter in a patent database being for use with a set of target patents, each target patent related to the predefined subject matter, the method comprising: creating a feature space based on frequently occurring terms found in the set of target patents; creating a partition taxonomy based on a clustered configuration of the feature space; editing the partition taxonomy using domain expertise to produce an edited partition taxonomy; creating a classification taxonomy based on structured features present in the edited partition taxonomy; creating a contingency table by comparing the edited partition taxonomy and the classification taxonomy to provide entries in the contingency table; and identifying all significant relationships in the contingency table to help determine the presence of any white space.

If I understand it in the least bit -- which I readily admit I may not -- the patent would cover an "intelligent search" tool that would analyze and extract text from within one set of documents or data (such as patents) and look for similar concepts within a second set of documents or data. The result would be to identify concepts and key words that occur with less frequency in the second data set, suggesting the existence of white space. As Slashdot points out, this patent comes from a company that in 2006 made a public commitment to pursuing greater clarity and transparency in patents.

September 30, 2008 | Permalink | Comments (1)

Lawyer Loses Ladies' Night Lawsuit

Someone should buy attorney Roy Den Hollander a drink. No doubt he needs one, after a federal judge threw out his lawsuit seeking to put a cork in ladies' nights at New York nightclubs. The self-professed anti-feminist's complaint alleged that his constitutional rights to equal protection under the law were violated by nightclubs that charge higher admission prices for men than women. But U.S. District Judge Miriam Goldman Cedarbaum wasn't buying that argument. Nightclubs are private establishments that can charge whatever they want, she ruled, dismissing his complaint.

Hollander dismissed the dismissal, calling the judge a feminist and describing her ruling as consistent with the anti-male discrimination embedded in many American institutions. "This lawsuit would have put an end to guys financially subsidizing girls to party at nightclubs," he told the New York Daily News. No doubt, had he succeeded, men everywhere would have owed him a debt of gratitude. As the College on the Record blog commented, "What were these clubs thinking trying to lure hot women into their venues for the benefit of their male customers?"

Meanwhile, Hollander's crusade against women of the world continues on other fronts. In August, he filed a federal lawsuit against Columbia University seeking to shut down its women's studies courses. His lawsuit seeks class action status and alleges that Columbia is using government aid to preach a "religionist belief system called feminism." His complaint calls the women's studies program "a bastion of bigotry against men" that "demonizes men and exalts women in order to justify discrimination against men based on collective guilt." In another lawsuit, he challenges the constitutionality of the federal Violence Against Women Act, alleging that the law "was created by feminist organizations to provide alien wives alleging abuse a fast track to permanent residency by violating the U.S. Constitutional rights of citizen husbands."

Hollander's Web site implores, "Now is the time for all good men to fight for their rights before they have no rights left." Speaking as just one member of the downtrodden but overpaid male gender, I think Hollander has it exactly wrong.

September 30, 2008 | Permalink | Comments (15)

One Way to Raise Your Facebook Profile

A hot topic in legal marketing circles is whether social-networking site Facebook is a worthwhile tool for legal professionals. Say what you will, Facebook is doing wonders for raising the profile of Theodore W. Ullyot, ever since it was revealed this week that the Kirkland & Ellis partner will join the Internet upstart next month as its general counsel. After the Los Angeles Times Technology blog reported the news yesterday, the story quickly made the rounds of the legal blogosphere, where it was picked up by, among others, the Wall Street Journal's Law Blog, CNET's blog the social, Above the Law and Legal Pad.

For Facebook, the hire is a step out of adolescence. Elliot Schrage, Facebook's VP of communications (himself a lawyer), told the L.A. Times, "He has an extraordinary combination of private legal practice and public sector experience. So many of the legal issues we face touch on both of those arenas. He is equally comfortable helping us expand internationally as he is in helping us navigate complicated legal issues we may face in Washington. Ted's arrival really demonstrates we're a little more grown-up."

A little more grown-up and a little more politically astute. As Schrage acknowledges, Ullyot "has extremely strong connections with the Republican party, and we think that's a good thing." Dan Slater at the Law Blog sums up Ullyot's Republican creds:

The 41 year-old Ullyot (Harvard, U. of Chicago law) began his legal career clerking for Justice Scalia and the Fourth Circuit's J. Michael Luttig (who is now Boeing's senior vice president and GC) before being recruited by Kenneth Starr to K&E. He then went to work for another K&E alum, AOL general counsel Paul Cappuccio, who's now the GC of Time Warner. Ullyot later became senior vice president and general counsel for AOL Time Warner Europe.

After stints in the White House and the DOJ, he joined Eddie Lampert's ESL Investments. In May, Ullyot returned to K&E as a partner, focusing on appellate litigation, administrative law and antitrust law.

Greater political balance at Facebook may well be in order, it turns out. At Legal Pad, Zusha Elinson goes digging through records to find that Ullyot would be the first Facebook employee this election cycle to donate to a Republican presidential candidate.

Some Facebook users are not too happy about the hire. A group has already been created with the name, Demand that Facebook General Counsel Ullyot Resign. The group's description complains that "Ullyot helped to write the infamous 'torture memo' that justified criminal practices on behalf of the Bush administration" and that he was associated "with some of the most dangerous and illegal scandals of the Bush administration." As for Ullyot's Facebook profile, I could not find that he has one.

September 30, 2008 | Permalink | Comments (0)

Thomson Lawsuit Takes on GMU's Zotero

If you've never heard a law school faculty member squeal with delight, then you've never been to a Zotero demonstration. Zotero is a free Firefox extension used to collect, manage and cite research sources. It was developed by the Center for History and New Media at George Mason University. As University of Wisconsin law librarian Bonnie Shucha recently wrote at WisBlawg about a demonstration of Zotero given to law school faculty there, "To say they were impressed would be an understatement -- there were actual squeals of delight."

But now Thomson Reuters is trying to put an end to all that fun. It has filed a lawsuit against George Mason University seeking an injunction against Zotero's distribution and $10 million in damages. Thomson sells a product, EndNote, which, similarly to Zotero, allows users to search and organize bibliographic files online. In July, GMU released an update to Zotero that enables it to convert proprietary EndNote files to open-source Zotero files. In the lawsuit, which was first reported by the Courthouse News Service, Thomson alleges that GMU developed this capability by reverse engineering EndNote, in violation of EndNote's end-user license agreement.

GMU has issued no official response to the lawsuit, which was filed in state court in Richmond, Va. Thomson's complaint, filed by Gary H. Nunes of Womble Carlyle Sandridge & Rice in Tysons Corner, Va., alleges that a GMU in-house counsel, David G. Drummey, initially responded to an August cease-and-desist letter by expressing an interest in negotiating a collaborative agreement between Thomson and GMU. A few days later, Drummey notified Thomson that GMU would not pull Zotero from distribution and that he had referred the matter to outside counsel.

At the blog Techdirt, Mike Masnick says this lawsuit highlights one of the worst aspects of the Digital Millennium Copyright Act. "Reverse engineering is considered a perfectly legitimate practice in most cases -- and, in fact, is considered an important part of the competitive market in driving innovation," he writes. "But, thanks to the DMCA, when it comes to software, this type of behavior can be blocked within a license agreement." In Masnick's view, Zotero actually makes EndNote more valuable by making its output more useful. For a much-lengthier discussion of the pros and cons (mostly cons) of Thomson's lawsuit, EULAs and the DMCA, see the discussion thread at Slashdot.

September 30, 2008 | Permalink | Comments (3)

September 29, 2008

Blawg Review #179

The IP.Com team celebrates the 70th anniversary of the ballpoint pen by penning Blawg Review #179.  Not surprisingly, this issue of Blawg Review focuses heavily on IP and patent-related posts.  But if you don't follow those topics closely, you'll still find plenty of interesting tidbits such as Patent Baristas' preview of  "Flash of Genius," a movie about the landmark patent case involving the intermittent windshield wiper; Eric Lane's news that Green Patent Blog's trademark application was rejected; and Eric Menhart's analysis at Cyber Law of whether a third party's use of a political candidate's name as domain name raises infringement issues.

But the coolest link in this week's Blawg Review isn't law related at all: Check out these 10-foot "photographs" drawn with the humble ball point pen.

September 29, 2008 | Permalink | Comments (0)

Wall Street and Law Street

The news is packed with stories about how turmoil on Wall Street is impacting Main Street.  But what's the effect on Law Street?  Not to sound too lawyerly about it, but the answer depends on where you work and what you do, as the stories below suggest.

Legal process outsourcing companies in India have experienced huge growth over the past six months, and are on a hiring spree in anticipation of added work as U.S. firms cut back on hiring and a demand for litigation services rises, reports Hindu Business Line.  According to the article, the Wall Street crisis has "resulted in increased litigation related to bankruptcy, mergers & acquisitions and other related aspects," thus providing a boom for LPOs.  Moreover, in a tough economy, U.S. companies are under pressure to keep costs down, which makes lower-cost LPOs particularly attractive.

Likewise, many New Jersey firms are seeing increased business from Wall Street's woes, reports NJ Biz Weekly.  At least one firm, McCarter English, is handling litigation work related to Lehman Brothers' bankruptcy filing, while other firms are fielding calls from clients regarding the validity of their contracts with the various Wall Street firms that have gone under.  But other firms say that they haven't yet seen any additional work, and that it is premature to speculate on whether significant work will in fact materialize. 

If the past few months are any indication, however, law firms can expect a decline moving forward. A recent Citibank survey of the nation's top 160 law firms found that billable hours had declined by as much as 10 percent.  At Philadelphia-based Wolf Block, partners are hoping that the decline is "a temporary interruption."  But overall, Philadelphia firms have not been as hard hit as, for example, New York firms, whose workloads are more deeply tied to Wall Street-related transactional matters. In fact, few Philadelphia-based firms have been forced to engage in the massive associate layoffs that have taken place at firms in other parts of the country.

September 29, 2008 | Permalink | Comments (2)

User-Friendly Law Firms

In recent years, companies have worked hard to make consumer products -- such as computer software or even an ordinary coffee can -- more user-friendly.  So when are law firms going to catch on and start developing and applying ease-of-use concepts, asks Dan Hull at What About Paris?

While Hull acknowledges that it's harder to make a service more user-friendly than a product, he pinpoints a couple of areas where firms can make life easier for clients: 

Are clients experiencing a team--or hearing and seeing isolated acts by talented but soul-less techies? Do you make reports and communications short, easy and to the point? Who gets copied openly so clients don't have to guess about who knows what? Is it fun (yeah, we just said "fun") to work with your firm? How are your logistics for client meetings, travel and lodging? Do you make life easier? Or harder? Are you accessible 24/7? In short, aside from the technical aspects of your service (i.e., the client "is safe"), do your clients "feel safe"?

Hull suggests that firms think through these different issues and find ways to improve the way that clients experience delivery of services.

Hull's post is incredibly timely.  With the economy in turmoil, most clients have enough on their minds already and don't need the added stress of dealing with a complex law firm bureaucracy or a lawyer who clearly doesn't enjoy his work.  More than ever, clients are apt to appreciate user-friendly service in this economic climate.  And don't forget -- by making your firm more user-friendly, you'll encourage clients to use you more.

September 29, 2008 | Permalink | Comments (0)

Chinese Lawyers Pressured to Spill Tainted Milk Cases

Call it a primitive version of tort reform: The Chinese government is pressuring lawyers advising on possible lawsuits against companies responsible for melamine-tainted milk products that have sickened tens of thousands of infants to cease those activities, reports MSNBC and the Wall Street Journal. As the government has started to disclose the full extent of the tainted milk scandal, Chinese lawyers have set up groups to advise victims on options for seeking compensation, including lawsuits against the Sanlu Group, a Chinese dairy company that produced the milk powder regarded as the cause of many of the illnesses.  But now some of these lawyers, such as Change Boyang who practices in central China where many children are sick, are backing off, citing heavy pressure from local judicial authorities. Li Fangping, a Beijing-based lawyer who has consulted with some families told the Wall Street Journal that "I heard many lawyers have faced this pressure to abandon their efforts." At this point, Fangping, who was quoted last week in the Christian Science Monitor, is willing to forestall any legal action if the government makes good on its pledge to compensate victims for all medical costs associated with treatment.

The Chinese government is asking victims to trust that the government will resolve the matter, and has suggested that involvement of lawyers will interfere with efforts to resolve the tainted milk crisis.  However, for tort lawyer Bill Marler, who specializes in foodborne illness cases, limiting access to legal advice is part of the cause of the tainted milk scandal, not the solution:

free press and the right to legal advice is a must to keep corporations like Sanlu Fonterra and the Chinese Government honest.  Frankly, that is true whatever country you are in.  The world's media and legal associations, especially in the US, need to speak out in support of our chinese collegues.  Until there is a free press and a functioning legal system in China, expect to see more outbreaks, illnesses and cover-ups.

And in the Christian Science Monitor, Dan Harris of the China Law Blog seems to agree: "Damages are so low in China that companies can get away with it...Why bother to recall if only 20 people are going to sue you and win $20,000 each?"

September 29, 2008 | Permalink | Comments (0)

September 26, 2008

RIAA Ruling: Good News or Bad?

The decision this week by a federal judge in Minnesota to order a new trial in the recording industry's case against Jammie Thomas was seen by many as a victory for users of peer-to-peer networks. But was it? Thomas remains the only defendant sued by the Recording Industry Association of America to take her case to trial, resulting in a jury verdict against her of $222,000. But in a decision this week, U.S. District Judge Michael Davis vacated the verdict, concluding that he erred by instructing the jury that Thomas could be found liable for simply making a music file available in a folder on her computer, without showing actual distribution of the file.

The decision was seen as good news for Thomas and other file-sharing defendants. At the Wall Street Journal's Law Blog, Dan Slater described the ruling as a blow to the recording industry, one that "will certainly make the policing job of the [RIAA] a lot harder." But another blogger says that the ruling's significance may lie as much in what it gave the RIAA as what it took away. "It nullified an almost foolproof method for the RIAA to prevail in cases and replaced it with another," contends David Kravetz at Wired's Threat Level blog.

The issue is this: Judge Davis said that evidence of "making available," standing alone, is not enough to prove copyright infringement unless the plaintiffs also prove distribution. That was the good news. The bad news was that he went on to say that the RIAA could prove distribution by showing that the company it hired to investigate Thomas, MediaSentry, downloaded the file as part of its investigation. "Distribution to an investigator, such as MediaSentry, can constitute unauthorized distribution," the judge wrote.

Lawyers for file-sharing defendants argue that it makes no sense to count downloads by RIAA investigators as evidence of illegal file sharing. One of Thomas's attorneys, Brian Toder, told Threat Level blogger Kravetz that this week's decision clearly hurts the defense. "One can either have an infringement by violating reproduction rights or by distribution. According to that opinion, there is still a violation of a distribution right if your own people, MediaSentry, does the downloading. That doesn't help us," Toder said. The upshot of this is that, at least for the time being, it appears the litigation battles between the RIAA and file sharers will continue.

September 26, 2008 | Permalink | Comments (4)

Survey: In-House Legal Departments Cut Back

Corporate legal departments are cutting back, reducing the number of in-house lawyers they employ and slowing the pace of spending on outside firms. This is the key finding of the just-released 2008 edition of legal consulting firm Hildebrandt International's annual Law Department Survey. "After years of stability surrounding legal staffing and spending, law departments are cutting back," said Lauren Chung, survey director and editor. "Total legal spending increased at a slower pace than prior years. The most significant change was with inside spending. More law departments reported a decrease in the number of lawyers. This has led to slower growth in inside spending."

These findings appear to mirror those of a study of Boston-area in-house counsel to be released later this month and reported today in the National Law Journal.The study by Wellesley, Mass.-based BTI Consulting Group, "Boston Law: Leaders, Contenders & Corporate Spending Forecast," finds that Boston-area corporate executives and in-house counsel anticipate slow legal spending growth for the region's nearly $2 billion legal services market.

With regard to the Hildebrandt survey, among its key findings were:

  • Law departments are cutting back on spending. While total legal spending increased by 5 percent in the U.S., that is down from rates of 6 to 7 percent in the four prior years. The median company spends $4.3 million per $1 billion of revenues on legal spending in the U.S., a figure that has changed little over the past three years. Inside spending rose by 5 percent in the U.S., down from the 8 percent increase reported last year. Outside counsel spending grew by 2 percent in the U.S and by 3 percent worldwide.
  • Lawyer staffing is down. The median company employs 3.8 lawyers per $1 billion of U.S. revenues and 3.3 lawyers per $1 billion of worldwide revenues. In the four previous surveys, this number ranged from 4.2 to 4.7 lawyers per $1 billion of U.S. revenues. 
  • No change in management of outside counsel. The percentage of companies reporting some level of convergence activity has been stable over the past two years, at around 56 percent. Alternative billing arrangements remain the exception rather than the norm, used with only 8 percent of outside counsel. Most companies (67 percent) expect no change in the number of law firms they plan to use in 2008. Nearly a third (29 percent) anticipate a decrease in the number of law firms they will use. Only 4 percent plan to increase the number of firms.
  • Cash compensation is up 8 percent at all in-house levels. The average total cash compensation for an in-house attorney is $236,000. For a chief legal officer, it is $900,000. General counsel received the highest average increase, 14 percent, taking them to just over $700,000. Total compensation including long-term incentives increased 10 percent, averaging nearly $2 million for CLOs and $1.5 million for GC.

The survey looked at 223 companies in 18 industry groups, with the median being a company with over $9 billion in worldwide revenue and more than 20,000 employees. The survey reports on nearly 7,000 lawyers and 6,500 non-lawyer professionals, legal assistants and support staff. The survey will be posted at, although as of this writing it is not yet there.

September 26, 2008 | Permalink | Comments (0)

SEC Lawyer by Day, Gay Eroticist by Night

Enforcement attorneys at the Securities and Exchange Commission are known for being straight up, but lawyer Scott D. Pomfret's second job gives that notion a whole other meaning. When he's not chasing down securities fraud, he's at his keyboard, pounding out gay erotic fiction. "I like to think of myself as a Boston-based Gay-Catholic fiction-writing lawyer-eroticist," he explains on his Web site. Or as a newspaper profile put it, Pomfret is both a button-downed lawyer and an expert in unbuttoning.

Pomfret's second career got started in 2003, when he and his partner Scott Whittier decided that romance novels need not be written only for women. They set up a publishing company, Romentics, and began writing and publishing romance fiction for gay men. (The Boston Globe profiled their work in a 2004 article.) In the years since, Pomfret branched out into writing gay erotica, winning a string of writing awards with names such as "Best Gay Erotica," "Hot Gay Erotica" and "Best Gay Love Stories."

There is no indication that anyone at Pomfret's day job at the SEC ever as much as raised an eyebrow over his second career. But the same cannot be said for the St. Anthony Shrine in Boston where Pomfret served as a lay lector and member of its Worship Advisory Board. In June, Pomfret published his latest book, Since My Last Confession, in which he writes about his experiences as a gay Catholic. Among the real-life characters he writes about are "the Franciscan friars who came to me for news about the local gay dance club" and "Father Bear Daddy the gay priest with the hot account."

This was too much for officials at St. Anthony, as Pomfret recounts on his blog. Last week, one of the shrine's friars told him he would have to step down from his duties as a lector. "There were people who felt it was incompatible for someone to stand up publicly and say, 'I'm a pornographer, and I'm a lector at St. Anthony Shrine,' " the shrine's executive director, the Rev. David Convertino, told The Boston Globe. "There's a public stance that he's taking, and it seems that most of this is to sell the book." Pomfret has no doubt his writing played a role in his dismissal from the church, but he told the Boston newspaper Bay Windows that he believes another factor was his portrayal of the St. Anthony Shrine as gay-friendly. "I think they regard that as a lighting rod for criticism," he said.

Well, at least he'll always be secure in his day job.

September 26, 2008 | Permalink | Comments (2)

Hard Times Mean Whiter Juries

Hard economic times cause child-care, transportation and job problems for lower-income people. Those problems make it tougher for lower-income people to serve on juries. If lower-income people are less able to serve, that translates into juries that are not only higher income but whiter. Anne Reed points out how the nation's economic crisis could be making juries less diverse in a post at her blog Deliberations.

Reed picks up on a 6th U.S. Circuit Court of Appeals case decided this week, Smith v. Berghuis. The decision overturned a Michigan murder conviction because the state court selected jurors in a way that disproportionately and systematically excluded blacks. Ironically, the court adopted the system out of benevolence, as Reed explains:

The selection practice in question wasn't designed to exclude black jurors. It was designed to help people. When prospective jurors in Kent County Circuit Court said that they had transportation problems, child care concerns, or the inability to take time away from work, they usually got to go home, no questions asked. If jurors gave awards to the nicest court, Kent County Circuit Court would get one.

The problem with this, as Reed points out, was that "concerns about child care, transportation, and missing work aren't equally distributed." As a matter of economics -- and as an expert witness testified -- blacks are more likely to have these concerns than whites. That led the 6th Circuit to this conclusion:

Here, the particular jury selection process employed by Kent County made social or economic factors relevant to whether an otherwise qualified prospective juror would be excused from service; and because such social or economic factors disproportionately impact African Americans in Kent County, such factors produced systematic exclusion.

The decision could not have been more timely, suggests Reed, who explains:

If you want to watch exactly how the economy affects people, go watch jury selection in any courtroom on any day. You'll see panic on jurors' faces as they ask the judge to let them go home, far more than you would have seen a few years ago. It isn't just a hardship on them, or even on the court. It's changing the very composition of juries, and thus the definition of the word.

For more about the 6th Circuit's ruling, see the blog Juries and this report from Associated Press

September 26, 2008 | Permalink | Comments (1)

September 25, 2008

Small Firms Gained in 2007, but What Does the Future Hold?

As with their Am Law 100 counterparts, small firms ranging in size from two to 150 lawyers experienced a banner year of growth, reports a study by Incisive Legal Intelligence's survey group (Disclosure: Incisive Media is Legal Blog Watch's parent company).  From the press release:

-- Average hourly billing rates for senior partners reached $352, a gain of almost five percent over the prior year, while billing rates for 5th year associates increased to $227, a three percent increase.
-- Average gross revenue per lawyer for respondents reached $430,483, an increase of four percent over the prior year, while overhead expenses increased by only two percent. Average law firm profitability increased this year by more than five percent to $260,120 per lawyer.
-- Equity partner/shareholder total compensation increased by three percent, from an average of $364,837 in 2007 to $374,049.
-- Starting salaries for new law school graduates rose to $85,000, a three percent increase from the prior year and a 22.3 percent increase over the past five years.

Whereas most generally assumed that the growth experienced by Am Law 100 firms would no longer be sustainable in 2008 and beyond,  no such predictions have yet emerged for smaller firms.  My own hunch is that these smaller firms may prosper in tough economic times, in large part because they provide a more affordable alternative.  For example, while smaller firm billing rates rose by 5 percent to $352, that's a bargain compared to the $1,000/hour rates that some large firms charge.  Moreover, based on the statistics, it appears that small firms have made an effort to keep overhead costs under control; in 2007, gross revenues increased by 4 percent, but overhead only went up by 2 percent.   

Do you run or work for a small firm?  How is 2008 stacking up so far and what are your predictions for the future?

September 25, 2008 | Permalink | Comments (1)

Reimagining the Supreme Court

The October 2008 issue of the ABA Journal includes this fascinating article by Richard Brust entitled "Supreme Court 2.0," which reviews a list of proposals, ranging from extreme or fanciful to modest or commonsensical, for changing the structure and operation of the Supreme Court.  They include:

• Term Limits - When the founders provided for Justice-ship for life, they never envisioned that Justices would serve as long as they do.  But high-tech medical care, lighter caseloads and a sizeable staff of clerks has enabled today's Justices to serve an average of 26 years on the court, staying on the bench until well into their 70s.  Capping a term to 18 years would allow for enough continuity, but at the same time, keep the court fresh. Staggering the terms would give different political parties a chance to appoint new justices to the bench.

• Forced Retirement - An alternative to term limits is forced retirement, requiring Supreme Court justices to leave the bench by age 75, no matter how long they've served. Some suggest that rather than forced retirement, justices could be offered attractive retirement packages and senior status as a gentle incentive to leave. 

• Make the Supreme Court Travel - Some would like to see the Supreme Court justices ride the circuits, sitting in different parts of the country.  Circuit riding would expose the justices to the results of their decisions, and keep in touch with how lawyers practice in other parts of the country.

• Other Suggestions - Some of the remaining suggestions include adding more justices to the court, diversifying lawyers who serve on the court (currently, all are former appellate judges) and of course, allowing cameras in the courtroom.

To me, cameras in the courtroom are of paramount importance in educating both lawyers and the general public.  Even though I practice here in DC, I rarely have a chance to walk over to the Court and observe an argument -- yet, watching how top appellate lawyers argue would help me improve my own skills more than a dozen CLE courses by long-winded experts.  And the accessibility of Supreme Court arguments would also enable the public to understand our judicial system better.  But that's just my own opinion. How would you reform the Supreme Court? Post your comments below.

September 25, 2008 | Permalink | Comments (1)

Did an SSRN Paper Influence a Sentencing Decision?

Though judges cite law review articles less frequently than they did twenty years ago, don't discount the relevance of legal scholarship just yet. As a recent federal ruling, U.S. v. Dicus (reducing a sentence as a sanction for prosecutorial misconduct) proves, legal scholarship can have an impact on the outcome of a case, even if a paper hasn't been published in a top journal.

As Professor Doug Berman at the Sentencing Law and Policy reports, a Northern District of Iowa judge reduced a defendant's sentence to punish the prosecution for a serious breach of the terms of the plea agreement. The court came up with this novel approach in part based on the insights of this paper entitled "Sentence Reduction for Prosecutorial Misconduct" posted by Professor Sonja Starr on Social Science Research Network (SSRN).

While Dicus represents a victory for defense attorneys who can cite the ruling as precedent for sentence reductions, law professors like Carissa Hessick at Prawfs Blawg are rejoicing as well because Dicus shows that from time to time, courts still listen when law professors have something worthwhile to say.

September 25, 2008 | Permalink | Comments (0)

Law Bloggers Opine on McCain's Proposal to Postpone the Debate

Though McCain's recent proposal to suspend his campaign and postpone Friday's presidential debate so he can focus on working out the details of the financial bailout in Washington is more of a political than a legal event, law bloggers are nonetheless taking sides on McCain's decision and Obama's response. Here's a sampling of what the legal blogosphere has to say.

• Whose Approach is Right - McCain's or Obama's? Law bloggers are split fairly evenly over whether McCain's decision to suspend the debate is an admirable and sensible approach, or a political ploy. Siding with McCain are Hugh Hewitt of Town Hall, who views McCain's proposal as "an example of great leadership" and sees Obama's refusal to go along as his "Katrina moment." Mike Cernovich of Crime & Federalism views McCain's approach as "audacious," likely leaving Obama's staff with a sinking "why didn't we think of it first" feeling. 

On the other end of the spectrum, Al Nye, The Lawyer Guy says McCain's campaign suspension is "politics, pure and simple." Ann Althouse seems to be of mixed mind: She says that McCain's announcement showed leadership, but concedes that McCain went for political theatrics and "if McCain had really been serious about this, he should have worked it out with Obama in private."

Finally, Howard Wasserman at Prawfs Blawg and Michael Dorf both argue that irrespective of politics or what needs to be done in Washington, the debate must go on so that the public can learn more about the issues.

• Will Postponement Violate Fair Broadcast Laws? David Oxenford of the Broadcast Law Blog wonders whether McCain's failure to show up would violate the FCC's equal opportunity rules. He explains:

If Barack Obama were to appear at the debate and answer questions, and that appearance was televised, would the stations that carried the debates later be subject to a claim for equal opportunities by the McCain campaign?  Under FCC precedent, the answer would be "yes." [...] What would this mean if a station was to cover a debate where Obama showed and McCain did not?  If the McCain campaign were to timely request equal opportunities, stations would have to provide to McCain time equal to the amount of time that Obama appeared on screen, and McCain could do anything with that time that he wanted - he would not have to answer questions from the debate moderator.  Thus, traditionally, if only one candidate shows up for a scheduled debate that is supposed to be broadcast, the debate (or at least the broadcast) is canceled.

• How Would Your Law Firm Juggle Two Important Clients? For me, McCain's proposal triggered the question of how a law firm might juggle two important client matters.  For example, if a firm had an important Supreme Court argument scheduled, but another client needed a fire put out earlier that week, it's doubtful that the firm would cancel one matter to deal with the other.  Though I wholeheartedly agree with McCain's insistence on focusing on the bailout and coming to Washington to do so (and believe that Obama should do the same), I don't understand why McCain can't address both the budget and still go forward with the debate.  If law firms can multitask, why can't politicians do the same?

September 25, 2008 | Permalink | Comments (1)

Plaintiffs Winning Less Often, but Recovering More When They Do

Depending upon whom you represent, there's good news and bad news for employment lawyers. As I posted here last week, fewer plaintiffs -- indeed, just a scant 15 percent -- prevail in federal employment cases. However, as Jonathan Hyman of the Ohio Employment Law Blog shares today, those plaintiffs who do manage to win are recovering bigger verdicts. Citing Mark Toth of Manpower Employment Blawg, Hyman notes that "the median discrimination verdicts rose from $147,500 in 2006 to $252,000 in 2007, an astounding 70% increase." But Hyman isn't so sure that the increases will last. Tough economic times will bring more cases, but jurors who face their own economic hardship may not feel as generous, he speculates.   

September 25, 2008 | Permalink | Comments (0)

September 24, 2008

Mass. Wal-Mart Employees Recertified as a Class

Lawyers for some 67,000 current and former Wal-Mart employees in Massachusetts won a major victory yesterday when the state Supreme Judicial Court reinstated their class action for unpaid wages. In Salvas v. Wal-Mart Stores, the SJC ruled that a trial court judge erred when he decertified the class action, excluded testimony from the plaintiffs' expert witness, and granted partial summary judgment in favor of Wal-Mart.

The applicable test for certifying a class, the SJC said, is whether "questions of law or fact common to the members of the class predominate over any questions affecting only individual members." In ruling that the trial judge's denial of the class was erroneous, the SJC reasoned, "[T]he essential factual questions of liability in this case -- Did a contract or agreement exist? On what terms? Did Wal-Mart breach the contract or agreement? -- rest on a 'sufficient constellation of common issues [to] bind class members together' for purposes of certification."

Carolyn Beasley Burton, the California lawyer who represents the plaintiffs together with Robert Bonsignore of Medford, Mass., told the Boston Herald that she considers the decision to be a "phenomenal" victory for workers in Massachusetts. Similar cases are pending against Wal-Mart in other states. Two have resulted in verdicts of $167 million in California and $151 million in Pennsylvania, both of which are on appeal.

September 24, 2008 | Permalink | Comments (0)

Louisiana Lawyers Challenge New Ad Rules

Lawyers in Louisiana went to federal court yesterday hoping to block new lawyer-advertising rules from taking effect Dec. 1. The lawyers, assisted by the public interest organization Public Citizen, allege that the new rules violate the First Amendment and impose vague and unfair restrictions on how lawyers can communicate with consumers. The rules "would be among the most restrictive in the country," says a Public Citizen press release, "prohibiting slogans, descriptions of quality, testimonials, actor portrayals of clients, well-known spokespersons and other common advertising techniques."

In the complaint filed yesterday in U.S. District Court in New Orleans, Public Citizen is joined as plaintiff by lawyers William Gee III of Lafayette and Morris Bart of New Orleans. They contend that the Louisiana State Bar Association adopted the new rules "without considering any factual investigation or considering any evidence." They further argue that the rules were taken virtually verbatim from lawyer-advertising rules in New York that Public Citizen successfully challenged and in Florida that it is currently challenging. (The New York case is pending on appeal.)

"Louisiana's amended advertising rules impose a litany of restrictions that would bar a wide range of common advertising practices, such as the use of testimonials, actors, reenactments, and dramatizations, that are neither misleading nor otherwise harmful to consumers," the complaint alleges. "The motivation for the amendments appears to be hostility toward advertising lawyers and regulators' subjective ideas of good taste rather than protection of consumers from any demonstrable threat." Among the entities that submitted comments against the proposed rules was the Federal Trade Commission, which said they would hurt consumers by inhibiting competition and frustrating consumer choice.

Representing the plaintiffs in the lawsuit are Loyola law school professor Dane S. Ciolino, Morris Bart partner Terry Loup, and Public Citizen lawyers Gregory A. Beck and Brian Wolfman. Charles B. Plattsmier, chief disciplinary counsel for the Louisiana Attorney Disciplinary Board, told The Times-Picayune that he was reviewing the complaint and not ready to comment. See also this news report from WRNO Radio.

September 24, 2008 | Permalink | Comments (0)

Blogging as 'Vexatious' Litigation Tactic

Can a lawyer's blogging about his own case constitute sanctionable conduct? That is the argument being made by the Recording Industry Association of America in asking a federal court in New York to impose sanctions on lawyer Ray Beckerman, in part due to his postings on his blog, Recording Industry vs The People. Beckerman has achieved national recognition as one of the lead attorneys defending people sued by the RIAA for file sharing. But in a motion filed earlier this month, RIAA lawyers accuse Beckerman of making misleading statements, baseless discovery objections and frivolous motions -- and then adding insult to injury by posting all the documents on his blog.

David Kravetz wrote about the RIAA's request for sanctions at Wired's Threat Level blog, where he also posted a copy of the motion. In it, RIAA lawyers Eve G. Burton of Holme Roberts & Owen in Denver and Victor B. Kao of Robinson & Cole in New York ask that both Beckerman and his client, Marie Lindor, be required to pay sanctions for "obstructionist tactics and misinformation." With regard to Beckerman's blog, the motion says:

[A]s this Court is aware, Defendant's counsel has maintained an anti-recording industry blog during the course of this case and has consistently posted virtually every one of his baseless motions on his blog seeking to bolster his public relations campaign and embarrass Plaintiffs. Such vexatious conduct demeans the integrity of these judicial proceedings and warrants this imposition of sanctions.

As I read the motion, the legal theory under which the RIAA's lawyers implicate Beckerman's blogging is that a lawyer should be subject to sanctions for filing frivolous pleadings designed to bolster a broader, bad-faith public relations campaign. Beckerman tells Kravetz he considers the motion to be "frivolous and irresponsible." Kravetz also spoke to Lory Lybeck, the Washington state lawyer who is spearheading a proposed class action against RIAA over its litigation tactics. Not surprisingly, Lybeck sees irony in the RIAA's motion -- or as he says, "irony and irony and irony." The RIAA, after all, is an organization that has sued some 30,000 people over the past five years, including children, the elderly and some who were no longer alive. "Irony is too tame of a word to describe the motion against Ray," Lybeck said.

September 24, 2008 | Permalink | Comments (6)

Wrongful Convictions? Blame the Journalists

Steve Weinberg paints a grim picture of the criminal justice system and its track record of getting it wrong. "There is no definitive research showing the precise scope of the wrongful-conviction problem. It is beyond question, however, that not just a few but many innocent people have been sent to prison, sometimes for decades." His own investigation of 11,452 criminal prosecutions found that 2,000 were reversed on appeal and that prosecutorial misconduct resulted in convictions of at least 32 innocent people. Separate research by the Innocence Project into 23 DNA exonerations in New York found that police had identified the actual perpetrators in 10 cases, nine of whom had gone on to commit new crimes while wrongfully convicted defendants sat in prison.

It is a tangled tale worthy of a John Grisham novel, but Weinberg is not a fiction writer -- he's a journalist, the former executive director of Investigative Reporters and Editors and a journalism professor at the University of Missouri. He seems to have little hope that the criminal justice system can heal itself, describing the performance of police and prosecutors in one recently documented wrongful conviction as "incompetent and maybe dishonest." As for defense lawyers, they are often unskilled and too quick to seek a plea bargain, he suggests.

But a third group both shares in the blame and offers hope, he believes. In an article published yesterday, "Innocent Until Reported Guilty," Weinberg blasts journalists for their often spotty and superficial coverage of the criminal justice system. At the same time, he contends, the news media could and should be the most effective bulwark against wrongful convictions.

Until and unless journalists improve their performance, far more innocent people will be imprisoned than the criminal justice system seems likely ever to acknowledge. The logical extension of the preceding statement seems obvious, but I'll say it anyway: Unless journalists get better at covering the justice system, many criminals will continue to go unpunished, free to murder or rape or rob again. So investigating wrongful convictions is not — as perceived by too many police, prosecutors and judges — an assault by soft-on-crime bleeding hearts. Rather, it is an attempt to serve law and order, to improve the administration of justice and to foster faith in the criminal justice system.

So Grisham-worthy is the state of affairs outlined in Weinberg's piece -- which appears in Miller-McCune magazine, the new online publication of the Miller-McCune Center for Research, Media and Public Policy in Santa Barbara, Calif. -- that Grisham himself has turned his sights on it in his only nonfiction book, The Innocent Man: Murder and Injustice in a Small Town, as has lawyer/novelist Scott Turow in Ultimate Punishment: A Lawyer's Reflections on Dealing With the Death Penalty. Journalists need to follow suit and do a better job of covering the courts, argues Weinberg, because "innocent people [are] depending on them, every step of the way."

Footnote: Mark Obbie comments on Weinberg's piece at his blog LawBeat, calling it a "major contribution to the literature of criminal justice journalism," one that "turns the tables on the usual tales of heroic investigative reporters freeing innocent prisoners."

September 24, 2008 | Permalink | Comments (1)

September 23, 2008

Lawyers Still Unprepared for E-Discovery

A new study released by Océ Business Services finds that 39 percent of in-house attorneys and 57 percent of law firm attorneys believe that their companies and clients are not prepared to comply with discovery requests under the 2006 version of the Federal Rules of Civil Procedure. Surprisingly, companies are not deficient solely in e-discovery, but also in preparedness for production of paper discovery. Many companies -- 42 percent -- still lack internal e-discovery processes, though two thirds of those plan to establish procedures within the next six to 12 months.

Apparently, the greatest obstacle to compliance isn't technology, but rather, a need for a change in mindset. Most companies still do not "get the message" about the importance of records management and are more likely to make changes only in response to a disaster rather than adopt a proactive approach.

Of course, as this post from Information Week suggests, companies have reason to start reacting now. Last week, McAfee ran into various discovery problems in the midst of a stock options backdating trial, while back in January, Qualcomm was hit with an $8.5 million penalty for botching discovery of e-mail in a patent suit. These types of troubles should give companies sufficient incentive to get moving on e-discovery systems sooner rather than later.

September 23, 2008 | Permalink | Comments (3)

Law Commentator Calls Law School Grades a Fraud

While the law school grading process is most commonly derided by those law students and lawyers who fall on the western side of the bell curve, I rarely hear of law professors challenging the grading process -- until now. The above video, courtesy of Paul Caron at Tax Prof Blog, includes a lengthy tirade by legal commentator and former Georgetown Law professor Greta Van Susteren, admitting that she typically gave all of her students "A"s because she felt that they worked hard and deserved them. Van Susteren also explains that there's really no legitimate way to distinguish between an "A," an "A-" and a "B+" and she wasn't willing to "ruin students' lives" by making an arbitrary and undeserved distinction. Finally, Van Susteren says that if students don't do well, it's likely the professor's fault.

While I don't agree that a poor law school record will ruin one's life (and if it does, a student probably didn't have much resilience to begin with), I admire Van Susteren's willingness to put the interest of her students first, rather than the interest of the school in maintaining its bell curve. Of course, since Van Susteren is a TV commentator and not a legal academic, I'm not sure that her thoughts will generate any more serious consideration by law schools than if they'd been offered by a disgruntled law student.

September 23, 2008 | Permalink | Comments (6)

Lawyer With Gambling Problem Takes a Gamble on a Lawsuit

Lawyer Arelia Margarita Taveras has a gambling problem. Several years back, she gambled nonstop for days at a time in casinos, losing around $1 million dollars, according to The Associated Press. And more recently, Taveras made a bet that she could recover her losses in a $20 million racketeering lawsuit filed against seven different casinos. It's a gamble that Taveras lost yesterday, with a federal judge dismissing her allegations that the casinos had a duty to stop her from gambling.

Taveras plans to appeal the decision, but other than this case, she won't be seen in court representing clients any time soon. As the AP notes, Taveras dipped into client escrow accounts to finance her gambling and as a result, was disbarred last June.

September 23, 2008 | Permalink | Comments (1)

Train-Chasing Lawyers

As with anything else, overuse of technology has its downsides, and nowhere is that more evident than with the  recent Metrolink commuter train wreck that left 25 dead and 135 injured 10 days ago in Chatsworth, Calif. Undisciplined use of technology may have contributed to the accident, with reports emerging that the train engineer may have been texting while operating the train. And now, lawyers are saturating the Web and YouTube with ads seeking victims and their families to represent, reports Kevin O'Keefe at LexBlog.

O'Keefe writes that his RSS feed has pulled up multiple Web sites and a YouTube video aimed at potential clients, not to mention 22 sponsored Google ad links. Even though O'Keefe is a former plaintiffs lawyer himself, he's worried about the negative impression that these lawyers are making.

Eric Turkewitz of New York Personal Injury Law Blog agrees, writing that "those lawyers that leap after cases in such a fashion do a great disservice to the profession. The few who do this make the rest look bad." Turkewitz also questions whether the lawyers running these ads are actually the best for the job, or merely the best at getting their name out.

Just like we shouldn't ban railroad employees from ever texting (for example, if they're on break), we shouldn't ban or unduly  restrict lawyers from advertising online either.  Instead, we can use technology as O'Keefe and Turkewitz are doing:  to inform consumers of the dangers of hiring a lawyer based on online ads alone, and to remind them that not all lawyers are as crass as the train-chasers.

September 23, 2008 | Permalink | Comments (0)

September 22, 2008

Blawg Review, the OneWebDay Edition

Phew! I nearly missed OneWebDay. Must have neglected to calendar it. Fortunately, Peter Black brings it to our attention via his hosting of Blawg Review #178 today at his blog, Peter Black's Freedom to Differ. As Black, a lecturer in law at Australia's Queensland University of Technology, explains, OneWebDay was founded three years ago by Susan Crawford, professor of law at the University of Michigan, as a sort of "Earth Day for the internet." He provides this description taken from the OneWebDay Web site:

The idea behind OneWebDay is to focus attention on a key internet value (this year, online participation in democracy), focus attention on local internet concerns (connectivity, censorship, individual skills), and create a global constituency that cares about protecting and defending the internet.  So, think of OneWebDay as an environmental movement for the Internet ecosystem. It's a platform for people to educate and activate others about issues that are important for the Internet's future.

In the spirit of the day, Black's edition of Blawg Review "seeks to celebrate the best in legal blogging and the contribution it makes to informed debate in so many different areas (not just the law)." The posts he features touch on such topics as the economy, society, politics, technology, education, fun and even fashion.

September 22, 2008 | Permalink | Comments (0)

Bloggers Offered Insurance, Legal Training

A project spearheaded by the Media Bloggers Association will provide bloggers access to first-of-its-kind liability insurance along with free training in media law. The insurance program, called BlogInsure, will provide coverage for claims against bloggers involving defamation, invasion of privacy and copyright infringement. According to the MBA's announcement, its members will be eligible to purchase liability insurance at a "significant discount." Offered through Media/Professional Insurance, a division of AXIS Insurance, the policy will cover costs and damages for claims against bloggers and will parallel coverage offered to tradition media organizations.

In conjunction with this announcement, the MBA has partnered with The Poynter Institute's News University and the Berkman Center's Citizen Media Law Project to create a free e-learning course on media law designed specifically for bloggers and other online publishers. Bloggers wishing to join the MBA and take advantage of its insurance program will be required to take this course and take a test on what they learn (and pay an MBA membership fee of $25). But the course is open to anyone to take, free of charge, by registering at News University.

The course, "Online Media Law: The Basics for Bloggers and Other Online Publishers," was written by David Ardia, director of the Citizen Media Law Project, and Geanne Rosenberg, chair of the journalism department at City University of New York's Baruch College. It covers defamation, privacy and copyright and can be completed in one to two hours. More information is provided in this News University announcement and CMLP blog post.

As if all that was not enough, bloggers who join the MBA and purchase insurance will have access to a legal hotline, at least temporarily. The hotline is being operated on a beta basis by the law firm of Sonnenschein Nath & Rosenthal under the direction of partner Blaine Kimrey. After operating the hotline on a test basis, the firm will decide whether to continue it permanently.

September 22, 2008 | Permalink | Comments (0)

Disciplinary Costs Survive Bankruptcy Filing

After the New Hampshire Supreme Court disbarred lawyer William Richmond and ordered him to reimburse the state's Committee on Professional Conduct for the costs of bringing disciplinary proceedings against him, Richmond filed for bankruptcy and argued that the cost assessment should be discharged. Both the bankruptcy court and the district court disagreed with him, ruling that the assessment was not a debt that could be discharged under the bankruptcy law. In an opinion issued Friday, Richmond v. New Hampshire Supreme Court Committee on Professional Conduct, the 1st U.S. Circuit Court of Appeals sided with the two lower courts.

The issue before the court was whether the assessment fell under Bankruptcy Code section 523(a)(7), which exempts from discharge any "fine, penalty or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss." Richmond contended that this exemption did not cover the assessment of costs for two reasons. First, it was not a "fine, penalty or forfeiture" but more like an award of costs to a prevailing party under fee-shifting statutes. Second, the assessment was meant to cover the government's "actual pecuniary loss" in bringing the disciplinary action against him.

The 1st Circuit disagreed on both points. As to the first, the court said that the discretionary nature of the cost assessments indicates that they should be viewed as penalties. "While Richmond believes that the costs are awarded in a perfunctory manner, the New Hampshire Supreme Court has stated on several occasions that the cost assessments are viewed as part of the sanction." As to the second point, the court said that while the cost award might "resemble" compensation for actual loss, when viewed in context, the assessment's purpose is to serve as a sanction. "[C]ost assessments serve both to deter attorney misconduct and to help rehabilitate wayward attorneys."

Admitted to practice in New Hampshire in 1996, Richmond was twice the subject of disciplinary petitions there. The first, filed in March 2003, resulted in the Supreme Court suspending him for six months and ordering him to pay $13,776.19 for "the costs of investigating and prosecuting" the matter. A second petition filed in November 2003 resulted in his disbarment and a second order to reimburse the conduct committee for the investigation and prosecution.

September 22, 2008 | Permalink | Comments (0)

Search for Deep Pockets Pays Off

If it sometimes seems that plaintiffs lawyers are overzealous in their pursuit of potential defendants, here is an object lesson in why that strategy often makes sense. In a piece published yesterday, "The Cost of Tragedy," Boston Globe reporter Jonathan Saltzman provides a breakdown of the roughly $175 million in settlements following from the tragic 2003 fire at the Station nightclub in Rhode Island that killed 100 people and injured more than 200 others. Notably, the nightclub's owners, Jeffrey and Michael Derderian, the two defendants at the center of the litigation, have reached a tentative settlement under which they will pay just over $800,000. That is far less than the millions of dollars to be paid by several other defendants -- less even than the amount to be paid by the company that made the amplifiers used at the club.

The Derderians filed bankruptcy in the wake of the tragedy and the amount they have offered to pay reflects the balance of their liability insurance policy. That amount pales in comparison to tentative settlements reached with other defendants, notes the Globe's Saltzman. A local TV news outlet whose cameraman allegedly hindered fleeing patrons will pay $30 million. Beermaker Anheuser-Busch and a beer distributor who promoted the night's concert by the band Great White will pay a combined $21 million. Manufacturers and sellers of polyurethane and polyethylene foam used in the club will pay a total of more than $66 million.

As this Boston Globe chart shows, other defendants who have tentatively agreed to settle include the local radio station (and owner Clear Channel Broadcasting) that promoted the concert for $22 million, the bus company that drove the band to the nightclub for $500,000, state and local government officials for a combined $20 million, the company that installed the fire-alarm system for $1 million, and even the club's previous owner for a token $3,000.

The tentative settlements await approval of a federal judge. Split evenly, the $176 million settlement would mean $587,000 for each of the victims. Actual payouts are expected to vary widely. The court has appointed Francis E. McGovern, a Duke University Law School professor and specialist in mass-tort litigation, to devise a formula for dividing the money. But the settlements show why plaintiffs lawyers sometimes need to be diligent in exploring liability, suggests Carl T. Bogus, a law professor at Roger Williams University School of Law. "Regrettably, some of the most culpable defendants had the shortest pockets," he told the Boston Globe. "So plaintiffs' lawyers ... do what good plaintiffs' lawyers do, and that is they try to creatively find other defendants with some culpability and more money."

September 22, 2008 | Permalink | Comments (0)

September 19, 2008

Plaintiffs Win Only 15 Percent of Employment-Related Cases in Federal Court

A study commissioned by the American Constitution Society reveals that, based on data from 1979 to 2006, plaintiffs who brought employment discrimination suits in federal district courts prevailed only 15 percent of the time, compared to 51 percent for non-employment related cases.  The Wisconsin Law Journal and Sharpy News offer additional analysis.

In many instances, federal judges will dispose of federal employment cases at the summary judgment phase -- and there's often not much relief on appeal.  The study also showed that, during a 16-year span from 1988 to 2004, less than 9 percent of the 2,042 cases lost at trial and appealed to the U.S. Court of Appeals were reversed for plaintiffs in employment discrimination cases, compared with a 41 percent reversal rate for defendants who lost at trial.

Because of these trends in federal courts, many employment lawyers are bringing suit in state court, or turning to mediation to resolve employment disputes.  Though state laws often don't allow punitive damages or damages for emotional distress, as is the case in federal court, the fact that state courts offer a greater likelihood of prevailing, for now, may make them a more favorable forum.

September 19, 2008 | Permalink | Comments (0)

More on Legal Fitness

Over the summer, I posted about a New Jersey firm's efforts to encourage fitness in the practice of law by allowing lawyers to install exercise equipment, such as treadmill-desks, in their offices.  Apparently, the fitness at work trend is spreading: The New York Times has a story this week about "the small but growing number of desk jockeys" who are walking while they work, using specially designed combination treadmill-desks. The article highlights Terri Krivosha, a partner at a Minneapolis law firm, who logs three miles each workday on a treadmill. Like other professionals featured in the story, Krivosha finds that it's easier to adhere to an exercise regime that she can incorporate into her work day. 

For his part, Charon QC doubts that he'll take up the exercise at work fad:

While I am quite happy to wander about the lower deck office on The Boat while talking on the phone, the idea of trying to type, work, concentrate, smoke and drink glasses of Rioja while walking on a treadmill is not one I want to contemplate.  I find that walking is an activity best done without being engaged in too many other activities and I generally do it (a) to get a bit of pleasure wandering around looking at London or (b) to get to a bar or, indeed, a meeting involving the Bar.

Would you use a treadmill-desk if your firm offered it to you? And are lawyers who exercise while they work as productive as those who don't -- or more so? Post your comments below.

September 19, 2008 | Permalink | Comments (1)

The Economy and the Rest of the Legal Profession

By now, most of us have realized that the market downturn is taking a toll on large law firms, with Heller Ehrman as the most recent victim. But what about the rest of the legal profession?  How are other non-Biglaw lawyers holding up as the market goes down?  Here's a quick roundup.

New York Personal Injury Lawyer Eric Turkewitz reports that the personal injury bar is not immune to recession. He writes:

[W]ith the meltdown of mega insurer AIG, we could see something different. Even if they get rescued, there will no doubt be other insurers that have problems. We see this from time to time on a small scale when the executives drop their business ball, but we could now see it on a larger scale if things continue to go south. And a bankrupt insurance company would mean that the business end of lawyering could see some issues related to actually being able to get paid on a claim.

Turkewitz also notes CLE provider Lawline's report that lawyers are signing up in record numbers for training courses in bankruptcy.

• Recession will take a toll on the quality of criminal representation, predicts Scott Greenfield at Simple Justice. While a small segment of the criminal bar -- the high profile (though not necessarily the best) lawyers will continue to do very well, the rest will compete for those clients who can still afford to pay for lawyers (Greenfield explains that previously, clients might take out a second mortgage to pay their fees, but that's no longer an option with the banks in crisis). Moreover, lawyers will start competing on price, and quality attorneys will find themselves losing out to "bottom dwellers" who  "suck up felonies for $1,000." Greenfield advises criminal defense lawyers to find ways to branch out into different practice areas to keep the revenue stream flowing.

• Not surprisingly, legal aid lawyers are busier than ever, with record numbers of foreclosures and more families qualifying for legal aid services. 

September 19, 2008 | Permalink | Comments (0)

Dumping on Contract Attorneys

Like Rodney Dangerfield, contract lawyers don't get no respect. While law firms earn substantial profits off the labor of contract attorneys, these lawyers have no job security, work long hours but aren't necessarily entitled to overtime and they don't have any bargaining power to demand better. To top it all off, contract attorneys also get the blame when things go wrong, reports  The Recorder.

Apparently, two critical e-mails in a stock option prosecution against McAfee's former general counsel weren't turned over because temp attorneys had marked them as not relevant, Howrey partner Robert Gooding Jr. explained to federal district judge Marilyn Hall Patel.  Gooding characterized the error as inadvertent, and said senior lawyers were supposed to have reviewed the contract lawyers' work but somehow the mistake was overlooked.  Defense lawyers weren't convinced, and filed a motion to dismiss shortly after the hearing.

For now, Howrey hasn't been required to offer up the heads of the lawyers responsible for the gaffe.  And that's fortunate for the contract lawyers, since firms are more than willing to harshly penalize contract lawyers for infractions. 

For more coverage, see Gabes Guide to the e-Discovery Universe and WSJ Law Blog.

September 19, 2008 | Permalink | Comments (0)

September 18, 2008

Ike Blows Blawg Off Its Usual Path

Nothing like a major hurricane blowing through town to disrupt one's normal blogging routine. When Hurricane Ike hit Houston, several local lawyers blogged about it, as the ABA Journal noted several days ago. Among them were Tom Kirkendall at his blog Houston's Clear Thinkers and Mark Bennett at Houston Criminal Defense Lawyer. But for reporting above and beyond the call of duty, I was particularly impressed by the Hurricane Ike coverage at Tex Parte Blog, the blog of Texas Lawyer newspaper. (Both are owned by Incisive Media, which also owns this blog and its host,

By my count, the editors and reporters who contribute to Tex Parte have posted some three-dozen items about Ike and its impact on the local legal community (and counting). Some of it is the standard fare you would expect from a legal newspaper -- notices of Ike-related court orders, courthouse closures and the like. But what stands out for me are the stories behind the story, the kind of color and perspective that only on-the-scene reporters who also happen to be talented writers can provide. Consider the post titled  "Bringing the law to the people," which starts:

It's not often that you can break through a crowd of people by announcing, "I am a lawyer! I am here to help!" But that's exactly how Houston lawyer J. Goodwille Pierre got through the front door of the Mt. Ararat Baptist church moments ago, as he arrived at a hurricane-relief clinic sponsored by the Association of Community Organizations for Reform Now (ACORN).

And then there was this, about prosecutors on round-the-clock duty during the storm:

When Hurricane Ike hit downtown Houston in the early morning hours Sept. 13, Harris County assistant district attorney Murray Newman was among those watching the storm's advance from the lobby of the Harris County Criminal Justice Center. "It was like a front-row seat at an IMAX event," recalls Newman, who worked a 28-hour shift in the DA's emergency intake division, screening and processing criminal defendants during Ike's assault on the Houston area.

Read through these posts and you come away with a street-level view of Ike's impact on the Houston-area legal community. Some of these items were of insufficient consequence to make their way into print news reports, but they fit perfectly within the context of a blog. Through their blogging this week, the folks at Tex Parte have given us another reminder of how blogs and other social media serve to enhance "mainstream" reporting, not diminish it, as some old-schoolers seem to believe.

September 18, 2008 | Permalink | Comments (0)

The Right to Wear Saggy Pants

Did the Framers foresee exposed boxers? A Florida judge seems to think so, ruling this week that a Riviera Beach, Fla., law against saggy pants is unconstitutional. The law, approved by Riviera Beach voters last March, makes it a misdemeanor to wear pants that show skin or underwear. Violators face fines of up to $150 or community service. News reports provide few details of the basis for the judge's ruling, except that he confined his decision to "the limited facts of this case."

Police charged 17-year-old Julius Hart with violating the law after they spotted him riding his bicycle with 4 to 5 inches of his boxer shorts showing above the waist of his pants. Complicating the matter for Hart was that he was on probation for a marijuana possession charge. That made his exposed boxers a violation of his probation and landed him a night in jail. When he appeared the next day before Palm Beach County Circuit Judge Paul Moyle, public defender Carol Bickerstaff argued that the saggy-pants law is unconstitutional, urging the judge, "Your honor, we now have the fashion police."

Had police spotted Hart's buttocks instead of his boxers, the case might have turned out differently. "We're not talking about exposure of buttocks," the judge said from the bench. "No. We're talking about someone who has on pants whose underwear are apparently visible to a police officer who then makes an arrest, and the basis is he's then held overnight." This is not the end for Hart; the charge remains pending against him and he will be back before the judge on Oct. 5. Nor is it the end of saggy-pants patrols in Riviera Beach. The city's major, Thomas Masters, vows to continue to enforce the law. "It's still a law," he said. "It has not been thrown out or invalidated, and all valid laws will be enforced." That is unwelcome news for Riviera Beach teenagers, not to mention the city's plumbers.

September 18, 2008 | Permalink | Comments (0)

For Lawyers, the World Is Us and Them

For Ron Friedmann at Strategic Legal Technology, it is the law firm caste system. For Jordon Furlong at Law21, it is a missed recruitment opportunity. What both are talking about is the propensity of lawyers to view the world as "us and them" -- as lawyers and non-lawyers. Explains Furlong: "Lawyers are notorious for their habit of treating employees without law degrees as separate and lesser entities within the firm structure, less worthy of respect and collegiality." Hear hear, says Friedmann, adding:

As both evidence and cause of this problem, consider the pervasive and perhaps perverse use of the term "non-lawyer." If you visit HP, IBM, Dell, or Sun Microsystems, do you hear "non-engineer" or "non-scientist"? If you visit Glaxo, Merck, Novartis, or Amgen, do you hear "non-researcher" or "non-doctor"? We can even quantify this to a degree. Google searches for for "non lawyer" yield 183,000 hits and "non doctor" 23,500 hits (for the plurals, the hits are 219,000 and 14,000 respectively).

For Furlong, the point in pointing this out is that one firm's caste system is another firm's opportunity:

Valuable members of your rivals' firms are disaffected and alienated, seeking workplaces where they're fully integrated into the firm's business and culture. Build or reinforce those elements in your own operation, developing a deserved reputation for proper treatment and engagement of non-lawyer professional staff. When that reputation starts circulating in your legal community's support staff grapevine (and there is one, believe me), you'll have a major lead over your competitors in the pursuit of these underrated and underappreciated employees.

Friedmann agrees, but wonders nonetheless how lawyers came to this world view in the first place. "Framing people by what they are not is worse than unhelpful," he writes. That is a point on which I would hope all lawyers -- even the non-blawgers -- would agree.

September 18, 2008 | Permalink | Comments (1)

Two Follow-Ups: Unequal Pay and E-Casebooks

Monica Bay writes at EDD Update that she was outraged to read our post, "Pay Inequity for Women Paralegals" (which picked up on a post from The Estrin Report). "I think this is outrageous," Bay writes, "and I challenge every law firm managing partner, GC, and EDD vendor to drop everything, call HR, check records, and remedy this TODAY." As it happens, that was not even the worst of it. Bay points to a National Law Journal item this week that looks at the same census data and discovers an even wider gap -- women in legal occupations earned only 51 percent of men's salaries in the field. "Women's median earnings in 2007 in the legal occupation were estimated at about $53,800, compared to about $105,200 for men." One factor possibly contributing to this, says Bay, is that women are less likely than men to haggle over salaries.

Another recent item here, "Taking Paper Out of the Paper Chase," talked about an upcoming conference in Seattle that will consider whether law school casebooks should go digital. Next week's NLJ will have more on this, in a piece by Amanda Bronstad, "Are E-Books the Future of Legal Casebooks?" She points out that the question is no longer hypothetical. West launched its first electronic casebook last year -- Civil Procedure: A Contemporary Approach, by A. Benjamin Spencer -- and has six more titles in the works. She also points to a key concern about e-books that our post did not mention, protecting them from piracy.

September 18, 2008 | Permalink | Comments (0)

September 17, 2008

Dissenting Judge Tells Lawyers to Take It to YouTube

Used to be that when dissenting judges didn't get their way, they could only get mad. But as federal judge Beverly Martin's dissent in Buckley v. Haddock (11th Cir. 2008) shows, dissenting judges can now also get even in the court of public opinion -- courtesy of YouTube.

Here's what happened. Understandably, federal judge Beverly Martin (N.D. Ga.) was upset when she could not convince her colleagues to agree with her view that "the Fourth Amendment forbids an officer from discharging repeated bursts of electricity into an already handcuffed misdemeanant -- who is sitting still beside a rural road and unwilling to move -- simply to goad him into standing up." (For more detailed analysis, see Appellate Law & Practice Blog). In fact, Judge Martin apparently couldn't even get the court to publish the opinion to make the facts of the case more widely known.  [Correction] But, as Howard Bashman reports today, the video of the taser incident was made available on YouTube. See this link.

Is Judge Martin's decision the start of a new precedent? Will courts start making available all of the underlying evidence in a case online? And is it appropriate for a litigants to make the material available where the court won't? 

September 17, 2008 | Permalink | Comments (1)

Federal Bailout of AIG: Is It Legal?

As a practical matter, yesterday's historic $85 billion bailout of insurance company American International Group (AIG) is regarded by many as a necessary action to prevent more widespread damage to the economy. But practical or not, law bloggers want to know whether the takeover was legal. So here's a quick primer on some of the legal issues related to the AIG bailout, courtesy of the blogosphere:

What specific statutory provisions authorized the Federal Reserve to make an $85 billion loan to AIG?
The answer to this one depends upon who you ask. Writing at Balkinization, Marty Lederman notes that the Fed bases its authority on the Federal Reserve Act of 1932, section 13(3) which provides that "in unusual and exigent circumstances" the [Fed] may authorize any federal reserve bank to discount notes without limit. 

However, David Zaring at the Conglomerate disagrees, contending that while the Section 13(3) might apply to loans, it doesn't authorize takeovers:

There's really no statutory authority for the AIG takeover...I won't bother noting that the DC Circuit, were it to sit in judgment on whether the Fed could buy the world's largest insurer, would undoubtedly conclude that the plain language of its governing statute (which is to make emergency loans, not require takeovers in exchange) would not permit the takeover under Chevron USA v. NRDC.

Which raises the next question...

Is the AIG deal a loan or a takeover?
Eric Posner tackles this issue at Volokh. Posner argues that in his view, "the deal is a loan in form but a purchase in substance." As part of the deal, the Fed will receive AIG equity as collateral for the loan, but "it's going to exercise the option more or less automatically." Posner believes that most courts would interpret the transaction as a sale, not a loan, and if that's the case, then the bailout is illegal.

Can a court review the Fed's decision to bailout AIG?
Most likely not, opines David Zaring at The Conglomerate, though there's not much case law. However, the 2nd Circuit has generally taken the position that "it is not for the courts to say whether or not the actions taken were justified in the public interest, particularly where it vitally concerned the operation and stability of the nation's banking system." Huntington Towers, Ltd. v. Franklin National Bank, 559 F.2d 863, 868 (2d Cir. 1978).

As a matter of policy, was the AIG deal the right thing to do?
OK, so a strict constructionist would never try to prop up an unlawful deal by resorting to policy arguments, but a couple of bloggers have raised some interesting policy issues worth including in this post. First, David Stejkowski at The Dirt Lawyer's Blog wonders where we draw the line on federal bailouts -- should the government save the auto industry?  What about other distressed companies? And while Kelly Erb at Tax Girl is ultimately willing to resign herself to the necessary evil of the bailout to prevent broader damage, she's demanding accountability from the management teams that ran these companies into the ground.

September 17, 2008 | Permalink | Comments (2)

Is Ambulance Chasing Coming to Twitter?

With a a growing number of lawyers using Twitter, it was only a matter of time before someone started tweeting for clients. Today, Kevin O'Keefe writes that he stumbled across a tweet seeking class members for a possible suit against Verizon Wireless. The tweet came from Laura Young , a PR professional whom O'Keefe says is apparently working on behalf of a Seattle plaintiffs firm. While it's not clear whether Young's tweet has attracted any prospective clients, it has attracted a negative reaction from disgusted Twitter-ers (some apparently lawyers themselves), who criticized the tactic of soliciting through Twitter.

September 17, 2008 | Permalink | Comments (2)

The Fairy Tale Law Firm

So what do you get when you cross Snow White with a law firm? Either a fairy tale firm where the all lawyers live happily ever after, or more realistically, a concept for a new law-themed television show that dwarfs the ridiculousness of any previous lawyer show in my recent memory.

Still, this isn't a fantasy -- trade magazine Hollywood Reporter says that Fox Broadcasting is developing an hour-long comedy-drama, tentatively titled "Georgia and the Seven Associates." Georgia is a young lawyer banished from a top law firm run by her stepmother and forced to team up with seven quirky lawyers at a storefront legal office. Some legal cases will derive from fairy tales, such as three people whose homes were taken by Wolf Corp. And the seven associates will have the personalities of the seven dwarves; for example, Doc is the ambulance chaser and Sleepy is a bike messenger who parties at night and naps in the office. Of course, with these being lawyers, who's going to be Happy? 

September 17, 2008 | Permalink | Comments (1)

September 16, 2008

A Kinder, Gentler Ropes & Gray

The law firm Ropes & Gray yesterday announced that it would be taking a more "enlightened approach" to helping its associates balance their work and family lives. The Boston-based firm launched a program it calls Impact, "designed to accommodate the times when the demands of personal and professional obligations can often collide." The idea is to provide associates with greater flexibility to adjust their work schedules when family or health issues require it, allowing them to remain on the career track, but "at a more individualized pace." Options for an associate needing more family time could include:

  • Reduced time commitments
  • More flexibility to work off-site or staggered hours
  • "A different pace to partnership"

Also eligible for the Impact program are attorneys returning from parental leave. The firm will permit new parents to work a reduced schedule for another six months after returning from parental leave. The program will be overseen by partners Joshua S. Levy in Boston and Gabrielle E. Higgins in Palo Alto and administered by Margie Boone, the firm's career guidance manager. "We want our talented associates to pursue their legal careers at Ropes & Gray, and we're putting the energy and commitment of the firm behind doing whatever we can to make that happen," said Levy in a statement announcing the program.

September 16, 2008 | Permalink | Comments (0)

Pay Inequity for Women Paralegals

Given that women have long outnumbered men among the ranks of paralegals, it would seem safe to assume that here is at least one segment of the legal profession where salaries are blind to gender. Surprisingly, such is not the case. In what Chere Estrin at The Estrin Report calls "the legal field's dirty little secret," it turns out that gender is very much a factor in pay scales for paralegals and legal assistants, with women earning only 93.2 percent of what men earn.

Based on an August report from the U.S. Census Bureau, Estrin writes that women paralegals and legal assistants earned a median salary in 2007 of $42,600. Men earned a median of $45,700. This was not as bad as the gap between female and male lawyers, where women earned a median of $93,600, just 77.8 percent of the median salary for men of $120,400. But still, writes Estrin, this is a field that was originally made up almost entirely of women and where women continue to far outnumber men. "No one can claim ... that men had the upper hand in terms of having a head start in the field."

So, what on earth has happened? Are you telling me that the majority of men do a better job than all women paralegals? So much so, that men will automatically get paid more?  Are you telling me that men are promoted to the manager position faster than women?  Not according to the International Paralegal Management Association whose membership lists approximately 90% of its members as women.

For Estrin, there is only one explanation, and that is that we still face a lack of equality between the genders. While we are less surprised by that in other fields, it is a shock for a field whose genesis is women. As Estrin says, "C'mon, Joe. Say it ain't so."

September 16, 2008 | Permalink | Comments (8)

Jones Day's 'Gross Abuse of Trademark Law'

Public Citizen lawyer Paul Alan Levy is winning praise from some corners of the blogosphere for his post at the Consumer Law & Policy Blog in which he says the lawsuit by law firm Jones Day against the Web site deserves a prize for "grossest abuse of trademark law to suppress speech the plaintiff doesn't like." We told you about this lawsuit in a post here on Sept. 4. Jones Day sued the Web site after it reported real estate sales involving two of its associates. The federal lawsuit alleged trademark infringement and unfair trade practices based on BlockShopper's use of the firm's services marks, links to its Web site and use of lawyers' photos from the site. Levy calls the lawsuit "preposterous":

The link is in connection with a comment on Jones Day; when a trademark is used to comment on the trademark holder, the use reinforces the association with the trademark holder, rather than blurring it, and besides use for commentary is expressly protected as fair use under the Lanham Act as amended in 2006. Moreover, nobody could visit the BlockShopper web site and think that it is sponsored by or affiliated with Jones Day, even if they follow the links from BlockShopper's mention of Jones Day associates to Jones Day's own web site.  That is what web sites do – they link to other web sites (that's what makes it a "World Wide Web"). 

Levy adds that the firm's complaint about use of photos from its site also appears baseless, particularly given that the lawsuit includes no copyright claim. Levy goes on to deconstruct, one by one, other claims made by Jones day, concluding, "It thus appears that Jones Day is a serial abuser of the trademark laws to suppress commentary that it does not like."

Among the bloggers who heap praise on Levy's post are Sam Bayard at the Citizen Media Law Project ("Jones Day Gets Trademark Law Wrong, Squelches Legitimate Reporting") and Marc Randazza at The Legal Satyricon ("Jones Day - Big Law Firm, Small Ethics"). Randazza writes:

Jones Day seems to have taken leave of its ethics by filing this complaint. (link courtesy of CMLP) While they may not appreciate the fact that an independent real estate website is reporting on where their associates bought property, there is this pesky thing called the First Amendment. Those 45 words allow websites to publish truthful matters from the public record — even if a big law firm doesn't like it.

Even apart from the legal and ethical issues underpinning the lawsuit, what about PR? This seems like a classic example of the response causing more damage than the original injury. Did this mighty law firm truly believe that its name would be damaged by two news reports about associates' real-estate transactions? If so, did anyone there ever stop to think how much greater might be the damage to its name by making a federal case out of so trivial a matter? We'll keep watching to see how it all turns out.

September 16, 2008 | Permalink | Comments (6)

Verdict Is In: Best Law Student Video

Remember the "One Less Worry Contest"? It was the contest we reported here in March that promised to award $10,000 to the best law student video depicting the worries of law school. Sponsored by Access Group, a nonprofit student loan company, the contest's rules were simple: Produce a video of no more than four minutes and upload it to a special YouTube page. Entrants had to be enrolled as a law student as of Aug. 1. Over the summer, Access Group narrowed the entries to 10 finalists and then opened the contest to a public vote to determine the winner.

At long last, the contest is over, and the winner of the $10,000 is Steven K. Luther for his video, "I Don't Know What I'll Do This Summer". The video takes the form of a trailer for a feature film about a law student's struggle over which summer offer to accept -- the big-bucks New York firm or the environmental nonprofit in Oregon. The video is very funny and suggests Luther's best option might be to abandon a career in law in favor of one in Hollywood. Luther is a student at Washington University in St. Louis School of Law, where he is chief articles editor this year for the Washington University Law Review.

In addition to the $10,000 awarded to Luther, Access Group awarded $1,500 each to the top finalists in five categories as honorable mentions:

All the winning videos can be seen at the contest's YouTube page.

September 16, 2008 | Permalink | Comments (0)

September 15, 2008

Should Firms Test Lawyers' Substantive Knowledge in Interviews?

When is the last time that you interviewed for a position with a law firm and the hiring attorney grilled you on the finer points of Federal Rule of Civil Procedure 26 or asked you to draft a short memo resolving a hypothetical legal problem or even required you to explain how you might go about researching a particular issue?  Truth is, legal employers rarely ask substantive questions of prospective candidates or require them to demonstrate competencies like research and writing or thinking-on-one's feet. 

Contrast that with the hiring practices that are common to the IT industry, and what an anonymous reader gripes about at Slashdot:

After having my university degrees, a couple of IT certifications, and over ten years of work experience in the industry, with 2-4 years of verifiable employment with each employer, working with a wide range of technologies, is it reasonable to ask me to take some test on a job interview? The same companies don't ask other professionals (lawyer, accountant, sales, HR, etc.) to submit to any kind of in-house tests when they are hired. Why are IT professionals treated differently and in such a paternalistic way?

While the commenter urges his colleagues to refuse to subject themselves to this insulting treatment, my own feeling is that law firms should consider actually testing lawyers' skills before hiring them.  Though summer associate programs give firms some opportunity to evaluate a prospective attorney's skills, firms often hire graduates and laterals who haven't come up through a summer program and whose skills are untested.  So I throw this question out to you: Would a substantive interview process result in better-quality hires, and would lawyers object to substantive testing during hiring?  And if your firm has used this kind of process, how has it worked for you?  Post your comments below.

September 15, 2008 | Permalink | Comments (5)

Lawyers Exploring Diversity at Advertising Agencies

As I've posted before, law firms aren't exactly at the forefront of promoting diversity in the workplace. But now advertising agencies are making firms look good when it comes to diversity -- though not in the way that you might expect, i.e. through PR campaigns. Instead, when the percentages of minorities employed by ad agencies are compared to those employed by other "persuasion" industries, including law firms, ad agencies rank at the bottom of the heap, according to this piece at Ad Age that reports on the preliminary results of an ongoing study of the ad industry's diversity record.

The study was commissioned by civil-rights attorney Cyrus Mehri (a classmate of mine from Cornell Law '88) whose firm, Mehri & Skalet, has been behind successful multi-million dollar class action employment discrimination suits against giants like Texaco, Coca Cola and Smith Barney. It preliminarily finds that African Americans comprise only 5.8 percent of advertising professionals, with only 3.2 percent in executive and managerial positions. By contrast, African Americans make up 9.5 percent of the professionals in persuasion industries such as media, law, philanthropy and high-end sales (though it's possible that those other industries help boost the diversity numbers at law firms).

Right now, Mehri's firm is merely studying the information and has not made any plans about a future course of action.  He emphasized that the study won't be ready for several weeks and his firm "does its homework before we come in with guns blazing." In the meantime, how long will law firms remain safe from these kinds of employment discrimination class actions?

September 15, 2008 | Permalink | Comments (0)

Blawg Review #177

Third time's the charm for Anita Campbell, who once again plays hostess at Small Business Trends, this time to Blawg Review #177.  Ever since JD Supra published this list of lawyers using Twitter, this micro-blogging tool has been the subject of various blog posts that Campbell rounds up, including Grant Griffiths' tutorial on how lawyers can use Twitter, and my own uneasy adaption.  Other interesting highlights include a link to this ironic piece from Trusted Advisor on companies that outsource loyalty programs.  I wonder if anyone ever outsourced a Blawg Review ?

September 15, 2008 | Permalink | Comments (0)

Libel Tourism: A Vacation You Don't Want to Take

So what's the latest force to threaten writers' First Amendment freedom? It's not the present administration or the courts or even Congress... it's the Internet. As Adam Cohen describes in this New York Times story, because the Internet disseminates material published in the United States worldwide, authors and journalists otherwise protected by the First Amendment are finding themselves dragged within the purview of the more restrictive libel laws on the books in other countries. When plaintiffs use that fact to file a suit abroad that might not fly in the U.S., legal experts refer to this type of forum shopping as libel tourism

From Cohen's article, here's an example of how "libel tourism" works in practice:

[Rachel] Ehrenfeld is an American, and [her book] "Funding Evil" [which accuses Khalid bin Mahfouz of funding terrorism] was never published in Britain. But at least 23 copies of the book were sold online, opening the door for the lawsuit. When Ms. Ehrenfeld decided not to defend the suit in Britain, Mr. bin Mahfouz won a default judgment and is now free to sue to collect in the United States.

While the United States can't change foreign law, we can with the appropriate authorization, ignore it.  So Ehrenfeld has taken the lead in promoting legislation, which would block enforcement of libel judgments from countries that provide less free speech protection than in the United States.  New York passed such a law on May 1, and Congress is considering similar legislation for the entire nation.  In addition, the proposed Congressional bill would  allow American authors and publishers to countersue, and if a jury found that the foreign suit was an attempt to suppress protected speech, it could award treble damages.

In the meantime, libel tourism continues to exert a chilling effect on some writers and publishers, deterring those from moving forward with books about terrorist financing.  After all, visiting the inside of a courtroom overseas with an pricey lawyer serving a tour guide isn't the kind of vacation most people want to take.

September 15, 2008 | Permalink | Comments (0)

Bill Padding, Revisited

Unlike many traditions in the legal profession, it seems that bill padding never goes out of style.  Two years ago, allegations of bill padding by a junior partner at Holland and Knight drew national coverage, as well as strong criticism about the practice from legal ethics experts.  Now, the Edinburgh Evening News is reporting that an internal memo leaked from the depths of mega-global law firm Clifford Chance "has junior lawyers complaining that they are obliged to 'pad' their clients' bills."   Among other things, the memo describes that "junior lawyers have to invent problems so they can bill 2420 hours a year and that 'under-houred' senior lawyers are given extra work to bulk up their hours."  Reportedly, Clifford Chance leaders will convene an emergency meeting to make clear that the firm does not have a policy of encouraging bill padding. 

I don't know whether Clifford Chance lawyers are really encouraged to pad their bills or not, or whether the memo exaggerated the policy.  (Though as an aside, I note that Rees Morrison suspects that most firms with mandatory billing requirements inevitably engage in some type of bill padding.)  Instead, I wonder whether those firms that do pad their hours can continue to do so in a declining economy, where clients are scrutinizing their legal costs more closely.  At the end of the day, perhaps it's economics, rather than legal ethics, will drive the practice of bill padding into extinction.

Update (9/16/08) -- Yes, I've realized that the story from the Edinburgh News is outdated. I went back again, and read through the entire page, down to the bottom and saw the date stamp of 2002 way at the bottom -- even though it had come up in my news aggregator as a current story.  Thank you for the comments.

September 15, 2008 | Permalink | Comments (4)

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