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October 30, 2009

Contracts: Throughout the Universe, From the Beginning of Time

Inspired by a odd contract phrase that has suddenly popped up in a few places, the WSJ had an interesting story yesterday on the lengths to which lawyers are willing to go to be thorough in the agreements they draft.

The Terms of Use on tell users that they give up the rights to any content submissions "throughout the universe and/or to incorporate it in other works in any form, media or technology now known or hereafter developed." is hardly alone here. According to a post on the THR, Esq. blog, the phrase is spreading rapidly throughout the legal universe, as a search of the SEC's Edgar database "turned up 560 examples of the phrase in the last couple years alone, including in CBS CEO Les Moonves' employment agreement." 

For the record, a spokeswoman from Lucasfilm, which runs the Web site, says "to be honest with you, we have had very few cases of people trying to exploit rights on other planets."

One of my favorites in this area, which I still remember doing a double-take over when I saw it for the first time when I was practicing law, is the release form that releases all claims against a potential defendant "from the beginning of time" until the date of the agreement. The WSJ article quotes the CEO of a company benefiting from such a release as stating, "we're trying to figure out how to cover every possible base as quickly as possible. When you start at the beginning of time, that is pretty clear."

Transactional lawyers, what are some other examples of "too-far-reaching" contract language?

October 30, 2009 | Permalink | Comments (4)

Friday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blawgosphere.

1) Question: I just received a Christmas card with a photo of one of my relatives with her ex-boyfriend. I was surprised because I know they had a nasty break-up. I was even more surprised to see that the photo is of her performing, um, certain "acts" upon him. Can he do this?

Answer: No, that would constitute "unlawful photography and criminal impersonation." (Associated Press)

2) Question: I am a 17-year-old girl. What are the chances of me finding a 112-year-old man who has 18 children by five prior wives to marry me?

Answer: 100 percent. (Jonathan Turley)

3) Question: I am a gang member suing the city for excessive force by the police. I'm afraid the jury will not go my way based on my appearance (I have numerous tattoos, including the name of my gang tattooed prominently on my upper lip). Is there any kind of "Extreme Makeover" available for this situation?

Answer: Of course! (Lowering the Bar)


October 30, 2009 | Permalink | Comments (0)

Gov. Schwarzenegger Has a Message for the Calif. State Assembly

The blawgosphere wants to know: What message was Governor Arnold Schwarzenegger sending to the California State Assembly through his veto last week of Assembly Bill 1176?

At first glance, the Governor's message seems fairly routine:


But take a closer look at the combination of letters along the left side of the two main paragraphs. They seem to spell out the Governor's sentiments a bit more clearly.  (Still not grasping the Gov's message?  Click here for a highlighted, R-rated version courtesy of Legal Juice).

As discussed in this post on the Lowering the Bar blog, the odds of this message materializing randomly may be as high as one in 200 billion. Then again, the odds against someone becoming Mr. Universe, a superstar Hollywood actor, and then the Governor of California are probably pretty high, too.

October 30, 2009 | Permalink | Comments (1)

Is Gmail Making the Leap From the 'Unacceptable?'

Back in August, Esquire Magazine posted a series of "rules" that included this one:

Esquire's Rule #1033. If your lawyer's email address ends in, or (or, find a new lawyer.

This prompted a flurry of discussion in this post on the Simple Justice blog (written by [email protected], aka Scott Greenfield) and ultimately here on Legal Blog Watch as to the validity of Rule #1033.

As Carolyn Elefant wrote at the time,

I suppose that Hotmail, Yahoo or Gmail addresses suggest that a lawyer is too cheap or lacking in tech savvy to set up an e-mail account on his own firm's server. In addition, some have raised privacy concerns about Gmail, which would presumably apply to the other services as well. Questions about the confidentiality of a firm's e-mail might be another reason for a client to avoid a lawyer using one of these services.

Gmail This week, however, proponents of Gmail as a serious and professional business email service received a boost when the the Los Angeles City Council voted unanimously to outsource its entire e-mail system to Google. L.A. thus becomes the largest city in the nation to make the move to Gmail, with Councilman Tony Cardenas calling it a "world-class decision today to support a state-of-the art e-mail system." Not quite as certain was Councilman Paul Koretz, who said "it's unclear if this is cutting edge, or the edge of a cliff and we're about to step off."

This post on the blog considers the impact on lawyers, noting that,

As lawyers, the security of our communications is critical. I can rely on the infrastructure of a large firm to make sure all the necessary security is in place. I wonder, however, when I receive e-mails from someone using yahoo or gmail for professional purposes, whether that security level has been assured. The stringent requirements that the LAPD is sure to require may generate gains for everyone relying on google for their e-mail.

A commenter on the post opined that using Google means more security, not less, writing that "Google is essentially a very, super large firm with a lot more resources to dedicate to security etc. whereas a law firm, even a large one, will at best have a small IT staff that operate a dedicated server for the firm."

If other government bodies and organizations follow Los Angeles' lead, then it will not be long until completes the leap to being a widely respected email address.

October 30, 2009 | Permalink | Comments (2)

October 29, 2009

Legal Believe It or Not

Among the truth is stranger than fiction items in today's news:

An assistant attorney general in South Carolina was fired after police found him in his SUV parked in a cemetery in the company of a stripper, a Viagra pill and various sex toys. The 66-year-old former state legislator explained to police that he was on an innocent lunch break and always kept the Viagra and sex toys in his car "just in case."

The attorney for a New Jersey man on trial for murder is employing a rather weighty and certainly novel defense. His client, he contends, was too fat to commit the crime. Whoever shot the victim would have had to be able to quickly run up and then back down a flight of stairs. At 5 feet 8 inches and 285 pounds, the unhealthy 62-year-old could never have pulled it off, his lawyer asserts.

A jury this week convicted a judge in Washington state of patronizing a prostitute and threatening to kill another man who talked about having sex with him. The conviction means that Michael Hecht will no longer serve as a Superior Court judge. But the court's presiding judge and the state attorney general are at odds over whether Hecht gets to keep collecting his paycheck. No doubt, the state's prostitutes are hoping he does.

Finally, we have this news flash of interest to estate-planning lawyers. Be sure to advise your clients that they can now buy cut-rate caskets at Wal-Mart and Costco. Casket prices range from $999 for the "Dad Remembered" model and $1,699 for the oddly named "Executive Privilege" model up to the top-of-the-line Sienna Bronze Casket for $3,199.

October 29, 2009 | Permalink | Comments (1)

Soupy Sales, Expert Witness


I was such a fan of the subversive humor of comedian Soupy Sales that, when he died this week, I wished for a legal angle so I could blog about him. After all, this was a man who not only perfected pie throwing as an art, but who once told the viewers of his children's TV show to sneak into their parents' bedrooms, "take some of those green pieces of paper with pictures of George Washington, Benjamin Franklin, Lincoln and Jefferson on them," and "send them to me." In return, he promised, "I'll send you a postcard from Puerto Rico."

Well, my wish came true. A couple of different bloggers -- Dwight Sullivan at CAAFlog and Danny Jacobs at On the Record -- picked up on this piece of trivia from Sales' obits that I completely overlooked: He once served as an expert witness called to testify in the court martial of a sailor accused of tossing a pie into an officer's face. As recounted in the Los Angeles Times obituary of Sales:

Noted defense attorney William Smith enlisted Sales to tell how he had never been prosecuted for assault with a pie. (Once, however, actor Bob Cummings sent him a cleaning bill. “We paid him $150,” Sales recalled, “and he sends a bill for 75 cents.”)

Pie-hurling, Sales told the court, was “a harmless joke” designed to “relieve tensions and frustrations.” He offered to perform at the Port Hueneme naval base Christmas show if the charges were dropped but was turned down. The sailor was found guilty.

The obit in The Washington Post also mentioned Sales' stint as an expert witness, concluding, "The military court was not amused, and the sailor was convicted."

Thanks to the wonders of Google News, I even managed to find a contemporaneous report of Sales' 1974 testimony, courtesy of UPI. It begins:

The comedian and the Navy officer took opposing sides Thursday in the cream pie court martial, a clash between the traditions of Mack Sennett and Horatio Hornblower.

Comic Soupy Sales soberly told the court he is an expert on cream pies, having stopped more than 19,000 with his face, and that a pie in the puss is "a harmless joke."

The military court also heard from Timothy Curtin, the officer who was on the receiving end of the sailor's pie toss.

Curtin, in turn, testified that he is a "by-the-book" officer and does not find slapstick humor very funny -- nor, for that matter, he added, did he ever find the professional performances of Soupy Sales very funny."

Sales had himself been in the Navy during World War II and told the military court that he had not "come here to ridicule the court. I am a former Navy man and proud of it and am also a good American."

October 29, 2009 | Permalink | Comments (0)

E-Mail Not Protected by 4th Amendment, Judge Says

Update: Orin Kerr says he misread the opinion. Read his correction here.

The Fourth Amendment's protection against unreasonable searches and seizures does not apply to e-mail, a federal judge has ruled. The judge's reasoning would seem to sound a warning bell for anyone -- lawyers in particular -- not only who use Web-based e-mail accounts, but also who store documents of any kind online in "the cloud."

Orin Kerr, professor at George Washington University Law School, highlights the ruling and quotes from it at The Volokh Conspiracy, even though he says he disagrees with it.

The ruling from U.S. District Judge Michael W. Mosman in Oregon addresses the question of whether the government must notify someone when it obtains a search warrant to access the person's Web-based e-mail account. This case appears to have involved Google's Gmail.

The Fourth Amendment, Mosman writes, creates a "strong privacy protection for homes and the items within them in the physical world." But e-mail, he says, resides outside a person's home.

When a person uses the Internet, however, the user’s actions are no longer in his or her physical home; in fact he or she is not truly acting in private space at all. The user is generally accessing the Internet with a network account and computer storage owned by an ISP like Comcast or NetZero. All materials stored online, whether they are e-mails or remotely stored documents, are physically stored on servers owned by an ISP. When we send an e-mail or instant message from the comfort of our own homes to a friend across town the message travels from our computer to computers owned by a third party, the ISP, before being delivered to the intended recipient. Thus, "private" information is actually being held by third-party private companies.

Acknowledging that the law is unclear on the question of whether and to what extent the Fourth Amendment protects Internet communications, Mosman ties his decision to Google's privacy policy, which makes clear that Gmail users have no expectation of privacy, he concludes.

Here, the defendants voluntarily conveyed to the ISPs and exposed to the ISP’s employees in the ordinary course of business the contents of their e-mails. The Google privacy policy explicitly states that Google will share personal information of its subscribers when it has "a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to ... satisfy any applicable law, regulation, legal process or enforceable governmental request." Google Privacy Policy, http:// (last visited May 13, 2009). The court understands that other ISPs have similar privacy policies. ... Thus subscribers are, or should be, aware that their personal information and the contents of their online communications are accessible to the ISP and its employees and can be shared with the government under the appropriate circumstances. Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.

Kerr disagrees with the decision. "I think e-mails are protected under the Fourth Amendment despite the third-party doctrine," he says, point to an article he wrote for the Stanford Law Review in which he makes this case.

The judge's reasoning would seem to extend beyond e-mail to any documents stored online. If there is no protection for an e-mail stored on the Gmail servers, it follows that there would be no protection for a document stored on the Google Docs servers. We can only hope that the case is appealed and that the appellate panel sides with Kerr.

October 29, 2009 | Permalink | Comments (9)

Legal Site's Buzz-Building Ploy Backfires Badly


And now, for the latest entry in the "What were they thinking" department.

The lawyer-referral site wanted to build buzz for immigration lawyers through a social-media marketing campaign. So it decided that the best way to do that was to poke fun at illegal immigrants and the so-called coyotes who profit by smuggling them across the desert into the United States.

The site created an ad for a made-up iPhone app designed for those "lost and disoriented in the desert." The make-believe app, iCoyote, "packs all of the features of a real immigrant smuggler into the iPhone. Using GPS, navigate through the patrol packed desert without worrying about that pesky Border Patrol."

The app included a variety of features such as:

  • iWife. It "will take care of finding marriage prospects for you. Aggregating and analyzing data from a variety of online sources [to] match you up with only the most promising US Citizen candidates."
  • iLawyer. "Homeland Security is Cracking down. Not to worry. With iLawyer, you can find an attorney to convince the immigration court to grant Asylum Protection. A Green Card is a finger swipe away."
  • Weather Monitors. "The desert can get hot, and trying to cross it when it's 120 degrees is not fun. Get up-to-date weather forecasts to pick the right time and ensure your trip to the US is comfortable and fun-packed."
  • City Statistics. "San Antonio? Albuquerque? Tucson? San Diego? Not sure which is best? Get unemployment statistics, current average wages, cost of living expenses and more. Get the job you want, at the right wage, tax free!"

After the ad was cited on Tuesday by the social-media blog Mashable as "a recipe for PR disaster," the company quickly got the message and took it down. The former iCoyote page now features this message:

iCoyote Ad Has Been Removed

We regret posting the iCoyote social media experiment. Obviously, this campaign did not hit the mark and we apologize to anyone who was offended by the content. Our mission is to help consumers find legal information, and if necessary, with legal counsel and we're continually striving to find creative ways to introduce people to promotes itself as part of the ExpertHub network. What is ExpertHub? "ExpertHub was founded to transform the way professionals advertise online," it explains. Well, it certainly succeeded at that.

Common sense? Too bad there's no app for that.

October 29, 2009 | Permalink | Comments (0)

October 28, 2009

Wednesday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blawgosphere.

1) Question: I was using my laptop to train myself on some new software my company is using and totally lost track of time. This caused me to be about 90 minutes late on a project for work (Full disclosure: I'm a pilot and the project was landing Northwest Flight 188 -- We went 150 miles too far. Whoops!) Is this going to be a problem?

Answer: Major problem. (Lowering the Bar)

2) Question: I really need some protection at my home. What is effective? A burglar alarm? A gun?

Answer: Have you considered the lower-cost alternative of pretending that you are a dog to frighten away would-be robbers? (Legal Juice)

3) Question: I have the misfortune of working as the character Leatherface in a haunted house called the House of Screams. I was doing my best to be scary with my fake chainsaw and everything when one of the customers pulled his gun on me. I dropped the fake chainsaw and put my hands up, and the customer told me he was a police officer. Am I in trouble?

Answer: You? No. The cop? Oh, yes. (Jonathan Turley)

Visit for Breaking News, World News, and News about the Economy

October 28, 2009 | Permalink | Comments (0)

Superhero Lawyer 'Snyderman' Wears His Costume Year-Round

Sure, you may have a Web site for your law firm. You may even have a Twitter account and a blog. But do you have an animated cartoon presenting yourself as a superhero? Well, do you? Didn't think so!

Via this post on the Bad Lawyer blog I stumbled upon this cartoon video about "Snyderman," a "superhero of incredible strength and legal savvy, who uses creative imagination and courtroom skills to protect corporations and individuals against misconduct." Not by coincidence, the Snyderman video appears on the Web site of Maryland attorney Stephen L. Snyder, who acknowledges right up front that:

This website may, at first blush, strike you as a bit over-the-top. But it’s not designed to give you pause, or scare you away. It’s simply a reflection of Stephen L. Snyder, the man. His unique personality, creative imagination, and willingness to take risks, has resulted in multiple $100 million-plus recoveries for his clients.

Click on the image below to play the Snyderman movie.


October 28, 2009 | Permalink | Comments (2)

What Would YOU Do for World Series Tickets?

In honor of the World Series, which starts tonight in New York, I give you this nugget from the CBS News Crimesider blog that presents the question: What would you be willing to do to see your favorite team in the World Series?

Finkelstein The answer for one Philadelphia woman, police say, was just about anything, including prostitution. Police say that Susan Finkelstein allegedly offered sex for World Series tickets via an ad on Craigslist entitled, “DESPERATE BLONDE NEEDS WS TIX (Philadelphia)”. The ad reads:

“Diehard Phillies fan -- gorgeous tall buxom blonde -- in desperate need of two World Series tickets. Price negotiable -- I'm the creative type! Maybe we can help each other!”

The Bensalem, Pa., police state on their Web site that they arrested Finkelstein, 43, yesterday on prostitution charges. They claim they contacted her after viewing the Craigslist ad and she then "solicited an undercover police officer to perform various sex acts in exchange for a World Series tickets."

October 28, 2009 | Permalink | Comments (2)

Trend Watch: Fake/Parody Web Sites Create Legal Issues

Legal disputes over "fake" Web sites and social media profiles seem to be a developing trend. On Monday, I discussed in this post how Connecticut Republicans recently set up dozens of fake Twitter accounts and Web sites using the names of Democratic state representatives, e.g., Republicans are using the Web sites to criticize their opponents, and had been doing the same thing using Twitter until Twitter shut down the fake accounts.

Since writing that post on Monday, I have come across two other recent stories involving fake or impersonated Web sites. This post on the Social Networking and the Law blog discusses a lawsuit filed on Sept. 24, 2009 after four students allegedly created a fake Facebook profile of another boy. The fake profile contained:

his actual cell phone number, photos, and defamatory remarks. The defendants' posts suggested the boy liked to engage in homosexual acts, and they also sent "disturbing, vulgar and sexual comments to a few girls."

At one point, the fake profile had 580 "friends" -- many who knew the boy. Some of the users recognized the profile as a prank, but some believed it really belonged to [the boy].

The lawsuit, filed by the boy's mother on his behalf, includes claims for defamation per se, defamation per quod, false light, intentional infliction of emotional distress and injunctive relief.

Most recently, as discussed in this post in the ABA Journal's Trademark Law section, the U.S. Chamber of Commerce filed a lawsuit against a group called the "Yes Men" for trademark infringement, unfair competition and false advertising. Among other things, the Yes Men created a parody/hoax Web site that allegedly looked exactly like the Chamber's. Although the Chamber's attorneys reportedly sent a Digital Millennium Copyright Act takedown notice last week to the site's provider, Hurricane Electric Internet Services, claiming that the site constituted copyright infringement and must be shut down immediately, the site is still up and running here.

As in the Connecticut Republican matter, the issue in the "Yes Men" case appears to boil down to whether the site in question is "parody." The Electronic Frontier Foundation issued a press release last week stating that "We are very disappointed the Chamber of Commerce decided to respond to political criticism with legal threats. The site is obviously intended to highlight and parody the Chamber's controversial views."

Keep your eyes open for more of these fake Web site cases, as they seem to be sprouting up everywhere these days.

October 28, 2009 | Permalink | Comments (1)

October 27, 2009

Jon & Kate Plus Lawyer Irate

I cannot claim to be a close follower of the legal wrangling between Jon and Kate Gosselin, the ill-fated stars of the reality TV show that was to follow their lives together raising eight children. The plot changed when Jon reportedly took up with another woman and the couple separated. They are now engaged in divorce proceedings in Philadelphia that have focused of late on sorting out each spouse's finances and their joint assets.

An arbitrator is slated to conduct a hearing in November that will decide the financial outcome of the case. On Monday, a court hearing was held in Philadelphia at which the parties were scheduled to provide financial accountings. Jon Gosselin was there with his attorney Mark Jay Heller, a New York City lawyer known for having defended "Son of Sam" serial killer David Berkowitz. But Kate was a no-show, choosing instead to attend a book signing in Long Beach, Calif., according to a report by Philadelphia's Fox News affiliate.

Kate Gosselin's failure to appear in court led lawyer Heller to embark on what Fox described as a "tirade" on the courthouse steps, calling Kate "the old lady who lived in the shoe" and claiming she was running up huge dinner tabs in Manhattan on the same day she appeared on TV complaining that she was broke.

I'm not sure Heller's statement amounted to a tirade or if it was just an experienced lawyer's way of playing to the news media. Fortunately, Fox caught it all on video so you can judge for yourself.

October 27, 2009 | Permalink | Comments (2)

From Arts to Law: Two Lawyers' Career Paths

Two unrelated but parallel stories caught my eye this week. Both portray lawyers who chose careers in the legal profession over promising futures in the arts.

One is Sergiu Gherman. A talented piano virtuoso from the Eastern European country of Moldova, Gherman's life took a dramatic about face when, in the middle of pursuing his doctoral degree in classical piano, he decided to go into law and enrolled at the Levin College of Law at the University of Florida. "Are you crazy or something?" one of his closest friends protested at the time.

Gherman's journey from Moldovan musician to Florida lawyer is recounted in a story this week in the Lakeland, Fla., newspaper The Ledger. He started playing piano at age 7 and went on to study on full scholarship at the prestigious Gheorghe Dima Music Academy in Romania, where he received bachelor's and master's degrees. A former piano teacher helped bring him to the United States, where he enrolled in a doctoral program at Temple University in Philadelphia.

In Philadelphia, he was impressed by a lawyer who helped him with an immigration issue. It was then that he decided he wanted to become a lawyer. "I wanted to have an impact, particularly for someone who really needed my services." Today, he is a lawyer with the Bartow, Fla., firm Frost Van den Boom & Smith. And in April, he became a U.S. citizen.

Shelton-tabor_valerie_ Meanwhile Texas Lawyer profiles Valerie Shelton-Tabor, a Dallas public defender who glides between pleas and pliés. A full-time lawyer by day who represents indigent defendants who face felony charges, at night she switches to her role as director and co-founder of the Contemporary Ballet of Dallas. And in case she doesn't have enough to do, she is the mother of two children.

Like Gherman with piano, Shelton-Tabor was on a path toward becoming a professional dancer before she veered off into law school. During her youth and through college, she studied dance, attending Southern Methodist University on a dance scholarship and graduating with a fine arts degree in dance performance.

But as she neared her graduation from SMU, she was feeling burned out on working so hard at dance. A roommate studying for the LSAT dared her to take it too. She did and scored well and soon found herself at the University of Oklahoma College of Law, where she stopped dancing "cold turkey" and thought she would never return to it.

In 2001, a friend and fellow dancer from SMU invited her to help start a dance company. The idea appealed to her and soon the two women had scraped together the money to get it started. Later, the company started an affiliated dance school.

Spending increasing numbers of hours on dance, Shelton-Tabor this year shifted her focus back to law. She sold her interest in the dance school while keeping her interest in the company. She switched from a part-time job as a district attorney to a full-time job as a public defender. She continues to teach two nights a week and to help direct and choreograph the dance company.

Shelton-Tabor told Texas Lawyer that she sees similarities between dance and law. "You have to learn to let some of it go. The fact that an officer didn't testify well, you have to recognize you can't control that. The fact that a technician didn't turn on a lighting switch, you can't control that."

October 27, 2009 | Permalink | Comments (0)

Swine Flu Claims Lawyer's Life


Sidney H. Davis Jr., a Dallas attorney who was appointed last month to lead an investigation into the conduct of Dallas County constables, died Monday from complications of the H1N1 virus, the Dallas Morning News reports. The 54-year-old partner with the firm Touchstone Bernays fell ill and slipped into a coma last week. He died from pneumonia brought on by the virus, according to news reports.

With the number of H1N1 cases continuing to escalate and President Obama declaring the flu a national emergency, Davis appears to be the first U.S. lawyer to die from the flu this season, based on what I could find online. In July, a well-known Australian lawyer, Ian Morris of Darwin, a past-president of the Northern Territory Law Society, died after contracting swine flu.

Davis focused his practice on representing insurance companies. He was a 1979 graduate of the University of Texas School of Law at Austin, where he was an editor of the Texas Law Review. He received his undergraduate degree in economics from Texas Tech University in 1976.

Last month, the Dallas County Commissioners Court hired Davis to advise it about an investigation of two constables. The constables had been accused of forcing employees to sell raffle tickets for their re-election campaigns and to work unpaid security details. District Attorney Craig Watkins had objected to the hiring of Davis, arguing that it was outside the court's authority.

County Judge Jim Foster issued a statement saying that he was devastated by news of the death. "Sid Davis was a towering legal mind that brought much needed counsel to the Commissioners Court in recent weeks."

October 27, 2009 | Permalink | Comments (5)

Prominent Wis. Justice Official Commits Suicide

It was just a week ago that I blogged here about the suicide of Kilpatrick Stockton lawyer Mark Levy, movingly recounted by writer Richard B. Schmitt in the cover piece for this month's ABA Journal magazine, A Death in the Office. Now, a prominent law enforcement official in Wisconsin and husband of an assistant attorney general has taken his own life.

Craig Klyve, 52, director of the Investigative Services Bureau in the Wisconsin Department of Justice, was found dead in his car Friday night in the parking garage under the Justice Department's offices. He shot himself with his own service weapon, the Wisconsin State Journal reports. His wife, Rebecca R. Weise, an assistant state attorney general in the Department of Justice, found his body.

Klyve's stepmother told reporters that he had been feeling overwhelmed at work and that mandatory furlough days made his job even harder. Klyve oversaw his agency's Internet Crimes Against Children unit and the Wisconsin Clearinghouse for Missing and Exploited Children. His office also managed all case records and provided technical support for investigations.

A graduate of the University of Wisconsin at Madison, Klyve began his law enforcement career with the Wisconsin Department of Corrections. In 1985, he transferred to the Department of Justice, where he rose through the ranks to become a director in the Division of Narcotics Enforcement before moving to Investigative Services.

An AP story in May profiled his use of GPS to track suspected drug dealers and included a photograph of him at work in his office, the dome of the Wisconsin State Capitol framed in his window.

Klyve's wife, Rebecca Weise, is a 1995 graduate of the University of Wisconsin Law School. The couple met in 2002 and married in 2006. The two were "inseparable" and particularly enjoyed camping and traveling together, according to an obituary published online.

"To those who knew and loved him, Craig was joyful, nurturing, playful, honest, devoted and hard-working," the obituary said. "He loved to be active outdoors and laugh with his family and friends."

October 27, 2009 | Permalink | Comments (1)

October 26, 2009

Monday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blawgosphere.

Pinkparking 1) Question:
I am incapable of consistently parking my car in a standard 2.3-meter-wide parking spot. I just can't do it. Are there any countries that will make accommodations for my disability?

Answer: Are you a woman? If so, then South Korea has a special, pink-painted 2.5 meter-wide parking spot with your name on it. (Jonathan Turley)

2) Question: I am a police officer. A guy in the convenience store I'm in right now just took of his hat and, no lie, he has a small bag of marijuana stuck to his forehead! Now what?

Answer: Just go peel it off of his forehead and arrest him. (The Faculty Lounge)

3) Question: I work for the Department of Justice. I have been assigned to something called the "Taint Team." Should I be, um, concerned with this designation?

Answer: No. This is a legit group. Carry on. (South Florida Lawyers)

October 26, 2009 | Permalink | Comments (1)

Wait, Baby Einstein Won't Make My Kid a Genius?

Babyeinstein Over the weekend, the The Faculty Lounge blog highlighted a story in the New York Times about the "Baby Einstein" videos that are known to just about every parent these days. In short, it turns out that the videos will not make your child into an Einstein or a genius, and the Walt Disney Company is now caving to demands that it offer refunds to all purchasers.

The push against the videos has been led for years by a group called the Campaign for a Commercial-Free Childhood, which now triumphantly states that it sees the refund "as an acknowledgment by the leading baby video company that baby videos are not educational, and we hope other baby media companies will follow suit by offering refunds.”

A 2003 study showed that a third of all American babies from 6 months to 2 years old had at least one “Baby Einstein” video. The Times reports that Disney had already dropped the word “educational” from their marketing of the videos under pressure from the CCFC, but went further to issue the refunds after being threatened with a class action lawsuit for "unfair and deceptive practices." The refund extends to all those who have bought the videos since 2004, and will provide $15.99 for up to four “Baby Einstein” DVDs per household.

As The Faculty Lounge asks, however,

Did anyone REALLY think they were "educational"? Sure some of them have numbers in them, and some have words and pictures. But how many parents really thought they were more than a useful babysitting device? And they are really quite good at that...

As the father of four young boys who have watched their share of "Baby Einstein," I certainly never thought there was any magic in the videos that was going to make my kids into geniuses. But for those of you who did, go get your $15.99.

October 26, 2009 | Permalink | Comments (3)

In Connecticut, Republicans Attack Dems via Fake Twitter Accounts

A novel online tactic employed by Connecticut Republicans to attack their Democratic opponents has been shut down by Twitter. The New Haven Advocate reports that last week, Twitter terminated 33 fake accounts created by Republicans using the names of Democratic state representatives. The short-lived scheme was to send out posts on Twitter under the Democrats' own names criticizing them.

State Republican Chairman Chris Healy's said he was "not quite sure what the issue is, other than that the Democrats were successful in stopping free speech."

A key issue in Twitter's decision was whether the fake posts violated its "anti-impersonation policy." Twitter stated in an e-mail reply to a Democratic leader's complaint that

A person may not impersonate others through the Twitter service in a manner that does or is intended to mislead, confuse or deceive others. ... Impersonation is against our terms unless it is a parody. The standard for defining parody is, "Would a reasonable person be aware that it's a joke?"

Twitter concluded that it was not reasonably clear that the posts were a joke and removed the accounts, but Healy calls the decision "silly." "That's not impersonation; that's satire," he added.

Notably, another flank of the Republicans' online attack lives on, as they are still operating 33 corresponding Web sites they created using the names of those same Democratic lawmakers. Healy says that despite the Democrats protests, the sites will remain up and running. "They didn't think of it first, so that's why they're whining," he said.

One of the 33 sites still up is which invites readers to "Get to Know Speaker of the House Chris Donovan." The site contains a prominent link to the now-pulled Twitter account (which now simply bears a message stating that "the account you were headed to has been suspended due to strange activity. Mosey along now, nothing to see here.") According to the Advocate, all of the information on the Web site was produced by Republicans and is critical of Donovan, with only the slightest indication in small print at the bottom of the page about the source. In response to comments from professors in the article that the sites are deceptive or perhaps unethical, Healy simply says that "I really don't care what a bunch of college professors from liberal colleges think."

October 26, 2009 | Permalink | Comments (0)

Debunking Several Myths About the Passive Voice in Legal Writing

Any law student who has taken a legal writing course has probably heard, repeatedly, that the passive voice is bad. Evil. To be avoided at all costs. In most cases I would agree this is true, and that vigorously purging the passive voice from your writing makes it clearer and easier to read.

This post on the Legal Writing Prof Blog directs us to a good primer put out by the University of North Carolina Writing Center that debunks several myths about the passive voice, and also lays out at least three instances in which writers should feel free to use it.

The passive voice "myths" include:

  • Use of the passive voice constitutes a grammatical error: False, it is simply a stylistic issue related to clarity.
  • If something is in the first person, it is in the active voice: False, e.g., "I was hit by the dodgeball."
  • Grammar checkers will catch passive voice: False, grammar checkers typically catch only a fraction of passive voice usage.

The article also presents circumstances in which the passive voice is actually the best choice, including:

  • To emphasize an object. For example, in the passive voice example "100 votes are required to pass the bill," the emphasis is on the number of votes required. As the article explains, "an active version of the sentence ('The bill requires 100 votes to pass') would put the emphasis on the bill, which may be less dramatic.
  • To de-emphasize an unknown subject or actor, e.g., "Over 120 different contaminants have been dumped into the river."
  • If the reader doesn't need to know who is responsible for the action. For example, "Baby Sophia was delivered at 3:30 a.m. yesterday" works because the reader does not likely care that it was Dr. Jones who delivered Sophia.

I'm going to try to add all of this to my own practice of using the passive voice, which before today was simply, "don't do it!"

October 26, 2009 | Permalink | Comments (3)

October 23, 2009

Suit Says U.S. Attorney's Office a 'Girls Club'

Emilia Rodriguez Velez

The U.S. attorney's office in Puerto Rico was a "girls club" in which male attorneys were the victims of discrimination and a hostile work environment. That, at least, is the allegation of Juan E. Milanes, a former assistant U.S. attorney there. He has filed a lawsuit alleging that he was discriminated against based on his gender and constructively discharged.

Milanes filed his lawsuit against Emilia Rodriguez-Velez (pictured), the U.S. attorney in Puerto Rico, and Eric H. Holder, U.S. attorney general. Details of the lawsuit were released this week when U.S. District Judge Gladys Kessler issued an opinion ordering the transfer of the case from the District of Columbia to the federal district court in San Juan.

Kessler's opinion provides a synopsis of Milanes' allegations:

Plaintiff Juan Milanes is a former Assistant United States Attorney (AUSA) in the District of Puerto Rico. He alleges numerous incidents which either contributed to creation of a hostile work environment or constituted retaliation. Plaintiff was assigned to the Narcotics Unit while in Puerto Rico, where his superior was the Unit’s Deputy Chief, Jeanette Mercado. Plaintiff alleges that Mercado created a hostile work environment. When Plaintiff complained about his work environment, Rosa Emilia Rodriguez-Velez, Acting U.S. Attorney for the District of Puerto Rico, allegedly retaliated by denying Plaintiff’s children the benefit of having the Department pay for them to attend an English-language school in Puerto Rico, while still giving that benefit to her friends in a 'Girls Club' at the office. Plaintiff allegedly was further retaliated against when Mercado assigned him the oldest and weakest narcotics cases, threatened him with disciplinary action, and attempted to sabotage his trial work.

It seems that Milanes sought to escape what he viewed as an untenable situation by applying for a transfer to an overseas detail in Kosovo. He was accepted for the transfer but blocked from leaving for it when Rodriguez-Velez served him with a written reprimand on the day he was to depart, he contends. When Rodriguez-Velez later accused Milanes of threatening her, his overseas detail was retracted.

Plaintiff filed a Complaint with the Department of Justice and met with officials from the Executive Office for United States Attorneys (EOUSA) in Washington, DC. The EOUSA forwarded his complaint to its general counsel’s office, but Plaintiff alleges it has not conducted an investigation nor given him evidence he requested. Plaintiff was placed on administrative leave pending an investigation and alleges that he was constructively discharged on June 27, 2008, when he was forced to resign his position as an AUSA.

Milanes initially filed his lawsuit in federal court in Puerto Rico, where he also filed a motion to recuse all the district's judges and asked for appointment of an outside judge to hear the case. When that motion was denied, Milanes dismissed his own case and then refiled it in Washington, where the Justice Department asked to have it sent back to Puerto Rico.

That is what Kessler did in her order this week, concluding that "Puerto Rico has a greater interest in having this case decided there." Maybe so, but we all have an interest in knowing how it turns out.

[Hat tip to Michael Doyle at Suits & Sentences.]

October 23, 2009 | Permalink | Comments (3)

Computers May Usurp Oral Testimony, U.K. Chief Justice Warns


Given that he occupies a judicial position that traces its history to the Middle Ages, the comments this week by the Lord Chief Justice of England and Wales were particularly striking for the deviation from tradition they predict. In his first press conference since taking office last year, Lord Judge said that, within 15 years, oral testimony in courts may have to be replaced by evidence presented entirely by computer.

A generation brought up with computers will no longer have the attention span to sit as jurors and listen to oral testimony for hours on end, Lord Judge believes, according to a report in The Times Online. "I am very strongly in favor of the jury system. But I look at my grandchildren: they don’t learn by listening to people talking at them. They have teachers who guide them," he said.

The jury system, he noted, depends on jurors coming to court and sitting down all day, "listening to people speaking, listening and thinking about what they are hearing and assimilating it and then assessing it." Technology changes jurors' ability to process information in that way, he observed.

"If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar."

He raised the issue not to sound an immediate alarm but to encourage study of it before there is need for an alarm. "I would like this issue to be thought about very deeply. What we don’t want to have is what we sometimes do have -- the acknowledgment of the crisis long after it's in existence and then efforts to plaster over it." He suggested that evidence might be presented to jurors on screens that they could take with them and manipulate to obtain the information they would want.

Commenting in The Times on the Lord Chief Justice's warning, John Cooper, a criminal barrister and member of the Bar Council, said there is no doubt that the public's ability to listen to lengthy oratory has declined. While lawyers must learn to use multimedia tools in making their cases, these tools should not usurp advocacy, he said. "These should never replace the advocate's address or his or her responsibility to present the case in such a way that it will be understood and appreciated."

October 23, 2009 | Permalink | Comments (0)

La-Z-Boying While Intoxicated

Motorized chair

You would think that, having consumed eight or nine beers, Dennis LeRoy Anderson's La-Z-Boy would be the perfect place for him. But this particular chair had wheels and a motor. And when the 62-year-old Anderson got in it to drive home from his local bar in the northern Minnesota town of Proctor, he quickly crashed into a parked car.

Soon after, Anderson found himself under arrest for driving a La-Z-Boy while intoxicated. Anderson, it seems, had tricked out his favorite recliner, powering it with a converted lawnmower engine and adding headlights, a small steering wheel, a stereo and cup holders.

When police arrived on the scene in August 2008, they found his blood alcohol content to be 0.29, more than three times the legal limit of 0.08. Anderson, who was  not injured, told police he was driving just fine until a woman jumped on the chair and knocked it off course.

This week, Anderson pleaded guilty to driving his easy-chair while intoxicated. The judge stayed 180 days of jail time and ordered Anderson to serve two years of probation. For Anderson, perhaps the worst outcome of all this was that he was required to forfeit his motorized chair to the Proctor police department, which will auction it off along with other forfeited items.

Read all about it in the Duluth News Tribune.

October 23, 2009 | Permalink | Comments (1)

The New Adventures of Older Lawyers


Why, when I was a young whippersnapper, we had respect for our elders. The silver-haired among us were seen as vaults of accumulated wisdom, as mentors with lifetimes of lessons to share. But in today's youth-obsessed culture, those in their 70s and up sometimes seem to be all but invisible.

So it is rejuvenating to see that October has brought two separate appreciations of the more senior members of the legal profession. The first comes via the online magazine Slate, which has compiled 80 Over 80, its listing of the most powerful octogenarians in America. In a world of lists that more typically celebrate those under 30 or at most 40, Slate's selections seem almost seditious.

While the list draws from across the worlds of arts, business, politics and other professions, it includes a handful of lawyers, each named for having "remained influential into their ninth decade and beyond." The lawyers on the list (and their rankings) are:

    2. John Paul Stevens, 89, Supreme Court justice.
    3. Daniel Inouye, 85, Hawaii's senior U.S. senator.
    10. Robert Byrd, 91, West Virginia's senior U.S. senator.
    12. William H. Gates Sr., 83, co-chair of the Bill and Melinda Gates Foundation.
    28. John Dingell, 83, U.S. representative from Michigan.
    36. Joe Jamail, 84, "the King of Torts."
    47. Ralph Hall, 86, U.S. representative from Texas.
    60. Harry, Pregerson, 86, 9th U.S. Circuit Court of Appeals judge.
    67. Bob Dole, 86, former Senate majority leader.
    69. Phyllis Schlafly, 85, conservative political activist.
    77. Robert Morgenthau, 90, Manhattan district attorney.

Meanwhile, lawyer and blogger Gary Gwilliam notches it down a decade, from lawyers in their 80s to those in their 70s. Gwilliam is an accomplished trial lawyer with Gwilliam Ivary Chiosso Cavalli & Brewer in Oakland, Calif., who also works as a mentor to lawyers who face personal or professional struggles. On his blog, he has started a series in which he profiles trial lawyers successful into their 70s -- a new generation of old warriors, as he calls them.

So far, Gwilliam has posted two such profiles, of Browne Greene, 73, partner with the Santa Monica, Calif., firm Greene Broillet & Wheeler, and of Stanley K. Jacobs, 73, partner with Jacobs Jacobs & Eisfelder in Los Angeles. Jacobs tells Gwilliam that he is a better trial lawyer now than when he was a young man. Why? A huge factor, he says, is the "irreplaceable" value of experience. Take that, all you whippersnappers.

October 23, 2009 | Permalink | Comments (0)

October 22, 2009

Thursday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blawgosphere.

1) Question: My husband of 17 years left his cell phone at home. I was checking it out and discovered that the nickname he has attached to my phone number in his Contacts is "Guantanamo." Grounds for divorce?

Answer: You betcha. (Jonathan Turley)

2) Question: I have found it helpful to my business to hold myself out as a three-time "Oscar winner" in sound design, even though I've never actually won an Oscar. I have, however, paid a jeweler to create a fake Academy Award statue, which I show potential investors. Any potential issues here?

Answer: Expect your first call from the Academy. (THR, Esq.)

3) Question: Hi, Derek Lyon here. For no apparent reason I was recently arrested by police in Scotland and taken to jail for four hours before being released. My car was impounded and when I couldn't afford to pay the fees to get my car back, the police crushed it. Without my car, I couldn't get to work and was fired. I also couldn't visit my kids for months because I lacked transportation (Did I mention my car was crushed?). Why is this happening to me?

Answer: Whoops, sorry about that! Wrong Derek Lyon.(Legal Juice)

October 22, 2009 | Permalink | Comments (3)

Questioning Morehouse's Commitment to Fabulousness

The Faculty Lounge blog brings us news from Morehouse College, a private, historically black liberal arts college for men that, after over 140 years in existence, has deemed it necessary to impose an unusual dress code: a ban on the "wearing of women's clothes, makeup, high heels and purses."


As discussed in this CNN article, the "no dress-wearing" ban is part of a larger "Appropriate Attire Policy" that Morehouse implemented this week. It also bans wearing hats in buildings, pajamas in public, do-rags, sagging pants, sunglasses in class and walking barefoot on campus.

The "no dresses" part of the code is said to be directed at five students at the school who "are living a gay lifestyle that is leading them to dress a way we do not expect in Morehouse men," said Dr. William Bynum, Morehouse's vice president for Student Services. Dr. Bynum added that the Morehouse campus' gay organization was overwhelmingly supportive of the ban, with only three of 27 people voting against it. Those breaking the policy will not be allowed to go to class unless they change clothes.

As summed up by Reason's Tim Cavanaugh, “Morehouse is a private school, and it goes without saying that there are countless other colleges for men with a real commitment to fabulousness.”

October 22, 2009 | Permalink | Comments (2)

Rule 1: When the Judge Agrees With You, Stop Talking

Taped As a law student learning trial practice, and later as a young lawyer, I recall being instructed numerous times about "Rule 1," i.e., "When the judge agrees with you, stop talking!" Actually, I recall a couple of other commandments characterized as "Rule 1" -- "Get paid;" and "If anyone is going to jail make sure it is not you" -- but the "stop talking" rule was constantly reiterated through the years.

On his Simple Justice blog yesterday (via Anne Reed), Scott Greenfield offered perhaps the most startling reminder of the importance of Rule 1 that I've ever seen. It is a story, he writes, "of such abject stupidity that it can't go unnoticed." In short, as reported by the Whidbey News-Times, a woman named Patricia Sylvester was on trial last week on a vehicular assault charge in connection with a head-on collision that left a man with a collapsed lung and three fractured ribs. The woman was"crying and visibly shaking" as the jury filed in to deliver its decision: “not guilty.” Sylvester and her supporters in the audience reportedly cried tears of joy.

At that point, Rule 1 should have been firmly in place for Sylvester and her counsel, but for whatever reason, her attorney requested the court to "poll the jury." And that is when the confusion began.

As Greenfield writes,

In the ordinary course of affairs, the defense lawyer will request that the judge poll the jury following the verdict. That's because, in the ordinary course of affairs, the verdict is guilty. By polling the jury, with your eyes firmly fixed on those of each juror, staring intently and transmitting your telepathic message to speak out, tell the court that you don't agree with the verdict, let the world know that the verdict is wrong, you give the defendant one final chance to break free of the conviction. No, it doesn't work very often, but hope springs eternal.

But here, the verdict was "not guilty." That's "not guilty," as in case closed, defense wins, everybody gets to go home and celebrate. Not ... frigging ... guilty.

Unfortunately for Sylvester, the first juror polled said she did not agree with the verdict, which required the jury to go back into deliberations. The jury then went on to convict Sylvester of the lowest count. As Greenfield puts it, her counsel "seized defeat from the jaws of victory."

Bottom line? Always obey Rule 1.

October 22, 2009 | Permalink | Comments (2)

Attorney Charged With Posting Ad Seeking 'Secretary With Benefits'

To borrow a line from Martin Landau's Bob Ryan character on the HBO show "Entourage," what if I was to tell you about an Illinois Disciplinary Commission complaint against an attorney who allegedly attempted to hire a secretary whose duties would expressly include sexual interaction with him and his partner, and that as part of the interview process the candidate would be required to perform for them sexually?

Is that something you might be interested in?

The Legal Profession Blog reports here on this bombshell of a complaint over the attorney's May 2009 ad for a secretary/legal assistant. The ad was curiously posted in the "Adult Gigs" section of the classified advertisements on Craigslist, and was entitled, "Loop lawyers hiring secretary/legal assistant." It read as follows:

Loop law firm looking to hire am [sic] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements. We look forward to meeting you.

Later that day, an applicant sent in her information, including a photo, her height, clothing size and her measurements. The next day, the attorney in question allegedly responded with an e-mail that gave some basic information about the position, but then went on to state:

As this is posted in the "adult gigs" section, in addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us.

If you think you're comfortable so far, please let me know and we can proceed with the process.

The next step is to set up an interview. When are you available to interview? I am free to interview today. Please let me know what your availability is.

Lastly, we've actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you're comfortable with that aspect, because I don't want you to do anything that you're not comfortable with. So since that time, we've decided that as part of the interview process you'll be required to perform for us sexually (i didn't do this before with the other girls i hired, now i think i have to because they couldn't handle it). Because that aspect is an integral part of the job, I think it's necessary to see if you can do that, because it'll predict future behavior of you being able to handle it when you have the job.

If you're still okay with everything, let me know what you're availability is and we can figure out a time for you to come in and interview. Let me know. Thanks for your interest.

The applicant complained to the Illinois Attorney Registration and Disciplinary Commission, which then opened an investigation. The attorney initially responded that:

it appears that somebody with malice [sic] intentions has used my business information to post the advertisement on Craigslist. I did not post the advertisement for a legal secretary...

Subsequently, however, when the attorney was required to give a sworn statement before the Disciplinary Commission, he admitted that he did, in fact, post the Craigslist advertisement and send the follow-up e-mail to the applicant.

I'm pretty much speechless after that, so let's just wrap this up with a montage of Landau's finest "What if I told you" moments on "Entourage" (Rated R):

October 22, 2009 | Permalink | Comments (14)

October 21, 2009

Survey: News Reporters Find Lawyers Unhelpful

News reporters who cover litigation say lawyers are not particularly helpful when it comes to helping them understand the core issues in their cases. Plaintiffs lawyers, however, are more helpful than defense lawyers. Asked which side in a case is more helpful to them, not a single reporter said it was the defense.

These are among the findings of a survey of news reporters who cover the courts. It was conducted by a New York City communications consulting firm, Montieth & Company. The survey may not be particularly bankable, given that of 301 reporters queried, only 43 responded. They are mostly from the United States and work for a variety of print, digital and broadcast media.

But its results ring true and suggest lawyers should learn to do a better job of communicating with the news media. Less than a third of those who responded said that the lawyers in a case were effective in helping them understand the dispute and the legal issues involved. When asked whether plaintiff or defense lawyers are more helpful, 38 percent said plaintiff, 9.5 percent said neither and no one said defense.

Notably, when the reporters were asked the one thing they would most want to change about the litigation process, over 70 percent said they would make it easier for the news media to access court documents. In written comments that accompanied survey responses, reporters singled out the federal court's PACER system as needing to be simplified and to enable nationwide searches across all venues.

Given that a communications firm conducted the survey, it may not be surprising that it reported that half of the reporters found PR firms "somewhat helpful" in communicating on behalf of the parties to a lawsuit. But only 19 percent rated PR firms "very helpful" and nearly 30 percent said they were "not helpful at all."

The "moral" of this survey is that lawyers need to learn to do a better job of communicating with news reporters. That means returning calls, respecting deadlines and speaking in plain English. Even when a lawyer is restricted from commenting on a case, the lawyer should speak to the reporter and explain that. The lawyers who shy away from journalists are the same lawyers who later complaint that the story did not present their side of the case.

October 21, 2009 | Permalink | Comments (5)

Prosecutor Defends Subpoena to Students

Call this course, "Introduction to Overreaching." But it is not one students at Northwestern University's Medill journalism school willingly signed up for. The state's attorney in Cook County, Ill., has issued a subpoena asking Northwestern to turn over a variety of student records, including grades and performance evaluations, after the students uncovered evidence they say proves the innocence of a man who has spent three decades in prison for murder.

Anita Alvarez

Yesterday, Cook County State's Attorney Anita Alvarez (pictured) defended the issuance of the subpoena, which was reported Monday by the Chicago Tribune. "If you're going to put yourself into the role of an investigator, then you need to turn over whatever your notes are," Alvarez said. The subpoena asks for the students' notes and recordings of witness interviews, as well as the students' grades and evaluations, the class syllabus and e-mails they sent to each other and to their professor.

The students and their professor, David Protess, director of The Medill Innocence Project, are fighting the subpoena and have retained two Sidley Austin lawyers to represent them, Richard J. O'Brien and Linda R. Friedlieb. They say they are protected under the Illinois Reporter's Privilege Act.

All of this is an outgrowth of an investigation the journalism students started in 2003 into the conviction of Anthony McKinney for the 1978 murder of security guard Donald Lundahl in the Chicago suburb of Harvey. After three years of reporting, the students became convinced that McKinney was innocent. They shared their findings with law students at Northwestern Law School's Center on Wrongful Convictions, who filed a petition on McKinney's behalf to vacate his conviction.

With that petition docketed to be heard in Cook County Circuit Court, the state's attorney issued its surprising and seemingly overbroad subpoena. Don Craven, the acting executive director of the Illinois Press Association, told the Chicago Tribune that he considers the subpoena harassment at best and at worst an attempt to discredit the Innocence Project's work. "They're either trying to undermine the investigation, or they're trying to undermine the entire project," he said.

The students' motion to quash the subpoena is scheduled to be argued before a Circuit Court judge Nov. 10. They have turned over some of the requested documents involving interviews with witnesses, which they had previously published online. But they object to providing grades, receipts and other documents as irrelevant and, in any event, protected by the state's reporter shield law.

But Alvarez maintains that even the students' grades should be produced. "All information is relevant," she told news reporters. "There are more notes that have not been turned over. We want to make sure cases are secure and that we don't have the wrong person convicted."

October 21, 2009 | Permalink | Comments (8)

The Economy's Most Tragic Consequence

On the morning of April 30, 2009, Kilpatrick Stockton lawyer Mark Levy arrived early to his Washington, D.C., office. He had cleared his calendar the day before. He changed his e-mail auto-response to say, "As of April 30, 2009, I can no longer be reached. If your message relates to a firm matter, please contact my secretary. ... If it concerns a personal matter, please contact my wife. ... Thanks." He then took out a .38-caliber handgun and fired a bullet into the right side of his head. A colleague found him around 8 a.m.

ABAJournalCover Every suicide is a tragedy. But Levy's suicide was also a symbol. Two days earlier, the 59-year-old had learned he was one of two dozen lawyers the firm would lay off. Considered one of the most skilled appellate lawyers in the country, Levy chaired the firm's Supreme Court and appellate advocacy practice and had argued 16 times before the Supreme Court. Given his age and his achievements, his layoff provided striking evidence of just how hard the economy had hit the legal profession and his suicide showed just how painful its effects could be.

The story of Levy's career and death is the cover piece on this month's ABA Journal magazine. In A Death in the Office, writer Richard B. Schmitt suggests that Levy's layoff was not a precipitating event in his decision to kill himself so much as the last straw. Levy, it seems, was a lawyer torn between his love for the intellectual side of law and his dislike of the business side of law practice.

Levy loved the practice of law, but he struggled with the business of law. Without a firm stable of paying clients, he grew vulnerable in a world where rainmaking is often valued over skill and judgment. For all his prestige, he had little real power behind his formidable stature.

To some his final act was a rebuke to what his beloved profession had become -- a statement made in the very office he had been told to vacate.

In that sense, Levy's death seems even more tragically iconic. Not only was he the victim of a cyclical economic downturn, but he was also discouraged by longer-term changes in the practice of law. Toss depression into that mix and Levy may have seen no other way out. (A sidebar reminds readers that there are ways out.)

I checked back to this blog's posts for April 30, 2009, to see whether we had said anything about Levy's death. What I found was a post that day about another lawyer's suicide, one equally surprising and shocking to those who knew him. If Levy's death is symbolic of a broader problem within the profession, Schmitt's article offers some insight.

October 21, 2009 | Permalink | Comments (2)

October 20, 2009

Tuesday's Three Burning Legal Questions: License Plate Edition

Here are today's three burning legal questions, along with the answers provided by the blawgosphere.

1) Question: 
I acquired Alabama vanity license plate "XXXXXXX" for my car (as an "homage" to my nickname, Racer X). Now I'm suddenly receiving as many as 10 parking ticket notices a day from the city of Birmingham. Any advice?

Answer: Change your plates or get used to it. (The Birmingham News via Howard Bashman)

2) Question: My friend in Beijing, China has asked me to join a 5-person gang to help him fend off any competitors for a license plate ending in number 8888 (8 is a lucky number in China). Basically, he'll pay us all $1,500 to stand by the machine that is issuing the number plates at a Beijing vehicle registration center and use knives and clubs to severely beat anyone who comes near the machine. Should I go for it?

Answer: No. You'll end up down $6,500, plus spend a year in jail. (BBC News)

3) Question: I am simply fed up with these traffic cameras in China catching me for speeding and running lights. Is there some kind of remote control device out there that will allow me to instantly switch the numbers on my license plates, on demand?

Answer: Of course! (The Guardian)

October 20, 2009 | Permalink | Comments (0)

Embracing the 'Real-Time Web'

Gofalcongo As I mentioned here last week, it struck me on the day of Balloon Boy Falcon Heene's (non)flight that the most up-to-date, comprehensive coverage of the episode I could find that afternoon was delivered through a simple "hashtag" on Twitter ("#boyinballoon"). By staying tuned to that search on Twitter, I received real-time reports from around the world on what was occurring.

In a recent post on his BlawgIT blog, patent attorney Brett Trout discusses this growing phenomenon and shows how you can integrate it right into your own computer's browser. Trout poses the following question:

In the past, when you wanted to find out more about a topic you would search Google, go to an informational Web site like Wikipedia, or read a blog on the subject. But what if you wanted more information about something that just happened, or about something that is constantly changing?

The answer, Trout says, is the "Real Time Web," which he describes as a combination of search engines and instant messaging. The real-time Web combines tools such as Twitter and other systems together to provide nearly instantaneous access to information.

Trout says that one simple way to use the real-time Web is to supplement your existing Internet browser with tools that will integrate real-time Web information. In an e-mail, Trout told me today that he has done so on his own computer by installing the Greasemonkey plug-in and the AutoPagerize script in Firefox. As a result, when he searches with Google, it also automatically pulls up the five most recent "tweets" that contain the search terms.

For more detailed information on Trout's view of the real-time Web, you can follow Trout's upcoming presentation on the subject at next week's "140 character conference" in Los Angeles. Follow the #140conf hashtag on Twitter for updates.

October 20, 2009 | Permalink | Comments (1)

Martin Luther King Jr.'s Children Resolve Bitter Dispute Over Estate

An out-of-court settlement has finally resolved a long-standing dispute among Dr. Martin Luther King's children over his multimillion-dollar estate.

Although Dr. King died in 1968, his estate continues to produce substantial income. Among other things, the estate includes the broadcast rights to Dr. King's “I have a dream” speech. In 1999, the 11th Circuit ruled in Estate of Martin Luther King, Jr., Inc. v. CBS, Inc.that the public performance of his speech did not constitute "general publication," and that by giving the speech in public he did not forfeit his copyright. As a result, re-broadcast of the speech has remained a major income generator for the estate.

In addition, the estate made $32 million from the sale of Dr. King's papers to the City of Atlanta in 2006. The sale was reportedly necessary "to protect the papers for future generations because of crumbling infrastructure and mounting debt at the King Center in Atlanta," the Times Online reports.

The dispute between Dr. King's children culminated in a lawsuit filed by two of his children, Bernice and Martin Luther King III, against their brother, Dexter. The lawsuit alleged that Dexter converted “substantial funds" from the estate for his personal use. Dexter King then countersued his brother and sister, demanding control of certain love letters between Dr. King and Coretta Scott King. The recent settlement of the lawsuit resolved the various claims, and the siblings have stated that they hope to now move forward and preserve the legacy of their parents.

October 20, 2009 | Permalink | Comments (2)

Document Review: When 'As Fast as I Can' Doesn't Cut It

This post yesterday on the Temporary Attorney blog shared a directive sent out via e-mail to contract attorneys handling a "junior" level document review (paying $23 an hour):

Please pick up the pace. They are expecting you to do about 80 docs an hour and all of you are less than half that. Changes will be made soon if this does not change asap.

The tipster forwarding the e-mail added that "every week half the project leaves. We drew a little graveyard with tombstones and the grim reaper on it. Soon, it won't be able to hold all the contract attorney dead."

The demand for the review of "80 docs an hour" highlights the extent to which document review has now been commoditized in the legal world. Despite being a supposedly important part of the discovery and investigative process in legal proceedings, and despite the sometimes dire consequences if the role is not performed correctly, some clients and law firms continue to prioritize speed and cost-savings above all else.

One commenter on the post stated, "Have you ever been on a doc review project? If you have, you might remember that some docs might come with 2 attachments or 30 attachments. If you run into the latter many times over in any given batch you are assigned to review, meeting this goal of 80 docs per hour isn't as obtainable as you make it out to be." Another responded that the expected document review rates on projects he had worked on were well above 100 per hour, even on "the most difficult cases" and "regardless of attachments."

Another commenter seemed to summarize the prevailing outlook among contract attorneys forced to meet such quotas:

It's all quantity over quality now. With outsourcing, you are now competing with the 3rd world LPO mills. The billable hour is dying which is why you are seeing 3rd party outfits (like discoverready) that bill by the document and not by the hour. If they want 1,000 documents, give them 1,000 documents. Scan for keywords, breeze through the pages, and cross your fingers that your name isn't on any privileged documents that get passed through.

Having worked on some massive document reviews myself, I agree that it is unreasonable to believe that reviewers will be able to thoughtfully review documents over any sustained period at those rates. When the documents the attorneys are reviewing become lengthy or complex, and the attorneys simply are not capable of reviewing and coding each one in a minute or so, mandates like the one in the e-mail above force a choice: get fired or perform a woefully deficient review. Call me crazy but I suspect the response in most cases is to not get fired, and rather to take the approach summarized above: "If they want 1,000 documents, give them 1,000 documents."

October 20, 2009 | Permalink | Comments (8)

October 19, 2009

Lawyer Named Head of Screen Actors Guild

The board of directors of the 125,000-member Screen Actors Guild has appointed lawyer David P. White as its national executive director and chief negotiator. At its national meeting in Los Angeles over the weekend, the board approved a two-year contract with White, who had been SAG's interim director since January.

DavidWhiteSAG "The appointment of White, who had been serving as interim executive director, was widely anticipated after a group of moderate actors that orchestrated the firing of his predecessor, Doug Allen, installed White in January," reports the Los Angeles Times. The contract calls for White to be paid $420,000 a year.

White had been general counsel to SAG since 2002. Formerly, he was managing principal of the Los Angeles consulting firm Entertainment Strategies Group and a labor and employment attorney at O'Melveny & Myers. He is a graduate of Stanford Law School and is a Rhodes Scholar.

The LA Times reports that White's supporters say he brought stability and renewed effectiveness to SAG during his time as interim director. SAG "has ratified six contracts this year and cut costs to deal with a budget shortfall largely caused by the recession and work slowdown for actors." He has pledged to work to improve relations with other unions, particularly the American Federation of Television and Radio Artists.

October 19, 2009 | Permalink | Comments (0)

'Healthy' Smokers Win Landmark Tobacco Ruling

The Supreme Judicial Court of Massachusetts ruled today that cigarette smokers who have suffered no apparent injuries to their health may nonetheless bring a lawsuit to force tobacco makers to pay for medical monitoring to scan for cancer that may develop in the future. The case, Donovan v. Philip Morris USA, was decided based on questions certified to the court from the U.S. District Court in Boston. In an opinion authored by Justice Francis X. Spina, the unanimous SJC said the smokers should have their day in court.

Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent. ...

When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort. ...

Medical expenses are recoverable not only for direct treatment and diagnosis of a present injury or an injury likely to occur, but for diagnostic tests needed to monitor medically a person who has been substantially exposed to a toxic substance that has created physiological changes indicating a substantial increase in risk that the person will contract a serious illness or disease. The expense of medical monitoring is thus a form of future medical expense and should be treated as such.

The plaintiffs in the case are asking the federal district court to certify the lawsuit as a class action. They purport to represent a class of Massachusetts residents aged 50 and older who smoked Marlboro cigarettes for at least 20 years and who have not been diagnosed with or suspected of having lung cancer. Philip Morris sought to have the case dismissed in the District Court on the grounds that a tort plaintiff must be able to prove an existing physical injury in order to recover damages.That was the question the federal court asked the SJC to decide.

The SJC also ruled that the plaintiffs claims are not blocked by the statute of limitations. Because the technology was only recently developed that would allow the medical monitoring they seek in their complaint, the discovery rule would apply, the SJC said.

October 19, 2009 | Permalink | Comments (0)

Can Avvo's Ratings Be Gamed?

Critics of lawyer-rating site have found their standard-bearer in Massachusetts lawyer Leonard H. Kesten. In an article published in Massachusetts Lawyers Weekly, Kesten describes how he "impersonated" a young lawyer at his firm and manipulated his Avvo profile until he raised the lawyer's ranking to a perfect 10.

Kesten, a partner with the Boston firm Brody Hardoon Perkins & Kesten and a well-known lawyer in Massachusetts, writes that he was surprised to find that his own Avvo rating was just 6.5. By providing some basic information about himself, he was able to increase it to 8.2. That whet his curiosity and led him to embark on his experiment.

"I selected Gregor Pagnini -- a terrific young lawyer at our firm who is three years out of law school -- and decided to see what I could do to increase his marketability on Avvo," Kesten recounts. "I had no problem impersonating him on the site." Once having "claimed" Pagnini's profile, Kesten proceeded to embellish his educational credentials, falsely listing him as a graduate of Oxford and Yale Law School.

Just as falsely, he identified Pagnini as a Lawyer of the Year in 2009, an Up & Coming Lawyer in 2010, and secretary of the Minnesota chapter of the American Association for Justice. "Surprisingly, even though these recognitions were not reported in the publications that supposedly issued them, and one was listed as occurring in the future, Avvo accepted the representations without question," Kesten said.

Kesten's last step was to add his own endorsement of Pagnini's work. Only he decided to make his endorsement negative. "No problem," Kasten wrote. "His ranking went up. That's right -- up. A few more negative endorsements later, he became a 10." With this newly acquired intelligence about Avvo, Kesten revisited his own ranking and "found it easy to get to a 10."

So is Avvo's lawyer-ranking algorithm as easily manipulated as Kesten contends? We put the question to Mark S. Britton, Avvo's founder and CEO. He responds that the article is poorly researched and full of misinformation. "The Avvo Rating is working as designed," Britton said. "Kesten is just using it inappropriately." Here is what Britton says:

At its core, the Avvo Rating is a resume-scoring system. We look at the information that we both find about and receive from a lawyer, and we score it. This replicates the process that you and I do (or at least I used to do) hundreds of times a year for ourselves and our friends and family. However, the Avvo Rating delivers such rating in a much more sophisticated and broad fashion than you or I ever could.

Imagine you are doing your homework on opposing counsel for an upcoming case. You visit her website to understand what her background/resume looks like. You are impressed by what you see, and you decide to take her seriously. The gotcha is that opposing counsel has lied about her professional credentials. Following Kesten’s logic, you are a poorly designed system that adds little value to this essential task in your client’s case. He might even write an article attempting to make you look bad without calling you for comment.

In the end, Kesten’s lying is not "gaming," it’s fraud. Whether it is Bernie Madoff, Milli Vanilli, David Edmondson or OJ Simpson, many fraudsters have shown that they can dupe the system -- at least for a period of time. And that is the key -- the "period of time." Any important system must have safeguards in place designed to detect fraud, and Avvo does. We investigate every report of padded resumes (and believe me we get many), and we also have a data team led by two experienced lawyers that researches every piece of unrecognized lawyer-generated resume data to ensure that it is scored appropriately. It’s expensive, but its worth it for the long-term health of our marketplace.

One postscript to all this: Kesten's law firm's Web site no longer lists Pagnini as a member of the firm. I'd wonder whether that means he took his perfect 10 and went elsewhere, except that his perfect 10 is also no more. Avvo now rates Pagnini a 6.8.

October 19, 2009 | Permalink | Comments (12)

Trial Lawyers' Group Suspends Top Three Execs

The Florida Justice Association suspended its top three executives Friday after an investigation disclosed their roles in sending out a racially charged mailing last month in an attempt to defeat former Florida House Speaker John Thrasher in his Republican state senate primary. But some Florida plaintiffs lawyers are calling for the FJA to take even harsher action against the executives.

Carruthers2006 The FJA suspended political director Albert Balido, executive director Scott Carruthers (pictured) and deputy executive director and general counsel Paul Jess. The suspensions followed release of a report by former Florida Supreme Court Justice Gerald Kogan, who the FJA commissioned to investigate the mailing. Kogan concluded that the three executives all knew of and approved the mailing before it went out.

Balido, the FJA's political director, made the decision to send out the mailer as a way of enticing Republican voters to send in an attached absentee ballot request form. Their requests would then give him a list of persons who could then be lobbied to vote against Thrasher. The mailer warned that Black Panthers and "armed thugs" would try to intimidate voters and had photos of President Obama, the Rev. Louis Farrakhan and militant-looking black men.

In a statement released by the FJA, it said it was temporarily suspending the three executives involved in the mailing and enacting a series of reforms "designed to help ensure an event like this never occurs again." These include establishment of an oversight committee of elected FJA members that will review and approve all electioneering materials and all election-related expenditures.

But some members say these moves are not enough. "I have trouble believing that they couldn't have stopped the mailer," Orlando attorney John Morgan told the Orlando Sentinel. "I just don't buy it. ... I don't think it resolves it all, and I could have had this report done in two hours." He added, "If Balido is not fired by Monday morning, I'm quitting."

The FJA's executive committee is slated to meet this week to decide whether to take further action against the three executives.

October 19, 2009 | Permalink | Comments (2)

Battle Lines Form Over Mass. Law School

Just a few days after University of Massachusetts officials announced a plan to take over the private, unaccredited Southern New England School of Law and give the state its first public law school, proponents and opponents are lining up for what promises to be a heated battle. But with only sparse outlines of the plan yet on the table, the arguments on both sides seem to be appealing more to passion than reason.

Perhaps the least-considered argument against the school is that a new law school would only add more lawyers to what is already a surplus. An article makes this point today in The Boston Globe, quoting as its authority on the Massachusetts legal scene the New York-based blogger Elie Mystal of Above the Law. "I think that having another law school inevitably leads to more lawyers," Mystal says, adding that the UMass plan is a way to get "taxpayers to pay for more legal professionals in a market that already has too many."

Of course, as Mystal has already pointed out, this would not be a new law school. It would be a transformation of an existing school from private to public. No question, the Bay State has a glut of law schools -- nine by my count. But that does not mean that all those grads stay in the state. Harvard and Boston University in particular are known for sending many of their graduates to New York, Washington and elsewhere. And SNESL is already sending its grads into this job market, crowded or not. In fact, accreditation would free more of them to leave the state.

It would be useful to the debate if someone could offer some numbers showing where these law school grads end up. It would also be useful to know the kinds of jobs they take. Are enough of them going into public service? Last time I checked, there were huge swaths of the Massachusetts population whose legal needs were unmet or underserved. The UMass proposal would set aside 25 seats in each class for students who would commit to serving in public-interest law for four years after graduation.That is a good start and maybe that aspect of the proposal could be shored up.

The stronger argument against the proposal is cost. "No cash for this clunker," urges an editorial in The Boston Herald. "It would take tens of millions of dollars to provide the assets that could win it ABA accreditation," the editorial says. Joan Vennochi, a columnist for The Boston Globe, also argues that the state cannot afford to take over the law school. "There’s no such thing as a free lunch or property acquisition," she writes. "Once UMass owns the law school, taxpayers become responsible for faculty salaries, student housing, and all other infrastructure and resources needed to support the campus." The state treasurer, Timothy Cahill, makes the same point.

But John Quinn, a Democratic state representative from Dartmouth, where the law school would be based, says that the state is currently giving $20 million a year to private law schools in the form of scholarships and other aid. "Maybe we can't afford the $20-million-a-year subsidy to schools that are sitting on billion-dollar endowments," he told the Standard-Times. Is it purely coincidental that these same law schools are leading the charge against the public option?

An editorial in that newspaper argues that a takeover by UMass of the SNESL assets would cut by at least half the cost of accrediting a new public law school from scratch. And the school would fill a need for a more affordable law school for college graduates in the state, offering tuition at $15,000 to $20,000 less than they would pay at a private school.

There are good arguments on both sides. It seems to me that one area that requires greater exploration is how a public law school could help the state better serve the needs of its residents who lack access to legal services. Strengthen the public-service component and the argument for a public law school would become stronger.

October 19, 2009 | Permalink | Comments (1)

October 16, 2009

Friday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blawgosphere.

1) Question:  I am a truck driver and I'm sitting in my truck smoking a cigarette. A police officer is giving me the evil-eye.  Am I missing something here?

Answer: Are you in Ontario, by chance? Yes? Then get ready to pay the Man for smoking in an "enclosed workplace." (Jonathan Turley)

2) Question: I am a law student at Columbia Law School. I have 14 cents in my pocket (after paying my $48,000 tuition this year). Will I be able to cut my meat in the school cafeteria today? 

Answer: Yes, if you can somehow come up with the one additional penny it will take you to cover what the school is now charging for a plastic fork. (Above the Law)

3) Question: I am being followed by a hungry bear. I've got nothing on me but an iPhone. Should I start calling people to say my goodbyes?

Answer: Nope. You've got everything you need to escape. (FutureLawyer)

October 16, 2009 | Permalink | Comments (1)

Balloon Boy Hits the Blawgosphere and Twitter

It did not take long for "balloon boy," aka Falcon Heene, to make his appearance in the legal blawgosphere. Here is a sampling:

  • Law and More asks here whether the shiny, flying, silver Jiffy Pop-looking craft tethered in the backyard of Richard Heene was an "attractive nuisance" under the law. It notes that it was certainly attractive enough for his son to have climbed into it, and asks: "When there are children in the household and in the neighborhood, who leaves a helium air balloon visible in the backyard?"
  • After young Falcon said in a television interview that he didn't come out of hiding when he heard his named being called because his family told him "we did this for the show" (watch below), comments broke out on many blogs as to whether the Heenes could be legally required to repay the sure-to-be astronomical search costs. Indeed, although local authorities maintain that they do not believe the incident was a hoax, they intend to interview the family again. The Larimer County Sheriff said today that "if it turns out to be a hoax ... certainly we would seek compensation" for the cost of the rescue efforts.

To me, the most effective and eye-opening coverage in the "balloon boy" episode was delivered through a simple "hashtag" on Twitter. Simply by following the real-time discussion on Twitter about the event that was trackable via the hashtag "#boyinballoon," I was able to have up-to-the-second reports on what was occurring. Twitter can truly be an amazing tool for learning about breaking news such as this.

October 16, 2009 | Permalink | Comments (5)

Law.Gov Report Coming in 2010

Via this post yesterday on the ABA Journal's "Law Libraries" site, we came across the interesting "" initiative now underway by an organization called

According to its Web site, Law.Gov is an effort to create a report documenting exactly what it would take to create a distributed registry and repository of all primary legal materials in the United States.The report clarifies that "by primary legal materials, we mean all materials that have the force of law and are part of the law-making process, including: briefs and opinions from the judiciary; reports, hearings, and laws from the legislative branch; and regulations, audits, grants, and other materials from the executive branch."  It is intended to be an open source project that will allow states and municipalities to make their materials available, as well. 

Law.Gov would also provide bulk data and feeds to organizations wishing to build web sites or operate legal information services. plans to deliver the final Law.Gov report to policy makers in Washington, D.C., by mid 2010.

In a letter dated October 13, 2009, Sen. Joseph Lieberman commended the Law.Gov effort, and expressed his concern with the current state of systems such as PACER. Sen. Lieberman stated that despite a mandate in the E-Government Act to move to a system where information would be freely available to the greatest extent possible, PACER still involves a charge per page and does not allow documents to appear in commercial search engine results. Senator Lieberman pledged that he would provide a copy of the final Law.Gov report to the Senate Committee on Homeland Security and Governmental Affairs that he chairs.

October 16, 2009 | Permalink | Comments (1)

October 15, 2009

On the Death of Bruce Wasserstein

In the annals of lawyers who went on to bigger and better careers, Bruce Wasserstein, who died yesterday at the age of 61, reigns supreme. The Harvard Law School graduate and onetime lawyer at Cravath, Swaine & Moore became one of Wall Street's best-known and most successful investment bankers and was chairman and chief executive officer of Lazard Ltd.

"He made more from investment banking than any man on the planet," William Cohan, author of the 2007 book The Last Tycoons: The Secret History of Lazard Freres & Co., told Bloomberg News. Forbes magazine put his net worth at $2.3 billion and ranked him 190th on its list of the world's 400 richest people.

At ALM, the legal and business media company that is the publisher of this blog, Wasserstein is remembered as its former owner. In 1997, he paid $63 million for The American Lawyer and $200 million for National Law Publishing Co. He later sold the company he formed from those acquisitions to U.K.-based Incisive Media for $630 million.

Although I worked at ALM during the time it was owned by Wasserstein and met him once at a publishers' meeting, I have no great insight to share about him. That is not the case with ALM CEO Bill Pollak, who writes on his blog today that he will most remember Wasserstein for his mantra, "More, bigger, faster."

He didn't believe in marketing research, other than phoning up some friends to ask what they thought of an idea. He believed in being bold and moving quickly. No matter what we presented, Bruce wanted us to do in a week what we thought might take a few months. And, always, he wanted us to think bigger.

Wasserstein also owned New York magazine, where he was remembered as someone who "had a journalist's curiosity and took pleasure in the provocative." Indeed, before going to law school, he considered a career in journalism. As an undergrad at the University of Michigan, he was executive editor of the student newspaper, The Michigan Daily, where he was remembered by his one-time editor in chief as "a very hard-headed, careful reporter with an eye for personal details" and as someone who was "very good at strategizing, scoping things out."

October 15, 2009 | Permalink | Comments (0)

Bon Jovi Heads to Lanier; Lanier Heads to London

You might think that announcing you'd secured Bon Jovi to play at your holiday party would be news enough for any law firm in a single week. But you wouldn't be Texas plaintiffs lawyer W. Mark Lanier, who also this week revealed plans to open his firm's first European office in London early next year.

Mark_lanier The Bon Jovi announcement, reported this week by Tex Parte Blog, answers the pressing question of how Lanier would top last year's party. For that one, the featured entertainer was teen pop sensation Miley Cyrus. Cyrus drew a record crowd of 8,600 people to Lanier's party on the grounds of his home in Houston, including thousands of screaming, dancing preteen girls.

No doubt, Bon Jovi's Dec. 13 performance will attract a much different crowd -- thousands of screaming, dancing post-teen women. Lanier tells Tex Parte Blog that he attempted to get former Beatle Paul McCartney to headline this year's party and still hopes to sign him for next year. Lanier donates all proceeds from these holiday parties to charity.

Even as Lanier prepares to welcome Bon Jovi to Houston, he will soon be heading to London. He announced this week that his firm is forming an international arbitration and dispute practice. In conjunction with forming the new practice, the firm will open an office in London in the first quarter of 2010.

Lanier himself will lead the new practice, along with Dana Taschner, managing attorney of the firm's Los Angeles office. Also part of the new practice will be noted trial attorney and forensic psychologist Lisa Blue. True to its plaintiffs-firm roots, the new practice will represent companies in international arbitrations on a contingency fee basis, reports The Recorder.

Besides Houston and Los Angeles, the 40-lawyer firm has offices in New York and Palo Alto.

October 15, 2009 | Permalink | Comments (5)

Most States Fail to Protect Children's Rights

A report to be released today says that most U.S. states do not adequately protect the rights of abused and neglected children, most notably by failing to provide these children with appointed counsel to represent their interests.

The report grades each state and the District of Columbia on how well they protect the legal rights of abused and neglected children in juvenile court proceedings. Only two states earned a grade of A+: Connecticut and Massachusetts. Twenty-nine states were given grades of C or lower. The lowest grade of F was given to seven states: Delaware, Florida, Hawaii, Idaho, Indiana, Maine and North Dakota.

The peer-reviewed study, "A Child's Right to Counsel: A National Report Card on Legal Representation for Abused and Neglected Children," was conducted by two child-advocacy organizations, First Star and the Children's Advocacy Institute at the University of San Diego School of Law. The full report is scheduled to be released today at 1 p.m. in a news conference at the U.S. Capitol Building.

In addition to the grades mentioned above, the report graded other states as follows:

  • A: Iowa, Louisiana, Maryland, Mississippi, New Mexico, New York, Oklahoma, Vermont and West Virginia.
  • B: California, Kansas, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas and Wyoming.
  • C: Alabama, Alaska, Arkansas, Colorado, Michigan, Minnesota, Montana, Nebraska, Nevada, South Carolina, Utah, Virginia, Washington, D.C., and Wisconsin.
  • D: Arizona, Georgia, Illinois, Kentucky, Missouri, New Hampshire, South Dakota and Washington.

Key factors the study looked at in assigning grades were whether state law mandates the appointment of attorneys for children in dependency proceedings; whether these attorneys represent the children in a client-directed manner; whether the representation continues throughout the case, including appeal; whether states provide attorneys with specialized training; whether the child is given the legal status of a party to the proceedings; and whether rules pertaining to confidentiality and immunity from liability apply to attorneys representing these children.

As of this writing, the full report is not yet available online. This announcement says it will be available later today at the Web sites of both of the report's sponsoring organizations.

October 15, 2009 | Permalink | Comments (4)

Mass. Explores the Public Option for a Law School

While Congress debates "the public option" as a component of health care reform, Massachusetts is about to have a public option debate of its own. Only in this case, the debate is over whether the state should open a public law school as part of the University of Massachusetts.

Massachusetts is one of just six states without a public law school. That would change under the plan UMass officials announced yesterday. It calls for the UMass-Dartmouth campus to take over the private, unaccredited Southern New England School of Law in North Dartmouth. The law school's board of trustees voted earlier this week to donate to UMass its campus and assets, valued at $22.6 million.

The law school's dean, Robert V. Ward Jr., told the Boston Business Journal that the resulting school would take on the UMass name and the current school would cease to exist. Although details would have to be worked out, Ward assumed the law school's existing employees, including himself, would move over to UMass.

Still, in a state that already has nine law schools and in the middle of a dismal economy, critics question the need for another law school and the timing of the plan. "I don't know how or why anyone would want to be taking on the cost and responsibility of the creation of a public law school when we’re trying our hardest to make ends meet with the higher education systems and institutions that we currently have," Richard Doherty, president and chief executive of the Association of Independent Colleges and Universities in Massachusetts, told The Boston Globe. "A fair study would reveal really significant costs associated with getting a law school up and running and fully accredited."

Jean MacCormack, chancellor of UMass-Dartmouth, said taxpayers would not bear the cost of a public law school. The school would pay the costs of accreditation by increasing enrollment and by investing the equity in the donated real estate.

Dean Ward said it has been a good year for the law school financially. With a tuition of $22,000, its first-year enrollment is higher this year than last. "We're being very clear about that," he said. "We're coming off a very good year."

October 15, 2009 | Permalink | Comments (4)

October 14, 2009

Wednesday's Three Burning Legal Questions

Here are today's three burning legal questions, along with the answers provided by the blawgosphere.

1) Question: I work the metal detector at the Taylor County Courthouse in Texas. Some dude just came through the machine and put a baggy of marijuana in the blue dog bowl we use to run items through the x-ray machine. What should I do?

Answer: Call the sheriff! (Lowering The Bar)

2) Question: I refused to get back together with my ex-boyfriend. Long story short, he reacted by stabbing my pet Siamese fighting fish to death with a knife. I told the judge overseeing the prosecution against my ex-boyfriend -- for animal abuse and domestic violence assault -- that I wanted to get a memorial fish tattoo and for my ex-boyfriend to pay for it. How should the judge rule?

Answer: Tattoo request DENIED. (Jonathan Turley)

3) Question: I rented my apartment in an exclusive South Florida island community for $600 per day to a company that said it wanted to use it for a modeling photo shoot. Yes, the company I rented it to was named "" Anyway, to my dismay, BangBros used the apartment to shoot “A Sexy Golfing Experience” with porn star Devon Lee. Now I'm being ridiculed by the other 466 people on the island and I'm losing $100,000 in monthly rental income. Can I sue BangBros?

Answer: Of course! (OnPointNews)

October 14, 2009 | Permalink | Comments (2)

Woman Subject to Protective Order Arrested for Facebook 'Poke'

On June 10, a court issued a protective order prohibiting Shannon D. Jackson of Hendersonville, Tenn., from "telephoning, contacting or otherwise communicating with" another Hendersonville woman, either "directly or indirectly." On Friday, Sept. 25, Jackson was "extremely shocked" when police arrested her for allegedly violating the order. Authorities in Hendersonville say that Jackson was arrested for “poking” the other woman on Facebook.

Facebook-poke As characterized in the Hendersonville Star News, "poking is a feature unique to Facebook that conveys no other message but informing a user they have been 'poked' by another user." Jackson was reportedly transported to Sumner County Jail, and bond was set at $1,500. Jackson is scheduled to appear in court later this month.

Jackson's lawyer, Lawren Lassiter, told ABC News that the only evidence she is aware of is a printed screen-grab of the victim's Facebook page. "I'm trying to get my hands on some Facebook documentation so we can better assess the situation," she said.

Ryan Calo, a residential fellow at Stanford Law School's Center for Internet & Society, agreed that a "poke" is a form of communication that can be restricted by a protective order. "A poke is a very deliberate action," he said. "You have to select the person and say, 'this is what I want to do.'"

October 14, 2009 | Permalink | Comments (2)

Former BigLaw First-Year Recounts His Path to Joblessness


The Jobless Lawyer blog provides a candid and eye-opening account of the plight of a recently laid-off first-year BigLaw lawyer. The anonymous blogger describes himself as a licensed attorney in the State of New York with two Ivy League degrees who, until March 2009, was practicing commercial litigation at one of the top 10 firms in the U.S. Based on the 190 layoffs at his firm that he mentions in this post, one can reasonably assume that he was an associate with Latham & Watkins, however briefly.

In a new post today, he describes how the firm's 60 first-year lawyers came out of a summer associate program and era that now seems quite foreign, where warnings of the crush of work and the lack of any "work-life balance" awaiting them were common. The class started in September and October 2008, but Jobless Lawyer claims that by February 2009 they could all see the writing on the wall, despite the firm's strong suggestions that there would be no layoffs.

The first-years, starved for billable work, competed against each other in a case staffing system that required a "game show fast-buzzer style" response. In short, whoever could read their e-mails the fastest and had the fastest typing fingers secured the most work:

An e-mail would go out from the central system “I need two attorneys to work on drafting a consumer credit agreement,” three seconds later… “thank you filled.” If you were on the phone, talking to your secretary, reading a case file, and for some reason didn’t see the e-mail the second it came in… consider yourself screwed. Relying on this system to get your work was guaranteed suicide and we all knew this.

Many of the young lawyers tried to stay busy with pro bono projects, but Jobless Lawyer says he soon found that "every other young associate at the firm had the same idea, and I'd venture to guess that many others at similarly situated Big Law firms did too." The supply of eager, free labor quickly overwhelmed the demand.

Many first-year lawyers took temporary refuge in massive document reviews, which were viewed as a "glimmer of hope, a glimmer of a chance to avoid what we came to see as the inevitable." Even in those temporary "safe zone" review rooms, however, the discussion always returned to the inevitable layoffs that seemed to await, and whether they could somehow be avoided. Could they be fired, they pondered, if they could not be physically located by the firm?

Ultimately the layoffs did come, as the firm decided to terminate 35 of the 60 first-years. The firm told the lawyers that it was a “coin flip” and was “not merit-based in any way.” Jobless Lawyer recounts how he was told he was being let go on a Friday, and was required to have his office cleared and his matters wrapped up by the following Monday. Indeed, he says that when he arrived to work on that Monday, "I was not allowed to enter my own office to pack up. I had to be greeted in the lobby by someone from HR who would watch me pack up my personal effects and then escort me out of the building."

There is much more in Jobless Lawyer's sad post about the experience. Read the whole thing here.

October 14, 2009 | Permalink | Comments (1)

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