Blog Network

About The Bloggers


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 | Comments (2)

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 | Comments (2)

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.

Beb8_freeloader_pro_solar_charger_iphone_embed 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.

M_pdx30bl 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.

Gift guide shoe 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.

Marshmallow blaster 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.

Mypetlawyer 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 | Comments (6)

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 | Comments (1)

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." ( "Police search yields alleged prowler and fugitive imposter" via Lowering the Bar)

November 25, 2009 | Permalink | Comments (2)

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 | Comments (11)

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.”

PA-PittsburghPD 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 | Comments (3)

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."

Kimscott5Still, 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 | Comments (1)

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 | Comments (2)

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 | Comments (4)

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, 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,, 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 | Comments (6)

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 | Comments (0)

'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 | Comments (7)

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 | Comments (7)

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:

  1. A device that is small and light and that could not be turned into a weapon.
  2. Battery power for a full work day.
  3. Wireless communications via WiFi or cellular connection.
  4. Capable of quiet operation so as to not disturb the courtroom.
  5. 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 | Comments (5)

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 "" Any activity on a firm's network associated with "" 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 | Comments (1)

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 | Comments (0)

November 19, 2009

A 'Most-Hated' List of Modern Phrases

Anger 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 | Comments (18)

'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 | Comments (0)

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.

Watch CBS News Videos Online

November 19, 2009 | Permalink | Comments (1)

Thursday's Three Burning Legal Issues

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

1) Question: I am a police detective. Is there any way I can use the police computer system to help me pick up chicks?

Answer: Yes, actually. But you might get convicted of a crime and suspended from the force. (Australian Associated Press, "Sexually 'curious' detective avoids jail")

2) Question: I am a bank robber. Any last minute tips before I head out for a heist?

Answer: Brush your teeth. (AP: "Fla. police seek alleged bad breath bank robber")

3) Question: I just stole a van. I'm driving off with it now but I just heard the most terrifying roar coming from the back of the van that caused me to crash into a road sign.  What the ... ?

Answer: Meet Caesar! (AFP: "German thief unwittingly steals circus lion")

November 19, 2009 | Permalink | Comments (1)

November 18, 2009

ABA Executive Director Steps Down

Henry_White-sm The executive director of the American Bar Association, Henry F. White Jr., resigned this week after three years in the job, the ABA Journal reports. ABA General Counsel R. Thomas Howell Jr. has been named to step in as interim executive director.

Neither the ABA Journal report nor an official ABA news release gave any explanation for White's resignation. Both included this statement from ABA President Carolyn B. Lamm:

"I wish Hank White well in his future endeavors, and thank him for his service to the ABA over the past three years. I know that Tom Howell, who has served the association for many years both as a leading member and more recently as chief legal officer, will ensure that the association continues to serve its members and the public through a transition to new leadership."

Lamm said that William C. Hubbard of Columbia, S.C., who chairs the ABA’s House of Delegates, will head a search committee to identify a successor to White.

Before joining the ABA, White served as president of the Institute of International Container Lessors, a trade association for the international container and chassis leasing industry, the ABA Journal says. Earlier, he had been in private practice and government service as a lawyer in New York City. He is a retired rear admiral in the U.S. Navy Reserve. White had succeeded Robert A. Stein, who left the ABA in 2005 after 12 years as executive director.

Howell, the interim director, became the ABA's general counsel in 2007. Before that, he spent 10 years as of counsel to the Chicago-based law firm Seyfarth Shaw and had earlier been vice president and general counsel of the Quaker Oats Co.

November 18, 2009 | Permalink | Comments (0)

Black Firefighters Ask to Intervene in 'Ricci'

In an end-of-term decision handed down in June, the Supreme Court in Ricci v. DeStefano decided that New Haven's decision to discard results of a firefighter promotion examination violated Title VII of the Civil Rights Act of 1964. The city through out the test after results came back showing that white candidates had significantly outperformed minority candidates. But the city's action prompted white firefighters who scored well to file the lawsuit that eventually brought the case to the Supreme Court.

The Supreme Court sent the case back to the U.S. District Court in Connecticut, where the court has ordered the parties to confer and file suggestions on how to settle the case and allow promotions to proceed. This week brought a major development in the case, as Daniel A. Schwartz reports at Connecticut Employment Law Blog. A group of black firefighters filed a motion to intervene, claiming their rights would be "irrevocably impaired" if they are not allowed to participate. Schwartz has the text of their motion and memorandum.

The black firefighters are represented by employment lawyers Dennis R. Thompson and Christy B. Bishop of Thompson & Bishop in Akron, Ohio, and W. Martyn Philpot Jr. of New Haven. They argue that their interests in the case will not be protected by any of the current parties.

Schwartz says that this motion "was not unexpected" but was not expected this soon. Last week, he notes, this same group of black firefighters filed complaints with the EEOC claiming that if New Haven were to proceed with certifying the test results and making promotions based on those results, the minority firefighters would be harmed. But Schwartz believes these black firefighters face a big hurdle in light of the Supreme Court's ruling.

To overcome the Supreme Court's language, they claim that they are primarily claiming that they have been treated in a discriminatory fashion, and not merely impacted in a discriminatory way. They also claim that the Supreme Court's language was merely dictum and not binding on future courts.

There is no way of knowing how the District Court will rule on the motion to intervene or what impact it ultimately will have on the outcome of the case. But one immediate conclusion seems clear, Schwartz writes: "It is clear that despite efforts by the Ricci parties to work towards a resolution, the case is far from being concluded in one form or another."

November 18, 2009 | Permalink | Comments (1)

The Google Gorilla Enters the Research Game

Ken Auletta's new book, Googled: The End of the World as We Know It, ponders whether the 1,000-pound Gorilla of the Web is pursuing an altruistic endeavor to offer all the world's information for free or is a marauding monster on a mission to dominate the media and information landscape. With Google in command of my e-mail platform, my blogging platform, my search platform, my RSS reader, my photo-storage platform and even my document collaboration platform, I certainly should be worried that Google could become the Big Brother I never wanted.

Gorilla_(PSF) But I am lulled into complacency by the simple fact that Google does what it does so well. And so it is with Google's entry into the legal research field with its announcement yesterday that Google Scholar now allows users to search full-text legal opinions from U.S. federal and state appellate and trial courts. As you would expect from Google, the search interface is seamless and simple. Search by case name, lawyer name, citation or any other term. Cases include internal page numbers and internal citations are hyperlinked. A "how cited" tab shows a case's subsequent history.

In announcing this new feature, the Google engineer who spearheaded this project, Anurag Acharya, appropriately acknowledged the prior efforts of the "pioneers who have worked on making it possible for an average citizen to educate herself about the laws of the land: Tom Bruce (Cornell LII), Jerry Dupont (LLMC), Graham Greenleaf and Andrew Mowbray (AustLII), Carl Malamud (Public.Resource.Org), Daniel Poulin (LexUM), Tim Stanley (Justia), Joe Ury (BAILII), Tim Wu (AltLaw) and many others."

And as Monica Bay notes at The Common Scold, credit also goes to long-time legal technology innovator Rick Klau, a lawyer who has worked at Google since 2007, helping to enhance its blogging platform and also assisting in this case law project. As Klau writes at his own blog, he was able "to dive in" on this shortly after he arrived at Google.

Inevitably, Google's announcement leads to another round of predictions that 2012 has arrived for Westlaw and LexisNexis. Scott Greenfield wonders whether the news signals the end of the duopoly. Social Media Law Student says this could fast become the preferred tool for "law students and lawyers of the younger generation (and tech-savvy elders as well)." But Carolyn Elefant says Google is unlikely to replace Wexis for some time to come. "Even as free services launch, the premium legal services still continue to improve," she writes. "So the gap still remains between legal research haves and have-nots."

My belief is that Westlaw and LexisNexis will continue to remain healthy and profitable for many years to come. I'm not privvy to their finances, but I suspect that case law research has become a less-important source of revenue for them. What they have that others do not are significant databases of secondary legal-research materials such as treatises, specialized legal-research materials in particular areas of concentration, and ever-growing collections of public-records data, court and deposition transcripts, docket information, and all sorts of other information that remains largely unavailable or inaccessible elsewhere online.

Even so, there's no ignoring a 1,000-pound gorilla. Google's entry into the area of legal research is definitely a game changer for the entire legal industry. More than that, it is without doubt a turning point. Anurag Acharya is right to credit all the pioneers who blazed this trail. But where they yielded machetes, Google drives a bulldozer. If this is progress -- and I believe it is -- its pace is about to accelerate.

(In addition to those mentioned above, other blog posts worth reading on this are Law, Technology & Legal Marketing Blog, Resource Shelf, Jim Calloway's Law Practice Tips Blog, 3 Geeks and a Law Blog, WisBlawg, Ernie the Attorney, and The Volokh Conspiracy.)

November 18, 2009 | Permalink | Comments (3)

Tom Cruise Honors a Legal 'Top Gun'

Cruise and Yas The memorial service at the federal courthouse in Boston this week for lawyer Earle C. Cooley was attended by a who's who of the city's legal community. It also included one Hollywood A-lister -- Tom Cruise.

Cooley was a legendary trial lawyer in Massachusetts who founded the law firm Cooley Manion Jones and who represented major Boston-area clients including Boston University and the Boston Celtics. Cooley died of heart failure Oct. 16 at the age of 77.

By all accounts, this week's memorial at the John Joseph Moakley U.S. Courthouse was a fitting tribute to this giant of the trial bar. Some 500 lawyers and judges were there. Among those who spoke in his honor were former Boston University President John Silber, former state Attorney General Frank Bellotti, and U.S. District Judge Nancy Gertner, who reportedly drew laughs when she recalled that Cooley had once paid her the ultimate compliment by telling her that she was an exceptional lawyer, "for a broad."

Still, it is not every lawyer whose memorial draws the attendance of Tom Cruise. The Cruise-Cooley connection is the Church of Scientology, of which Cruise is a prominent member. Cooley was the church's top lawyer for many years. He handled the arrangements for L. Ron Hubbard to be cremated after the Scientology founder died in 1986 and he was known for aggressively litigating against those who took on the church.

"The Scientology church litigates hard, and I’m not ashamed of being part of that," Cooley told the Boston Phoenix in 1996. "That goes with the territory. But I have never abused the legal system on behalf of the Church of Scientology or any other client."

Cruise had been in Boston making a film and delayed his departure a day to attend the memorial. He was there along with Scientology's current leader, David Miscavige, who was among the evening's speakers. One attendee I spoke to was unaware Cruise had been at the event. Another told the Boston Herald that she mistook Cruise for "just another lawyer."

But the presence of a major Hollywood celebrity was not lost on David Yas, publisher of Massachusetts Lawyers Weekly. As he writes at his blog, The AffiDavid, he managed to meet Cruise and get of photo of himself and the actor together. "For what it’s worth, the actor is as charming and slick in person as he is on screen," Yas writes. "I meekly admitted to him that I had seen 'Risky Business' about 300 times. He smiled and told me to keep going."

November 18, 2009 | Permalink | Comments (1)

November 17, 2009

Must Law Firms Know the Cost of Each Matter They Take On?

There has been plenty of talk over the past year or so about how the billable hour at law firms is under attack, and how changes may be in store. Of course, most of it is just talk so far, and precious little action, as law firms cling to their traditional ways.

One firm that claims to have completely done away with the billable hour, however, is the Shepherd Law Group, which states that it hasn't billed or even tracked a single hour since 2006. SLG, an employment law firm, uses an "Up-Front Pricing" model whereby clients know the fee they will pay in advance. On its Web site, SLG explains that if the scope of the agreed upon job changes, it will send the client a change order setting out the new scope and the price for that change.

SLG's CEO, Jay Shepherd, writes a blog called The Client Revolution that is heavily focused on the potential death of the billable hour. In an interesting post yesterday, Shepherd wrote that lawyers remain obsessed with how much their services cost, and continue to claim that they cannot move away from the billable hour to offer fixed prices because of their inability to figure out what a particular case or matter costs.

Examining a recent article by Saul Hansell on cellphone carriers, Shepherd writes that these carriers, like airlines, also have no idea what their services cost. As Hansell explains:

In many ways, however, the least important factor in setting prices is the actual cost of providing cellular service. Cellphone companies resemble airlines, that other industry whose oblique prices exasperate consumers. Think of a cellphone network as one giant airplane that costs tens of billions of dollars to build. The cellphone companies don’t really know how much it costs to handle a call to Aunt Suzy in Syracuse, any more than an airline can calculate a specific cost for Seat 12B.

As a result, Hansell argues, the cellphone carriers simply try to get as much money as possible each month from their customers, and then hope that this total is more than their costs.

Similarly, Shepherd writes, lawyers do not need to know if they are making money on a particular case. "I don't need to know that," he argues. "I only need to know if I'm making a profit on my law firm, not on a particular case or client. Profit equals revenue minus expenses, and there's no earthly way to determine the real expenses for a particular case or client. Even if you bill by the hour."

In another post on The Client Revolution from a few months ago, Shepherd takes aim at a related, perceived fallacy embraced by law firms billing by the hour: that legal work that takes more time costs more. He argues that associates are typically paid an annual salary, not by the hour,

so the firm's "costs" do not rise when a motion takes six hours to write instead of three. Yes, yes. I know. "It's the opportunity cost. The extra three hours means that lawyer can't be working on something else, and that adds up over time." Sorry — I'm not buying that. If you have more work than you have lawyers available to do it, then congratulations — and hire more lawyers.

To the thousands of lawyers out there billing by the hour, I ask you: Does Shepherd have a point here? Could his model work in BigLaw? Is it still critical to estimate costs for each matter by capturing time spent on the matter?

November 17, 2009 | Permalink | Comments (5)

Recession Prompts Wave of Volunteers for Jury Duty

Last month, an article in The New York Times observed that for people being squeezed by the recession, a summons to perform jury duty holds a new fear: financial ruin. In Bonneville County, Idaho, for instance, the jury commissioner said that while she typically summons 400 people for a two-week term of service, she has lately had to "pop it up to 500” because of rising numbers of economic hardship claims.

40dollars But what about the flip side? The New York Post reported this week that in New York state court in Manhattan, the recession appears to be having an opposite effect.  In that court, which accept volunteers for jury duty, citizens are actually volunteering to be on juries for the first time in years. Vincent Homenick, chief clerk of the jury division for the court, says he has received about 20 calls since May 2009 from people who are eyeing the $40 per diem that goes along with jury duty. "People are calling up, saying, 'Look, I lost my job; now would be a good time for me to serve,'" he said. "Not that $40 will pay the bills, but it's something." Norman Goodman, the county clerk for Manhattan, added that "If somebody's out of work, I guess jury service is a paying job."

Even the federal courts in New York, which do not accept volunteers, have had inquiries from people seeking jury duty.  "Just this week, a woman wanted to serve on a jury, but there was nothing we could do," said a clerk in Brooklyn federal court.

November 17, 2009 | Permalink | Comments (2)

Influenza Futures Markets: Accurate but 'Taboo'

You know about the futures markets for things like soy beans, coffee and orange juice, but what about the markets for swine flu, bird flu and SARS? Earlier this month, The Faculty Lounge blog wrote about the influenza futures now being traded on the Iowa Electronic Markets, which is run by Iowa University’s Henry B. Tippie College of Business.

The goal of the IEM's new H1N1 flu market is to have hundreds of medical professionals and scientists trade a range of swine flu futures contracts to "build a practitioner-level prediction of how the virus would spread, its severity and duration." IEM has operated flu futures markets since 2004 and ran a bird flu market last year. Financial Times reports that since the swine flu market was set up in May of this year, it has accurately predicted how fast the virus would spread and the mortality rate. It is now predicting a 70 percent likelihood that there will not be enough H1N1 vaccine available to hit government targets until at least December, and a a more than 90 percent probability that more than half of U.S. flu cases this season will be swine flu.

The Faculty Lounge notes that despite the possible benefits of accurate predictions by such futures markets, they remain "taboo." TFL writes that

Many readers will recall, for example, that in 2003 the Pentagon proposed a terrorism futures market, but withdrew the plan after it generated national outrage.  Barbara Boxer, for example, said of the program "there is something very sick about it,” while Hillary Rodham Clinton, then a U.S. senator, said it would be “a futures market in death.”

Similarly, the negative reaction that came in 2003 when Tippie considered a SARS futures market in collaboration with federal agencies required IEM to set up the market backed by foundation grants instead.  The FT notes that US health authorities have refused to collaborate on IEM's current flu futures market efforts, despite the fact that the Centers for Disease Control and Prevention had helped IEM establish a syphilis futures market just last year.

November 17, 2009 | Permalink | Comments (1)

Tuesday'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 about 80 years old and carry an oxygen tank with me at all times. Will this hinder my ability to rob banks?

Answer: Not at all! (Fox 5 San Diego)

The-grateful-dead 2) Question: I have spent the last 20 years following the Grateful Dead around on tour. Now it is time to grow up and get a job. Any ideas?

Answer: Will $68,000 per year work for you? (

3) Question: 12 people just unanimously decided that I'm not "too fat." That's a good thing, right?

Answer: Yes, unless being "too fat" is your primary defense to a murder charge. Then no. (Associated Press)

November 17, 2009 | Permalink | Comments (0)

November 16, 2009

'Lawyer You Can Trust' Gets Prison for Theft

The Web site for Raymond A. Desautels III once boasted that he was "a lawyer you can trust." Last week, the disbarred Massachusetts lawyer was sentenced to 2.5 years in prison for misappropriating $1.99 million from a client's account, reports the Telegram & Gazette in Worcester.

Desautels received the $1.99 million from a client in Ireland, Kevin Phelan, to use in a purchase of commercial real estate in Pennsylvania. He received the money on Jan. 24, 2008 to use in the closing scheduled for Jan. 31. But on Jan. 28, Desautels disbursed the money to Allen Seymour, a businessman in his hometown of Oxford, Mass., who said he needed it temporarily to dupe potential lenders about his net worth.

Seymour promptly took the money and ran. Customs agents arrested him a week later in Florida, where he had attempted to leave the country for Venezuela on a private jet. Agents found Seymour with his wife, five children, the family dog and some $1.4 million in cash, concealed in bags hidden in his luggage. Seymour was sentenced in July to 51 months imprisonment.

As for former lawyer Desautels, he broke down in tears as he told the federal judge at his sentencing that it was impossible for him to say how sorry he was. "I should have known better and I didn't," he said. Earlier, he had pleaded guilty to two counts of wire fraud. He had also pleaded guilty last month in state court to five counts of inducing a mortgage lender to part with property by false pretenses, allegedly as part of a scheme organized by Seymour.

Desautels' former client, Kevin Phelan, appeared in court to urge the judge to impose a sentence that would send a strong message to other lawyers. Afterwards, Phelan said he thought Desautels got too light a sentence.

November 16, 2009 | Permalink | Comments (4)

Plan for Public Law School Advances in Mass.

An effort to create the first public law school in Massachusetts got a boost Friday when University of Massachusetts President Jack M. Wilson gave it his endorsement. Wilson said he is convinced that the law school proposal is fiscally sound and would create a program with high academic standards.

As noted here last month, the plan 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 last month o donate to UMass its campus and assets, valued at $22.6 million. Massachusetts is one of just six states without a public law school.

The plan quickly drew opposition from critics who say the state already has a surplus of law schools and of lawyers and that it would cost the state tens of millions of dollars to bring the school to a level that would allow it to earn ABA accreditation.

But Wilson said the school would not consume state or university dollars and instead would create revenue. He cited figures from UMass Dartmouth Chancellor Jean F. MacCormack projecting that the law school's cumulative cash balance would grow from $1.8 million in 2011 to $10.2 million in 2018 and that enrollment would climb from 278 students next year to 559 in academic year 2017-2018. Tuition would go to the state's general fund, generating $500,000 next year and $1 million annually within five years, Wilson said. Student fees would remain on campus and would serve to support the program.

"I am convinced we will be able to create a law program that will win national accreditation and go well beyond that to become known for its high academic standards and its commitment to public service law," Wilson said. "This program will not consume state or university dollars, and, in fact, will create revenue for the commonwealth and for the university."

The proposal calls for the school to seek ABA provisional accreditation during academic year 2011-2012.

The next step for the proposal comes later this month, when it will be reviewed by the university’s Committee on Academic and Student Affairs and its Committee on Administration and Finance. From there, it is slated to go before the UMass Board of Trustees on Dec 10. If the trustees approve it, the proposal would go to the state Board of Higher Education,which four years ago rejected a similar proposal.

November 16, 2009 | Permalink | Comments (0)

Law a Jackpot for Lawyers Who Wrote It, AP Says

Seattle University School of Law professor Joaquin Avila says he was the primary author of the 2002 California Voting Rights Act, drawing on advice from Robert Rubin, legal director for the Lawyers' Committee for Civil Rights of the San Francisco Bay Area, and others. Since then, all of the $4.3 million collected in settlements under the law has gone to Avila, to Rubin's committee and to lawyers working with them, The Associated Press found in its review of these cases.

So far, all of the cases have been initiated by Rubin's committee or by Avila, who is also a member of the committee. There is nothing illegal about this, AP says. "But it is unusual that after seven years all legal efforts are so narrowly focused, especially since Avila told lawmakers when he testified for the bill in 2002 that he expected other attorneys would take on cases because of favorable incentives written into the measure."

The law targets "at large" elections across an entire municipality or district where a majority of voters can dominate the ballot and block minorities from winning representation. It authorizes prevailing plaintiffs to recover attorneys' fees and costs, but not pay them if they lose.

Avila tells AP the cases have played out this way because they are complex and few attorneys have the expertise to bring them. Both he and Ruben say their roles in drafting the law should not overshadow its importance and the need to use the courts to end years of injustice at the polls. Avila, who bills his work in these cases at $725 an hour, would not tell AP how much he has earned in fees. Ruben is paid a salary but bills his work at $700 an hour.

The law itself is controversial. Critics say it is unnecessary, flawed and even "baffling." But Avila -- who directs the National Voting Rights Advocacy Initiative at Seattle University -- contends the need for the law is demonstrated by studies such as one that depicts dozens of school districts in California with a majority of Hispanic students but few, if any, Hispanic school board members. "When you look at the local elected leadership, most of it is still white," he says.

November 16, 2009 | Permalink | Comments (2)

More Tales From the Annals of Online Evidence

By now, we should all know well the lesson that what we do online can come back to haunt us -- or maybe help us -- as evidence in court. But new stories continue to come along of the things people do online and of how they get used in court. Here are three recent stories from the annals of online evidence.

First up is a story of how a man's Facebook page got him not into trouble but out of it. As the New York Times reports, Rodney Bradford's cryptic Facebook status update on Oct. 17 at 11:49 a.m. -- asking where his pancakes were -- became his alibi when he was arrested the next day for a robbery that took place at the same time as the update. Bradford's sharp-thinking defense lawyer, Robert Reuland, told a Brooklyn assistant district attorney about it. The DA subpoenaed Facebook and verified that the words had been typed from a computer located in Bradford's father's house in Manhattan, some distance from the robbery. The charges were dropped. "This is the first case that I'm award of in which a Facebook update has been used as alibi evidence," Dallas lawyer John G. Browning told the Times.

Facebook was Bradford's alibi; YouTube could be Jacob Rehm's downfall. According to WCAX TV in Vermont, Rehm is alleged to have stolen a $500,000 tour bus from a transportation company where he once worked and taken it on a joy ride through central Vermont. Apparently, the joy ride was only half the fun for Rehm. He is alleged to have also produced a four-minute video of his adventure and posted it to YouTube. It features shots of the bus and of him driving, all to the music of Yes. The video will be part of the evidence against him when he appears tomorrow in a Vermont district court.

For David Roberts, the evidence of his crime came from a supposed 14-year-old schoolgirl who turned out to be his own wife. Cheryl Roberts, 61, suspected her husband, 68, was accessing chatrooms to lure girls into sex, according to a report in the Telegraph. So while he was on his computer in one room, she went online in another room and, posing as a 14-year-old, initiated a chat with her husband. When he attempted to lure her into meeting for sex, she was shocked. But rather than confront him, she went straight to the police, who seized his computer and found dozens of images on it of child porn. It was only several weeks later that the man learned he had been turned in by his own wife.

November 16, 2009 | Permalink | Comments (0)

November 13, 2009

Friday's Three Burning Legal Questions

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

Facebook 1) Question: The D.A. is charging me with robbery, but I say I'm innocent. In fact, I was busy on Facebook at the time of the robbery. Successful alibi? 

Answer: Yes. Charges dropped. (WisBlawg)

2) Question: The D.A. is charging me with murder, but I say I'm innocent. In fact, I was busy running the country (President Bush did everything I told him) and working on a solution to global warming. Successful alibi?

Answer: Sorry, no. (Bad Lawyer)

3) Question: I lost the tip of my index finger in a pole-dancing accident on Ladies' Night. The bar says I should have known of the "perils of pole-dancing." Should I have?

Answer: The jury will decide. (OnPoint News)

November 13, 2009 | Permalink | Comments (0)

6th Circuit Finds 'Bow Wow' Belongs to Clinton

On April 23, 2008, Judges Daughtrey, Cook and Farris of the 6th U.S. Circuit Court of Appeals in Nashville donned their robes and heard oral argument in the matter of Bridgeport Music, Inv. v. UMG Recordings, Inc. Last week, the 6th Circuit delivered its considered judgment in the case: The phrase "bow wow wow, yippie yo, yippie yea" belongs exclusively to funk legend George Clinton, who used it in his song, "Atomic Dog."

In a 2006 interview with NPR, Clinton admits he ad-libbed most of the lyrics in the seminal 1982 funk track.

I just had the word 'dog,'" Clinton says. "That's all I had in my mind. I had to ad lib a lot of it. The track was atomic. It's a futurist track... I don't still hear no tracks like that one.

Bits and pieces of the song have been sampled dozens of times by hip-hop artists, perhaps most famously by Snoop Dogg in "Who Am I? (What's My Name?)." But the 6th Circuit affirmed the lower court's jury instructions concerning the defendant's alleged misuse "and repetition of the word 'dog' in a low tone of voice at regular intervals and the sound of rhythmic panting" in Public Announcement's allegedly infringing song, “D.O.G. in Me.” Among other things, the court cited the testimony of an expert musicologist, who said that "the Bow Wow refrain 'is one of the most memorable parts of the song.'" In terms of iconology, the Court explained, the Bow Wow refrain was "perhaps the functional equivalent of 'E.T., phone home.'”

Refresh your memory of "Atomic Dog," "bow wow wow, yippie yo, yippie yea," and the "repetition of the word 'dog" in a low tone of voice at regular intervals and the sound of rhythmic panting" below.

November 13, 2009 | Permalink | Comments (0)

Twitter 'Number of Followers' Debate Rages On

Twitterfollowme As I wrote back in August, the number of Twitter followers one has continues to be an extremely misleading metric. This week, Mark Britton, CEO of Avvo, advanced that idea further, writing on the Legal Technology blog that it was time for him to "let the cat out of the bag" and debunk the notion "that the number of Twitter followers one has is positively, if not perfectly, correlated to the amount of influence someone has in the marketplace."

Britton states flat-out that "the number of one's Twitter followers has nothing to do with his or her influence." He explains, as I discussed in August, that with very little effort anyone can pick up tens of thousands of followers simply by following tens of thousands of people themselves. Britton says that, in fact, the "true Twitter litmus test on the influence front" is as follows:

Look at the ratio of the number of people someone is "following" vs. their "followers" (i.e., divide their "following" number by their "follower" number). The closer that ratio is to 0 (e.g., 125 "following" divided by 40,000 "followers"), the more influential that person is. And, conversely, the closer that ratio is to 1 (e.g., 34,956 "following" divided by 40,000 "followers"), and especially if it exceeds 1 (e.g., 42,566 "following" divided by 40,000 "followers"), the *less* influential that person probably is. Rather than being a thought leader, maven or ninja, they are regular people just like you and me -- they just work harder at spamming Twitter for followers than you or me.

Today, Scott Greenfield added to this discussion on his Simple Justice blog, pointing out that big follower numbers continue to impress many Twitter users who lack "a clear understanding that followers on Twitter are too often named 'Britney' or [are] themselves only interested in gathering as many followers as possible in their simplistic quest at marketing hegemony." In a comment to Greenfield's post, attorney Mark Bennett disagreed with Britton's ratio-based index, arguing that it does not properly measure influence. Bennett writes that:

A person who follows nobody but is followed by his mother would score a perfect Zero.

Britton's index measures boringness. The more people you follow divided by those who follow you is your Twitter Boring Index. The inverse is your Twitter Interesting Index. The most interesting people might have very little influence.

Bennett adds that "to measure influence, we would need to somehow account for the number of followers who are actually paying attention. I haven't quite figured out yet how to do that." In my original post on this in August, I suggested a count of "Interested Followers," defined as the total number of followers who have ever responded in any way (i.e., via a "re-tweet" or an "@" message) to something the user has posted.

Twitter, are you listening?

November 13, 2009 | Permalink | Comments (4)

Plenty of Fantasy Players on This Bench

I thought we had completely maxed out on the Supreme Court geekiness with the baseball cards and then the oral arguments available on iTunes, but no... not even close. Today, I present you with the new gold standard in Supreme Court geekery: ", the Premier Supreme Court Fantasy League."

Theten is the brainchild of Josh Blackman, who admits to being an "unashamedly big Supreme Court nerd." At the beginning of the October 2009 term, he writes, "a friend asked me to predict the outcome of several Supreme Court cases. After making my predictions, I thought it would be cool if Vegas took bets on Supreme Court cases like they do on sporting events. And then I wondered, why not a Supreme Court Fantasy League? was born." He adds, "I know there are more people out there like me."

In this fantasy league, participants compete against friends, colleagues and adversaries to determine who has the greatest ability to predict the outcome of Supreme Court cases. At the end of the term, the winner "will receive the venerable title of the Chief Justice of Fantasy SCOTUS," not to mention the "Golden Gavel Trophy."

So put down your Justice Roberts trading card, take off your headphones playing Bush v. Gore, and make us all proud by bringing home the Golden Gavel Trophy.

November 13, 2009 | Permalink | Comments (0)

November 12, 2009

Has Judicial Immunity Lost its Appeal?

The doctrine of judicial immunity shields judges from lawsuits that target their actions on the bench. But when a judge's conduct is particularly egregious and perhaps even violates someone's civil rights, should the shield come down?

In a piece published today in the Wall Street Journal, Ashby Jones, lead writer for the WSJ's Law Blog, considers this question. It is actively under consideration in Pennsylvania, where two judges of the Court of Common Pleas were accused of routing juveniles to detention centers in exchange for millions of dollars in kickbacks. (For more background on the story, see complete coverage of the affair from The Legal Intelligencer.) 

In civil suits filed against the judges, lawyers are seeking to recover monetary damages on behalf of the children and their families, alleging that the judges violated their civil rights. The judges countered with motions to dismiss the lawsuits, arguing that they are protected by the doctrine of judicial immunity. Their motions are pending.

"Legal experts say the plaintiffs face an uphill battle in piercing the immunity shield," Jones writes. "Dating to 1872, the U.S. Supreme Court has repeatedly supported the notion that judges should express their legal convictions without having to worry about personal consequences."

As a matter of policy, it makes sense to immunize judges in all their judicial functions, even when a judge acts with malicious intent, University of Pittsburgh law professor Arthur Hellman tells Jones. "On one level, it seems outrageous to ban someone from suing a corrupt judge," he says. "But if you allow plaintiffs to pierce the immunity by alleging bad motive, it opens the floodgates."

November 12, 2009 | Permalink | Comments (5)

U.K. Law Firms Face Their 'Greatest Turmoil'

It is hard to know just what the take-away should be from the PricewaterhouseCoopers 2009 survey of U.K. law firms. For the Times Online, the headline from the survey is that the economic downturn has not kept London's leading law firms from producing hundreds of millionaires among their partners. For, the headline is that profit at the U.K.'s 100 highest-grossing firms fell an average of 30 percent. For the Birmingham Post, the headline is that lawyers in that city are likely to face a continuing period of job losses and potential mergers.

Whatever you take away from reading this survey, you are unlikely to quibble with the conclusion of PWC partner Alistair Rose, who said, "This year has seen the greatest turmoil in the law firm sector since our survey began in 1991." But amidst that turmoil, the survey makes clear, there were winners as well as losers.

The winners were the U.K.'s top 10 grossing firms. Yes, they averaged a 21 percent drop in profits per partner. But even so, average profits per partner at the top 10 were £872,000, almost twice the average profits of £444,000 at the 11th- to 25th-ranked firms. In U.S. dollars, that means that partners at the top firms averaged profits of $1.4 million. In a global economic downturn, that's the breadline I want to be in.

Harder hit were the firms ranked 11 to 25, "with the result that there is now a much reduced difference in terms of profitability amongst the Top 11-25 firms and the Top 26-50 firms." These are the firms, PWC says, that have "been operating in the most competitive and depressed markets, e.g., transactions, property and UK corporate."

Back up at the top of the law-firm pack, the survey goes so far as to say, "We see clear daylight emerging." These firms, PWC predicts, will continue to do "significantly better than the chasing pack." The reason these top 10 firms stand on firmer economic ground is not that they are finding significant new sources of revenue growth. To the contrary, the survey found that business confidence remains weak among the managing partners at these firms.

Instead, the top 10 firms shored up their footing in two ways. For one, they focused early in the downturn on reducing their costs and restructuring their operations. "A relatively small number of firms rightly predicted the likely extent and severity of the economic recession and began to reduce headcount and take out cost early in the second half of FY09." Secondarily, the did a better job of penetrating existing markets, from which they continue to draw new business.

Looking to the future, the survey repeats the prediction that is now commonly heard throughout the legal industry, on whichever side of the pond you practice, that the structural changes firms have made are here to stay. "Fierce competition has made firms think hard about how to become distinctive in the eye of the client," says PWC's Alistair Rose. "Client relationship and engagement management, sustainability and innovative delivery models are all moving fast up the agenda as a result." If what Rose says is true, then those who stand to gain the most from these changes are clients. 

November 12, 2009 | Permalink | Comments (0)

Lawyer's Breath, The Perfect Holiday Gift


It is not too early to start your holiday shopping and what better gift for that special lawyer or judge than a bottle of Lawyer's Breath hot sauce or a jar of Hot Lawyer's Nuts. These and other legally themed delectables are available for purchase online through Judicial Flavors, a company started by Auburn, Calif., solo lawyer Wendell Peters.

Peters is a criminal lawyer engaged in the pursuit of hot. He sells a complete line of hot sauces with names such as Contempt of Court, Juvenile Justice, Last Will & Testament, Under the Influence and his extreme hot sauce So Sue Me. There is also his Shyster Sauce barbecue sauce, Whole Truth pasta sauce, and a variety of salad dressings, fruit sauces, glazes, jellies, rubs and other products.

A 1985 graduate of McGeorge School of Law, Peters credits his home state of Texas and a childhood spent helping his mother with pickling chores as the inspirations for his recipes. But it was not until he was well into his legal career that he came up with his hot sauce. His Web site explains:

It wasn’t until he was "messing around in the kitchen making all kinds of sauces" that Wendell happened upon the idea to focus on hot sauce. After a few years of testing out his concoctions on fellow lawyers, Wendell went home to Texas to compete in the first international Chile Expo. In his first competition in 1997 he walked off triumphantly with a "Best of Show" award for his sauces.

His recipes have since gone on to win 60 awards and honors. Lawyer's Breath was his first hot sauce and bears the distinction of having been served in the luxury suites at the 1998 Super Bowl. The label on the Lawyer's Breath bottle promises it will "bring out the orator in you" but that "your breath will not reek of broken promises and hidden clauses."

You can order a bottle of Lawyer's Breath for $6.99 or get the Trial in Session gift pack of three different sauces for $19.95. Where else can you get a lawyer's hot and spicy output for so cheap?

November 12, 2009 | Permalink | Comments (1)

Baseball Season Over? Not in Divorce Court

One World Series ended last week but another is just getting started. Yes, the New York Yankees triumphed over the Philadelphia Phillies. But in the Family Division of the Superior Court in Los Angeles, what may prove to be the World Series of divorce cases is only in its opening innings. And one diehard baseball fan and self-described law nerd has launched a blog to help us keep score.

The divorce at issue is that of Frank and Jamie McCourt. Frank is the owner of the Los Angeles Dodgers, which he bought in 2004 for $430 million. Jamie is a lawyer who was chief executive officer of the Dodgers until Frank fired her last month. A few days later, on Oct. 27, Jamie filed for divorce. The next day, Oct. 28, Joshua Fisher launched his blog, Dodger Divorce.

The divorce, after 30 years of marriage, is already proving to be ugly, with Frank accusing Jamie of having had an affair with her driver and of having performed poorly as CEO. For Dodgers fans, however, the central issue in the divorce is proving to be ownership of the team. Frank says he is sole owner while Jamie contends she is a co-owner.

As Dodger Divorce (and any number of news accounts) describes, the ownership issue could be decided by a post-nuptial agreement signed by the McCourts shortly after the purchase of the Dodgers. The agreement is described as having given Jamie control over the couple's residential properties and personal assets and Frank control over the Dodgers and other business assets.

In an interview published yesterday in the Los Angeles Times, Jamie insisted she had no idea what she was signing when she agreed to the pre-nup. "I met Frank when I was 17, dated him for eight years and was married to him almost 30 years," she said. "I trusted the man."

But Frank's court filings say it was Jamie, "an experienced businesswoman and attorney who actually specialized in the practice of family law for many years," who was the driving force behind the post-nup. "When Frank McCourt acquired the Dodgers in February 2004, the organization was losing tens of millions of dollars every year. Jamie McCourt repeatedly told Frank McCourt and their attorneys that she wanted to protect herself from the financial risks associated with her husband's businesses -- most particularly, the risks associated with ownership of the Dodgers."

Another court filing by Frank provides more details about Jamie's legal career. After graduating from the University of Maryland School of Law in 1978, she first practiced international and securities law in New York. She then moved to Boston, where she concentrated in real estate and family law for many years. She then obtained a master's degree from the Sloan School of Business at MIT and joined Frank's construction company as vice president and general counsel.

As the unofficial umpire of this dispute, Dodger Divorce calls the ownership issue for Frank. "If Frank wins on the post-nup, he probably keeps the Dodgers," Fisher writes. "If Jamie wins, we'll have to wait to see if one has enough money to buy out the other. Based on the very limited information I have in front of me, I like Frank's chances more today than I did yesterday."

November 12, 2009 | Permalink | Comments (1)

November 11, 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'm a patent lawyer. My white-collar defense colleagues have cool movies and TV shows about their practice areas. Is there anything out there for me and my patent buddies?

Answer: Of course not. Oh, wait. How about a play? (BlawgIT)

2) Question: I'm going through a divorce. Any advice?

Answer: Change your BlackBerry password ASAP and DO NOT use your new girlfriend's name as the new password. (National Law Journal)

3) Question: I'm a law partner with a big book of business looking to make a lateral move. I haven't found the right fit yet -- any suggestions?

Answer: Have you tried Craigslist? (Legal Pad)

November 11, 2009 | Permalink | Comments (0)

Motorist Reports Drunk Driver to 9-1-1: Herself

Bizarre calls to the "9-1-1 emergency" line are the stuff of legend. There is the woman who called 9-1-1 (audio available here) because she thought the police officer who had just visited her house on a complaint was a "cutie pie" and she wanted him to come back (he did come back and arrested her for misusing 9-1-1).

There is the woman who called (audio available here) because she believed she was locked inside her car when the electrical system failed. The dispatcher suggested "pulling up the lock," which promptly ended the emergency.

But what about the Oct. 24, 2009 call made by Wisconsin's Mary Strey? Strey used her cell phone to call 9-1-1 and report that "Somebody's really drunk driving down Granton Road." The dispatcher then sought more information on her location:

Dispatcher: Are they going toward Granton or going toward Neillsville?
Strey: Towards Granton.
Dispatcher: OK, are you behind them, or?
Strey: No, I am them.
Dispatcher: You am them?
Strey: Yes, I am them.
Dispatcher: OK, so you want to call in and report that you’re driving drunk?
Strey: Yes.

The New York Daily News reports that Strey told the dispatcher she called because, "I don't want to hurt anybody. I'm drunk." The dispatcher convinced her to pull over, and she later told officers she'd had seven or eight brandy and Cokes at several bars.

Strey's call joins the 9-1-1 call Hall of Fame, but her call may well have saved someone's life, as well as her own.

November 11, 2009 | Permalink | Comments (0)

Could You Confuse These Rubber Shoes With a Sports Car?

"The question of 'likelihood of confusion' is the signal test to determine if a trademark infringement claim is valid." So says the introduction to the excellent Likelihood of Confusion blog. Using that test, then, I ask you: Would you be likely to confuse a $30 pair of rubber shoes with a $50,000 sports car?

Porschecroc That "likelihood" appears to be the fear of writes in this post that in a recent Form 10-Q filed with the SEC, Colorado-based shoe manufacturer Crocs disclosed that it is being sued over its use of the name "Cayman." The SEC filing states:

"On May 11, 2009, Crocs Europe B.V. received a letter from Dr. Ing. H.c.F. Porsche AG (”Porsche”) claiming that the Company's use of the “Cayman” shoe model designator infringes upon their Community Trademark Registration of the mark “CAYMAN” in class 25. Porsche is requesting that Crocs Europe B.V. immediately cease and desist use of the Cayman mark and pay Porsche's attorney's fees in conjunction with the issuance of the notice letter. On July 30, 2009 the Company was served with notice of an injunction against Crocs Europe BV's use of the Cayman mark in Germany."

Crocs says it plans to “vigorously defend” itself against the claims.

Others in the blogosphere have been quick to point out that in addition to the remote possibility of confusion here, the word "Cayman" is commonly used in many other contexts. Thus, a certain species of alligator and residents of a British overseas colony may need to contact their lawyers.

November 11, 2009 | Permalink | Comments (7)

Appellate Oral Arguments Available for Free on 'iTunes U'

You've already ordered your U.S. Supreme Court baseball cards. Now it's time for all of you appellate law geeks aficionados to take the next step and get yourself some good oral arguments on iTunes to listen to while you work out.

Itunesu The Tex Parte Blog reports here that St. Mary's University School of Law will now be making recordings of Texas Supreme Court oral arguments available, for free, on iTunes U, Apple's online repository of free educational content and lectures, presentations, videos and podcasts from all over the world. For three years now, St. Mary's and the Texas Supreme Court have partnered to provide the court's oral arguments through live webcasts, but these arguments will now also be featured on iTunes U.

A quick look at iTunes U shows that the Texas oral arguments are not the only ones available on the site. In fact, dozens -- if not hundreds -- of U.S. Supreme Court argument are also available, for free, through the Oyez Project. Here, for instance, is the iTunes U link to oral argument in the landmark case of Bush v. Gore. Listen to that one a few times on the treadmill and see if the justices' controversial ruling becomes any clearer.

November 11, 2009 | Permalink | Comments (1)

November 10, 2009

Why Do Catholics Get All the Blame for Clergy Abuse?

At his blog Tillers on Evidence and Inference, author and law professor Peter Tillers wonders why the clergy sex-abuse scandals of recent years have focused on Roman Catholic priests. "I thought to myself that Protestant clergy (for example) surely also occasionally succumb to sexual temptation and engage in wrongful sexual conduct," he writes.

Tillers put the question to a reporter at The Boston Globe who helped break the story about sexual abuse by priests. " The reporter replied "that there is a consensus that child sexual abuse by Protestant clergy is not a problem." Tillers does not buy this. "I think it is very unlikely that wrongful sexual conduct by members of the clergy in Protestant churches is less common than wrongful sexual conduct by Roman Catholic clergy," he says.

In his post this week, Tillers ponders why media outlets seem to have focused on sexual abuse cases involving Catholics to the exclusion of clergy in other religions. He does not have an answer, but he offers some possibilities:

  • Simple ignorance that non-Catholic clergy "do it too." If that is the explanation, says Tiller, "I am inclined to view such ignorance as willful."
  • Homophobia fueled by the perception that homosexual sexual abuse of minors is not as common outside the Catholic church.
  • Anti-Catholic bias on the part of media outlets such as the Globe and the New York Times.
  • An agenda driven by plaintiffs lawyers whose lawsuits almost exclusively targeted Catholic clergy and the Roman Catholic Church.

This last point may be the most plausible but it begs the question, Why did the lawyers target the Catholic Church? Tillers' answer: "The hierarchical structure of the Roman Catholic Church made it possible -- after some tinkering was done with immunity rules pertaining to non-profits -- to bring actions for damages against entities with relatively deep pockets."

And now that these lawyers have emptied those deep Roman Catholic pockets, Tillers writes, "we can expect to see -- and I think we are seeing -- an increasing number of sex abuse lawsuits against Protestant clergy and churches, Jewish clergy and organizations, other religious organizations and their clergy ... and -- eventually -- educators (regardless of religious persuasion) and those who employ educators."

November 10, 2009 | Permalink | Comments (9)

More Perspectives on the 'Connecticut Five'

As I noted here last week, Connecticut's attorney grievance committee begins its hearings Thursday into the cases of five attorneys accused of violating state ethics rules by participating in the Web site As I wrote then, my former Legal Blog Watch colleague Carolyn Elefant, writing at her blog MyShingle, wondered why so many in the legal community were letting the so-called Connecticut Five be "hung out to dry." I also quoted Josh King, general counsel at, who argued at the Avvo Blog that lawyers should be allowed to market themselves however they see fit, "in the absence of consumer harm."

But not everyone sees Total Attorneys -- the parent company of -- as benign. As I noted in my earlier post, one who does not is Connecticut lawyer Zenas Zelotes. It was his complaint that spawned the Connecticut hearings and he has filed versions of it against more than 500 lawyers in 47 states. He alleges that these lawyers are acting unlawfully by obtaining referrals through and sharing fees with Total Attorneys. "This is about upholding the integrity of our profession," he said in a comment he posted here.

Another who does not is Scott Greenfield. At Simple Justice, Greenfield asserts that businesses such as Total Attorneys "are a cancer in the legal profession, and one that happily infects far too many lawyers who are desperate for business." He characterizes the dispute as a war within the profession, one in which the Connecticut Five are merely scapegoats for a bigger problem. "On one side is a tidal wave of newly established lawyer marketing businesses, deluging us with the promise of clients, money and success. On the other is the stodgy old world of hard work, competence and dignity."

That point of view is shared by Mark Bennett of the blog Defending People. In a post titled, Disbar the Connecticut 5, he argues that the lawyers' arrangement with Total Attorneys was fee sharing, plain and simple, and that they should not have been surprised to find themselves the subject of a disciplinary action.

We don’t get a free bite at the apple every time the next shiny place to advertise comes around just because it’s not explicitly forbidden; it’s our responsibility as lawyers to know whether their advertising passes muster or not, and to avoid advertising that might violate the rules. Being dazzled by “Web 2.0″ bullshit is not, and should not be, a defense to a claim of unethical conduct by a lawyer.

In a subsequent post, In Favor of Lawyer Exceptionalism, Bennett takes issue with Josh King's "No blood, no foul" argument with regard to consumers and King's statement that lawyer advertising rules are a vestigial "attempt at lawyer exceptionalism." Responds Bennett:

I am in favor of lawyer exceptionalism not because lawyers should be treated with special respect, but because lawyers should treat people with special respect. In our “21st-Century media landscape” lawyers need to be reminded that they are exceptional, that they have a sacred trust, and that lawyer advertising should be not merely undeceptive, but beyond reproach.

Meanwhile, Carolyn Elefant updates her hung-out-to-dry comment with a follow-up post noting that the Connecticut lawyers "haven't completely been hung out to dry." Turns out that Total Attorneys is paying the legal costs of its attorney customers. She also appends a lengthy reply to Bennett, in which she says that she strongly disagrees "with punishing lawyers with a disciplinary proceeding where the law is not clear and the bars offer limited options for attaining certainty."

If this is a civil war within the legal profession, I've been accused of siding with both camps. The truth is, I am uncertain about where I stand. I absolutely agree that lawyers -- as Bennett put it -- have a sacred trust and that our advertising must be not just transparent, but crystal clear. At the same time, I have not taken the time to evaluate Total Attorneys in sufficient depth to offer an opinion about its model. I worry that the mechanisms of many find-a-lawyer sites are not in the least bit transparent to consumers and I have seen some that are downright deceptive.

At the same time, there is a shortage of tools available to consumers to help them find and evaluate appropriate lawyers. Based just on the number of calls I receive from consumers all over the country who are having difficulty finding a lawyer, I believe the profession is not doing enough to help them. It only makes sense that the Web should be the vehicle that would help them. The question remains what that vehicle should look like.

November 10, 2009 | Permalink | Comments (15)

Daughters' Film Documents Controversial Lawyer-Dad

The New York Times once called William Kunstler, "The most hated and most loved lawyer in America." In the 1960s and '70s, he was at the forefront of the civil rights movement and radical politics. Kunstler defended the Freedom Riders in Mississippi in 1961, the Chicago Seven after the 1968 Democratic National Convention, American Indian Movement leaders Russell Means and Dennis Banks after Wounded Knee in 1973, and Attica Prison inmate John Hill in 1974, accused of killing a guard during the riot there.

DTU_PosterBut in his later career, Kunstler -- who died in 1995 -- became "more visible, more venerated, more vilified than ever," as David Margolick wrote in the New York Times in 1993. He represented an Islamic fundamentalist charged with murdering a rabbi, a terrorist accused of bombing the World Trade Center, a teenager charged with participating in a near-fatal gang rape, and members of the Gambino organized crime family.

For two of his daughters, Emily and Sarah, born when Kunstler was almost 60, their father was somewhat of a paradox, they now say. Where once in their eyes, "he was a hero from legend, who stood at the center of everything important that had ever happened," by the time of his death, the then teenagers thought he had "stopped standing for anything worth fighting for."

Sarah went on to become a criminal defense lawyer in New York and Emily studied film at New York University. Together, they formed a documentary film company, Off Center Media, and produced a number of short documentaries. Now, the two sisters have produced and directed a documentary about their famous and controversial father, "William Kunstler: Disturbing the Universe."

"This powerful film not only recounts the historic causes that Kunstler fought for," says a synopsis, "it also reveals a man that even his own daughters did not always understand, a man who risked public outrage and the safety of his family so that justice could serve all."

The film has its theatrical release Friday at the Cinema Village in New York and the Kendall Square Cinema in Boston. It opens the following week in Los Angeles, San Francisco, Berkeley, Washington, D.C., and Seattle, and then in other cities in November and December. The film has already won several awards, including the L’Oreal Women of Worth Vision Award at the 2009 Sundance Film Festival. View the film's trailer here.

November 10, 2009 | Permalink | Comments (2)

Forget Retirement, Court Tells Prominent Lawyer

If you divorce, don't expect to retire. That, in so many words, was the message delivered yesterday by Massachusetts' highest court to a prominent Boston and Washington, D.C., lawyer and former judge.

Rudolph_PierceThe lawyer, Rudolph F. Pierce, sought to eliminate his annual alimony payment of $110,000 after he turned 65 and retired from his law firm, Goulston & Storrs (where he remains of counsel). Because he had retired completely from the practice of law and was without earned income, he argued, his alimony obligation to his former wife should be terminated.

But in a decision issued yesterday, Pierce v. Pierce, the Supreme Judicial Court ruled that a former spouse's voluntary retirement at or beyond the age of 65 does not create a rebuttable presumption that alimony should be terminated.

"We conclude that the statutes and interpretative case law governing the determination of the amount of alimony do not reasonably permit such a presumption. Instead, we hold that voluntary retirement at a customary age is simply one factor, albeit an important one, to be considered by the judge in deciding whether to modify the alimony obligation set forth in a divorce judgment."

Pierce is well known in Massachusetts, where he was a U.S. magistrate-judge from 1976 to 1979, a state Superior Court judge from 1979 to 1985, and a former president of the Boston Bar Association. At the time of his divorce in 1999, he was earning $450,000 a year as a partner at Goulston & Storrs. In a separation agreement with his former wife Carneice, he agreed to pay alimony of $110,000 a year until either spouse's death or Carneice's remarriage. She never remarried, but he did and moved with his new wife in 2004 to Washington.

Following his divorce, Pierce's income remained between $500,000 and $570,000 until 2007, when it dropped to $300,000. When he retired in 2008, his salary was $225,000. By retiring and converting to "of counsel" status, he gave up any fixed compensation but was paid $250 an hour for any case work he did. By the time his request for modification of alimony came before a family court judge, Pierce's annual income was just $34,000, of which $24,000 came from Social Security. But he had assets of $1.3 million against which he could draw.

The family court judge ruled that it was appropriate to reduce Pierce's annual alimony payment from $110,000 to $42,000, but not to end it entirely. The SJC agreed and affirmed the lower court's decision. "We agree that, generally, a supporting spouse's wish to retire at a customary retirement age will justify a reduction of the alimony award ... ," the court said. "We decline, however, to create the rebuttable presumption proposed by Rudolph."

November 10, 2009 | Permalink | Comments (8)

November 09, 2009

Monday's Three Burning Legal Questions

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

Benson-hedges2 1) Question: My wife wants to name our new baby twins "Benson" and "Hedges." I prefer the names "Fish" and "Chips," or perhaps, if we don't want to be so cutesy, we could go with "Number 16 Bus Shelter" and "Sex Fruit." Any advice?

Answer: Please tell me you live in New Zealand. (Legal Juice)

2) Question: For insurance purposes, can you tell me if it is possible for a bullet shot from a hunter's rifle over a mile away from me to fly through the partially rolled-down window of my car while I'm driving 40 miles per hour and hit me in the cheek?

Answer: It is a one-in-a-billion chance, but it does happen. Heads-up. (Houston Chronicle)

3) Question: I'm accused of an attempted drive-by shooting. Long story short, I forgot to roll down my window before I started firing, and the bullet predictably (in hindsight) shattered my car window. I later went to an auto glass shop and filed an insurance claim, which led to my arrest. Is this covered by my policy?

Answer: Sorry, no. (Jonathan Turley)

November 9, 2009 | Permalink | Comments (0)

About Incisive Media | About | Customer Support | Privacy Policy | Terms & Conditions