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November 30, 2009
Change in the Offing -- In BigLaw Models and Diversity
These are tumultuous times for the nation's largest law firms. The world around them is changing on many fronts and at a rapid pace. Adapt or perish should be their mantra. Two separate special reports published today -- one from The American Lawyer surveying law firm leaders and another from The National Law Journal on women in the law -- make this abundantly clear.
For the American Lawyer survey, leaders of 142 of the Am Law 200 firms responded to a confidential questionnaire. The takeaway, writer Drew Combs reports, is that firms are still testing the waters of the financial crisis. The survey "shows an increased willingness among firms to implement a smorgasbord of short-term cost-cutting measures while pondering more fundamental changes."
Are they testing the waters or engaging in denial? The results could be read either way. While 56 percent of firm leaders say the current economic downturn has produced a fundamental shift in the legal marketplace, 70 percent of those same leaders say it has not produced a corresponding shift in their own firm's business model. Two-thirds report optimism about 2010 and 81 percent will raise rates next year. "Lawyers are resilient," Richard Cullen, chairman of McGuireWoods in Richmond, Va., tells Combs. "It's like a trial we feel we can win."
Yet, driven in large part by the demands of clients, change in the ways law firms do business is likely irreversible, writes Aric Press, TAL's editor-in-chief.
There are plenty of disparate events that support the observation that this change business is more than just a sideshow. On the customer front, two examples: Half of The American Lawyer's 20 A-List firms are on record this year as starting alternative fee arrangements with important clients such as Pfizer and Citibank. And, if Microsoft could chop K&L Gates and Sullivan & Cromwell from its preferred provider list, what client-firm relationship is inviolate? On the talent models, we all know the litany of layoffs, deferrals, partner departures, and embraces of so-called competency models. Add to that the fact that outsourcing now has its own initials -- LPO (Legal Process Outsourcing, for those few of you who haven't been in the conversation) -- and law firm HR just got harder and global.
One area in which change has been frustratingly slow to come at large law firms is in diversity. Women, The National Law Journal reports, still make up only a quarter of the lawyers at NLJ 250 firms and fewer than a fifth of all partners. If there is good news in this report, it is that the recession's impact was no more severe for female lawyers than for their male counterparts. Over the last year at the nation's largest 250 law firms, the number of female lawyers decreased by 2 percent, compared to an overall headcount loss of 4 percent.
But if change for women has been slow to come, there is pressure anew on firms to increase their gender diversity -- and it is coming from a not-so surprising source: corporate clients. A dozen major corporations are involved in an initiative to boost the number of women and minorities in top law firm positions by adding part-time and flexible working schedules to the requirements they demand of outside firms seeking their work, the NLJ reports. Spearheaded by the Project for Attorney Retention and dubbed the Diversity & Flexibility Connection, the initiative seeks to help legal departments and law firms support flexible working schedules and ensure that part-time attorneys have meaningful work and important roles within their firms.
Monoliths that they are, large law firms are slow to change course. Yet resistance is futile, it would seem, as change appears inevitable. "Those who embrace the changing circumstances stand to live long and prosper," writes TAL editor Press. "Those who resist might want to reach for a couple of aspirin."
November 30, 2009 | Permalink
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Subpoenas Target Rocker, Actress as Experts on Alienation
Martin Gore, a member of the brooding British electronic band Depeche Mode and the group's chief songwriter, once described the focus of his lyrics as "anything that appeals to really dysfunctional people." So if you happen to be the plaintiff in a lawsuit alleging that the defendant's product has caused you to suffer severe social alienation, who better to call as an expert witness on alienation than the selfsame Martin Gore?
I know what you're thinking: What about Winona Ryder?
Well, this particular plaintiff, Erik Estavillo, says he plans to subpoena both Gore and Ryder in his lawsuit against the company that produces the massively multiplayer online role-playing game, "World of Warcraft." Regular readers of this blog may remember Estavillo as the California agoraphobic who sued Sony on First Amendment grounds after it banned him from participating in multiplayer games on its PlayStation Network. In October, a federal judge threw out that case.
Now, Estavillo has turned his attention to the company that produces "Warcraft," Activision Blizzard, according to a report at GameSpot, which says it obtained a copy of Estavillo's complaint and confirmed that he had filed it in California's Santa Clara County Superior Court. The suit sets forth various complaints against Activision, among them that it maintains a "harmful virtual environment" and engages in "sneaky and deceitful practices."
A central thrust of Estavillo's lawsuit is his allegation that "World of Warcraft" causes players to become alienated and suffer mental health problems. He says that he suffers major depression, obsessive compulsive disorder, panic disorder and Crohn's disease and does not want to end up like another game player who committed suicide in 2001, "as he relies on video games heavily for the little ongoing happiness he can achieve in this life."
Which brings us back to where we started in this post -- Estavillo's plans to subpoena Gore and Ryder as expert witnesses on alienation. He intends to subpoena Gore, he explains, because the rock star "himself has been known to be sad, lonely, and alienated, as can be seen in the songs he writes." As for actress Ryder, Estavillo says her appreciation for the novel "Catcher in the Rye" will make her an appropriate witness "to how alienation in the book can tie to alienation in real live video games such as World of Warcraft."
Estavillo's complaint asks the court to award him $1 million in punitive damages and to order Activision to address the problems his suit describes.
November 30, 2009 | Permalink
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Gifts for Lawyers: A Guide to the Guides
Unsure what to get that special lawyer on your holiday shopping list? If so, then where better to turn for gift-giving advice than another lawyer? No Scrooges these, several lawyers have made their lists (and checked them twice) of the perfect gifts for the lawyer in your life. The lists are heavy on the gadgets, but also include clothing, appliances, books and cartoons.
The 2009 Holiday Gift Guide for Lawyers. Now in its fifth year, Reid Trautz's annual guide is becoming as much a holiday tradition as eggnog and bad office parties. We will forgive him the inclusion of his own book, given that this is his list. While the more studious among you may be tempted by his suggestion of Black's Law Dictionary for the iPhone, I'll take a FreeLoader Pro Solar Charger, so I need never see my iPhone run out of juice.
2009 TechnoLawyer Holiday Gift Guide. TechnoLawyer's list is short -- just three items -- but it excuses its brevity by offering "items for people with discerning taste." The list includes a top-of-the-line GPS device and a mid-level pair of earbuds. Needing neither, I'll gladly accept the third item on the list, the Yamaha PDX-30 speaker dock for iPod and iPhone.
Best Gifts for Patent Attorneys 2009. You need not be a patent lawyer -- or a lawyer of any kind, for that matter -- to appreciate the items on this list, compiled by Stephen Albainy-Jenei at Patent Baristas. Patent lawyers being geeky, this list has plenty of gadgets. But, for that female patent lawyer on your shopping list, there is also a pair of $259 Giuseppe Zanotti women's pumps, direct from Italy.
The Digital Edge: Tech Toys for the Holidays. Jim Calloway and Sharon Nelson devote the latest episode of their podcast, The Digital Edge, to their suggestions of tech toys every lawyer would love to have. Their list features routers, e-book readers and a GPS watch, along with a marshmallow blaster and a shocking pen.
Last but not least, we must mention InventorSpot's list of the Top Ten Must-Have Toys for Christmas, if only to acknowledge its No. 10 pick and a perennial favorite gift among lawyer lovers and haters alike, My Pet Lawyer.
November 30, 2009 | Permalink
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A Musical Motion to Show Claus
One sure sign of the holidays is the arrival of the latest holiday humor album from lawyer Lawrence Savell. The lawyer, musician and humorist -- not necessarily in that order -- just released his latest compilation of legally themed holiday songs, "Season's Briefings from the LawTunes." It joins the musically prodigious lawyer's earlier collections of holiday recordings, "The Lawyer's Holiday Humor Album," "Legal Holidaze" and "Merry Lexmas from the LawTunes," and his rock 'n' roll album, "The LawTunes: Live at Blackacre."
This year's album differs in tone from his prior recordings, "a reflection of the circumstances over the past two years that have affected everyone, and our profession in particular," Savell tells me in an e-mail. The songs are less peppy and more introspective, while still providing a humorous diversion, he says.
On the album's introspective side is the song, "Headin' Home On A Holiday Night," in which a weary lawyer boards a late-night flight.
Long ago when I started out
I thought i knew what it was all about
but what i did not appreciate
was all the sacrifices that we'd make
the time apart, the moments lost
were the rewards worth the cost?
Even the peppier songs on the album are tinged with cynicism, it seems. Take, for example, the song, "De Novo Dreidel," about a lawyer wishing for a second chance at a trial:
De novo dreidel give me a new spin
maybe this time I'll finally win.
Take me back to when I recall,
give me one more swing at that ball.
De novo dreidel turn it around,
so what was lost can now be found.
De novo dreidel let me do it right,
let me give that apple another bite.
Other songs on the album include "Season's Briefings," "Was That You I Saw in Santa's Suit?," "All Nighter" and "There's No Billin' on Christmas."
Savell, counsel to Chadbourne & Parke in New York City, writes and records the songs himself in a home studio. You can buy his latest CD and any of his earlier recordings through his LawTunes Web site. Each is $14.95 plus shipping, or you can buy the boxed set of all five Savell CDs for $64.95.
And while you're visiting Savell's site, be sure to take a moment to listen to The Lawyer2Lawyer Song, which he composed for the legal-affairs podcast I co-host with J. Craig Williams, Lawyer2Lawyer.
November 30, 2009 | Permalink
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November 25, 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: How am I supposed to confine my brilliant, lengthy legal argument to the court's page limits? Maybe I should just ignore the "double-spaced" line requirement and pack in twice as much brilliance? What is the court going to do about it anyway, sanction me?
Answer: Next time, yes. (The Crime Scene: "Blackwater lawyers reprimanded ... for not double-spacing")
2) Question: Miley Cyrus once appeared in a photograph with friends where they "slanted their eyes." As such, $4 billion is now owed to all Asian and Pacific Islanders living in Los Angeles County, right?
Answer: Nope. (THR, Esq.: Miley Cyrus $4 Billion Lawsuit Dismissed)
3) Question: I'm at home minding my own business and listening to my emergency radio scanner. I just heard that the police are searching for a man wearing khaki pants and a San Francisco 49ers sweatshirt. Hmm, I have khaki pants and a San Francisco 49ers sweatshirt in my closet... Would there be any problem if I put on these clothes, get the police's attention, and then lead six police officers, a helicopter and a police dog on an hour-long chase through the streets and backyards of my town?
Answer: Definite problem, and watch out for a charge of "suspicion of obstructing and delaying a police officer." (Redding.com: "Police search yields alleged prowler and fugitive imposter" via Lowering the Bar)
November 25, 2009 | Permalink
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Willis Willis Just Wants His Lottery Winnings
A man named Willis Willis is not happy, and not for the name-related reason you might think.
Willis, who is unemployed, has been playing the same set of lottery numbers at the Lucky Food Store in Grand Prairie, Texas for about 10 years. On May 29, Willis' ship came in, or at least it should have, when he bought the winning "Mega Millions" ticket that had a $1 million jackpot. The Associated Press reports that Willis asked Pankaj Joshi, the clerk at the Lucky Food Store, to check his tickets that day, but Joshi falsely told him that his ticket was worth only $2. Joshi immediately cashed in the ticket himself,
collected about $750,000, and disappeared -- possibly back to his native Nepal, authorities believe. Joshi, now considered a fugitive, was was indicted in September on a second-degree felony charge, and law enforcement officials were able to recover $365,000 of the $750,000 from his U.S. bank accounts.
The question now, as you may have guessed, is what, if anything, WIllis Willis is entitled to recover in this mess. His lawyers believe that Willis is the rightful winner, and they want the Texas Lottery Board to pay him the full $1 million. So far, however, lottery
officials reportedly consider the indicted Joshi to be the "winner" because he is
the one who redeemed the winning ticket. Today, Willis' lawyers announced that they have asked a local court to allow them to depose Texas Lottery officials about the incident in advance of a possible lawsuit to learn whether lottery officials were aware of past accusations of fraud by store clerks.
There is at least one bright spot for Willis: Patricia H. Robertson, the Travis County Assistant District Attorney, said yesterday that she will ask a judge to award the $365,000 recovered thus far to Willis.
November 25, 2009 | Permalink
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Flip Off the Police, Get $10,000
On April 10, 2006, David Hackbart was attempting to parallel park his car on a street in Pittsburgh when a car pulled up behind him, blocking his path. Hackbart responded by giving the driver behind him "the middle finger," and promptly heard another voice outside his car tell him, “Don’t flip him off.”
Hackbart, of course, then gave the finger to the interloper who was instructing him what not to do, a person who he would soon learn was Sgt. Brian Elledge of the Pittsburgh Police Department, who was seated in his patrol car at the time. After being flipped off, Sgt. Elledge turned on his patrol lights and conducted a vehicle stop of Hackbart's car, shouting, “You don’t flip me off!”
Sgt. Elledge issued Hackbart a citation charging him with violating Pennsylvania’s disorderly conduct statute based on Hackbart's giving the middle finger to Sgt. Elledge and the other driver.
Hackbart challenged the citation but at his preliminary hearing, a district justice found him guilty of violating the disorderly conduct statute and imposed a fine and court costs totaling $119.75. Hackbart appealed the decision and on Oct. 17, 2006, the Allegheny County District Attorney’s Office finally decided to withdraw the charges against him.
End of story? Lesson learned, by anyone? Hardly.
A few months later, on Feb. 8, 2007, the American Civil Liberties Union of Pennsylvania filed a federal civil rights lawsuit against the City of Pittsburgh and Sgt. Elledge on Hackbart's behalf. The complaint alleged, among other things, that the defendants violated Hackbart's rights under the First Amendment "to be free from criminal prosecution or to be retaliated against in any way for engaging in constitutionally protected speech."
Sara Rose, an ACLU staff attorney, stated that "the law is clear that using one's middle finger to express discontent or frustration is expressive conduct that is protected by the First Amendment. The City has an obligation to train its officers to respect citizens' free-speech rights." Thomas J. Farrell, an attorney who assisted the ACLU on the matter, added that "the police practice of detaining and charging people for impolite behavior gives the police arbitrary power to harass citizens they do not like. This practice must stop."
Today, Hackbart's middle-finger-odyssey may have finally ended with the announcement that the city of Pittsburgh has tentatively agreed to pay $50,000 ($10,000 to Hackbart, $40,000 to the ACLU and lawyers' fees) to settle his lawsuit. As part of the settlement, the city promised to "train its officers in recognizing when they are violating someone's civil rights, including taking action against anyone who flips them off," the Pittsburgh Post-Gazette reports.
The Post-Gazette also notes that this latest blow to law enforcement's effort not to have people give them the finger is part of a growing line of such losses. In the most high-profile example, the 9th U.S. Circuit Court of Appeals ruled in Duran v. City of Douglas, AZ in 1990 that a man pulled over in Douglas for flipping off and swearing at a police officer did not break the law.
November 25, 2009 | Permalink
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November 24, 2009
Two Inside Looks at Rothstein's Firm, Lifestyle
What was it like to work at the Fort Lauderdale firm of Scott Rothstein, the lawyer who now stands accused of running a Ponzi scheme that may have swindled more than $1 billion? Two sources offer inside looks at life inside the now-defunct Rothstein Rosenfeldt Adler.
For Andrew Perez, it was somewhat mesmerizing, at least at first. He was just 18 years old when he arrived at RRA as an intern, he writes at the blog The New Argument. Imagine this as your first day on your new job:
My first day of work at Rothstein Rosenfeldt Adler was a unique experience. Scott Rothstein, now-accused Ponzi schemer extraordinaire, carted me around town in his Bentley Continental, stopping first at a local elementary school, where we met with Governor Charlie Crist, after he gave a short press conference.
Next, we ate lunch at Capital Grille, where Scott dined daily and had his own table. Afterwards, Scott reserved a bike at Eddie Trotta’s Thunder Cycles. Three years ago, Scott was on top of the world and wanted everyone to know it, including me, an eighteen-year-old intern.
Life was not all rides in Bentleys and meetings with governors thereafter, Perez writes. "From that point on, I actually worked and my contact with Scott was fairly limited." But Rothstein would regularly "strut loudly through the halls" and "make a small scene all over the place ... just to make sure you knew who you were working for."
Still, even this young intern had his doubts. Not long after Rothstein replaced one recently purchased yacht with another, even grander yacht, Perez half-jokingly remarked to a lawyer-friend, "I wouldn't be surprised if, a few years from now, we find that he's been running a massive Ponzi scheme." Without missing a beat, the lawyer responded, "You know, I've been hearing a lot of that lately."
Meanwhile, the Sun-Sentinel examines new documents filed in federal court this week that shed light on Rothstein's lifestyle and his management of his firm. "Rothstein's tentacles extended into nearly 100 corporations and businesses, according to federal prosecutors, from a California software company to a Pembroke Pines night club, as well as equity interests in two banks, a chain of fancy restaurants, a luxury watch business, a mortgage company and an alternative biofuel company."
The alleged Ponzi scheme not only supported Rothstein's lavish lifestyle, it also kept his firm afloat, the documents suggest. In one year, the RRA firm brought in just $8 million in revenue but paid $18 million in salaries. "The additional $10 million for salaries, as well as the other expenses for operation of the law firm, came from the operation of, and the funds generated, by the 'Ponzi' scheme," prosecutors said in court filings.
With Rothstein having all that money to throw around, you might think he could have bought himself a better costume than the Afro-wigged, tie-dyed hippie get-up uncovered by the blog South Florida Lawyers.
November 24, 2009 | Permalink
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In-House Report: Flat Fees Up, Travel Down
News flash: Corporate law departments are tightening their belts.
That may strike you as a bulletin on par with "Dog Bites Man." But it is useful every so often to get some hard-and-fast data to confirm what we all suspect -- and even to shed some light on what is happening out there in the real world of law department spending. In this case, the news comes from the Hildebrandt consulting firm, which just released its 2009 law department survey.
The survey paints of picture of spending internally and on outside counsel. For the latter, the survey shows what many have suspected -- more companies are asking their outside lawyers to ditch the billable hour in favor of flat-fee pricing. More than half the 231 companies surveyed said they have implemented or will implement non-hourly fee arrangements. Another 27 percent said they are considering them.
As Amy Miller at Corporate Counsel magazine writes, even the survey's editor is not surprised by this. "Everyone wants to do it," Lauren Chung, director of Hildebrandts' law department consulting practice, tells Miller. "But the question is: to what extent? Will they make up 5 percent of legal spending or 100 percent? It will be interesting to see to what extent they will be utilized."
In terms of inside spending, law departments are cutting corners by reducing non-essential spending. The most common cuts are in travel, with 82 percent of departments reporting reductions in their travel budgets and another eight percent weighing them. Next to go are meetings, with 77 percent of companies reporting cuts in spending for meetings and training.
While travel and meetings may be the most common cuts, salaries and staffing could be the biggest. Surprisingly, 90 percent of companies say they have no plans to reduce salaries for in-house legal staff. If that's the good news on the salary front, the bad news is that over half have plans to freeze salaries or already have.
At least those who face a salary freeze still have a job. Some 27 percent of law departments have reduced staff and another 10 percent are considering cuts. Still, 63 percent of companies have no plans to cut the number of in-house lawyers they employ and 59 percent have no plans to reduce support staff.
Of course, if the economy remains weak, the belt-tightening will continue. Hildebrandt's Chung predicts this will lead even more companies to pursue alternative fee arrangements with outside counsel. "Alternative fees might not work for every type of matter or case," she says. "But I think the number will certainly increase going forward."
November 24, 2009 | Permalink
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Online Law Grad Denied Admission in Georgia
As two of the original 13 colonies that rose up against British rule in the United States, Georgia and Massachusetts share common legal roots. But in addressing the current-day question of bar admission for graduates of online law schools, they have come down on opposite sides.
Yesterday, the Supreme Court of Georgia issued a ruling that a 2009 graduate of the online law school Northwestern California University School of Law is not eligible for bar admission in that state. A year ago -- almost to the day -- the Massachusetts Supreme Judicial Court reached the opposite result, deciding that a graduate of the wholly online Concord Law School would be allowed to take the Massachusetts bar examination.
In both cases, the applicants sought waiver of the requirement that they be graduates of an ABA-accredited law school. In the earlier Massachusetts case, the SJC emphasized that its decision in favor of applicant Ross E. Mitchell was confined to the unique circumstances of his case. Mitchell had already been admitted to practice both in California and before the 1st U.S. Circuit Court of Appeals, had a stellar academic record and was valedictorian of his class, had scored well on the California bar exam and on the MPRE, and, through his representation of himself in his admission case, had provided a "positive illustration of his skills."
The applicant in the Georgia case, Joyce K. Batterson, bears some parallels to Mitchell in her prior achievements. In addition to graduating from NWCU in July 2009, she completed her master of laws degree that same month from a second online law school, Thomas Jefferson School of Law. While NWCU is unaccredited (except in California), TJSL's LL.M. program is accredited by the ABA. Batterson had passed California's bar exam for first-year law students in 2004 and the MPRE in 2006. She is a nationally certified paralegal who has been employed as a legal assistant and paralegal since 1990.
Ironically, it was neither accreditation nor qualifications that lost Batterson her bid for bar admission in Georgia. It was paperwork. The Supreme Court said it would consider waiving the accreditation requirement "for good cause shown by clear and convincing evidence." That evidence would have to include proof that the non-accredited school provided a legal education on par with that of an accredited school. The Board of Bar Examiners had told Batterson that she could establish that equivalency by providing a letter from the dean or the dean's designee at an ABA-approved law school providing an analysis of her legal education.
She provided a letter from the dean of her non-accredited school and letters from an associate dean at the accredited TJSL program. While the TJSL letters praised Batterson, they "contained only general conclusions" about the quality of her legal education, the Supreme Court said. For this reason, it affirmed the board's denial of her application. "Batterson's petition was denied because she did not provide what the Board expressly required," the court said.
As for Concord grad Ross Mitchell, he went on to pass the bar exam and, in June, to become the first online law school graduate to be admitted to the Massachusetts bar. Perhaps Batterson should consider a career in this other original colony.
November 24, 2009 | Permalink
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Legal Blog Tracks Lateral Hiring at Firms
There seems to be no shortage of blogs tracking law firm layoffs. Anyone with a penchant for punishing news can read about the latest downsizing at sites such as AmericanLawyer.com, Above the Law and plenty of others. One blog, Law Shucks, even has its own dedicated Layoff Tracker, where we learn that, as of Nov. 15, major U.S. law firms have laid off more than 14,000 employees since Jan. 1, 2008.
Surely, it can't all be doom and gloom. Someone out there must be hiring.
Turns out they are. And Melissa Sachs is letting us know about it. At a time when so many blogs bear only bad news, Sachs is using her blog, RecruiterEsq.com, to deliver the good news of lateral openings at large law firms. Sachs is scouring the Web sites of Am Law 100 firms for job listings and compiling them on her blog. She plans to update this every week or two and also send the list out through her newsletter.
Job drought? Sachs lists more than 150 lateral openings at major law firms throughout the United States. Akin Gump is hiring associates in New York and Washington, D.C. Cooley Godward has openings in San Diego, San Francisco and D.C. DLA Piper lists a whopping 11 openings for associates, staff attorneys and counsel in Chicago, Palo Alto, New York, Philadelphia, Phoenix, San Diego and D.C.
"We hear all of the news about law firm layoffs," said Sachs, a lawyer and former recruiter who provides legal career consulting and technology training. "Perhaps it's time to highlight the law firm hirings?" Plus, she adds, it is interesting to note which firms are hiring and in which practice areas.
Granted, it is a big gap between 160 or so openings and 14,000 layoffs. But it is a start. And if the trend of layoffs turns to hiring, at least one blog will be following it.
November 24, 2009 | Permalink
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November 23, 2009
Monday'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 having difficulty visualizing the linkage structure of the legal blogosphere. Can you help?
Answer: Why, yes! (Computational Legal Studies: "Visualizing the Linkage Structure of the Law Blogosphere")
2) Question: I have a Twitter account but don't really feel like tweeting right now. The cops are in my face saying that if I don't tweet immediately I'm going to jail. Must I tweet?
Answer: Tweet now or face the charges. (Newsday: "Record exec pleads not guilty in mall fiasco")
3) Question: I'm no herpetologist, but I'm pretty sure the guy in the seat next to me on this flight has two geckos, two monitor lizards and 11 skink lizards fastened to his body.
Answer: Does he have a permit? If not, maybe this would be a good time to call the stewardess? (New York Daily News: Michael Plank arrested at Los Angeles International Airport for strapping 15 lizards to chest)
November 23, 2009 | Permalink
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'Happy Gilmore' Golf Shot Breaches Duty of Care
Attention all hack golfers: It has now been judicially decreed, in Nova Scotia, at least, that the "Happy Gilmore" golf shot is a breach of the standard of care required of a golfer playing on a course with other golfers.
As a refresher, this is what the "Happy Gilmore shot" looks like (from the Adam Sandler movie "Happy Gilmore," of course):
The Slaw blog wrote on Friday that in the recent case of Bezanson v. Hayter, the Supreme Court of Nova Scotia had no trouble concluding that the Happy Gilmore shot was, as Carl Spackler similarly said about gophers in "Caddyshack," a menace to the golfing industry. Looking at the facts of the case, they are pretty much exactly what you would expect from a bachelor party golf outing that involved dozens of beers, a bottle of tequila, several marijuana joints smoked "before the third hole," "power slides" in the golf carts and clubs smashed against trees.
All of this action was a mere warm-up to the 16th hole, however, when the defendant hit his first shot into the woods, took a mulligan second shot, and then decided to take one more shot "Happy Gilmore"-style despite the fact that the other players had moved ahead with their carts up the fairway. The court says the defendant stepped back five or six feet from the ball and then took two full steps up to strike the ball, which went off the heel of the club directly at the plaintiff. Although the plaintiff did not seek medical attention before the wedding, he later alleged “significant daily left hand and wrist pain" to the point that he "is unable to grip to hold his chain saw,” and therefore was “completely disabled from doing his work.”
The court concluded that the defendant did breach the standard of care owed to other players on the course:
Having taken his tee shot, and then a provisional second shot, he was, or ought to have been, aware that the players ahead of him believed he was finished at the tee. He did not give any indication that he was taking a third shot -- let alone a “Happy Gilmore” shot -- until he was in the process of doing so. I am convinced that the “Happy Gilmore” shot would have been less controllable than a normal tee shot, both because it involved a run-up to the ball (rather than an aimed shot from a stationary position) and because the defendant had been drinking throughout the day...
The defendant's conduct breached the standard of care required of a golfer playing on a course with other golfers. The defendant's behaviour was not among the “natural risks” of golfing to which the plaintiff can be said to have consented.
And so it is written, golfers. You take your Happy Gilmore shots at your own peril!
November 23, 2009 | Permalink
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New Second-Hand Smoke Risk: Your Apple Computer Warranty
We've all learned by now that second-hand smoke presents a health risk, and should be avoided. But here's a new risk posed by second-hand smoke that you might not have known: It may void the warranty on your Apple computer.
The Consumerist notes in this post that at least two of its readers claim Apple deemed their "Applecare" warranties to be void due to secondhand smoke. Indeed, both readers reported that not only would Apple not repair the computers under warranty, it refused to even have its tech people work on the computers because they were a "bio-hazard."
Apple reportedly told Consumerist reader Derek that his warranty was void due to the second-hand smoke, and that they refused to work on the machine due to "health risks." Similarly, Consumerist reader Ruth says she was told by an Apple tech person that her son's computer couldn't be worked on because it was "contaminated with cigarette smoke which they consider a bio-hazard!" When Ruth complained to Steve Jobs' office, she says that an Apple employee in that office told her that "nicotine is on OSHA's list
of hazardous substances and Apple would not require an employee to
repair anything deemed hazardous to their health." According to Consumerists' readers, the Applecare warranty says nothing about the warranty becoming void due to second-hand smoke. Consumerist says Apple has not responded to its requests for an explanation.
Commenters on the post pointed out that the written warranty does exclude damage for an "improper environment," but most commenters seemed to agree that it was not at all clear that second-hand smoke would void the warranty. Some commenters noted that they have seen the inside of computers owned by smokers that were completely covered in a nasty, tar-like substance. However, the prevailing sentiment seemed to be captured by a commenter who wrote, "I am in utter disbelief. Citing OSHA? Really? Put on some damn gloves and fix these computers, Apple."
November 23, 2009 | Permalink
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November 20, 2009
Arm Courtroom Bailiffs With ... iPods?
Bailiffs are indispensable to maintaining order in court. To that end, court systems often treat bailiffs much like law enforcement officers, even arming them with firearms or tasers. Now, the National Center for State Courts says that perhaps bailiffs should also be armed with something else -- an iPod or iPhone.
The idea is outlined in a recent post to the NCSC's Court Technology Bulletin by Jim McMillan, an NCSC court-technology consultant. Earlier this year, he writes, while working on an NCSC courthouse project, his team considered how technology could support this essential courtroom employee -- an employee whose work has so far been little impacted by technology advances.
If one were to design a technology tool to support the work of the bailiff, they asked themselves, what form would it take? McMillan's team came up with five characteristics:
- A device that is small and light and that could not be turned into a weapon.
- Battery power for a full work day.
- Wireless communications via WiFi or cellular connection.
- Capable of quiet operation so as to not disturb the courtroom.
- A simple user interface.
Those specifications, needless to say, describe to a tee the Apple iPod Touch or iPhone (if you overlook the full-day battery issue). McMillan outlines several ways in which a bailiff could use an iPod in the courtroom:
- For quiet communications. The iPod would allow the judge or clerk to exchange messages with the bailiff via e-mail or text messaging. With the iPod's touch screen, their typing would not be disruptive to the courtroom.
- To manage the queue of cases. The bailiff could use the iPod to notify the judge or clerk of defendants or parties who are ready to appear in the courtroom. In criminal cases, the bailiff could notify detention officers when the judge is ready for defendants.
- As a detained-defendant locator system. The bailiff would use the iPod to track the location of detained defendants within the courthouse. This could be especially useful in large courthouses with multiple holding areas.
- To view security video. For courts with digital security-video systems, bailiffs could use their iPods to view the video. Among other things, this would allow a bailiff to scan a room before entering it and to monitor the courtroom and the surrounding corridors.
- To remotely control secure doorways. By combining the security video output and electronic door controls, a bailiff could be notified via the iPod when someone wants to enter a secure chambers, verify the identity by video, and then unlock the door.
- To carry photos of wanted or dangerous persons. With an iPhone, the bailiff could also take pictures and transmit them to law enforcement authorities.
In an update this week to his initial post, McMillan notes that a company that supplies the control systems used in many courtrooms recently released an app that allows use of an iPod or iPhone as a remove control for home lighting and electronics systems. If they can do it for the home, they can do it for the courtroom.
McMillan's ideas certainly make sense and, if nothing else, provide another angle on how technology can be adapted to the courtroom. Who knows -- the day may not be far off when every bailiff is armed with an iPod.
November 20, 2009 | Permalink
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Hackers Targeting Law Firms, FBI Warns
The FBI is warning U.S. law firms to beware of hackers. The FBI said this week that hackers are using phishing e-mails with malicious payloads to target law firms and public relations firms. "During the course of ongoing investigations, the FBI identified noticeable increases in computer exploitation attempts against these entities," the warning said.
"Phishing" refers to the use of e-mail or instant messaging to trick the recipient into providing personal or sensitive information, such as user names, passwords and credit card information. Generally, the message draws the recipient to a Web site designed to replicate a legitimate site, where the recipient is asked to provide this information. In this case, the scam involves an e-mail that installs a malicious program to search for sensitive data.
The FBI warning said that the scam targeting law firms arrives as an e-mail that includes an attachment or a link. The e-mail appears to arrive from a trusted source based on its subject line and attachment name. Opening the message itself is not harmful. But if the recipient opens the attachment or clicks on the link, it launches a self-executing file that then attempts to download another file. Once that malicious file is installed, it searches for sensitive files and sends them to a computer server outside the firm -- and usually outside the United States.
The malicious file does not necessarily appear as an "exe" file. In some cases, it appears as a "zip," "jpeg" or something else. Once executed, it will attempt to download and execute the file "srhost.exe" from the domain "http://d.ueopen.com." Any activity on a firm's network associated with "ueopen.com" should be considered evidence that the network is compromised, the FBI says.
"Law firms have a tremendous concentration of really critical, private information," Bradford Bleier, unit chief with the FBI's cyber division, told The Associated Press. Infiltrating those computer systems "is a really optimal way to obtain economic, personal and personal security related information."
In 2008, a major New York law firm was hacked into in an attack that originated in China, the AP report said. The hackers that target law firms are often going after ones that are negotiating a major international deal. "The best documents to steal are in the law firm that represents that company," Alan Paller, director of research at computer-security organization SANS Institute, told AP.
November 20, 2009 | Permalink
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WSJ Editorial on Judicial Nominee Called Racist
The Wall Street Journal editorial yesterday made clear that it was not pleased with President Obama's nomination of former Wisconsin Supreme Court Justice Louis B. Butler Jr. to be a federal district judge in Wisconsin. But did the WSJ go too far in titling its editorial, The White House Butler?
In Wisconsin, a state senator, a former state Supreme Court justice and a lawyer all said the editorial was racist. They asked the WSJ to retract the editorial and issue an apology, according to a report published in the Milwaukee-Wisconsin Journal Sentinel.
Madison lawyer Jon P. Axelrod sent a letter to the WSJ saying its comparison of the nominee to a butler was demeaning.
Not only do I strongly disagree with the contents of the editorial as deliberately misleading, but it is totally inappropriate to demean Judge Butler because of his race by comparing him to a butler, an occupation unfortunately stereotyped as predominantly African-American. You owe this distinguished Wisconsin jurist an immediate retraction tomorrow as well as an apology.
The editorial was also criticized by state Sen. Spencer Coggs, D-Milwaukee, who said the headline "harkens back to an antiquated stereotype," and by former state Supreme Court Justice William Bablitch, who said, "At the very least, it's highly insensitive. At the worst, it's racist."
A spokeswoman for the WSJ issued a statement defending the headline. "The headline was a play off of his last name, and to suggest anything otherwise is absurd," the statement said.
The editorial took issue with the president's nomination of Butler based on his twice having been rejected by Wisconsin voters for a seat on the state Supreme Court.
As consolation prizes go, Louis Butler can't complain. After being twice rejected by Wisconsin voters for a place on the state Supreme Court, the former judge has instead been nominated by President Obama to a lifetime seat on the federal district court. If he is confirmed, Wisconsin voters will have years to contend with the decisions of a judge they made clear they would rather live without.
Butler was the first African-American to serve on the Wisconsin Supreme Court, according to Wikipedia. A longtime public defender, he was appointed to the Municipal Court in Milwaukee in 1992, where he served until his election as a Milwaukee County Circuit Court judge in 2002. Wisconsin Gov. Jim Doyle appointed Butler to the Supreme Court in 2004. His term expired in 2008.
November 20, 2009 | Permalink
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November 19, 2009
A 'Most-Hated' List of Modern Phrases
Yesterday on the Legal Writing Prof blog, Professor James "I am the scholarship dude" Levy flagged an interesting blog article from The New York Times on some of the words and phrases that are becoming despised in our society. The author of the article, law professor Stanley Fish, gets the ball rolling by offering up some examples from the "class of utterances that, when encountered, produces irritation, distress and, in some cases, the desire to kill." These include:
- “To Be Continued” at the end of a TV show in which you have become invested;
- “Closed for Private Party,” when you’ve been looking forward to a meal at your favorite restaurant all day;
- “Register Closed,” when you’ve been waiting not-so-patiently behind a fellow customer with 25 items;
- “This may hurt a little” when you know that pain on a massive scale is just around the corner; and
- “Please listen carefully as our menu options have changed.”
Fish's article seems to have struck a chord with his readers judging by the over 1,100 comments (and counting) offering additional suggestions for this "most hated" list. Readers' suggestions include:
- “This flight has been oversold;”
- “No problem” (instead of “you're welcome”);
- “You have committed a fatal error and your computer will shut down immediately;”
- “We no longer accept cash;”
- “I’m sorry you feel that way;”
- “In order to serve you better...;”
- “Where do you see yourself in 5 years?” (job interview);
- “Would you like change?” (from waitstaff);
- "Adjust, please." (in India);
- “I can only apologize” (in the UK);
- “inshallah (god willing).” (in the Middle East, meaning that no matter what the merchant has promised -- e.g., that your dry cleaning will be ready on Tuesday --it won’t be done, as "god willed it" that way.
- "No offense, but…;” and
- "It’s for your own security."
There are at least 40 more pages of reader suggestions that I did not get through, but you get the idea. Please add to the list in the comments below!
November 19, 2009 | Permalink
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'I Hate Teena Club' Leads to Employee's Termination
Further proving what your mother told you when you were five years old ("If you don't have anything nice to say, don't say anything at all") is the case of Sindoni v. County of Tioga. In this bizarre case involving employees of the County of Tioga, N.Y., Sindoni, a senior typist, had her employment terminated after her personal animosity for co-worker "Teena" went well beyond the standard office squabble.
As discussed in the opinion issued last week by the New York Supreme Court, Sindoni and others went so far as to form a club known as the "I Hate Teena Club." Members of the "IHTC" allegedly wore ribbons to demonstrate their membership, "and made threatening and intimidating comments to other coworkers who informed the administration of the existence of such club."
In addition to a "loud verbal exchange" between Sindoni and Teena, Sindoni also admitted to keeping a calendar of Teena's late arrivals and early departures from work, being a member of the "IHTC," and to wearing the ribbon. Witnesses testified that Sindoni attempted to recruit others to join the "IHTC," as well.
Sindoni argued on appeal that the penalty of termination was excessive, and that none of the other five club members were terminated. The court, however, upheld the termination, noting that the hearing officer had found that Sindoni was "the only employee who made threats to the person or property of others," was the "main player in the hate club," and "had not expressed any remorse regarding her conduct."
Sindoni's attorney, Daren J. Rylewicz, said he could not understand how "essentially six women committed the same or similar conduct and five women were not fired." Rylewicz said that of the other five club members, one was suspended for one month, two were suspended for five days and two received letters of reprimand.
Lesson? No hate clubs at work.
November 19, 2009 | Permalink
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Communities Battle Over the 'Right to Hang'
"If my husband has a right to have guns in the house, I have a right to hang laundry."
So says Carin Froehlich of Perkasie, Penn., who likes to hang her laundry to dry on clotheslines strung between trees outside her home. Her small town, however, does not like it so much, and she has had requests from a town official and at least two anonymous neighbors that she keep her laundry to herself. "They said it made the place look like trailer trash. They said they didn't want to look at my 'unmentionables.'"
Reuters reports that this "right to hang" debate is popping up more and more often in the U.S. Already, six states (Florida, Utah, Maine, Vermont, Colorado, and Hawaii) have passed laws restricting the rights of residents to use clotheslines, and another five states are considering similar measures.
Citizens fighting for the right to hang actually have a lobbying group of sorts. "Project Laundry List" is a nonprofit organization with the stated mission of "making air-drying and cold-water washing laundry acceptable and desirable as simple and effective ways to save energy." Among it recent accomplishments, PLL says, it has helped obtain legislation reversing the clothesline ban in Colorado, and prompted clothesline legislation debate in states including Connecticut, Hawaii, Maryland, Maine, New Hampshire, Nebraska, Oregon, Virginia and Vermont.
Check out the CBS News video report below on the "right to hang" controversy.