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December 24, 2009
Legal Blog Watch Holiday Open Thread
'Tis the holiday season and your Legal Blog Watch scriveners are taking a few days off. We'll be back on Monday, Jan. 4th, but in the meantime, whether you need a break from year-end collections or just the in-laws, please make yourselves comfortable in the comment section of this open thread.
December 24, 2009 | Permalink
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December 23, 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 just got home and I see that someone has removed and thrown away every last possession that was in my condominium, including my clothes, my wedding dress, baby pictures, wedding photos, my dishes, my towels and my jewelry. Any ideas on what is going on here? I'm at a loss.
Answer: Sometimes realtors "trash out" the wrong home when they complete the foreclosure process. It was probably supposed to happen to your foreclosed-upon neighbor -- sorry about that! (LasVegasNow.com: Las Vegas Woman Victim of Foreclosure Mistake)
2) Question: I just got convicted of murder but I must say that I did not hear the jury get "hearkened" at the end of my trial. I get a new trial now, right?
Answer: Are you in Maryland? If you are, then you sure do. (Legal Profession Blog: New Trial For Failure To Hearken)
3) Question: I have a plan to extort money from my wife's four lovers. Maybe between $100,000 and $200,000 each? This will work, right?
Answer: Careful. If it doesn't, you're looking at 5 years in jail and the loss of your law license. (Bad Lawyer: Prison-Bound Pimp Lawyer)
December 23, 2009 | Permalink
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Legal Obsolescence: Say Goodbye to These Items in the Legal World
New York magazine had an interesting list of things that were once everyday, common items, but are now all but obsolete. Their list (via this post on Consumerist.com), and my comments, are as follows:
1. Answering machines (haven't seen one in 5 years)
2. Lickable stamps (haven't licked one in 5 years)
3. Foldable road maps (still have a couple, sorry)
4. Cathode ray tube TVs (have several littering my home)
5. Incandescent light bulbs (huh? I have many of these in my home)
6. Paying for pornography (ummmm ...)
7. Smoking in bars and restaurants (good riddance)
8. Fax machines (these relics have not gone away in the legal world, hopefully they are on their last leg)
9. Hydrox cookies (Oreos rule)
10. Cassette tapes (Ha. Those barely made it into the 90s, let alone the 00s)
11. The French franc, and every other former currency in the Euro zone (It's all about the Euros, baby)
12. Floppy disks (now used only for drink coasters and in bad movies)
13. Phone books (one just arrived in my mailbox, so too early to declare these dead)
14. Polaroid photos (way dead)
15. Bank deposit slips (still alive in my bank)
16. Subway tokens (way dead)
17. The Rolodex (I haven't had one in 5+ years but still on the desk of many 50-something lawyers, no doubt)
A more focused question for this blog might be items that were once commonplace in legal practice, but are now dead or well on the way to dying. Here are a few off the top of my head:
1. Checks: Many people under the age of 30 have never written a check in their lives, and probably never will.
2. Courier services: At some point, lawyers will stop paying people to drive pieces of paper around in cars or on bikes.
3. Desktop computers: Just a matter of time on these. I predict the legal field will be desktop-free at some point in the not-too-distant future.
4. Paper time sheets
Lawyers, please weigh in: What are some other now obsolete or soon-to-be obsolete items in the legal world?
December 23, 2009 | Permalink
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Will Facebook Destroy Your Marriage?
It turns out that one of the most significant impacts that the rapid spread of Facebook is having on society may be ... destroying marriages?
The Telegraph reports that by reconnecting old flames and enabling new ones, Facebook is tempting to people to cheat on their partners. One law firm that specializes in divorce asserts that almost one in five petitions they process cite Facebook as a reason, as spouses are finding evidence of flirting and even affairs on the site.
The 20 percent statistic may be high as it comes from a law firm that handles divorces online, but Mark Keenan, managing director of Divorce-Online, says that after hearing from his staff that Facebook was a recurring issue, he confirmed the 20 percent figure. "The most common reason seemed to be people having inappropriate sexual chats with people they were not supposed to," he says.
The article even mentions one 35-year-old woman who discovered her husband was divorcing her when he updated his Facebook status to read: "Neil Brady has ended his marriage to Emma Brady."
December 23, 2009 | Permalink
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December 22, 2009
The Decade's Top 10 DUIs
Lists have me absolutely intoxicated
today. I have already blogged about year-end top-10 lists, a decade-end
top-25 list, and forward-looking lists of legal-industry predictions.
But before I stagger off into the decade to come, my hindsight must
pass one more nystagmus-gaze test and one more backward countdown. Yes,
let us raise a toast to the Top 10 DUIs of the Decade, brought to us courtesy of the Check Points blog of TotalDUI.com.
The list confines itself to celebrities, not the least of whom is
Academy Award nominee Nick Nolte, arrested in 2002 for erratic driving
in Malibu, Calif. "Nolte was described by officers as 'drooling' and
'completely out of it,'" Check Points says, adding that he once
described himself as a "functioning drunk."
California, not surprisingly, is the venue for many of the DUI arrests
on this list. They include actor and comedian Tracy Morgan, arrested in
Hollywood in 2005; actor Mel Gibson, arrested there in 2006; actress
Lindsay Lohan, arrested in 2007 in Santa Monica; and "24" star Kiefer
Sutherland, arrested in Hollywood in 2007 on his second DUI, resulting
in mandatory jail time.
Check Points mentions a number of celebrity DUI arrests that did not
make its top-10 list, for whatever reason, such as those of actor Rip
Torn in 2006 in Connecticut, former NBA star Charles Barkley in 2008 in
Arizona, and former boxer Mike Tyson in 2006 in Arizona. There was even
one notable close call that did not result in an arrest: the warning
issued to presidential daughter Jenna Bush for underage drinking and
driving in 2001.
If nothing else, let this list serve as a caution to anyone who may be heading out to celebrate the holidays this year. Do not drink and drive under any circumstances, lest you end up on the next decade's list.
December 22, 2009 | Permalink
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Predictions 2010: Blawgers Dust Off Their Crystal Balls
"Those who cannot remember the past are condemned to repeat it," cautioned philosopher George Santayana a century ago. As the year and the decade come to a close, there is plenty of remembering going on, with legal bloggers and newspapers offering year-end lists and decade-end lists.
Meanwhile, some legal bloggers are looking ahead to 2010 and offering their predictions of what lies ahead. One such prescient professional is Mary Mack, corporate technology counsel for Fios Inc., who has compiled her 2010 predictions for the e-discovery market. Her top prediction is one that is already proving true: There will be increased adoption of early case assessment.
Some others of Mack's predictions may be more debatable -- or at least more controversial -- including that certification will start to be a prerequisite for an entry-level job in e-discovery services. The prediction I find most interesting is that cloud computing will be embraced "without concern for jurisdiction and nexus issues," with the result that there will be "surprises in taxation, intellectual property, privacy, privilege or evidence." (In a separate post, Mack grades the accuracy of her 2009 predictions.)
Speaking of cloud computing, Larry Port offers five predictions for its future as a tool for legal-practice management. Writing in Law Practice Today, Port, founding partner and chief software architect of the Web-based practice-management tool Rocket Matter, says that 2010 will bring a broader array of software-as-a-service products targeted to the legal community and therefore more choices for legal consumers.
With more products will come more functionality, even when offline, Port predicts. Those developments will drive a "mass migration" away from the desktop and into the cloud. "Even though legal SaaS adoption rates have skyrocketed in 2008 and 2009, they will continue to do so in 2010," Port writes.
Another legal prognosticator is Michael Cassidy, who shares his New Year's Predictions for Health Care at his Med Law Blog. Given the 11th-hour wranglings on Capitol Hill, Cassidy is treading on risky terrain to make predictions about health care. He wades right in, predicting that 2010 will bring an expansion in health-insurance coverage, but noting that the execution of that will be more complex than might seem.
Cassidy also predicts that taxes will increase to pay for increased coverage, providers will be paid less, and that any tort reform measures that are approved will be driven more by politics than economics.
Last but not least, JD Supra asked a number of lawyers to look ahead to 2010 and tell us what they see. The lawyers who responded come from an array of practice areas and
offer a variety of viewpoints. Most encouraging, perhaps, is this from Gerry Riskin,
founder of Edge International: "2010 is a year to conquer adversity by
increasing market share, growing margin and therefore a profit, even in
the face of falling demand."
If I have missed other legal bloggers' predictions for the year or the decade ahead, let me know in a comment below.
December 22, 2009 | Permalink
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War on Terror Topped Decade's Legal Stories, NLJ Says
The war on terror, the roller-coaster economy and corporate accounting scandals were the top three legal stories of the decade. So say the editors of The National Law Journal in picking 25 legal stories that defined the decade. While the war on terror tested the limits of the law, law firm associates went from lavishness to layoffs and courts sagged under the weight of corporate crackdowns.
As the NLJ's editors say, Who could have seen it coming?
On Jan. 1, 2000, it would have been difficult to imagine the current state of affairs. The dot-com bubble was still inflating. We were at peace. The world had even ducked the Y2K bug.
So much has changed in the past decade, in fact, that we struggled to whittle down our selections for the defining moments in law to this special issue. In the end, we settled upon 25 developments that we believe are the biggest legal stories of the decade. Consider this a scrapbook of memories — some pleasant, a few awful — of the 2000s.
Among other stories that made the NLJ's top-25 list were the
rise of social networking and e-discovery,
comings and goings at the Supreme Court, the
fat years of record revenues for biglaw, the
lean years of record layoffs,
globalization,
Bush v. Gore and the
weakening of the plaintiffs' bar. And those are just the first 10 on the list!
But there is no disputing the NLJ's pick of the war on terror as the top legal story of the decade. "From telecommunications to transportation, from immigration to interrogation, from detention to rendition, the war on terrorism strained the conventional framework of American law," writes reporter Marcia Coyle. "It triggered new statutes, the expansion of old ones and, in critics' views, transgressed others."
"The old saw 'may you live in interesting times' is often considered a curse," the NLJ's editors say. "And after a decade that encompassed so much turmoil, it's difficult to argue with that interpretation." To cite another old saw: For the legal industry, the decade was the best of times and the worst of times.
December 22, 2009 | Permalink
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The Top 'Top-10' Lists of 2009
Top-10 lists are as sure a sign of the year's end as are noisemakers and party hats. In a post here last week, I highlighted three year-in-review lists. Herewith, a round-up of others I have found. And the title of this post aside, these aren't really the "top" top-10 lists, just the ones I could find.
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The weirdest cases of 2009. The year's 10 oddest cases as selected by Times Online columnist and The Open University professor Gary Slapper.
- Top Ten Legal Ethics Stories of 2009, as selected by John Steele at Legal Ethics Forum.
- Top Cyberlaw Developments of 2009. Posted to Eric Goldman's Technology & Marketing Law Blog by guest blogger John Ottaviani, a partner at Edwards & Angell in Providence, R.I.
- Top Ten Worst Prescription Drug/Medical Device Decisions of 2009, as selected by Jim Beck at Drug and Device Law.
- 10 most frequent workplace safety violations of 2009, as determined by OSHA. Top of the list: Scaffolding violations.
- MediaBerkman's Top 11 Topics of 2009. The year's most interesting topics, as covered in the podcast of the Berkman Center for Internet & Society.
- Top 10 Employment Law Developments of 2009, posted by William W. Bowser at The Delaware Employment Law Blog.
- Top 10 Food Stories of the Year, posted to Marler Blog by food safety lawyer Bill Marler.
- Top 10 Favorite Legal Advice of 2009, at least for those seeking biblical counsel. Posted by Stephen Bloom at Is There a Lawyer in the Church?
- 10 Most Significant Insurance Coverage Decisions, by Randy J. Maniloff and Sarah Damiani of White & Williams in Philadelphia.
- The Top 10 Expert Rulings of 2009, as compiled by yours truly and published by IMS ExpertServices.
Do you know of other law-related top-10 lists I am missing here? If so, let us know in a comment below.
December 22, 2009 | Permalink
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December 21, 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 see "state birds" and "state flowers" around the country. Maryland even has a "state sport" of jousting, for crying out loud. Why don't any states have a state microbe?
Answer: Not so fast. Check out Assembly Bill 556 in Wisconsin. (Lowering the Bar: Bill Would Designate Bacterium as Wisconsin's Official State Microbe)
2) Question: I'm 7 months old. I can't talk, can't sit up by myself, and have no teeth. Is there any chance I can pass for a two-year-old somewhere?
Answer: Try Southwest Airlines, where admittedly "not all of [their] Employees are parents and some find it more difficult to determine if the child is more than or less than two years old." (Consumerist.com: Southwest: Here's $150, Forgive Us For Suspecting Your Baby Was 2)
3) Question:
I'm an Italian art student visiting London. There are so many amazing tourist sites here, so glad I brought my camera! Do you have any advice on what I should check out?
Answer: No, other than to say you might want to keep that lens cap on. Sometimes when you film the "iconic" landmarks in London they toss you in prison for being a terrorist. (The Guardian: Italian student tells of arrest while filming for fun.)
December 21, 2009 | Permalink
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LEGO-Inspired Shoemakers Will Battle It Out in Court
Paging the Likelihood of Confusion blog ...
You might think that one "horrific" dress show inspired by LEGOs would be all we need, but that's why you're in the legal field and not in the fashion industry. Turns out at least one designer -- Steve Madden -- thinks that we need at least two such shoes in this world, but another designer -- Balenciaga -- disagrees strongly.
Cityfile reports that in the Fall of 2007, Balenciaga's introduced its "Closed Front Cage Sandals With Ankle Pads," a.k.a. "LEGO Shoes." The Balenciaga LEGO Shoes cost $4,175, and supposedly "graced" the feet of entertainers such as Beyoncé. Cityfile writes that last year, however, Steve Madden introduced its own "horrific Multi-Color Bukled Heel," which looks a good bit like the Balenciaga show but costs just $99.95. Take a look at the two shoes side-by-side, via Cityfile:
Last week, Balenciaga filed a lawsuit alleging that Steve Madden "engaged in copyright infringement, trademark infringement, counterfeiting and other wrongful and tortious conduct" related to its LEGO shoes. I'm no copyright expert but I will confidently predict that these shoes will cause a lot more confusion than these rubber shoes and sportscar that are the subject of similar litigation.
December 21, 2009 | Permalink
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Virtual Relationships: How One Legal Blog Got Its Feed Back
My experience trying to rescue my own legal blog (Securities Docket) from a "hack" this weekend offers an interesting example of how virtual relationships and a virtual workforce are transforming business.
I heard from several readers going into the weekend that they were no longer receiving daily email alerts from Securities Docket and, after some investigation, I was able to confirm that the RSS feed from Securities Docket had been hacked. Somehow, a robot hacker had injected spam links to dozens of web sites into the feed, causing the feed to become invalid and to shut down. After some more investigation, I realized on Sunday that I had no idea how to possibly fix this problem on my own. Now what?
I recalled that several months ago, I had asked Michelle Leder of Footnoted.org about who assisted with web design on her hugely popular Web site about SEC filings. Note that I have never met Michelle. I "know" her through Twitter and simply by being one of many thousands of readers of her blog. But after connecting on Twitter, we eventually had a telephone conversation months ago in which we discussed common issues facing our securities-related blogs, and during which she provided me with the name of her Web designer.
On Sunday, I dug out the email address for that web designer and, based on Michelle's recommendation, shot off an email asking if the designer could possibly help me. As with Michelle, I have never met this designer and probably never will (she is in Texas, I am in the Washington, D.C., area). She promptly replied that she had some time available that afternoon. After the exchange of a couple of emails she got started on the fix and, two hours later, reported back that she had identified and solved the problem.
I was delighted -- how can I pay you for this, I asked. She gave me a PayPal link where I could pay her electronically and, two minutes later, I had successfully transferred the funds directly to her account. Every bit of these interactions took place "virtually," with the result being a win-win situation for both of us. She had received new business and already been paid in full for work that was referred to her, ultimately, through a Twitter relationship. I had received a critical service in almost real-time from a person who I have never met, but trusted because of the reference from a person I originally met through Twitter.
December 21, 2009 | Permalink
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December 18, 2009
Legal Podcasts for Your Holiday Travel
Should your holidays involve travel, what better way to while away the hours spent behind the steering wheel or sitting on airplanes than listening to the latest legal podcasts? Here are some recent shows you might want to download onto your player of choice.
Lawyer2Lawyer. Sure it may seem self-serving of me to plug a podcast I cohost, but our holiday show is worth hearing for the guests: lawyer Larry Savell talking about his new holiday album, lawyer Reid Trautz talking about his annual holiday gift guide for lawyers, and lawyer Lisa Solomon talking about her online store with products for lawyers, The Billable Hour Company.
This Week in Law. Denise Howell and guests discuss social networking surveillance, Psystar, Tiger Woods, Facebook's Mark Zuckerberg, and more.
Ethics Pitfalls for Practitioners. From the ABA Center for Continuing Legal Education comes a panel of experts discussing the five most common ways in which lawyers get in trouble. You can also download the program's written materials.
Value billing and the use of transparent pricing. Host Rodney Dowell, director of the Massachusetts Law Office Management Assistance Program, talks about value billing and using transparent pricing to become more competitive with guest Jay Shepherd, founder of the Shepherd Law Group.
Cloud Computing for Lawyers. In this latest installment of the ABA Law Practice Management Section podcast The Digital Edge, Erik Mazzone and Ben Schoor join cohosts Jim Calloway and Sharon Nelson to discuss cloud computing.
Value-based fees in the mediation and ADR world. This is the first episode of Cafe Mediate, a new podcast from Tammy Lenski in which professional mediators discuss their work. For this inaugural program, Lenski is joined by mediators Amanda Bucklow and Diane Levin.
Going mobile: The rise of the mobile platform. Co-hosts Dennis Kennedy and Tom Mighell take a look at the growing movement to go mobile and its implications for the legal profession. Their guest is Jeremy Diviney, co-founder of Bill4time.
Is Google monopolizing something, and if so, what? This podcast from The Federalist Society features a panel of lawyers and others who debate the antitrust implications of Google.
Align your agendas. With so much focus on containing costs, it can be difficult for IT leaders to successfully advocate for projects. In this latest episode of Law Technology Now, host Monica Bay welcomes Jo Haraf, former CIO of Morrison & Foerster and founder of Haraf Professional Services, to discuss how IT leaders can mesh their strategies with firm goals by creating “IT Portfolios.”
No doubt, I've neglected to mention many others. But these should be enough to keep your MP3 player humming, at least until next year.
December 18, 2009 | Permalink
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The Death Penalty Year in Review
If there is ever good news to be found in statistics tracking the death penalty, it is this: The number of death sentences imposed in 2009 was the lowest since 1976, the year the Supreme Court reinstated the death penalty with its opinion in Gregg v. Georgia.
The number of death sentences imposed during 2009 was 106, down from 111 the year before, 284 a decade ago, and a high of 328 in 1994, according to a year-end report published today by the Death Penalty Information Center, a nonprofit organization that opposes the death penalty.
The decline in death sentences was particularly apparent in Texas and Virginia, the two leading states in carrying out executions, the report said. During the 1990s, Texas averaged 34 death sentences a year and Virginia averaged six. This year, the report found that Texas had nine death sentences and Virginia just one.
If that is the good news, the bad news is that the number of executions rose this year, from 37 in 2008 to 52 in 2009. The report attributed the rise to a de facto moratorium on executions for four months in 2008 while the Supreme Court considered a case involving lethal injections. Even with the increase, the number of executions this year was 47 percent less than a decade ago.
Other positive notes in the report:
- Nine men who had been sentenced to death were exonerated and freed in 2009, the second highest number of exonerations since 1976.
- Eleven states considered legislation to repeal the death penalty -- considerably more than in previous years.
- New Mexico became the 15th state to end the death penalty with a bill signed into law in March.
Even with fewer being sentenced to death, the number of people still on death row is 3,279. That is only a slight improvement over a decade ago, when the number was 3,625.
"The annual number of death sentences in the U.S. has dropped for seven straight years and is 60 percent less than in the 1990s,” said Richard Dieter, DPIC executive director. "In the last two years, three states have abolished capital punishment and a growing number of states are asking whether it's worth keeping. This entire decade has been marked by a declining use of the death penalty." That, without doubt, is good news.
December 18, 2009 | Permalink
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Harvard Law Prof is 'Bostonian of the Year'
Elizabeth Warren, the Harvard Law School professor who has been very much in the limelight this year for chairing the Congressional Oversight Panel overseeing the TARP bailout program and for originating the idea of a federal consumer financial protection agency, has been named Bostonian of the Year by The Boston Globe.
"It seemed as if the banks and other firms got a $700 billion bonanza and the American taxpayer got the shaft," says a preview of the piece that will be published in Sunday's Boston Globe Magazine. "But along came this straight-shooting Harvard professor to oversee the bailout, someone who pledged to look out for the middle class and brought a sense of sanity to the economic crisis. For this we give her our top honors this year."
For someone born and raised in Oklahoma to be named Bostonian of the Year is quite an honor. But this is someone who has already this year been named to Time Magazine's list of the 100 most influential people in the world and who blogger Matt Taibbi has urged be drafted to run for president in 2012. "She's pushed for transparency in the Fed, is openly furious about the misuse of bailout money, and seems to take personally the chicanery that credit card companies and banks use to game the suckers out there," Taibbi argues.
At Harvard, Warren teaches contracts, commercial law and bankruptcy. But her recognition by The Boston Globe comes not for her teaching, so much, as for her role as a national counterweight to financial gluttons, as writer Charles P. Pierce explains:
There are many ways to become our Bostonian of the Year. You could be one of the nation’s preeminent bankruptcy scholars, and a tenured professor of law at Harvard University, and a talking head for Frontline specials and Michael Moore’s latest documentary, and a leading voice decrying the human cost of the current economic morass, and the chairwoman of the Congressional Oversight Panel monitoring the Troubled Assets Relief Program, the TARP that covers a multitude of financial sins. ... This can set you at odds with secretaries of the Treasury, various ambitious legislators, and laissez-faire economic fundamentalists. Elizabeth Warren has done all that, and has done as much to earn the title Bostonian of the Year as has anyone who was born and raised in Oklahoma.
In her home state of Oklahoma, Warren was a champion debater. She graduated from the University of Houston in 1970 and from Rutgers Law School in 1976, where she was an editor of the law review. Before joining Harvard's law faculty in 1992, she taught at the University of Pennsylvania, the University of Texas, the University of Houston, the University of Michigan and Rutgers.
Warren's years in Texas also helped earn her this recognition in Boston, writes Pierce, because she once did something Boston Celtics fans can appreciate -- shut up basketball fans in Philadelphia. It happened when she was attending a game in Philadelphia between the 76ers and her favorites, the Houston Rockets. Her cheering led others seated nearby to quiz her about her bona fides as a Rockets fan. Her answers so impressed one burly Sixers fan that when others became impatient with her cheering, he stood up and told them to leave her alone.
December 18, 2009 | Permalink
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Bill Would Protect Attorney-Client Privilege
A bill filed in the House of Representatives this week would bar federal investigators from pressuring businesses and their employees to waive the attorney-client privilege as a condition of avoiding indictment or other sanctions. Introduced Wednesday by U.S. Rep. Bobby Scott, D-Va., as H.R. 4326, the bill mirrors legislation filed in the Senate in February by U.S. Sen. Arlen Specter, D-Pa.(S. 445).
The bill provides that federal investigators, in both criminal and civil matters, may not "demand, request, or condition treatment on the disclosure by an organization, or person affiliated with that organization, of any communication protected by the attorney-client privilege or any attorney work product." It also blocks the federal government from using waiver of the privilege as a basis for determining whether to bring charges or whether someone is cooperating with the government.
The Justice Department already has guidelines in place that prohibit prosecutors from considering waivers of the privilege as a litmus test for cooperation, according to the blog Main Justice. But the policy does not cover other investigatory agencies, such as the Securities and Exchange Commission, the Environmental Protection Agency and the Department of Housing and Urban Development.
Ironically, the Justice Department's guidelines were written in 2008 to counter a memorandum written by Attorney General Eric Holder when he was a deputy attorney general during the Clinton administration, Main Justice says. Holder's memo authorized U.S. attorneys to consider a corporation's waiver of attorney-client privilege as a factor when assessing cooperation in a criminal investigation.
The 2008 guidelines are not binding on Justice lawyers and the preamble to Scott's bill suggests this is a continuing concern. "The Department of Justice and other agencies have increasingly employed tactics that undermine the adversarial system of justice, such as encouring organizations to waive attorney-client privilege and work product protections to avoid indictment or other sanctions," the bill says.
ABA President Carolyn B. Lamm issued a statement yesterday applauding the introduction of the bill and urging Congress to approve it. "The legislation would create a sensible, uniform standard of conduct for all federal agencies and strike the proper balance between the legitimate needs of prosecutors and regulators, and the constitutional and fundamental legal rights of individuals and organizations," Lamm said.
December 18, 2009 | Permalink
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December 17, 2009
Thursday's Three Burning Legal Questions
Here are today's three burning legal questions, along with the answers provided by the blawgosphere.
1) Question: I am the director of a theatrical version of “The Graduate” at the local nonprofit theater. We need to provide Mrs. Robinson with a lighted cigarette on stage so she can do a dramatic exhale of a puff of smoke like in the movie. Now the sheriff is telling me that this will violate the Clean Air Act, which prohibits smoking in any indoor area. He says I need to use talcum powder, or a prop cigarette with a reflective tip. What?? Is this true? I cannot work under these conditions!
Answer: Are you in Colorado? Then go get the talcum powder. (On Point News, Colorado Judge Fumes Over Ban on Theatrical Smoking)
2) Question: Can you help me find a conference dedicated solely to the subject of yawning?
Answer: No problem. (idealawg: In Paris next June: 1st International Conference on Yawning)
3) Question: I'm about to cross-examine Santa Claus. He thinks he is so pure and loved. Do you have any ideas on how I can take him down a peg or two in front of the jury?
Answer: You need to talk to Dr. Nathan Grills of Australia's Monash University. He has all of the dirt on Santa. He says Santa's "rotund sedentary image" has had the effect of making "obesity
synonymous with cheerfulness and joviality" around the world. He also writes that Santa appears to be a promoter of drunk driving, speeding, disregard for road rules and extreme sports such as roof surfing and chimney jumping. Finally, he notes that despite the risks of high speed air travel, Santa is never depicted wearing a seatbelt or helmet. (AAP: Santa promotes obesity-academic)
December 17, 2009 | Permalink
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Law Professor Says Students Aren't the Only Ones Nervous About Exams
Call me self-centered, but I can honestly say that at no time before or during any of the hundreds of exams I took in college and law school did this thought ever cross my mind:
Is my professor nervous?
Yet according to Jay Wexler, a professor at Boston University School of Law, at least some professors are just as nervous as their students during each exam. Wexler wrote yesterday on the PrawfsBlawg that his class' environmental law exam was set to start in a few minutes, and he had gone to his office early "to sit here and wait for 'the call.'" He explains that "the call" he dreads has never actually come in eight years of teaching, but would hypothetically come from the registrar during the exam telling him that:
something has gone terribly, terribly wrong on my exam. For example, I don't know, something like the plaintiff's name keeps changing and so the students can't tell who I'm talking about in the second paragraph, or maybe there's a sentence missing or a page missing or it says there are three questions but there are only two or I don't have any idea what else "the call" might be about.
Despite his eight "call-free" years, Wexler admits that he still "freaks out" during each exam hoping he doesn't get it this time around. He even has dreams, he says, about outlandish scenarios where he asks a long question about church-state law on his environmental law exam or accidentally writes one of the questions in a foreign language.
Wexler's discussion of "the call" has already sparked numerous comments from other professors about similar fears and even some examples of "calls" that actually happened in real life. One commenter writes that in his second year of teaching, his exam time coincided with a long faculty meeting. While he was sitting in the meeting, the registrar walked in, scanned the room, and pointed to "the distinguished senior person sitting next to me, who quickly scampers out of the room to deal with her exam problem. I lost a year of life from that scare, I suspect."
December 17, 2009 | Permalink
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Hate Your Sister-in-Law? Introducing the 'Divorce Gift Voucher'
This holiday season, why not give the gift that says, "I really hate your spouse?" Or perhaps, "You said you were going to leave your wife for me, so get cracking on that."
Yes, you too can join the 54 other people who have already purchased divorce gift vouchers from U.K. law firm Lloyd Platt & Company. The vouchers entitle the bearer to a half-hour or hour-long couples advice session with a divorce lawyer. The vouchers start at £125 (click on the image to see a full-size version).
Proving that American divorce lawyers aren't the only ones willing to skate the line between savvy and tacky marketing tricks, the Telegraph has a report on the offer, quoting senior partner Vanessa Lloyd Platt: “The vouchers seem to appeal to an enormously widespread spectrum of people
looking for that 'must have' gift for Christmas.” She said purchasers have included husbands, wives, mistresses, and people
using them to suggest to friends and family members that they should get a
divorce.
Ms. Lloyd Platt says that the advice touches upon "all the practical options available to them -- divorce being only one of the options.”
December 17, 2009 | Permalink
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Carolyn Elefant Reflects on Seven Years of 'My Shingle'
Last week, former Legal Blog Watch-er Carolyn Elefant announced that her My Shingle blog had turned seven years old, well beyond the average lifespan of even the most popular blogs. My Shingle, in Carolyn's words, seeks to "bring solo and small firm lawyers to the forefront of the profession, rather than leaving them at the margins."
Carolyn recalls that when she launched My Shingle in 2002, there were less than 100 blogs in existence. Today there are probably more than 100 blogs dedicated to "Twilight" alone, and millions of blogs overall.
I spoke with Carolyn about her seven years of blogging and the many things she has learned along the way. We also discussed the new wave of social media tools, and the extent to which she use and finds value in things like Twitter, LinkedIn and Facebook. A video of our interview is below.
December 17, 2009 | Permalink
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December 16, 2009
Year-End Lists: Legal Hellholes and Devilish Lawyers
It is that most wonderful time of year, when we make our lists and check them twice -- not holiday lists but those perennial best-of and worst-of year-enders. We have three for you today.
First up, the American Tort Reform Association's annual ranking of Judicial Hellholes, its picks of the most unfair jurisdictions in which to be sued. Its top pick this year is South Florida, "known for its medical malpractice claims, never-ending tobacco lawsuits and generous verdicts." West Virginia, its top pick last year and in 2006, moved to second place. ATRA describes it as a place where local plaintiffs have a "home court advantage provided by locally elected judges." The four other jurisdictions making the list are Cook County, Ill., Atlantic County, N.J., New Mexico's appellate courts, and New York City.
From legal hellholes, we go to devilish lawyers. The Avvo Blog yesterday published its picks of the Top Lawyers Behaving Badly of 2009. Topping its list is Brian Schroeder, the fresh-from-Harvard lawyer who got drunk on Halloween and burned down a New York City chapel that housed the remains of unidentified 9/11 victims, causing his imminent employer, Sidley Austin, to rescind its job offer. Another of Avvo's picks is Orly Taitz, the lawyer, dentist and real estate broker whose leading role in a "birther" movement lawsuit prompted a federal judge to call her filing "delusional" and slap her with a $20,000 fine.
Last but not least, we have The Year's 10 Most Infamous Lawyers as brought to us by The Business Insider. Among the notorious lawyers making this list is Paul Bergrin, the New Jersey criminal defense lawyer and former prosecutor indicted on charges he had one witness killed and hired a hit man to kill another, explaining, "No witness, no case." Others who made the cut include former Illinois governor Rod Blagojevich, powerhouse-lawyer turned powerhouse-defendant Marc Dreier, Florida lawyer and accused Ponzi-schemer Scott Rothstein, and misbehaving federal judges Samuel Kent of Texas and Thomas Porteus Jr. of Louisiana.
December 16, 2009 | Permalink
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Public Officials Sue for Right to Be Secret
I make no bones about my ferocity in support of open government. I believe religiously in the time-honored words spoken in 1933 by Supreme Court Justice Louis D. Brandeis, "Sunlight is the greatest disinfectant." I write about open meetings and public records issues at my Media Law blog and lobby around them on behalf of my state's newspaper association.
Thus, it should surprise no one that I consider it outrageous that a coalition of Texas municipalities and elected officials have filed a federal lawsuit claiming they have a First Amendment right to conduct the public's business in secret. The lawsuit, filed Monday in federal court in Pecos, by four Texas cities and 15 elected officials, alleges that the Texas Open Meetings Act violates officials' free speech rights by preventing them from speaking in private on issues facing the public.
No, I'm not making this up. And, in fairness, neither are the plaintiffs. Instead, blame it on the 5th U.S. Circuit Court of Appeals. Last April, a three-judge panel reinstated a lawsuit filed by city council members in Alpine, Texas, challenging the open meetings law on First Amendment grounds. In July, the 5th Circuit agreed to rehear the case en banc. But then, in September, the circuit court dismissed the case as moot, leaving the question unresolved.
"We're here to reaffirm the First Amendment," said Dick DeGuerin, the Houston lawyer who represents the plaintiffs in this latest lawsuit. "It chills the ability of an elected official to speak out for fear of prosecution." But courts have consistently interpreted the First Amendment to swing the other way, as Jerry Strickland, a spokesman for Texas Attorney General Greg Abbott, pointed out. "Open-meeting laws have been upheld under the First Amendment by every court in the country that has ever considered the issue," he said.
The officials who filed this lawsuit are in need of a civics lesson, says an editorial in the Austin American-Statesman:
We elect people to enact laws and ordinances. They do so, using our money to enforce those laws and ordinances and to pay for necessary infrastructure.
And that, friends, kind of sums up how our democracy works. It's as clever as it is simple. Undergirding it all is the notion that we, the electors, have an inalienable right to watch as they, the elected, make our laws and spend our money.
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, put it best when she said of the lawsuit: "If you don't like the notion of conducting the public's business in public, you shouldn't run for office." Even Judge Roy Bean, the notorious 19th-century Texan who dispensed both law and whiskey from his saloon-turned-courtroom, might have considered this to be the most misguided case west of the Pecos.
December 16, 2009 | Permalink
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10th Circuit Chief Henry Steps Down
The chief judge of the 10th U.S. Circuit Court of Appeals, Robert H. Henry, is stepping down, swapping his tenured position on the federal bench for a university presidency and tenured professorship. Henry will leave the court June
30 to become president and CEO of Oklahoma City University, where he will also be a tenured professor of law and political science.
For Henry, this will be a return to OCU, a Methodist-affiliated
university with a student body of 3,700 undergraduate and graduate
students. He was dean of the OCU law school from 1993 to 1994, the year
President Clinton nominated him to the 10th Circuit. He became chief
judge in 2008. He also has a personal tie to the school: His son is a
theater major there.
Henry, 56, has a long record of public service in Oklahoma. He was the
state's attorney general from 1987 to 1992 and was a member of the
state House of Representatives from 1976 to 1986. He is a 1976 graduate
of the University of Oklahoma College of Law. In 2008, he was inducted
into the Oklahoma Hall of Fame.
"The opportunity to return to Oklahoma City University as its president
and CEO is an exciting challenge that my wife, Jan, and I
wholeheartedly embrace," Henry said in a statement posted to the court's Web site. "The future of Oklahoma City is bright and OCU is an important part of that future."
In a video interview with The Oklahoman (below), Henry said he looks forward to leaving the "monastery" of the federal bench and returning to greater participation in civic, political and academic affairs. OCU's selected him after conducting a national search, an OCU news release said.
December 16, 2009 | Permalink
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Nacchio Gets Two Strikes at Supreme Court
Remember Joseph Nacchio, the former CEO of Qwest Communications International who was convicted on federal insider-trading charges in 2007 and is currently serving a six-year sentence in a federal prison? As the Supreme Court wrapped up its term last spring, it signaled an interest in his petition for certiorari by issuing an order requesting the entire record from his earlier trials and appeals.
That end-of-term order gave Nacchio reason to hope that the court would hear his case when it reconvened in the fall. But any hope the court gave Nacchio it has since dashed twice over, denying his petition for certiorari and then denying his request to rehear the petition. The court considered Nacchio's petition at its conference on Sept. 29 and issued an order denying it on Oct. 5, according to the court's docket. He filed a request for rehearing on Oct. 30, which the court denied in an order issued Nov. 30.
But two strikes from the Supreme Court do not add up to an out for Nacchio. In July, the 10th U.S. Circuit Court of Appeals issued a ruling that the U.S. District Court in Denver miscalculated his sentence under the U.S. Sentencing Guidelines by overstating his financial gain from insider trading. The circuit court reversed Nacchio's sentence and sent the case back to the trial court for resentencing. That has yet to occur.
Nacchio had appealed his conviction on several grounds, including that the evidence was insufficient to convict him and that the trial judge had improperly excluded the testimony of an expert. In March 2008, a divided three-judge panel of the 10th Circuit sided with Nacchio, holding that the expert's exclusion was improper. But on review by the full bench, the 10th Circuit held that the judge properly performed his gatekeeping function and it affirmed Nacchio's conviction.
The sentence imposed on Nacchio by former U.S. District Judge Edward Nottingham also fined him $19 million and ordered him to forfeit $52 million. He began serving a six-year sentence at the federal prison in Minersville, Pa., last April.
December 16, 2009 | Permalink
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December 15, 2009
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 was teasing my brother that he hasn't been on a date in years. He says he just went out with a woman. I told him paid escorts don't count! Who is right?
Answer: Are you in New Jersey? If so, then your brother is right. (New Jersey Law Journal: A Paid Escort Is a 'Date' Under Domestic Violence Act, N.J. Court Rules)
2) Question: So I just got my 13-year-old son's Verizon bill for last month. The boy downloaded 1.4 million kilobytes of data. Is that a lot? Do you think Verizon might cut me a break on the $22,000 monthly charge?
Answer: It's a whole lot. Verizon may be willing to work with you here. (The Consumerist: Teen Runs Up $22,000 Verizon Bill)
3) Question: I'm a police officer. This guy won't let us interview him. Just to clarify, is it OK if I put him in a squad car all day long with the heater cranked and the radio on full blast?
Answer: Not at all OK, and it may cost your city $200,000. (AP: Albuquerque man awarded $200K in civil rights case) (via Bad Lawyer)
December 15, 2009 | Permalink
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Conn. AG Shuts Down Madoff Jewelry Sale, 'Scam Within a Scam'
Connecticut's Attorney General says he has saved potential purchasers of jewelry, who presumably only wanted the items because they supposedly belonged to Ruth and Bernie Madoff, from buying inauthentic Madoff jewelry.
The AG, Richard Blumenthal, announced last week that he had jumped into action to cause an auction company advertising Madoff goods to cancel two auctions. "These so-called Madoff auctions are going, going -- gone," Blumenthal said, claiming that the planned auctions were "unlicensed" and featured "unverified items supposedly related to Bernard Madoff and his Ponzi scam." Blumenthal called the sale of the unverified jewelry a "possible scam inspired by scam."
While the auction advertisements emphasized the sale of "personal items belonging to Ruth & Bernie Madoff acquired from the U.S. Marshal Service," Blumenthal said the company had acknowledged that the auctioneer had no information on hand as to which items were previously owned by the Madoffs and which were not.
Philip Eliasoph, a professor of art history at Fairfield University who complained to Blumenthal's office about the scheduled auctions, agreed that the auction appeared to be "a scam within a scam." The Connecticut Post quotes Eliasoph as saying, "The whole pretense is, it's coming out of Uncle Bernie's Montauk mansion." People are so stupid," he adds. "This one in particular is egregious because they're playing on the whole pretense of the Madoff fraud. It's a fraud encrypted in a fraud."
December 15, 2009 | Permalink
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New Insurance Lets You Tiger-Proof Your Advertising Campaign
The squeaky-clean world-class athlete to whom your company has tied its marketing star turns out to be anything but. There he is, being skewered mercilessly in the tabloids and elsewhere for his infidelities, his assault charges, shooting himself in the leg, being a sex addict, deriding his team's fans on Twitter, gambling, drug dealing -- you name it. Now what? Is your company just out of luck and left holding the bag? Not any more!
As reported here on Cityfile, insurance brokerage firm DeWitt Stern announced yesterday that it will offer companies a new "reputation risk insurance" policy beginning in the first quarter of 2010. No other insurance product of its kind has ever been available, DeWitt Stern claims. The company explains that "the Tiger Woods scandal shows how quickly reputations can become
tarnished in today's fast-paced media environment. All the
planning in the world cannot protect a brand manager against the
unforeseen. Reputation Risk Insurance will provide those
forward-looking brand managers and advertisers with a smart and
attractive way to protect their investments."
An RRI policy will compensate policy holders for both the cost of crisis remediation
and actual loss of revenue following public relations crises. Specifically, it will compensate policy holders for:
- Lost sales
- Crisis management fees
- Lost advertising campaign expenses
- Pre-committed and incurred endorsement fees
So fear not, advertisers. Even if you have to scrap your multi-million dollar campaign, you may be covered.
December 15, 2009 | Permalink
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The Legal Blog Watch 5-Point Checklist for Bank Robbers
I've been Legal Blog Watch-ing here for less than three months, but I feel that on one narrow topic -- bank robbery -- I have already gotten a thorough enough education from the blawgosphere to offer some specific pointers.
Here are five important points for bank robbers to keep in mind:
- Punctuality: This one is really quite simple. If you arrive at the bank after it is closed and the doors are locked, your plan will be foiled. You need to get yourself a decent watch and arrive at the bank during banking hours, not at 5:36 p.m.
- Oral hygeine: Often overlooked amongst inexperienced robbers, but important. If your breath is so bad that it becomes part of the description the tellers give to the police, you are doing it wrong. Get yourself a good toothbrush and a bottle of Listerine to eliminate this risk.
- Obvious patterns: There are lots of banks in the world and even in your home town. There is no need to have a "go-to" bank for robberies. If you find yourself robbing the same bank so many times that the tellers recognize you when you come in and say, "It's him again," you need to get yourself a Yellow Pages and a navigation system for your getaway car and branch out.
- Penmanship: Ask yourself this question, robbers: If your hold-up note is written so sloppily that the teller cannot read it, forcing you to then go re-write the darn thing more legibly on a bank deposit slip during the robbery, is it really serving its intended purpose? Hardly. Give yourself sufficient time before the robbery itself to write a legible hold-up note or have an accomplice with better handwriting write it for you.
- Acknowledge your physical limitations: Let's face it, not all wannabe bank robbers are spring chickens. But that doesn't have to stop you. If you are 70 or 80 years old and cannot rob a bank without bringing along your oxygen tank, then doggone it, you bring that oxygen tank. There are no style points awarded here, and it will not help you to run out of breath as you flee walk from the scene.
December 15, 2009 | Permalink
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December 14, 2009
Another DWI Chair, Another eBay Auction
What once seemed an isolated criminal incident is fast becoming a national epidemic that threatens the safety of our streets and the moral fiber of our society. I am referring, of course, to the growing problem of drunken men driving modified, motorized chairs -- and of those who try to profit from this criminality by selling those chairs on eBay.
First it was Dennis LeRoy Anderson and his motorized easy chair. In August 2008, the 62-year-old Anderson got in the chair to drive home from a local bar in Proctor, Minn., and quickly crashed into a parked car. When police arrived on the scene, they found his blood alcohol level to be 0.29, more than three times the legal limit of 0.08, and arrested him for driving an easy chair while intoxicated.
Recently, Anderson pleaded guilty to the DUI charge, as we reported here in October. The judge ordered him to forfeit the chair to the Proctor police department, which promptly listed the chair for sale on eBay. But just as the bidding surpassed the stellar amount of $40,000, the auction was called off. Seems lawyers for La-Z-Boy objected to the description of the easy chair as theirs when it was not. Proctor police relisted the chair on eBay without the brand name, where it sold for the far lower price of $11,000.
We do not know whether Anderson's notorious crime was the inspiration for Kile Wygle, 28, to try something similar. Last March, police in Newark, Ohio, arrested Wygle for driving a motorized bar stool while intoxicated. According to the Newark police report, when they responded to Wygle's 911 call and asked him what happened, he answered, "I wrecked my bar stool." He went on to explain that he had wrecked it down the street from his home. When an officer asked if the stool really ran, he said, "Yes, it will go around 38 miles per hour." However, he quickly added, he was going just 20 mph at the time of the crash.
Soon, Wygle's motorized barstool fell to the same fate as Anderson's motorized easy chair -- it was taken by the local police and put up for auction on eBay. This auction might have seemed even more promising, given that Wygle's arrest had been widely reported and had even inspired country music singer Bryan Lewis to write "The Barstool Song." Plus, the proceeds of the auction would go to a good cause -- paying some of the $37,000 in overdue child support Wygle owed.
Unfortunately, the bar stool brought in just $1,125. Not bad for a bar stool, but far less than the $11,000 the easy chair earned. Maybe this signals an end to this epidemic of drunken chair driving.
December 14, 2009 | Permalink
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Elsewhere in the Blawgosphere ...
Here is some of what's going on here and there in the blawgosphere:
- A prominent Minneapolis lawyer who is also treasurer of the Minnesota State Bar Association, Aaron F. Biber, has been arrested on charges of criminal sexual misconduct, according to MinnLawyer Blog.
- Results are in for the 2009 Law Technology News technology awards. Monica Bay opens the envelope at The Common Scold.
- Today's Boston Globe weighs in on the file-sharing case in federal court there with an editorial calling it a travesty. Last week, we wrote about the case here and here.
- The British law firm Schillings does not want anyone to think there are any compromising photos out there showing Tiger Woods' -- ummm -- 1 wood, but just to err on the side of caution, it obtained an injunction against showing them.
December 14, 2009 | Permalink
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Mass. Eases Rules on Public Comment by Judges
The public distrusts the courts. Don't just take my word for it. That was the conclusion of a major conference a decade ago convened by the American Bar Association, the National Center for State Courts, and others. A key contributor to this distrust, the conference concluded, is media misunderstanding of the courts. Media understanding and public understanding go hand-in-hand.
The media's misunderstanding of the courts, in turn, is fueled by the lack of communication between judges and journalists. Judges fear journalists and journalists fear judges. As retired Massachusetts Superior Court Judge Hiller Zobel once said about judges' fear of speaking to reporters, "The attitude of some judges is like that of [former Ohio State football] coach Woody Hayes, who said about the forward pass that three things can happen, and two of them are bad."
If Zobel is right, then one of those bad things is that a judge who speaks to a journalist may end up overstepping an ethical boundary that limits the ability of judges to comment on cases publicly. Cognizant of this concern, the Massachusetts Supreme Judicial Court appointed an ad hoc committee two years ago to study whether the state should ease its limits on judicial speech. After that committee recommended a loosening of the rule to give judges more leeway to explain themselves through supplemental opinions, the SJC took the recommendations under advisement.
Last week, the SJC concluded its deliberations and announced that it had approved a new judicial conduct rule that slightly eases restrictions on state court judges' ability to explain their decisions to the public. Although the SJC did not adopt the more liberal rule changes recommended by the committee, it nevertheless clarified that judges may issue supplemental memoranda to explain their decisions without violating judicial ethics.
The changes to Section 3B(9) of the Code of Judicial Conduct, which take effect Jan. 1, 2010, also allow judges to make public comment about issues relating to the judge's conduct, as opposed to substantive legal rulings, and to discuss pending appellate cases in educational settings.
Official commentary to the revised rule says that "restrictions on judicial speech are essential to the maintenance of the independence, impartiality, and integrity of the judiciary." The revised rule adds a new appendix that provides guidance for judges on when and under what circumstances they might issue explanatory memoranda.
"We encourage judges to explain the basis for their decisions on the record at the time the decisions are made, including decisions concerning bail and sentencing," the appendix says. When a judge decides at some point after issuing a ruling to write an explanatory memorandum, the judge should carefully consider four factors:
- The importance of avoiding or alleviating the parties' or the public's misunderstanding or confusion by supplementing the record to reflect in more detail the reasons in support of the judge’s earlier decision.
- The amount of time that has elapsed since the order was issued and the extent to which the judge's reasons for the decision remain fresh in his or her mind.
- The risk that an explanatory memorandum may unfairly affect the rights of a party or appellate review of the underlying order.
- The danger that the issuance of an explanatory memorandum would suggest that judicial decisions are influenced by public opinion or criticism voiced by third parties, and would not promote confidence in the courts and in the independence and impartiality of judges.
In no case, said the SJC, should a judge issue an explanatory memorandum "solely to respond to public criticism of the decision." While not all that the ad hoc committee hoped for, the new rule is at least a small step toward closing the information gap between the public and the courts.
December 14, 2009 | Permalink
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Another State Opines on Judges and Facebook
Last week, Legal Profession Blog reported on a Nov. 17 opinion of the Florida Judicial Ethics Advisory Committee concluding that judges may not "friend" lawyers who may appear before them on social networking sites such as Facebook. Now, Legal Profession Blog finds another ethics opinion on judges' use of Facebook, this one from South Carolina.
The South Carolina opinion, issued in October, concerns a narrower issue than did the one from Florida. It addressed friending by judges, but not of lawyers who may appear before the judges. Instead, it addressed the question of whether a judge may friend law enforcement officers and employees who work in the judge's office.
The South Carolina Advisory Committee on Standards of Judicial Conduct concluded that a judge may be a member of Facebook and may friend law enforcement officers and employees as long as they do not discuss anything related to the judge's official position.
"Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives," the opinion said. "Allowing a Magistrate to be a member of a social networking site allows the community to see how the judge communicates and gives the community a better understanding of the judge. Thus, a judge may be a member of a social networking site such as Facebook."
The South Carolina opinion is not inconsistent with the Florida opinion. Both recognize that a judge may ethically be a member of Facebook and other social networking sites. Florida's opinion even echoes the earlier S.C. one when it says, "Judges cannot isolate themselves from the real world and cannot be expected to avoid all friendships outside of their judicial responsibilities."
The key difference between the two opinions is in who a judge may friend without calling into question the judge's impartiality and integrity. A judge who friends courtroom employees provides no cause for concern, South Carolina says, but a judge who friends courtroom advocates does, Florida finds.
December 14, 2009 | Permalink
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December 11, 2009
Friday's Three Burning Legal Questions
Here are today's three burning legal questions, along with the answers provided by the blawgosphere.
1) Question: My neighbor is trying to get me put in jail for laughing at his daughter. First of all, it wasn't a laugh, it was a smile, so I don't know what he's complaining about. But is this a real crime?
Answer: It could be if you are under a court order forbidding you from "laughing at anyone." (Times Online: Don't laugh at my daughter)
2) Question: I think this legal argument is a bit of a stretch, but I I'll give it a shot. I mean, what's the worst thing that the judge can do here?
Answer: The court could decide to reject the motion on the grounds that it “is so incredibly asinine, ill-conceived, unfounded and personally and professionally insulting that it is unworthy of any discussion or consideration.” (The Briefcase: A Goal for Aspiring Lawyers)
3) Question: We have a large cow on our farm. When we squeeze its udder, milk comes out. Can we sell this stuff?
Answer: Sure, if you want to go to jail. (Nobody's Business: Udderly Mad)
December 11, 2009 | Permalink
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Judge Kressel Puts an End to Legalese in His Court
Attention all lawyers who practice before United States Bankruptcy Judge Robert Kressel, D. Minn.: He has just about had it with your crappy "legalese" and he has a 19-point plan to get you writing like a real person again.
In this post, The Lawyerist alerts us to the new "guidelines" issued this week by Judge Kressel. As the Lawyerist observes, "it is a catalog of and prohibition against every bad legal writing practice. And it makes sense, since he eventually has to sign those badly-drafted orders."
Here are some of the legal writing crimes that you won't be committing any longer in his court, as stated in his guidelines:
- Guideline No. 6 -- Capitalization: Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.
- Guideline No. 7 -- Use of articles: Lawyers apparently disfavor articles, both definite and indefinite. Use the articles “the,” “a,” and “an” as appropriate. Write the way you would speak. So, “the debtor,” not “debtor,” “the trustee,” not “trustee.”
- Guideline No. 8 -- And/Or: Never use “and/or.”
- Guideline No. 9 -- Superfluous Words and Phrases: Eliminate superfluous words. They serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish. Examples of such words are: “hereby,” “herein,” “in and for,” “subject,” “that certain,” “now,” “that,” “undersigned,” “immediately,” “heretofore entered in this case,” “be, and hereby is” -- the list goes on and on.
- Guideline No. 12 -- Undersigned: Never use the word “undersigned.”
This is just a taste. Here is the full list of things you won't be doing any longer in Judge Kressel's court.
December 11, 2009 | Permalink
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The Guide to Live-Blogging and Tweeting From Court
These days, anyone with a phone and a Twitter account has all the tools they need to provide real-time coverage of court proceedings. The courts are now coming to grips with this reality, and are slowly issuing guidance and rules to govern those who might wish to "live-blog" or tweet from court. In fact, some courts have banned the practice altogether. As I wrote here, a federal court in Georgia ruled last month in United States v. Shelnutt (M.D. Ga. Nov. 2), that Rule 53 of the
Federal Rules of Criminal Procedure prohibits “tweeting” from the
courtroom.
The many interpretations and standing orders that are now emerging from courts around the country on this subject have created a confusing situation for would-be court tweeters, but yesterday things became a lot clearer thanks to the Citizen Media Law Project. On its blog, the CMLP announced yesterday that it has created and will now be maintaining a guide to live-blogging and tweeting from court. This new guide provides step-by-step guidelines to help people "avoid legal trouble if you intend to provide live coverage of court proceedings through Twitter, live-blogging or other social media tools." CMLP's suggestions include checking the appropriate court's local rules and standing orders, contacting the court's public information officer, or even contacting the court or its staff directly.
In addition, CMLP has compiled a growing list of courts and judges that are known to have previously allowed live-blogging in their courtrooms.
December 11, 2009 | Permalink
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Apology Acts Make 'I'm Sorry' a Key Dispute Resolution Tool
You've done something wrong and you want to apologize. That's the right thing to do, right? That's what mom said. But in the eyes of the law, an apology can sometimes be an admission that leads to liability and damages. That dilemma has led to the creation of so-called "Apology Acts" in some jurisdictions.
As discussed in this post on the Slaw.ca blog, Ontario enacted an "Apology Act" on April 23, which "allows the communication of expressions of sorrow or regret without worrying that the comments can later be used adversely in a civil court." Ontario was the fourth Canadian jurisdiction to enact apology legislation, following British Columbia, Saskatchewan and Manitoba. Slaw.ca reports that more than 30 states in the U.S. have similar legislation in place.
According to a recent LawPRO article analyzing the Ontario law, proponents from the health-care field originally championed the cause. For years, health-care professionals avoided apologizing to patients for mistakes for fear that their apology would be considered an admission of guilt in any future civil proceedings. But over time many of these professionals began to feel that apologizing would help "initiate the healing process" and promote open communication and accountability, which led to a push for the legislation.
Specifically, under the Act an apology made by or on behalf of a person:
- does not constitute an admission of fault or liability by the person;
- does not affect any insurance coverage or indemnity available despite any wording to the contrary in the contract of insurance or an act or law;
- shall not be taken into account in determining fault or liability in the matter; and
- is not admissible in any civil proceeding, administrative proceeding or arbitration as evidence of fault or liability in the matter.
The Act does carve out some limited circumstances under which an apology can be admissible. These include an apology given while testifying at a civil proceeding or while testifying at an administrative proceeding or arbitration.
Yvonne Diedrick, claims counsel at LawPRO and author of the article on the Ontario law, suggests that lawyers handling matters subject to Apology Acts should consider apologizing as a tool for dispute resolution that could shorten or perhaps avoid litigation altogether. "Take a chance and don’t be afraid to start practising those key words: I’m sorry.'"
December 11, 2009 | Permalink
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December 10, 2009
Controversial Lawyer Pens Playbook for IP Trials
Intellectual property plaintiffs lawyer Raymond P. Niro, co-founder of the Chicago firm Niro, Scavone, Haller & Niro, had already achieved notoriety enough when he became even more controversial for offering a bounty of $5,000 to unmask an anonymous blogger. Niro didn't like that the anonymous author of the now-defunct Troll Tracker blog repeatedly criticized his lawsuits and called him a "patent troll," a term originally coined in reference to Niro by another lawyer years earlier. Niro's ploy worked. Within months, Rick Frenkel, then a lawyer at Cisco, unmasked himself, saying his hand was forced.
But Niro's notoriety has not stood in the way of his success in the courtroom. He won a $57 million verdict in a trade secret case against a snowmobile manufacturer, a $48 million verdict in a patent and trade secret case against an ink manufacturer, a $20 million verdict in a patent infringement case involving a data-relay system and a $16 million verdict in a trade secret case against a sausage manufacturer, to name just some of his wins.
Now Niro says he is offering tips from his own courtroom playbook in his self-published book, " GO FOR IT! Cross-Examination to Closing: How to Win an Intellectual Property Trial Before a Jury." It covers 18 of his cases, including the ones mentioned above, combining Niro's commentary and insights with actual testimony and arguments from courtroom transcripts. An announcement describes the book this way:
Going beyond pedantic discussions of intellectual property law and full court transcripts, GO FOR IT! takes readers into the heart of each trial to the critical moments that could make or break the case. Niro shows readers what others can’t: how to conduct a seamless cross examination and then tie the pieces of a complex case together while drawing on emotion in the closing argument, achieving multi-million dollar verdicts not by chance but by deliberate strategy and skill.
While I don't expect Rick Frenkel to buy a copy, I believe I will. It is available from Authorhouse.com in hard-cover, paperback and e-book versions, priced at $24.99, $14.99 and $4.95.
December 10, 2009 | Permalink
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File-Sharing Lawyer Says Judge Screwed Up
No sooner did U.S. District Judge Nancy Gertner issue her opinion this week blasting Harvard Law Prof. Charles Nesson for his "truly chaotic" defense in the file-sharing lawsuit against Joel Tenenbaum than Nesson struck back. In an interview with Computerworld, Nesson brushed aside the judge's criticisms and said it was she who got it wrong and that he will seek a new trial.
"Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web," Gertner wrote in her opinion. Even though she did everything in her power to permit Nesson to make his best case for a fair-use defense, she said, he "would have none of it," instead using "a version of fair use so broad that it would swallow the copyright protections that Congress created."
But in the judge's criticisms of him and rulings on fair use, Nesson sees grounds for a new trial, he tells Computerworld:
Nesson said he will also use Gertner's refusal to permit the fair-use defense in the case and other "major evidentiary errors" as a basis for seeking a new trial. One example of such an error was the judge's refusal to allow the jury to see the entire contents of a letter Tenenbaum had written to the RIAA offering it $500 by way of a settlement, Nesson said. Her refusal resulted in the jury walking away with a false impression of Tenenbaum's commitment to settling the case, Nesson claimed.
He said he will also argue that the copyright statutes used in the case were not meant to be used against individuals, but against commercial enterprises that break copyright laws. "We will be asserting the unconstitutionality of applying these bankrupting damages to individual persons like Joel," Nesson said.
"How successful such arguments are likely to be remains to be seen," notes Computerworld writer Jaikumar Vijayan. One unabashed skeptic is Mike Masnick at Techdirt. "It's a shame that Nesson still can't admit that he screwed this up entirely -- despite being told that by plenty of folks who are very sympathetic to his position," Masnick writes. "At some point, one hopes that Tenenbaum himself will realize this and drop Nesson and find someone who can actually represent his interests."
A hearing is scheduled for Jan. 4 on Nesson's motions for a new trial and challenging the constitutionality of the $675,000 damages award.
December 10, 2009 | Permalink
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Witch's Spell Bilks Lawyer out of $100K
There are good witches and there are bad witches. That much we know from "The Wizard of Oz." If the criminal charges against Vishwantee Persaud hold up, she was a witch who was both good and bad -- good at what she did but bad in her intent.
Police in Toronto allege that Persaud posed as a witch to defraud veteran criminal defense lawyer Noel Daley out of more than $100,000. She allegedly convinced Daley that she came from a long line of witches and was the embodiment of the spirit of his deceased sister, who had come back to help him in his business.
Her story cast a spell on Daley. Over the course of several months, police say, he gave the woman thousands of dollars for a variety of expenses, including tuition for law school courses in which she never enrolled and premium office space in the heart of Toronto's financial district.
Police charged Persaud under a century-old chapter of the Canadian Criminal Code that makes it a crime to pretend to exercise witchcraft, sorcery, fortune telling or conjuration for fraudulent purposes. Archaic though the law sounds, it has been used to bring charges against 38 people in Ontario in just the last decade.
Lawyer Daley was a year away from retiring when he met Persaud in January, he told the Law Times. She convinced him she was in her third year of studies at Osgoode Hall Law School and that she was considering focusing in criminal law. Within a month, he took her under his wing, set her up with space and began paying her a modest salary.
"In my career, in a couple of months, I’ll be 28 years at this. I’ve encountered every type of confidence man," Daley told the Law Times. "I've seen the good, the bad, and the ugly. She was the epitome of the skills that make up a good confidence man."
December 10, 2009 | Permalink
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Illinois Clears Total Attorneys of Ethics Charges
The Illinois Attorney Registration and Disciplinary Commission yesterday notified Chicago-based Total Attorneys that its investigation of the company found no ethics violations. Connecticut lawyer Zenas Zelotes filed a a complaint last spring against the company's president, Chicago attorney Kevin Chern, alleging that the company's legal marketing program violated state ethical rules.
As we've noted here before, Zelotes has filed versions of his 303-page complaint against more than 500 lawyers in 47 states. He alleges that these lawyers are obtaining referrals through and sharing fees with Total Attorneys in violation of legal ethics rules. In Zelotes' home state of Connecticut, the state's chief disciplinary counsel found cause in the complaint to file charges against five attorneys there. The state's attorney grievance committee opened hearings last month on the charges.
But Illinois' decision to dismiss the complaint makes it the fourth state to find in favor of Total Attorneys, according to information provided by the company. Hawaii and Alaska already determined that there was no basis for action on the complaints, while a North Carolina panel dismissed a complaint against Chern for the alleged unauthorized practice of law. No state has ruled against Total Attorneys or any of its attorney clients.
The company and the charges against it continue to provoke debate within the legal community. A number of lawyers, including my former Legal Blog Watch colleague Carolyn Elefant, defend the company's marketing program as good for consumers and for attorneys. Others, such as Scott Greenfield at Simple Justice, assert that businesses such as Total Attorneys "are a cancer in the legal profession."
As for Total Attorneys, company president Chern called the decision a victory for both small firm lawyers and consumers. "The Total Attorneys model makes Internet marketing affordable and time-efficient for small law firms and solo practitioners and improves consumer access to legal information and services," he said.
In an e-mail to me, Total Attorneys founder and CEO Edmund Scanlan said the Illinois decision has particular significance because Chern is licensed to practice there and Chicago is the company's headquarters. "We are very encouraged by the consistency of the early decisions on this issue," Scanlan said. "We continue to expect that when the remaining complaints are laid to rest, our business model will be fully vindicated and legal professionals will at last have clear guidelines regarding the ethical use of Internet marketing tools."
December 10, 2009 | Permalink
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December 09, 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 am man in my 50s. There's a six-year-old coming at me on a Big Wheel. Damn kids! Can I consider this Big Wheel a "weapon" permitting me to use a little "self defense?"
Answer: You cannot. (AP: Confrontation with kids lands man in court)
2) Question: My wife is a kung fu master with a bad temper. Is there any kind of marital contract that might limit my beatings to maybe just once per week?
Answer: Why, yes! (FP Legal Post: Husband allows wife to beat him: but only once a week)
3) Question: I just spotted some police cruisers illegally parked blocking handicapped spots. It's okay for me to take a few photos of this, right?
Answer: Yes. But there may be some resulting "embarrassment, humiliation, annoyance and inconvenience." (Bad Lawyer: Taking Pictures of Illegally Parked State Trooper Cruisers, That'll Get You Searched)
December 9, 2009 | Permalink
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Starbucks Barista Gets Her Tips Stolen, and a Reprimand
What's a poor barista to do when some jerk grabs all of the bills out of the tip jar and takes off? Via this post on The Consumerist blog we learn that at Starbucks, at least, chasing down the thief and flagging down police to arrest the man is the wrong answer.
The Austin American-Statesman reports that Starbucks barista Laura Palawski saw a man stuff his hand into the tip jar, pull out all the bills, and run from the shop. She ran after him, which led to a shoving match, but Palawski was determined that "He can't just take
our money. That's our grocery money, our gas money; we need that
money." She pursued him through the streets of Austin, Texas, and finally flagged down a police officer who responded to her call and arrested
the thief.
Palawski's reward? She says she was promptly "written up and reprimanded for her actions" by Starbucks. A Starbucks representative reportedly did not explain the reprimand other than to say that the "safety of our customers and partners (employees) is our
highest priority. For their security we do not discuss Starbucks
internal protocol. We trust that our store partners will act
appropriately under the circumstances to protect themselves."
I won't go so far as to root for things like this to happen at Best Buy, but if it had we could have at least gotten a thorough analysis and discussion of why a reprimand was necessary on the Kathleen Edmond blog.
December 9, 2009 | Permalink
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Supreme Court Engages in 'Talmudic Parsing' of Miranda Rights
It is somewhat hard to believe that 43 years after Miranda v. Arizona, the requirements for providing suspects with their legal rights could still be murky. Indeed, by now, grade-school kids can probably recite most of the now-famous "You have the right to remain silent. Anything you say or do can and will be held against you in a court of law..." speech.
But the Supreme Court appears to consider the requirements for effective Miranda warnings unclear, and it heard oral argument on Monday in Florida v. Powell. According to the case, the police read Powell his Miranda rights straight from a standardized form they use:
You have the right to remain silent. If you give up this right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.
Powell, however, argued that these warnings failed to advise him of one crucial thing: his right to have a lawyer with him throughout the entire time that any questioning was being done by law enforcement officers, not just “before answering questions.” As discussed in this post on The Briefcase blog, the Florida Supreme Court agreed with Powell, holding that the right to have an attorney present existed “at any time you want during” questioning. This right, however, was not stated on the standardized form used in the Florida jurisdiction in question, one of only a handful in Florida that failed to include it. The Briefcase writes that Monday's oral argument before the Supreme Court "resulted in a parsing of the Miranda decision on a scale usually observed in rabbinical debates about the Talmud."
The SCOTUSblog also has a detailed account of the argument. The Florida attorney general's office reportedly argued that its Supreme Court had improperly used a “hypertechnical analysis of the warning’s language.” The Solicitor General's office joined with Florida, arguing that no
particular form of warnings was constitutionally required. SCOTUSblog says that Justice Stephen G. Breyer seemed to disagree, however, reciting from the Miranda decision that the lawyer must be “with him during interrogation.” Opting for a Catholic metaphor, Justice Scalia likened Powell's argument to debates over the number of "angels dancing on the head of a pin.” Scalia stated that it was “quite fantastic” for Powell to argue that "if I knew that I could have an attorney present during the interview, well, that would have been a different kettle of fish and I would never have confessed."
You can read a transcript of the entire oral argument in Florida v. Powell here
December 9, 2009 | Permalink
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The 'Real-Time Web' Is Upon Us
In October, I wrote here that the "real-time Web" was almost upon us. As defined by patent attorney Brett Trout in this post on his BlawgIT blog, the real-time Web incorporates tools such as Twitter to enable lawyers (and the rest of the world) to obtain instantaneous access to information about
something that just happened, or about something that is constantly
changing.
Trout explained in October how he had jerry-rigged his Internet
browser to integrate real-time Web information by installing the Greasemonkey plug-in and the AutoPagerize script
in Firefox. As a result, he said, when he performed searches with Google it also
automatically pulled up the five most recent "tweets" that contained the
search terms.
That MacGyver-like method probably helped the two or three of you out there who were able to duplicate Trout's efforts, but wasn't much help to the rest of us. As Kevin O'Keefe explains today on Real Lawyers Have Blogs, however, that has now changed forever.
O'Keefe notes in a post today that "Real time search came to Google yesterday. Twitter results are now streamed into the top of search results pages so that you can see what people are saying about the subject searched in real time." O'Keefe says that this is potentially quite useful to attorneys:
Imagine being able to get lawyers' and business peoples' reactions to cases, news, and legal stories in real time. Doing so you may be able to find the people with the most knowledge on the subject. Want to get real time information on items being discussed at a conference and who's discussing them? Turn to real time search at Twitter.
O'Keefe adds several screen shots explaining how to easily get Twitter search results to display on Google, as well as the helpful video below on the subject. So try out the real-time Web on Google and see if it helps you obtain useful information.
December 9, 2009 | Permalink
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December 08, 2009
Elsewhere in the Blawgosphere
As the world goes to hell in a handbasket, the blawgosphere is abuzz with a debate over whether big firm blogs are boring. Blame it on the ABA Journal's Blawg 100, which listed but two blogs from Am Law 100 firms. Not surprising, opines big-firm blogger Mark Herrmann, because big-firm blogs lack voice and are boring. No they're not, responds Kevin O'Keefe, who happens to be in the business of selling blogs to big firms. Yes they are, counters Scott H. Greenfield, adding that it's a good thing, because it weans out the weak blogs and allows the strong to thrive. Yes they are, agrees Carolyn Elefant, because big firm blogs lack palpable passion. My $.02: Let us not judge a blog by the size of its audience or the number of its awards, but by the value it provides its readers, however esoteric its topic.
Speaking of the ABA Journal's Blawg 100, one of many bright lights on the list is The Legal Satyricon, the irreverent blog of irreverent and successful First Amendment lawyer Marc Randazza. Now a resident of San Diego, Randazza is a native of Gloucester, Mass., the town that neighbors my home, where I have had the good fortune to meet him over coffee. The next best thing to talking to him live is this Bitter Lawyer interview with the man who says, "I'd rather drive a stake through my balls than work in BigLaw."
In a sign of the times, Westlaw publisher Thomson Reuters is laying off 240 employees from its legal division, including 120 from the longtime headquarters of West in Eagan, Minn. Notably, the announcement of the layoffs came just one day after the company named a new editorial director for the division, Stephen J. Adler, the former editor of Business Week and The American Lawyer.
December 8, 2009 | Permalink
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Firms, Clients Differ on Legal Industry's Forecast
A survey of private-practice lawyers, corporate counsel and law students found widely divergent views on the state of the legal industry and the future of the law firm business model. Released Thursday during a panel discussion in New York City on the future of the law firm business model, the LexisNexis-commissioned survey (executive summary) found that 71 percent of corporate counsel say that law firms are not doing enough to respond to the current financial pressures on their business model. By contrast, 77 percent of private-practice lawyers believe that their clients are too focused on reducing costs, at the expense of quality and long-term results.
Described as the first substantial survey of the legal industry since the beginning of the economic crisis, the survey polled 300 law firm lawyers, 150 in-house counsel and 100 law students. Their responses suggest perspectives on the crisis differ significantly based upon one's vantage point. Nearly half of in-house counsel, for example, say they have requested rate cuts from their outside firms. Yet just 18 percent of private-practice lawyers say their firms have implemented such cuts.
Only 38 percent of in-house counsel believe that law firms are hearing their plight and responding by cutting fees and costs. Maybe as a result, 69 percent of corporate counsel have shifted work in-house and 56 percent have reduced their spending on outside firms. Yet the firms report that they have taken steps to respond to the economic crisis: 43 percent have had layoffs, 41 percent have offered clients alternative fee arrangements, 33 percent have frozen their hiring, 29 percent have deferred start dates and 26 percent have reduced salaries.
From where they sit, law students are understandably worried about what they see. Sixty-five percent of law students (and 90 percent of lawyers) say law school does not teach them the practical business skills they need to practice law in today's economy. More than a third say they do not feel adequately prepared by law school to succeed in the marketplace. Given the changes in the market, a fifth of all law students now say they regret going to law school in the first place.
Surprisingly, one point on which private attorneys and corporate counsel largely agree is long-term change. Only 53 percent of corporate counsel and 52 percent of law firm lawyers believe the recession will result in permanent changes to the way the legal industry does business. A majority of lawyers, this would suggest, continue to go about their business wearing blinders.
December 8, 2009 | Permalink
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Defining the Law Firm of the Future
What will the law firm of the future look like? That was the question for a panel of general counsel, law firm partners and industry observers at a panel in New York City Thursday night. If there was consensus among them on any point -- and I'm not sure there was -- it was this: The firm that will thrive in the future is the firm that is able to deliver better value through innovation and technology.
The panel was hosted by LexisNexis to highlight its release of a survey on the state of the legal industry, which I recap in a separate post. D.M. Levine of The American Lawyer has already provided his report on the panel. It was moderated by Darryl Cross, vice president of client profitability at LexisNexis, and included:
- Richard N. Baer, EVP, general counsel and CAO, Qwest
- Martin F. Cunniff, partner, Howrey
- Michael S. Helfer, general counsel and corporate secretary, Citigroup
- William D. Henderson, professor of law, Indiana University
- Peter J. Kalis, chairman and global managing partner, K&L Gates
- Thomas J. Sabatino Jr., former EVP and general counsel, Schering-Plough
- Michael F. Walsh, president and CEO, U.S. legal markets, LexisNexis
All on the panel agreed that law firms should change how they do business. All did not agree, however, on what that change should look like. In fact, the one other point of consensus among the panelists may have been that there is no one-size-fits-all answer for firms or for clients. The legal industry is not a monolith, said Kalis, and any attempt to define it as such is a fallacy.
If change is to come, it should be through the mutual efforts of law firms and clients, several panelists said. The discussion should not about "us" and "them," said Sabatino, who is also a director of the Association of Corporate Counsel. "There should be synergy between clients and firms." Qwest's Baer agreed: "This isn't an adversarial situation between clients and firms."
Maybe not, but the panelists did not always see eye-to-eye. Some of the key points of discussion:
On law firm profitability: "I'm indifferent to the profitability of firms," said Helfer of Citigroup. "I care about what they charge and do for me." But how do companies measure the value of the legal services they receive? Qwest's Baer drew an analogy to the legal standard for judging obscenity: "We know value when we see it." Still, panelists said that data by which to measure value is hard to get and that both clients and firms need better measures.
On alternative fees: Clients, not firms, have been the greater barrier to adoption of alternative billing arrangements, panelists suggested. "We have met the enemy and it is us," said Sabatino. "In-house counsel have been horrible about promoting alternative fees." K&L Gates will generate 30 percent of its revenue this year from alternative fees, said Kalis, yet still finds that many clients staunchly oppose them. "Alternative fees are not a panacea," said Qwest's Baer. "They've been a train wreck for us. The real issue is how you truly measure value."
On law firm management: The legal industry has seen long-term change and pockets of true innovation, said Walsh of LexisNexis, but "fundamental innovation in the law firm model" is inhibited by poor management at some firms and a management model based on fractionalized leadership. "We are the only industry that is proud that it does not embrace change," remarked Baer.
On demand for legal services: The demand for legal services is declining, and law firms that have modeled their businesses on steady increases in demand need to adapt, argued Helfer. But Kalis of K&L Gates disagreed that demand will decline. "The prediction that the demand will be reduced is wishful thinking." The combined forces of globalization and government oversight create increasingly lawyer-intensive enterprises, he argued. That drives demand for lawyers with higher levels of knowledge and experience. Over time, the result will be a morphing of firms from their traditional pyramidal structures to diamond-like structures with greater depth of mid-level expertise.
On training of new lawyers: Consumers want better-trained lawyers, but they don't care where that training happens, as long as they don't foot the bill. Where training is most lacking is not in legal skills, but in interpersonal skills. Law schools and law firms both fall short in providing this training, all agreed, but they did not all agree on why. "The market does not reward interpersonal skills in law students, it rewards LSAT scores," said law professor Henderson. But schools could do more, he conceded. "We've got them for three years in law school, and all we teach them is law. We have an opportunity to emphasize skills in legal education."
On "procurement" of outside counsel: The insinuation of the procurement function into the hiring of outside firms destroys the ability of clients to develop trust and measure value, said Kalis. "The same people who buy toilet paper shouldn't be procuring law firms." But Baer of Qwest, while agreeing that it is the legal department's duty to evaluate outside firms, distinguished between "bespoke" legal work and more commoditized services. That drew a rebuke from Kalis: "If it is work worthy of lawyers, someone in the legal department has to own the hiring decision."
In a final "lightning round," moderator Cross asked the panelists, "In 2015, what will be different?" Their answers illustrated their divergent perspectives:
- Baer: Law firms are smaller.
- Kalis: Law firms are bigger.
- Walsh: The core law firm model has changed.
- Helfer: Firms are more entrepreneurial.
- Henderson: Smaller firms will make more money.
- Sabatino: Law firms are transparent and built on a model of trust.
- Cunniff: Careers will be more customized.
December 8, 2009 | Permalink
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File-Sharing Judge Blasts 'Truly Chaotic' Defense
A litigation strategy heavy on histrionics and light on substantive law does not play well in the Boston courtroom of U.S. District Judge Nancy Gertner, it would appear. In an opinion issued yesterday in the music industry's file-sharing lawsuit against Joel Tenenbaum, Gertner blasted the defense presented by Harvard Law Prof. Charles Nesson, describing it as "truly chaotic."
We've written a number of times about Nesson's handling of the Tenenbaum case. noting that his courtroom strategy seemed to leave observers scratching their heads, that descriptions of him range from brilliant to insane, and that Gertner chastised him earlier for favoring his teaching over his client.
In July, on the eve of the trial that ended with a $675,000 verdict against Tenenbaum, Gertner issued an order rejecting fair use as a defense and promising a more detailed memorandum explaining her decision. The opinion she issued this week is her promised follow-up. But before getting to the substance of the legal issues, she devoted several pages to a discussion of her frustration regarding the defense.
"Defense counsel repeatedly missed deadlines, ignored rules, engaged in litigation over conduct that was plainly illegal (namely, the right to tape counsel and the Court without consent), and even went so far as to post the illegal recordings on the web," Gertner wrote. Because of her concern about the imbalance of resources between the music-industry plaintiffs and Tenenbaum, the judge wrote, she did everything in her power to permit him to make his best case for fair use. She was even prepared, she said, "to consider a more expansive fair use argument than other courts have credited."
But the defendant would have none of it. Rather than tailoring his fair use defense to suggest a modest exception to copyright protections, Tenenbaum mounted a broadside attack that would excuse all file sharing for private enjoyment. It is a version of fair use so broad that it would swallow the copyright protections that Congress created, defying both statute and precedent. ... Defendant's version of fair use is, all in all, completely elastic, utterly standardless, and wholly without support.
Nesson not only failed to provide a "colorable legal defense" of fair use, Gertner continued, "he did not come close." He offered little in the way of facts or legal authority, she said. His briefs did not include affidavits, expert reports, deposition testimony or any other evidence that might create genuine issues of fact, she said.
Gertner's final blow was also ironic. "The most telling arguments" supporting her conclusion against fair use, she wrote, "came from an unlikely source -- defendant's counsel himself." As it turns out, early in the case, before Tenenbaum was added as a defendant, Gertner had invited amicus briefs on the substantive legal issues. One such brief was filed by Harvard's Berkman Center for Internet & Society, which Nesson founded, and it was signed by Nesson. In the brief, Nesson wrote, "As a general matter, the fair-use arguments that might be deployed to justify uploading are very weak." Nothing the defense offered subsequently, Gertner concluded, would lead her to rule otherwise.
December 8, 2009 | Permalink
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December 07, 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'm a lawyer and I'm about to start a road trip with some of my buddies. My friends include a doctor, an architect, a real estate agent, a social worker, an engineer and a consultant. Who should drive?
Answer: Any farmers or firefighters in this group? If not, give the car keys to the consultant and make sure you and the doctor stay in the back seat. (ABA Journal: Lawyers Second Most Likely Professional to Be in a Car Crash)
2) Question: I'm interested in being a bank robber. Is punctuality important in this line of work?
Answer: It is. (AP: Held up for hold-up? Thief too late to rob bank)
3) Question: I'm serving serving a 20-year prison sentence for narcotics offenses. The newspaper reported that I planned to cooperate with prosecutors and testify against an organized crime figure. Can I sue the newspapers for labeling me a snitch?
Answer: No, because "the population of right-thinking persons unambiguously excludes 'those who would think ill of one who legitimately cooperates with law enforcement.'” (Michtavi v. New York Daily News (2nd Cir. 2009), via Crime and Federalism)
December 7, 2009 | Permalink
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Best Buy Blog Seeks to Make Corporate Ethics Transparent
Many companies try to sweep their corporate transgressions and internal issues under the rug, but Best Buy is apparently not among them. In fact, I have been quite intrigued recently with the Kathleen Edmond blog, written by Best Buy's chief ethics officer. In the tagline she has chosen for the blog, Edmond writes that "[by] making ethics a completely transparent dialogue, Best Buy can be a leader in ethical standards for our employees, our customers, and our shareholders. Please feel free to join the conversation."
It appears that Edmond is serious about making ethics at Best Buy "transparent," to the point that she regularly posts about (and seeks comments on) the latest ethical or internal violations committed by Best Buy employees, and about some of the company's more aggressive ethical guidelines. Edmond writes that last month, for instance, Best Buy fired an employee who had gone into the desk drawer of a department supervisor searching for her own paycheck, noticed the supervisor’s paycheck, “glanced at” the supervisor’s pay information, and later told another employee about the supervisor’s paycheck details. Edmond tries to create a discussion with her readers on these real-life occurrences, asking them if details such as the length of time it took for the issue to be raised (months) should be relevant, and wondering if the situation would be different if the employee had shared private details about her supervisor’s "performance appraisal" rating instead.
In her most recent post from earlier this week, Edmond shares that every year at this time, Best Buy sends out reminders to its employees that they may not accept gifts from vendors. It also send letters to its vendors asking that they not send Best Buy employees any gifts. While seeking her readers' thoughts on the subject, Edmond explains the reasons for this policy: (a) Best Buy chooses vendors based on the quality and value of the product/service that ultimately is the best for its customers, and does not want there to be even the slightest suggestion that decisions are influenced by personal gain on the part of an employee; and (b) Best Buy believes that "fraud and corruption begin small and at the edges of a business relationship." It does not want to enable a culture where accepting something small then "creates a sense of entitlement, which then becomes an expectation."
Good stuff. Are any other companies putting out similar blogs on these topics?
December 7, 2009 | Permalink
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Why Aren't NFL Instant Replays Reviewed De Novo?
Over on the PrawfsBlawg, guest blogger Joseph Blocher, a professor at Duke Law School, asks a great question that may resonate with some of you lawyers/NFL fans out there:
Why are instant replays in the NFL (or in any other sport) subject to a heightened standard of review that requires “conclusive” or “indisputable” evidence to overturn an incorrect call? Why not review them de novo?
Blocher observes that football mirrors the legal world in that standards of review "insulate factfinders' decisions from being overturned on appeal, even when reviewing judges disagree with them." That is, even where the lower court's decision is wrong in some sense, it will still stand so long as it is not an "abuse of discretion."
Blocher argues that while this makes sense as a way of allocating decisionmaking authority between trial and appellate courts based on their relative strengths, he does not see how those arguments apply at all to instant replay in sports, which he characterizes as "just appeals of a different kind." Specifically, he argues,
An umpire or referee operating in real time is not in a better place to make a correct call than another referee (or even the same one) viewing the same play, from multiple angles, in slow motion, on a monitor. Am I missing something, or aren’t the usual arguments for having a strict standard of review -- primarily, the relative competence of the factfinder -- absent in the context of instant replay?
Blocher's fellow PrawfsBlogger Howard Wasserman points out in a comment that a key difference between replay and appellate review might explain the absence of "de novo" review. Replay, he says, is entirely about factual determinations -- safe/out, down/not down, fumble/no fumble -- not interpretation of legal rules. Appellate review, on the other hand, ordinarily is about law, not fact, with factual questions being the ones subject to more-deferential review.
And Ilya Somin on the Volokh Conspiracy blog chimes in
that "one possible answer to Blocher’s question is that allowing de
novo review on instant replay challenges would lead coaches to
challenge more calls, which in turn would delay games unduly." He
concludes, however, that any harm caused by loss of time must be
weighed against the benefits of getting more critical calls right.
December 7, 2009 | Permalink
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