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May 28, 2010

Writing Bad Briefs: How to Lose Your Case, and Lose Big

Judge Gerald Lebovits is the author of an amusing and insightful article in this month's New York State Bar Association Journal entitled, "Writing Bad Briefs: How to Lose a Case in 100 Pages or More." (via the (new) legal writer blog). Lebovits, a judge of the New York City Civil Court, Housing Part, in Manhattan, and an adjunct professor at Columbia Law School and St. John’s University School of Law, opens by promising that "[w]riting a really bad brief -- a brief so bad you’re sure to lose your case -- is a skill few attorneys acquire ... The reasons you might want to lose are many, and writing a bad brief is a key to losing. For those lawyers who want to lose -- and lose big -- this column’s for you."

Judge Lebovits then delivers on this promise, providing a detailed list of ways that litigators can be sure to lose their case via a horrid brief. Some of my favorites include:

Have a bad cover: Add a border, "preferably with a seasonal motif. Flowers and snowflakes add a great touch. If the court has specific requirements about how the cover should look, ignore those rules. Judges
have little sense of style anyway." Also, make sure to "use a typeface like Old English Text or any other font that looks like hieroglyphics" for your caption.

Style: Try different color ink, like baby blue or pink. "Black ink signals professionalism. Don’t use it, unless you want to win." Avoid the use of page numbers. Judges should know how to count, right? And don’t bind your brief, to increase the odds of pages getting lost. If you must bind it, use a metal clip with razorsharp edges.

Argument: "Don’t organize your arguments. Let the judge figure out what’s important. That’s not your job." And don't forget that a "brief is mystery writing in disguise. Leave the main point for the last line of the last page. You want to stun the judge."

Make it Personal: "Attack the court, opposing counsel, and your adversary with insults, condescending
language, snide remarks, irony, and humor. Destroy them ... Critique your adversary’s writing
skills. It’s obvious you went to the better law school." But throw in some phony deferential terms like “respectfully” just in case.

Confuse Them With Words: Confound with legalese: “aforementioned,” “hereinafter,” “said,” “same,” and “such.” Obfuscate with jargon: “the case at bar” or “in the instant case.” Bore with clichés: “wheels of justice”; “exercise in futility”; and “leave no stone unturned.” And don't forget to frequently use "metadiscourse," which includes phrases like “it is important to remember,” “it is significant to note,” “it should be emphasized that,” and “it goes without saying that.”

Judge Lebovits offers much more in his article, which can be read in its entirety here. Good stuff.

May 28, 2010 | Permalink | Comments (10)

Sonnenschein and Denton Wilde Use 'Microsite' to Roll Out Merger

On the Slaw blog, Steven Matthews observes in this post that the cross-Atlantic merger between U.S. law firm Sonnenschein and U.K.-based Denton Wilde Sapte was announced and rolled out by the firms through an interesting technique: the use of a dedicated "microsite" (http://www.snrdentoncombination.com).

Matthews writes that rather than bury the information on internal pages on their respective Web sites, or trying from Day 1 of the combination to roll out a new, combined site that referenced the merger, the firms took the approach of creating a microsite with the singular purpose of discussing the combination. Matthews likes the strategy, which he compares to the dedicated sites that the film industry use when it launches a new movie, and notes that the microsite

aggregates everything associated. It's faster to obtain an overview of the new operation, easier to convey the location of this information to others (a domain name -vs- a subpage on the firm websites); and from a design perspective, allows for a simplified navigation. And in terms of change management and internal politics, I see a lot of value to using a single combined website.

The microsite includes an overview of the combination, frequently asked questions, and the video below of firm leaders discussing its significance (click on the image to access the video).

May 28, 2010 | Permalink | Comments (0)

Friday's Three Burning Legal Questions

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

1) Question: Facebook has declared me deceased. And yet here I am breathing and typing this question to you. How do I get my status back to "alive?"

Answer: Answer: You make a compelling case for being alive. But once Facebook declares you dead, you pretty much stay dead. (Consumerist, Once Facebook Thinks You're Dead, You're Dead Forever)

2) Question:  Cocoa Pebbles is running an ad featuring a cartoon guy who looks just like me getting his ass kicked by Bam Bam, a prehistoric toddler. Do I have a case? 

Answer: Hulk Hogan? Is that you? I thought that "Hulk Boulder" character looked like you, too! Go get 'em, brother! (Digital Journal, Hulk Hogan sues Post Cereal over Cocoa Pebbles commercial)

3) Question: Times are tough. Why should I keep paying my electric bill when I can easily just attach a cable to a meat hook, toss it onto an overhead power line, and then siphon power to my nearby home.

Answer: For starters, it is illegal and "it will kill you." (Reuters, Man steals electricity with meat hook) (via Legal Juice)

May 28, 2010 | Permalink | Comments (1)

New Service Makes Adding e-Signatures to Documents Simple and Free

Via this post on Lawyerist I learned that Adobe has introduced a program that appears to easily enable parties to electronically sign documents. The public beta version of Adobe's "eSignatures" program was rolled out on May 14, and users report that it provides a simple, free and quick way for parties to remotely have their signatures added to a document that is then certified as final, and time and date stamped by Adobe.

TechCrunch writes that the process is "dead simple," and took its reviewer less than two minutes from start to finish. An Adobe source told TechCrunch that eSignatures may eventually be integrated into Adobe's popular Acrobat.com service.

Lawyerist notes that one possible concern with eSignatures is the fact that "whatever document you are signing at least temporarily sits on Adobe’s servers. If you are concerned about data security and/or confidentiality, this could be an issue."

Adobe has a short video explaining how eSignatures works. Check it out below.

May 28, 2010 | Permalink | Comments (0)

May 27, 2010

Law and Magic Update: Milestone Case on Imitating Magician's Devices Settles

It can't be all that easy writing the Law and Magic Blog -- maybe a bit like being the Maytag repairman, sometimes. You keep a vigilant watch for new material ... waiting, waiting ... any new magic law developments today? No, not today.

Sometimes you look to 30+year-old episodes of "Sanford & Son" for blog fodder. Remember when Grady's rehearsal of his magic act went bad when he couldn't decipher the instructions written in Chinese, and Fred and Esther were handcuffed together? "Given that these two do not like each other, does anyone think they'll threaten Grady with an IIED claim? What about a 'negligent magician' lawsuit?"

But sometimes, like yesterday, law and magic naturally flow together just like you knew they would. As discussed in this post on the Law and Magic Blog, an important patent infringement lawsuit regarding a unique magician's device (the "Spider Pen") has now settled.

The plaintiff in the case, Yigal Mesika, announced that the defendant is barred from selling products that incorporate his patented design elements, unless he either removes all infringing design elements or pays an agreed-upon royalty payment for each such use. Philip Brooks, who writes the Patent Infringement Updates blog, writes here that "[i]n the history of magic, Yigal Mesika v. Sean Bogunia et al., CV09-1580 JFW (C.D. Cal. 2009) stands as a significant milestone in that it is the first case to ever prevent imitation of a magician’s device for performing tricks."

May 27, 2010 | Permalink | Comments (3)

Fixing the Design of the Hot Dog, Part II

Eric Lipman told you here back in February about the scourge that is the design of the hot dog. In February, the American Academy of Pediatrics released a policy statement on Prevention of Choking Among Children that identified the hot dog as the food on which children are most likely to choke and die. The AAP even called for a redesign of the hot dog to make it safer for kids.

Apparently that was all Eugene D. Gagliardi, Jr. needed to hear, and he leaped into action. Consumerist reports that Gagliardi -- a food designer who is credited with inventing Steak-umms (genius!) and popcorn chicken -- has come forward with a new, patented hot dog with eight slits that open during cooking. This causes the hot dog to easily break up into smaller pieces, "potentially reducing the likelihood that a child could choke on it."

You see, Gagliardi's hot dog invention ...

comprises an elongated food product having a central axis extending along its length and two portions, a segmented portion comprised of at least two segments that are separable from each other, and an unsegmented portion which is substantially contiguous to the segmented portion. A consumer's biting into the food product generally perpendicular to the central axis results in the separation of the segments, creating in the mouth of the consumer small food pieces relative to the size of the bitten-off section to reduce the likelihood of choking on the food product.

Didn't catch all that? Maybe this drawing will help:

Still not grasping it? Look -- the guy invented the Steak-umm! When he tells you he's got a better hot dog for you, just accept it.

May 27, 2010 | Permalink | Comments (3)

Attention Law School Addicts: Introducing the 'JSD' Degree

At some point, a decade or two into one's legal career, you start to think that even if you don't know a fraction of everything there is to know in the legal world, you at least know the basic, structural things in the profession. For instance, you know the basic structure of the court system, the different types of law firms, the types of law degrees that are available, and so on.

It turns out that at least on that last point above -- available law degrees -- the universe extends further than I ever knew. Ever hear of a "JSD" degree?

On the PrawfsBlawg, Marc DeGirolami, an assistant professor of law at St. John's University School of Law, writes that he has just completed his JSD degree, and offers up some information and thoughts on this little-known academic option. First, DeGirolami explains that the JSD (aka "SJD" in some places) is only offered by a few law schools and is "ostensibly aimed at and designed for people who are interested in an academic legal career." He also notes that (Scambloggers, please brace yourself for this) to obtain a JSD, candidates must not only have completed a JD degree, but also must have completed a graduate LL.M. degree.

DeGirolami offers several thoughts for people considering going the distance, as he did, in the world of legal degrees. These include:

1. Go for the professors.  DeGirolami says that "by far the most important reason to do a JSD is that you want to spend a significant period of time interacting with and having your work read and criticized by teachers whom you admire and who are interested in being mentors to you."

2.  Go to write, not only to read.  If you want to get an academic position after the JSD, you must write constantly. The JSD is not "a period where you can sort of just read for years in the subject of your choice, undisturbed and at your leisure."

3.  Only go to the absolute top schools in the country.  DeGirolami says this is critical. He notes that he doesn't want to create some sort of "artificial line of demarcation here," but, well, let's just say that "Yale, Harvard, Stanford, Columbia, and NYU all have strong programs in graduate legal education. "

Before you decide to cap off your JD and LL.M. with a third law degree, read DeGirolami's full post here.

May 27, 2010 | Permalink | Comments (0)

May 26, 2010

An iPhone App for Supreme Court Con Law Cases

LBW alum Bob Ambrogi featured yet another law-related iPhone application on his LawSites blog yesterday.

This one, called PocketJustice, gives you all the information you could ever need about the 600-plus constitutional law cases decided by the U.S. Supreme Court. Well, that's if you're willing to shell out $5. But for free, you can get the "top 100" of those cases.

The app doesn't just have the opinions themselves, but transcripts and audio from oral arguments. And, as a bonus, historical bios of the Justices.

One more reason for lawgeeks to get iPhones.

May 26, 2010 | Permalink | Comments (2)

FTC Wants Lawyers to Compile More Info on Marketing of Food to Kids

The FDA Law Blog linked yesterday to a Federal Register notice requesting public comments on the Federal Trade Commission's proposed issuance of "compulsory process orders" to major food and beverage manufacturers, seeking details about marketing efforts directed at children.

The FTC issued a report on this subject in 2008, and wants to assess the extent to which the 2008 report's recommendations have been implemented. What struck me in the FDA Law Blog post was the estimated time burden on recipients of these requests:

The FTC estimates that each company that receives a demand for information from the FTC will be obligated to spend (on average) approximately 600 hours to comply with the FTC's demands.

600 hours sounds like a lot of time to gather information for a supplement to a report issued two years ago. Looking at the Federal Register Notice more closely, it seems the 600 number only applies to recipients who will have to respond regarding multiple product lines, whereas those who only have a single category of products are estimated to have to commit 225 hours.

The FTC also assumes that "professional staff and outside legal counsel" will be required to do most of the legwork, and assigns an average per hour cost of $300. 

So, colleagues who do this kind of work, are these estimates reasonable for responding to this sort of request? How involved are the lawyers; will they really need to do most of the work? And is this an example of over-regulation? Should companies be required to spend this kind of cash satisfying the government's curiosity?

May 26, 2010 | Permalink | Comments (1)

Federal Courthouses Are Too Damn Big, Says GAO

Via The BLT: The Blog of Legal Times, comes a Washington Post story about a recent Government Accountability Office report (.pdf) concluding that there's a bunch of wasted space in federal courthouses built in the last decade.

Specifically, the GAO says that 28 percent of the square footage in these newly constructed buildings, including the Rush Limbaugh, Sr. Federal Courthouse in Cape Girardeau, Mo. (pictured above), is "extra." We're talking 3.6 million square feet. That's like 9,000 New York "luxury one-bedroom apartments."

The General Services Administration, which supervises the construction and maintenance of federal facilities, thinks the GAO's math is a little fuzzy.

But GSA Public Buildings Service Commissioner Robert A. Peck said auditors incorrectly included negative space in the atriums of tall buildings and "phantom floors" in double height courtrooms. The incorrect measurements meant auditors mistakenly assigned normal operating and construction costs to the empty space, he said.

One suggestion in the GAO report is to compel judges to share courtrooms. According to the agency, three district judges should be able to successfully share two courtrooms, one courtroom if they are on senior status.

Not addressed in the report: whether any of the GAO's suggested reforms would require Southern District of New York Judge Barbara Jones to relocate her legendary Christmas parties.

May 26, 2010 | Permalink | Comments (0)

Public Defender Laments Inevitable Failure of Pot Legalization Referendum

Back on April 20, we put the question out there: will full-scale legalization of marijuana ever happen in our lifetimes?

Annnnnd, nobody answered. But just because LBW readers didn't feel compelled to weigh in doesn't mean the topic hasn't been on the minds of others. With legalization on the ballot for the November elections in California, people are talking.

One such person is Dennis Wilkins, a public defender in San Bernardino and "guest blogger" at the Public Defender Dude ("guest blogger" in quotes because Wilkins appears to have been the only person to post on the site in the last year and a half at least). In his post this morning, he says legalization is "a great idea," but there ain't no way it's gonna pass.

Why? He gives three reasons:

1. Old people don't like the idea, and they've got nothing better to do than vote. (I had to Google "DFH" to find out that it stands for "Dirty F#@*ing Hippie.")
2. Most people willing to publicly speak up for legalization don't come off sounding so intelligent.
3. Law enforcement organizations will campaign fiercely against it, since their livelihood depends, in no small part, on being able to lock up a guy smoking a joint in the park.

Dennis himself sounds pretty intelligent, so maybe that's a step in the right direction for the legalizers. His job, he says, allows him a luxury most others don't have in publicly expressing his support. "I won't suffer in my profession because I already defend murderers, rapists and child molesters -- supporting legalization is the least of my professional 'sins.'"

Of course, he also is sure to note that he doesn't use pot himself. Because it's illegal. "And I genuinely do my best to obey the law, however stupid it may be at times."

It's an interesting take on a controversial issue, and I, for one, am looking forward to more commercials like this one.

May 26, 2010 | Permalink | Comments (11)

May 25, 2010

Another Prime Time Law Firm Show for Attorneys to Mock

Just after "The Deep End" was confirmed to have been mercifully canceled, we all need to brace ourselves for another lawyer TV show. The Wild Wild Law blog is reporting that CBS will be airing a "comedic drama" based on the Las Vegas firm Cristalli and Saggese.

The (as yet unnamed) show is to star ... wait for it ... Jerry O'Connell and Jim Belushi as the "bromantic" name partners. I'm no clairvoyant, but I'm not holding my breath for the second coming of Denny Crane and Alan Shore. 

As with all legal-themed shows, I'll set my DVR for the pilot when it's announced. I'm not sure how "loosely" the show will be based on the Cristalli and Saggese firm, but I sure hope the writers will include some O'Connell boxing scenes.

May 25, 2010 | Permalink | Comments (2)

The Times Posts Elena Kagan's Law School Transcript

I don't have much to add here.

Simply to combat the perception that every conceivable angle on an Elena Kagan story had already been exploited, the New York Times has an article about Kagan's "struggles" in her first semester at Harvard Law. Are you sitting down? Kagan got a B in Criminal Law and a B-minus in Torts. If you don't believe that, here's the proof:

Yes, not only did the Times run a story in which they quote classmate Jeffrey Toobin making excuses for Kagan's Torts grade -- a "bad day in the exam" -- but it pulled excerpts from the recommendation letters written by Kagan's professors to Justice Thurgood Marshall in support of her Supreme Court clerkship application, imploring Justice Marshall not to hold her grades against her.

Which Senator do you suppose is going to grill Kagan during her confirmation hearings on why she took copyright pass/fail?

May 25, 2010 | Permalink | Comments (6)

Wells Fargo Sued Over Mortgage Rep's Request for Naked Customer Pics

This is a good one. Consumerist posted yesterday about a lawsuit filed in New Jersey by a homeowner who claims a Wells Fargo customer service representative demanded that she engage in a little sexting with him before he would correct an error on her account.

The complaint is online at the Huffington Post. It seems as though "Michael" was looking for a little quid pro quo in the form of naughty photos of plaintiff Jamie Nelson, and said her request to reverse an erroneous transaction could be expedited if the two could have some "photo fun." The way the complaint is worded, it sounds like the request for naked pictures was not explicit (no pun intended). His suggestion that the plaintiff send him photos was preceded by the question "Are you near a bathroom?" which, she alleges, "clearly implied" that she should be less than fully clothed.

Nelson didn't give in, but rather "spend [sic] the entire day attempting to convince him to reverse to [sic] the transactions." Really? How long would you stay on the phone with an operator who insisted that you send him nude pictures before asking to speak to a supervisor?

Wells Fargo claims to be "taking the allegations seriously," which likely means Michael will need to find a new job and Jamie will get some spending money. 

May 25, 2010 | Permalink | Comments (4)

Interested in WestlawNext? Doesn't Matter -- You've Got It!

As the rollout of the new and improved Westlaw, WestlawNext, has progressed, we've brought you news from the front lines. Most recently, we gave you some information on pricing policies, including the fact that mucking around in certain databases could run users a cool $3,400 per hour.

This morning, via the Law Librarian Blog, comes the revelation that Thomson Reuters has apparently decided to enable all Westlaw users for WLN without requiring licenses or other agreements. This, of course, doesn't mean granting free access, but rather flashing a bunch of "click here" ads promising that doing so will "[i]mprove your research efficiency by 64%." And then charging you up the Wazoo for that efficiency.

Thomson Reuters is calling this reclassifying WLN usage as "auxiliary." In fairness, the post does indicate that, before a user can start racking up "auxiliary" charges, he or she would have to acknowledge a warning, as is the case with base model Westlaw when you seek to go outside your subscription. That's great, but as the person in control of the purse strings, would you trust attorneys to exercise discretion?

You'll have to, because according to Tamara Acevedo, who initially brought the issue up on a law librarian listserv, Thomson Reuters is also telling subscribers that a blanket disabling of WestlawNext is not technically possible "because the two products link in together."

May 25, 2010 | Permalink | Comments (1)

May 24, 2010

Hurry Up With That 'No Tweeting' Rule!

Back in February, we brought you news of a new model jury instruction cautioning jurors that tweeting about a case was a no-no.

At Lowering the Bar, Kevin took a quick look at tweets about jury duty, and the results were predictable in demonstrating that the instruction is regrettably necessary:

• yo i was in jury duty two weeks ago. fell asleep in court. twice. in one day. at least it was a civil case
  
  
• I very well could get in trouble for using my phone at jury duty but still wanted to wish u happy birthday LOL
  
  
• sorry I just saw your reply. Well I went to jury duty this morning and didn't get picked. It pays to show a bias ;)
  
  
• jury duty was cancelled. Man, and I was looking forward to being a part of the judicial system and screwing a minority. kidding.

Tweets have already led to at least one (unsuccessful) request for a new trial on grounds of juror bias. Though anyone foolish enough to send out some of the above messages likely wouldn't obey a rule anyway, the quicker the better.

May 24, 2010 | Permalink | Comments (3)

Individual and Group Blawgers Debate Merits of Individual and Group Blawgs

Does the utility, entertainment value or thought-provoking quotient of a legal blog necessarily depend on whether it has a single author or is a group effort? As with everything else, people are entitled to their opinions. And some law blogger heavyweights apparently have some such opinions.

Last week, Professor Stephen Bainbridge, reacting to the news that Professor Larry Ribstein has joined Truth on the Market, expressed his preference for single-author blogs:

They tend to be more coherent. They have a real voice rather than a cacophony of noises. I feel a greater degree of personal connection to a sole-authored blog than to a group. The quality of group blogs tends to be uneven. And so on.

Today, Professor David Zaring, one of the authors at The Conglomerate, sings the praises of group blogs, mostly his own:

I think our particular group blog diversifies your reading risk quite nicely. You get meaty posts on a variety of issues from distinctive voices, we still have a coherent raison d'etre, and you're not in thrall to one voice that may eventually start banging on about something that you don't find very interesting.

I'm not sure where Legal Blog Watch fits in on the spectrum, but I think we have a different mission than most blawgs. Because we try to bring you a tasting menu of what's going on in the world of legal blogging, the issues should be diverse. But because there are only two of us, and we post daily, we also strive to maintain consistent quality and should avoid the perception that we are simply a forum for multiple people's stream of consciousness ramblings.

As I've said since I started this gig, if you have thoughts on how we can do things better, the suggestion box is always open: e-mail [email protected].

May 24, 2010 | Permalink | Comments (3)

Impossible and Impractical Ideas for Fixing Continuing Legal Education

The TechnoLawyer Blog today features a post by Marin Feldman entitled "The Case Against Today's MCLE System." Feldman, reacting to the biannual request from the New York Office of Court Administration for fees and confirmation that she has been a good little attorney and attended the requisite hours of CLE, laments that attending classes, for most lawyers, is considered a necessary evil.

Feldman doesn't like that lawyers choose which classes to attend based on which of the three types of credits -- Ethics and Professionalism, Law Practice Management, or Areas of Professional Practice -- they're short of, or that lawyers don't pay a whole lot of attention when attending programs. Both observations are undoubtedly valid. I, as a litigator, attended my fair share of "Drafting the Perfect Indenture" and "ERISA: To Know Her is to Love Her" sessions. And, yes, I often spent those hours marking up draft briefs.

Where I part ways with Feldman is when she gets to her three suggested changes to the MCLE requirements:

1. Practice Area Emphasis

States could require attorneys to obtain CLE credits in their area of practice on a rolling basis. Restricting how lawyers can earn their credits would be more of a hassle than the current MCLE system, but states could reduce the number of credits required.

2. Level the Learning Field

States could also increase their registration fees, but set aside most of the funds in private accounts for each lawyer to use on MCLE courses. Large firms that offer in-house CLE would not be eligible to receive any funds. Thus, the haves and have nots in the legal profession would effectively pay about the same for MCLE.

3. Post Mortems

Not every change has to come from the outside. Taking a page from hospitals, large firms that offer their own in-house CLE could use these programs to conduct post mortems on the firm's recently concluded casework. For example, lecturers could share best practice and mistakes, which vendor they chose for an eDiscovery job, an interesting court opinion that helped win an oral argument, etc. These post mortems would have the added benefit of giving junior associates public speaking experience.

I'll take them in order, give you my brief spiel on each, and then open it up to you readers for thoughts.

1.     Who defines an attorney's "areas of practice?" Last I checked, New York did not have a process for certifying attorneys in particular specialized areas of law. States that do have such procedures -- Texas, for example -- essentially base such certification largely on the number of CLE hours an attorney has completed in that area. Those who choose to specialize to the extent of getting certified have already committed to taking the relevant classes.

2.     To the extent I understand this suggestion, it sounds like Feldman is suggesting that each lawyer should be allowed to "reclaim" some part of his or her registration fees to be put toward CLE class tuition. Because BigLaw firms conducting in-house CLE programs don't charge their attorneys to attend, this would benefit solo practitioners and others who have to resort to commercial providers like PLI. This sounds like a complete administrative nightmare. Would attorneys seek reimbursement from their firms and then firms seek reimbursement from the OCA? When, as Feldman notes often happens, a Big Law attorney has to attend an outside program because the deadline is fast approaching, would the firm be prohibited from seeking reimbursement because the attorney had the option to satisfy his requirements in-house but didn't do so? I sympathize with attorneys who have to pay for CLE out of their own pockets -- especially because I now am one -- but this doesn't sound like a feasible remedy.

3.     I'm not sure if Feldman has ever attended an in-house CLE at a Big Law firm, but in my experience, there often is a large "postmortem" element to the discussion. You can bet that a "Developments in Trademark Litigation" session will be led by a lawyer who has recently engaged in some trademark litigation, and he or she will take the opportunity to tell war stories. Where the topic of e-discovery is on tap, there is inevitably talk of the relative merits of certain vendors based on past experience. In short, I'm not sure this is a "change" at all.

The CLE system certainly is not perfect.  Do you have other complaints? Other suggestions?

May 24, 2010 | Permalink | Comments (0)

'L.A. Law' Meets 'Jail' -- Disbarred Attorney 14 Months Into 'Coercive Confinement'

Today, CNN is scheduled to air video of its interview with Richard Fine, a (now disbarred) attorney who has spent more than 14 months in the L.A. County Jail for contempt of court after he refused to provide certain financial documents pursuant to a court order in connection with a fee award in a case Fine lost.

Fine considers himself a political prisoner, because his raison d'etre over the past several years has been exposing the alleged corruption inherent in the courts of Los Angeles County resulting from the county's practice of tacking on an additional $57,000 in "supplemental benefits" to the $178,000 state salary of Superior Court judges. A California appellate court actually ruled those payments unconstitutional in 2008, but the legislature then reportedly passed a law legitimizing them. To Fine, this mission was just a natural extension of his chosen role as a taxpayer advocate, challenging your typical "waste, fraud and abuse." But, says Fine, the judges don't see it that way, and that's why he's still locked up.

The notion of coercive confinement, is, of course, to coerce someone to comply with a court order. Once it becomes clear that it's not gonna work, the contemnor (yes, spell-check, it is a word) is supposed to be released. Though Fine's 14 months behind bars is far from the longest such confinement on record, it does seem a bit excessive, especially considering the L.A. County Sheriff's Department spokesperson's statement that they could use the cell for someone who actually committed a crime.

Constitutional or not, it's fairly incredible that these state judges are making $235,000 per year when federal district court judges make only $174,000. Fine's habeas petition has made its way to the U.S. Supreme Court, and was considered in conference last week.

May 24, 2010 | Permalink | Comments (3)

May 21, 2010

Twitter Lessons 'For and From the AmLaw 100'

I have read many posts about "Twitter for Lawyers" over the past 12 months or so, but a new one from myCorporateResource is the best and most informative I've seen. Entitled "Twittering Classes: Lessons For and From the AmLaw 100," the article takes a detailed look at the state of Twitter-usage among big firms (see The American Lawyer's Am Law 100 2010 list) and offers sophisticated advice on what firms should and should not be doing. (via Above the Law).

First, the article offers some current data on Twitter usage among big law firms. It states that currently, just 29 of the Am Law 100 actively use Twitter. Of those 29, three are in the top 10, 13 are in the top 50, and 16 are in the next 50. Not one of the 18 traditional "white shoe" law firms use Twitter.

In addition, of the 29 Am Law 100 firms on Twitter,

• Only nine do soon a timely basis ("cardinal sin number 1").
• Only two have more than one Twitter feed ("cardinal sin number 2," as Twitter "can provide a law firm with a highly tailored, self-selected audience").
• Only 12 have "branded" their Twitter page, leaving it in the same generic format it came in. As the article notes, "law firms spend $100,000s on consultants to choose the right shade of mauve for their hallways. Why leave Twitter’s sky blue, cloud background when you can brand your page in minutes. Why is your firm’s name in lower case? Why didn't you use the 'bio' space?"
• Only seven cross-refer from their Web site to Twitter.

The article then dives into a series of detailed best practices that law firms should consider on Twitter, and offers examples of law firms on Twitter that are doing certain things well. For a change, an article on lawyers and Twitter goes well beyond the "101" stage -- I recommend this to big law firms looking for guidance in this area.

On top of everything else, the article wisely suggests that lawyers entering this area follow leaders such as LBW alumnus Bob Ambrogi, who the article describes as "law’s Chuck Yeager, pushing the ether envelope and reporting back on the new frontiers." Bob, I think you just got a great new tagline!

May 21, 2010 | Permalink | Comments (7)

Friday's Three Burning Legal Questions

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

1) Question: I just got my Ph.D. in biochemistry. Do you think I can get "BIOCH" as my vanity license plate?

Answer: Don't even bother trying. That's been banned as profane. (Consumerist, New Jersey Says Your "BIOCH" License Plate Is Not Allowed)

2) Question:  I am a 72-year-old woman and I'm late to a crucial salon appointment. Is it OK if I speed up just a bit here to make up time?

Answer: Understood, but 102 mph is too fast, ma'am. (Turley, Bad Hair Day: Woman Arrested After Driving 102 MPH To Salon Appointment)  

3) Question: It sure is quiet on this plane. Too quiet. How long am I supposed to wait, anyway? Umm, is anyone here? Hello?

Answer: Please just stay put for a few minutes. The maintenance crew will be in shortly. Sometimes the flight attendants tell blind passengers to remain seated until everyone else gets off the plane, but then forget about them. You might get a $250 voucher out of it for your troubles. (CBC, Blind woman abandoned on airplane)

May 21, 2010 | Permalink | Comments (0)

Abolish the Blue Book? Or Could We Automate It?

Ilya Somin, an associate professor at George Mason University School of Law, says it's time to abolish the "Blue Book." For those of you who did not have the pleasure of attending law school or serving on a law review, the Blue Book is a dastardly creation that attempts to create a uniform and hyper-complex method by which lawyers are expected to cite to legal authority in briefs, articles and so on.

In this post on The Volokh Conspiracy, Somin argues that the Blue Book, which he describes as a "a massive tome, over 400 pages long, with rules for every conceivable situation and some that probably are not conceivable," should be abolished and replaced "with a simple citation system such as that used in virtually every other academic field."

Why? First and foremost, Somin argues, the Blue Book is "an enormous waste of time and effort." In a dead-on analysis that surely has law review editors' nodding their heads in agreement from coast-to-coast, Somin states that:

Every year, law review editors across the country spend thousands of man-hours editing articles to make sure that they conform to the Blue Book rules, taking Blue Book tests, and engaging in other Blue Book-related activities. ... This time could easily be spent in more productive ways, such as studying, research, clinical work, or even working on your tan at the beach.

He had me at "working on your tan," but Somin offers several other reasons to do away with the Blue Book. These include the argument that there is no evidence from other academic fields that having a simple citation system leads to lower-quality scholarship. In addition, he notes, some law reviews such as at the University of Chicago have used the much simpler "Maroon Book" system since 1986, with no decline in scholarship.

Or, how about this, as a 21st century solution that I hereby take full credit for:

Microsoft bakes the 400 pages of the Blue Book into a lawyer-focused version of its Word software, the same way it does with dictionaries and rules of grammar. When you want to cite something, you just take your best shot at it off the top of your head, such as "Georgetown Law Review, May 21, 2010, page 67." Word will then flag your incorrect cite (the same way it does a misspelled word) and help you automatically turn it into whatever the Blue Book demands such a cite is supposed to look like -- which, if memory serves, will involve upper- and lowercase capital letters and other such nonsense.

May 21, 2010 | Permalink | Comments (4)

My Belated Write-In Entry in the '140-Character Novel' Contest

Via this post on the WSJ Law Blog I learned of an interesting competition held by the Texas Bar that challenged lawyer-authors to write the best "140-character novel," i.e., the length of a Twitter post.

The Law Blog says the contest, which closed May 1, was the brainchild of Texas lawyer Michael Maslanka and was open to all U.S.-licensed lawyers. The Texas Bar has now selected 54 finalists from the 189 entries. The winner will receive an iPad.

You can (very quickly) read all of the 54 finalists here. I missed the boat on this contest, but I think my entry would have been as follows:

Jill had been clumsy as a child and into adulthood. But her latest stumble -- headfirst into a Picasso at the Met -- left her $65 million in debt.

What do you think? Winner? Can you top it?

May 21, 2010 | Permalink | Comments (1)

May 20, 2010

Louisiana Tries to Protect the Kids ... From Feeling Bad

The Volokh Conspiracy reports today that the Louisiana legislature is poised to pass a "cyberbullying" bill making it a crime to use the Internet to "embarrass, or cause emotional distress to" anyone under the age of 17.

Volokh's examples of people who could be locked up under the terms of such a law are striking, and would be laughable, were they not seemingly plausible:

• A girl who sends her under-17-year-old boyfriend an e-mail telling him what a schmuck he is for having cheated on her, and hoping that he feels ashamed of himself.
• A blogger, or a newspaper columnist, or an online commentator, who publishes something condemning an under-17-year-old criminal, hoping the criminal feels embarrassed and ashamed as a result.
• A public or private school official e-mailing the parents of an under-17-year-old student a message about the student’s misbehavior, hoping that the student will feel embarrassed and change his ways.
• Parents e-mailing their under-17-year-old children telling the children that they should feel ashamed of some misbehavior.
• A professional or amateur music critic or sports reporter writing a harsh review of an under-17-year-old performer’s or athlete’s behavior, hoping that the review will embarrass the performer or athlete into behaving more ethically, professionally, or competently.

Volokh had first pointed out the patently obvious unconstitutionality of the bill when it initially passed out of a committee in the Louisiana House. And he is certainly not alone. The Media Coalition sent a letter (.pdf) to the committee members explaining its position on the bill. Lowering the Bar suggests that publishing the bill itself online might subject the legislature to being charged, since it is clearly intended to "'coerce' or 'intimidate' young people into not being cyberbullies."

Who elects these people?

May 20, 2010 | Permalink | Comments (1)

Ban Lives Up to His Name, Takes Texting Prohibition Global

United Nations Secretary General Ban Ki-moon yesterday prohibited all U.N. employees from texting while driving.

The rule, applied to all U.N. personnel, is apparently part of a broader movement (which includes the U.S. Transportation Department and advocacy group FocusDriven) to enact a true global ban on the practice.

Considering how serious he seems to be taking the issue, Ban was facile with the puns, including the following in his remarks yesterday:

• I want every driver in the world to get the message: Texting while driving kills. No SMS is worth SOS.
  
  
• Together, we have a message to all drivers of the world: Don't let using a mobile for a few seconds make you or others immobile for life.

Current laws in the U.S. on the subject are all over the map.

May 20, 2010 | Permalink | Comments (2)

Lohan to Jail? Can't Wait to Hear the E-Trade Baby's Take

Oh, Lindsay. (Wait, is she gonna sue me for using her name?)

Lindsay Lohan's "stolen passport" drama, which resulted in her missing a court date today, has apparently been resolved. After reports that she wasn't making legitimate efforts to get a replacement passport, the Huffington Post reproduced an email purportedly from Lohan indicating that she would be receiving a new one, and pleading with somebody, anybody, to get her on a private jet home to L.A. ASAP.

Huff Post also reports that Lohan's missed court date will result in an arrest warrant being issued, and a potential 180-day jail sentence. I'm sure Lohan will really enjoy jail, since it's totally "hot."

In other celebrity-related, quasi-legal news, golfer Chi Chi Rodriguez was the victim of a home invasion robbery in Puerto Rico Wednesday, and Suge Knight was arrested for waving a gun at somebody in L.A.

Note: Thanks to Father Damien Karras, I am no longer possessed by the spirit of Perez Hilton, and your regularly scheduled, less-gossipy ramblings will resume shortly.

May 20, 2010 | Permalink | Comments (0)

Barbie Car DUI and Blawger Balance

This morning, the Kentucky DUI Defense Lawyer blog has a post about an English gentleman who was convicted for DUI after he was pulled over driving a tricked-out pink electric Barbie car for toddlers.

It's good for a chuckle, especially if you click through to the article from the Telegraph, which has stereotypically wonderful British quotes like where the defendant, Paul Hutton (a former RAF officer) says, "I was very surprised to get done for drink-driving but I was a twit to say the least." And this from one of the magistrates before whom Hutton appeared: "This is most unusual. I have never seen the like of it in 15 years on the bench."  Yes, indeed, sir.

Having read the blog post and clicked through to the story, though, I couldn't help but wonder about the post. The underlying article is over a month old. And it had gotten a fair amount of more timely blog coverage, for example, here, here, and here. I'm guessing that Stephen J. Isaacs, the helmsman of the Kentucky DUI Blog, has just decided that the time has come to commit himself to posting something -- anything -- on the blog every day.  Prior to this week, posting was more sporadic, and the prior posts seems to be more substantive, like the one on what to do when pulled over on suspicion of DWI in Kentucky, or the one on variances in BAC measurements.

Legal Blog Watch, obviously, is not geared to ginning up law firm business.  For those blawgers who rely on their blogs to attract paying clients, how important is it to post regularly? How do you balance SEO concerns against the perceived "quality" of your posts? And do you ever think maybe the more you post the greater the likelihood someone will think you must have too much time on your hands to be a very good/dedicated lawyer?

May 20, 2010 | Permalink | Comments (6)

May 19, 2010

Wednesday's Three Burning Legal Questions

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

1) Question: It's prom night, baby! My date and I are going to sneak a few drinks before the dance, then have the night of our dreams. Yeah, we're underage, but what's the worst that can happen?

Answer: Well ... your date could begin swearing at school administrators and, when the police come, she could grab a chair and swing it at police. Then, after being placed under arrest, she could start smashing her head and face on the back of the chair, causing her own nose to bleed. Then, while being led out of the dance, she might spit blood on one of the arresting officers, and cap it all off by trying to kick out the squad car's windows. (KTLA.com, Teen Goes Berserk at High School Prom) (via Turley)

2) Question: Police! 9-1-1 Emergency! Legal Blog Watch! There is a suspicious coin in Market Square!

Answer: Sir, that is a quarter.  (FAIL Blog, Suspect Fail)

3) Question: My girlfriend has been hounding me to get married for years. I finally gave in, but I had a plan ... I had a robot perform the ceremony! That can't possibly be binding, right?

Answer: Not so fast, player. You might well be validly married, even if C3PO was your officiant. (Internet Cases, Can a robot perform a valid marriage ceremony?)

May 19, 2010 | Permalink | Comments (7)

Hershey's Tells Court This Brownie Pan Looks Waaaaay Too Familiar

The Legal Intelligencer had an interesting article yesterday about Hershey Co.'s recent trademark infringement case against Williams-Sonoma Inc. Hershey's beef with Williams-Sonoma concerns the sale of a particular brownie pan.

Hershey has sought an injunction to block any further sales of the pan, arguing that it "unlawfully trades on the goodwill and reputation Hershey has established through its use and promotion of that product configuration trademark."

Wait, you say -- how can a brownie pan look enough like a Hershey's bar to cause all of this fuss? Well, take a look at the pan for yourself. Does this look familiar?

Hershey's argues that its chocolate bar design is more than just a rectangle. Rather, it is "a rectangle containing 12 equally sized rectangular panels arranged in a 4x3 format, with each panel having its own raised borders." Just like the brownie pan, it argues, which "embodies and mimics" its design.

Judge Carton was about to quickly dismiss this case when he heard "Hersheys" and "brownie pan" but after seeing the pan above, I have decide to take the matter under advisement.

May 19, 2010 | Permalink | Comments (2)

Welcome to the Blawgosphere: Entertainment & Media Law Signal

May 19, 2010 | Permalink | Comments (1)

Openbook: When 'Please Rob Me' Does Not Cause You Enough Personal Damage

Now that your geo-location tweets on Foursquare ("I'm not home! I'm the new Mayor of the Bora Bora Starbucks, enjoying my $1 'Mayor's discount'") have led to the robbery of your home thanks to the helpful folks at "Please Rob Me," what's next? Thanks to Openbook, the "Please Rob Me" of Facebook, the possibilities are now endless.

Want to lose your job, irreparably embarrass yourself by revealing intimate details of your sex life, or get divorced? Welcome to Openbook!

In short, Openbook uses Facebook's search API to collect and make searchable -- outside of Facebook -- all of the "status updates" that Facebook users make.

“This is a simple example of just how open Facebook has made your information," the creators of the site told TechCrunch. "This data is wide open, and this is one of the least scary uses that anyone will make. If nothing changes, it’s only to get worse.”

To get troublemakers started on the site, Openbook's default searches are things like "going to a strip club," "my dui," "cheated test," and so on. But don't let the default searches stop you from probing further. Want to know who thinks "their boss is an a**hole?" Who has been "cheating on his wife?" It's all out there for you.

May 19, 2010 | Permalink | Comments (3)

May 18, 2010

Woman Sues Canadian Cellular Provider for Revealing Affair in Bill

Via Overlawyered comes this story from the Toronto Star, about a woman who claims that Rogers Wireless ruined her life.

The woman, Gabriella Nagy, had a Rogers cellphone account in her maiden name. The bill came to the address she shared with her husband, who was the named account holder on the home's cable service, also provided by Rogers. When Rogers consolidated the bills into a single monthly statement, Nagy claims, her husband opened it, noticed that there were a bunch of long calls to a particular number, and became suspicious.

"Nobody does business this way and he's not stupid," says Nagy, who is in her 30s. He called the number, [and] spoke to the "third party" who confirmed the affair, which had lasted only a few weeks, Nagy told the Star. "My husband didn't tell me that's how he found out, he just left."

So Nagy is suing Rogers for $600,000 (Canadian, presumably, though these days, what's the difference?) for invasion of privacy and breach of contract. Rogers, for its part, said, in a very Canadian way, "Are you f'ing kidding me?":

In a statement of defence, Rogers denies it terminated the contract and says the company 'cannot be held responsible for the condition of the marriage, for the plaintiff's affair and consequential marriage break-up, nor the effects the break-up has had on her.

'Rogers is not the cause of these. The marriage break-up and its effects happened, or alternatively would in any event have happened, regardless of the form in which the plaintiff and her husband received their invoices for Rogers services in July 2007.'

Yes, the well-established "inevitable divorce" doctrine. I look forward to Judge Carton's ruling, since fake judges have universal jurisdiction.

May 18, 2010 | Permalink | Comments (4)

Lawyers: How Much Do You Hate Keeping Track of Your Time?

I ask because Rees Morrison at the Law Department Management Blog had an idea. Granted, it's an idea that even he thinks is pretty terrible, but he put it out there, so here goes.

This article from The Economist contains a discussion of some of the technologies being used by employers to monitor freelance and offshore workers. Much of this "piecework" is facilitated by online services such as oDesk, which claims to enable its corporate customers to "[h]ire, manage, and pay a distributed workteam as if everyone were in your office." One piece of the oDesk offering is the "Work Diary," which, according to the Economist article, takes a screen shot of each user's desktop at 10-minute intervals and makes those shots available to the employer. oDesk also has a tool that measures the time an individual is using a keyboard or a mouse.

Morrison suggests that this kind of technology could be used to automatically keep an attorney's time for billing purposes:

Documents and email would be relatively easy to match to a specific client group; other screen shots would be ambiguous. With enough samples of screenshots and sophisticated recognition software, there would be no need for time-tracking by the attorneys. ... Keystroke data might loosely supplement the identification process. If certain words were associated with certain clients, the links would be clearer.

oDesk does not seem to be targeting the legal market and, of course, lawyers bill much of their time from locations other than their desks. Assuming, though, that the recognition software could be honed well enough, is this something that could catch on? As far as privacy concerns go, the Web sites attorneys are visiting are likely tracked by firms in any event (though I guess there's a subtle difference between your employer seeing the URL of your favorite porn site and actually having the "Picture of the Day" pop up on the screen of the IT guy doing the monitoring).

Morrison's take (quoted in its entirety because, frankly, I'm not sure exactly what it means): "This is an idea at once entrepreneurial, ingenious, effective, and egregious -- but my guess is that it will not happen until global warming cools."

May 18, 2010 | Permalink | Comments (3)

Losing Sister Decides Life's Too Short to Continue Lottery Dispute

Back in March, we brought you the story of Rose Bakaysa and Theresa Sokaitis, the two elderly Connecticut sisters who were fighting it out in court over whether an agreement between them to split all gambling winnings was still in effect at the time Bakaysa won part of a $500,000 jackpot playing Powerball in 2005.

Last week, a judge ruled that the contract was not in effect, having been rescinded in 2004 during an argument between the sisters, and that Bakaysa thus did not have to cut Sokaitis in on any part of the proceeds. This morning, it's being reported that Sokaitis, after consulting with her attorney, has decided not to appeal the ruling. 

Here's hoping that the sisters decide to take it upon themselves to do what Judge Cynthia Swienton lamented the court could not:

"There is something in this tragedy that touches most people," New Britain Superior Court Judge Cynthia Swienton wrote in her decision. "While the court may be able to resolve the legal dispute, it is powerless to repair the discord and strife that now overshadows the once harmonious sisterly relationship."

May 18, 2010 | Permalink | Comments (1)

President's Aunt Granted Asylum

President Barack Obama's aunt, Zeituni Onyango, who first made headlines when it was revealed just days before the 2008 election that she was in the U.S. in violation of an order of deportation, has now been granted asylum, and will be allowed to remain in the country.

Though the reasons she sought asylum in the first place (in 2000) have not been disclosed, which is in accordance with protocol, one of her attorneys cited the violence in Kenya that seems to rear its head in connection with elections in that country.

The conservative blogosphere is predictably huffy about this decision. For example, Instapundit sarcastically suggests that Onyango might be no safer in the U.S. if mainstream media reports about the Tea Party movement are credited, and "Christian American Conservative" Kingsjester speculates that Onyango's "relatives in high places" influenced the immigration judge's decision.

In the absence of any details about the application or the hearing held by the judge, Leonard I. Shapiro, it's all speculation, but, of course, immigration judges don't get the Article III perks like lifetime tenure, and I'd sure hate to be the guy on record as booting the President's wheelchair-bound Auntie back to Africa.

May 18, 2010 | Permalink | Comments (1)

May 17, 2010

Monday's Three Burning Legal Questions

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

1) Question: I am a 69-year-old woman, and I am admittedly a really bad driver. Like, possibly, historically bad. I've tried hundreds of times to get my license and failed every time. Are there any countries that would be more hospitable to my needs?

Answer: Have you thought about South Korea? Not only do they have special, pink-painted 2.5 meter extra-wide parking spots just for women (which couldn't hurt your efforts) but sometimes they'll give people up to 960 tries to pass the driving test. (AP, South Korean driver earns license on 960th try)

2) Question: I live in a condominium in a very peaceful, low-crime area. Why is this same police patrol car always parked here for hours at a time?

Answer: Does the mayor live in your condo, by any chance? (Cincinnati.com, Milford cop suspended for sex with mayor) 

3) Question: I know that receiving "Cash for Gold" is all the rage but I'm a contrarian. How can I quickly turn all of this cash burning a hole in my pocket into tiny gold bars?

Answer: You just need to hit up the new "Gold to Go" ATM. It fits your needs perfectly. (Consumerist, Gold-Dispensing ATM Converts Pesky Cash To 24K Bars)

May 17, 2010 | Permalink | Comments (0)

Subway Says Other 'Footlong' Sandwich Sellers Violating Its Trademark

"You are hereby put on notice to cease and desist from using FOOTLONG (TM) association with sandwiches. You must immediately remove all references to FOOTLONG (TM) in association with sandwiches."

If you sell sandwiches that happen to be, oh, 12 inches long, and you dare to refer to said sandwiches as being a "footlong," then Subway would like to have a word with you. NPR reports that last week, shops calling their sandwiches "footlongs" began receiving this cease and desist letter (key language highlighted above) from Subway demanding a halt to this alleged misconduct and explaining that Subway "has applied for the trademark FOOTLONG (TM) in association with sandwiches."

One of the C&D letters was sent to The Coney Island Drive Inn in Brooksville, Florida, which has been selling 12-inch hot dogs that it dares to calls "footlongs" for more than 40 years. Subway says that letter was sent in error as it is only trying to trademark the term for sandwiches, not hot dogs.

Subway's trademark applications for "footlong" are now being considered by the Patent and Trademark Office.  Brett Trout of Blawg IT finds Subway's arguments unpersuasive, and writes that "federal trademark law prohibits federal trademark registrations on words which, when used in connection with the goods, are merely descriptive. A cursory Google search reveals over 6,000 uses of the words 'footlong sandwich' apart from the term 'Subway.'”

May 17, 2010 | Permalink | Comments (11)

What Is Candy in Washington State? You Have No Idea

No matter how bad it gets for you at the law firm today, just be happy you are not the person who must sort out the the new "candy tax" for your store in Washington state.

The concept of a candy tax seems simple enough until you ask, well, what constitutes candy? Don't worry -- Washington state has it all figured out for you:

“Candy” means a preparation of sugar, honey, or other natural or artificial sweeteners in combination with chocolate, fruits, nuts, or other ingredients or flavorings in the form of bars, drops, or pieces. Candy does not include any preparation containing flour. Candy does not require refrigeration.

Actually, worry a lot, because a walk through the candy aisle will quickly show you that the candy sold in the year 2010 doesn't fit neatly into any good definition. Washington tries to help with a series of Q&As about treats that are almost-but-not-quite candy. Are bags of trail mix containing small amounts of candy subject to sales tax? (No.) Fruit roll-ups? (Yes.) Sweetened dried fruits? (Yes.) Halvah? (No.) Energy bars? (Yes, if not made with flour.) And so on.

The Q&A, however, cannot begin to address the lengthy list of items that plainly would be candy in anyone's typical definition but still fall outside of the state's definition. For that you need this spreadsheet (via Going Concern) breaking down over 3,200 varieties of sweets.

Just for kicks, pretend you are the person at the store responsible for programming the taxable "candy" items into your cash register, and answer "candy" or "not candy" for the following items (the answers are below):

1. Reese's Peanut Butter Cup
2. Red Licorice
3. Jordan Almonds-Gold
4. Jordan Almonds-White
5. Snicker's Bar
6. Kit Kat
7. M&M's Peanut
8. Milky Way
9. Peppermint Patty
10. Nestle's Crunch

Answer: All of the odd-numbered items above are "candy," and all of the even-numbered items above are "not candy" according to Washington state.

May 17, 2010 | Permalink | Comments (2)

Discussions of Facebook Privacy (or Lack Thereof) Burning Up Blogosphere

"Facebook privacy" discussions and complaints are dominating the blogosphere lately. Legal bloggers (such as "Ken" from Popehat) and countless others are writing daily about why they are reluctantly leaving Facebook. As Ken writes,

staying on Facebook requires either (1) that I abandon the notion that I have any control over who sees, and profits from the use of, my data, or (2) that I engage in an increasingly tedious and difficult struggle to figure out, and exercise, the diminishing amount of control that Facebook is willing to give me over the privacy of my data.

The noise level has gotten so high that Facebook reportedly held an "all hands" meeting late last week to to discuss the social network's privacy strategy. Now the ACLU is even getting involved, and has launched a petition asking supporters to tell "tell Facebook loud and clear that you want control of your personal information" and that Facebook’s founder Mark Zuckerberg's position that “the [privacy] default is social” does not match what its users want.

On Friday, Lawyerist had a post that offered a helpful suggestion to Facebook users seeking more privacy. Lawyerist noted that users can hide their Facebook profiles from employers or random people trying to find information about them by a quick tweak on their account settings:

Under Account Settings > Privacy > Search, you can uncheck the box that allows your Facebook page to show up in public searches. Uncheck it, and if random people on the internet are trying to find you, your page should not show up.

Unfortunately, there are many, many different settings that privacy-seekers on Facebook must navigate to avoid Facebook's "social" default, but the one flagged by Lawyerist is a simple one to get started with.

May 17, 2010 | Permalink | Comments (8)

May 14, 2010

Dershowitz on Wrongness, Law, Truth and Goldman Sachs

If you haven't read Kathryn Schulz's interview with Alan Dershowitz at Slate, you should. It's the first in a series of interviews about "wrongness," which is the subject of Schulz's book, "Being Wrong: Adventures in the Margin of Error."

(The interview is actually posted in two parts, and I've linked to the second, which deals more directly with error and its effect on law. Here's a link to part one.)

In the interview, Dershowitz, not known for being shy, states unequivocally that the law ain't necessarily designed to figure out the truth:

The law is agnostic about truth. It's very skeptical of ultimate truth. That's why freedom of speech permits lies to be told. Most liberal democracies don't try to figure out what the truth is. I would be very upset if my country, like Hobbes, decided there was truth. Hobbes said that one of the obligations of those who govern is to censor lies, because those who govern have unique access to the truth. That's not the American way.

As a timely example of the law being shaped by wrongs, Dershowitz cites the Goldman Sachs case:

So Goldman Sachs does something terrible. They get a man who was betting against certain bonds to pick the bonds for a fund that's betting in favor of those bonds. There's one problem: Although we know it's terrible and it doesn't pass the smell test, it happens not to be against the existing law, because it's such a clever technique that no one else thought of it. You can't anticipate all possible mistakes or evildoing that people can come up with. So in the end we may have to give Goldman Sachs a pass on this one and use their terrible mistakes as a basis for passing new legislation.

Once we modify the law to bring it even with our sense of what's right, though, those intent on doing wrong will just evolve further:

And then people like [hedge-fund manager John] Paulson will figure out ways of evading the new legislation, because the bad guys are always a step ahead of the good guys. They're always cleverer; they have a greater motivation.

Dershowitz also says that if a criminal defense lawyer ever becomes comfortable with his work, he should get out of the business, and shares his nightmares about getting a client acquitted only to have him "do it again."

It's a good read. And come on, it's Friday. Take some early weekend time for yourself.

May 14, 2010 | Permalink | Comments (1)

A Texas Lawyer You Don't Want to Mess With

Now this is why I moved to Texas.

According to Texas Lawyer, medical malpractice attorney Carolyn M. Barnes was arrested Tuesday for shooting at a census worker who knocked on the door of her house. Barnes told the worker, Kathleen Gittel, to leave, but Kathleen didn't have enough pep in her step, so Barnes fired off five rounds "in [Gittel's] direction."

I guess it could have been worse, Barnes could have eaten Gittel's liver with some fava beans and a nice chianti. 

Barnes, despite being a civil litigator, is no stranger to the inside of a jailhouse. As this article from the Austin American-Statesman details, Barnes was arrested in January for attacking a deputy who told her she couldn't bring a knife into the Travis County courthouse.

Also, in 2000, Barnes, as part of an ongoing dispute about a traffic ticket, threatened to "fight to the death" if authorities attempted to arrest her on a traffic warrant, stating that "This is why people bomb governmental offices, kill cops, and kill judges because of all the lies and abuses!" In discussing that dispute as part of her subsequent run for a seat on a local school board, she noted that, in her 17 years of practicing law, she "ha[d]n't shot anybody yet, not even come close." So much for that campaign slogan.

May 14, 2010 | Permalink | Comments (2)

Lucky Bad Guys of the Day: Ali Abdul-Akim and Marcus Ayala

If you find yourself riding with a couple of your buddies around the Brooklyn neighborhood where your brother was recently murdered, wearing a bulletproof vest, with a loaded handgun in the glove compartment, well, I'm comfortable calling you a "bad guy."

This was exactly the situation in which Ali Abdul-Akim found himself last June. The cops pulled over the car in which he was a passenger, yadda yadda yadda, discovered the gun, and he was charged with criminal possession of a weapon and unlawful wearing of a body vest. But a New York trial court issued an opinion (.pdf) last week making clear that those yaddas matter.

The court suppressed the gun and the vest, holding that there was no probable cause to arrest the driver, Ayala, based either on the fact that he was allegedly texting while driving, or on the arresting officer's "mistake" in concluding that he had only a learner's permit, rather than a full-blown driver's license.

Police had been warned at their roll call that morning that Abdul-Akim might be out on the streets seeking revenge for his brother's murder. And, based on the facts in the opinion, it sure sounds like that's what was afoot. But we all learned as 1Ls about the fruit of the poisonous tree. As the judge, Justice Mark Dwyer of the New York Supreme Court, wrote: "crime prevention may not be effected at the expense of disregarding the constitutional requirement that citizens be free of unreasonable searches and seizures."

So, Ali and Marcus, count your blessings, as I'd suspect the charges will have to be dropped without a weapon or a vest. Maybe today would be a good day to buy a lottery ticket. MegaMillions is worth $31 million tonight ...

May 14, 2010 | Permalink | Comments (2)

New Face of the Cola Wars: Industry Takes on Soda Tax Proposals

Everybody loves a showdown about controversial legislation. No, we're not talking about the Arizona immigration law debate, but the several local proposals to tax sodas and other sugary delicious drinks.

New York Mayor Michael Bloomberg has come out in favor of Governor David Paterson's proposal for a state tax of one cent per ounce. Some New Yorkers don't care for the idea. Particularly some corporate New Yorkers, like Pepsico, which reportedly suspended plans to expand its world headquarters in Harrison, N.Y., and has workers at its Queens plant engaging in good old-fashioned rallying.

The tv ads have been coming fast and furious, as well. Here are two of my favorites, one from each side, of course.

First, the pro-tax ad:

In a nutshell, the message here is: "Your kids will get fat and die unless this tax passes."

And here is the anti-tax ad:

I call this one: "Poor people like soda and are gonna buy it anyway, possibly instead of the over-the-counter cough medicine they're using to try to cure their children's bronchitis, because they can't afford health insurance."

It's riveting stuff. Now, the industry is mounting a campaign against a similar Washington, D.C., proposal. And the radio ad on the No D.C. Beverage Tax site may be my favorite yet.

What do you think, readers? Is a proposed soda tax legit because of the noble aim of encouraging citizens to make healthier choices? Or should government stay out of our cup holders?

May 14, 2010 | Permalink | Comments (2)

May 13, 2010

Thursday's Three Burning Legal Questions

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

1) Question: Man, this soccer team stinks! Why did I even bother spending the time and money to come out to watch this game? It's already 3-0! 

Answer: If they give up one more goal you may be entitled to a refund. (Consumerist, Soccer Team Gives "Refund" After Epic 4-0 Beatdown)

2) Question: I'm trying to find office space for my law office. Any suggestions?

Answer: Have you thought about hanging out a shingle inside Sears? (My Shingle, Should You Open Up Shop in Sears?)

3) Question: I have been dutifully trying to live by the "Be Green, Keep it on the Screen" and "Think Before You Print" mantras coming from my law firm. I'm helping the environment, right?

Answer: Ha! Haven't you seen the new "Put It on Paper" campaign from paper company Dunder Mifflin Domtar Corp. telling young people it's time to start printing everything out again? Print, baby, print! (Globe and Mail, Domtar: Print those e-mails to your heart’s content)

May 13, 2010 | Permalink | Comments (0)

Breaking Down Elena Kagan's Stance on ... the Softball Field

I'm sorry, but I can't get all that interested in the blanket coverage about Supreme Court nominee Elena Kagan's view on this or that as expressed in a draft of a law review article she co-wrote in 1992; or in the possible hint on her view of the correct interpretation of the 4th Amendment that she shared with the clerk at Blockbuster in 1997. Sorry! Can't do it!

That doesn't mean, however, that I'm hitting the delete button on every single Kagan story. For instance, how can anyone resist this story from MLB.com (via Bitter Lawyer) in which a half-dozen Major League baseball players painstakingly break down Kagan's batting stance based on a photo of her playing softball in 1993? Now you've got my attention!

Listen to the pros on this below. In short, they're concerned about her lack of "game face" (too smiley) and choking up way too much on the bat (won't be able to hit the inside pitch):

Mets catcher Rod Barajas: "It actually looks good. It looks like her weight's distributed evenly. Her hands are up. She's holding the bat the right way. That's something you could work with. That's something I could go out there and feel comfortable getting in the batter's box, looking like that."

Nationals third baseman Ryan Zimmerman: "I don't know. She's got the Barry Bonds choke-up working, maybe that's two strikes on her. I don't know. She doesn't look too aggressive. She doesn't have a very intimidating face working, either. It looks like she's friends with the pitcher or something. It's not terrible, though. It's not great, but it's not terrible. It's not looking too aggressive. She's not looking ready to hit. She definitely looks like a Punch-and-Judy hitter, not really a power hitter."

Nationals catcher Ivan Rodriguez: "It doesn't look that bad. You've got two eyes to the pitcher. You've got good balance. All the balance is on the back leg. It doesn't look that bad. Batting stance looks OK -- but I don't know the swing. I think the batting stance is perfect, right there. Maybe she brings the bat a little longer. It looks good so far."

Mets outfielder Jeff Francoeur: "First of all, I'll say that she's choked way too far up on the bat. It looks like the lower hand's kind of too much over, knuckles need alignment. You can tell she's gripping the bat way too hard. She's not going to be able to get it there. The stance is not very good. Her feet are kind of open here. That's not going to make for a real good, powerful stance. Smiling at the pitcher is probably not a great idea. I do like how the head is turned. Her shoulders are nice. She's balanced. But it's not a very strong stance and you can't smile at the pitcher or you're gonna get hit. You're gonna get hit."

Nationals closer Matt Capps: Declared it a "good stance" overall, but "even the good hitters are pitchable. It looks like she's choking up there and she's locked down, so it looks like she's going to give you an aggressive fight -- which is probably a good thing in the position she's going to be in. But with the bat head going up like that, I'm probably going to try and throw the ball on the inner part of the plate and see if I can't jam her. I'm going to go hard in and soft away, and try to mix up the timing a little bit. It looks like with her stance, she's going to have a hard time getting to the ball on the inner half of the plate. Anything breaking away from her, with me being a righty, she'll be a little bit in front of.  Just the position of her hands and the position of the barrel of the bat, that's a lot of travel for that bat head to come all the way around through the middle. Where if she lowered it, she could just drop it down on the outside part of the plate hard. That's a lot of bat-head travel to get to the inner part of the plate. I don't know, I'd have to see her swing. Maybe her hands are quick enough at this stage of her life where she could still get to it."

Former relief pitcher Jeff Nelson: "Whoever chokes up, you've got to throw them inside. Anybody who chokes up has a hard time hitting that ball inside, so they need to get around on it a little bit earlier. It looks like she wouldn't be able to handle the ball inside. Choking up lets you get around faster, but in most cases they want to have quicker bat speed. Choking up gives you quicker bat speed, but you still have to jam her, pitch her inside. Her stance probably needs a lot of work. But she's very smart, so she'd quickly figure out what a pitcher is going to throw anyway. I guarantee if she saw a breaking ball come at her she might be sitting on her butt on the dirt. She's probably never seen one of those. It looks like she is probably a low-ball hitter, so you pitch her up in the zone, too. She'll swing right through them. You look at Barry Bonds, he choked up, and he was a low-ball hitter. You want to pitch up in the zone and they usually wind up swinging right through it."

May 13, 2010 | Permalink | Comments (5)

The Law Frowns on Attorney's Neglect but 'Positively Glowers' at Its Exploitation

"Admittedly, the law frowns on an attorney‟s neglect to comply with a clear rule. However, it positively glowers at another attorney‟s exploitation of such neglect as an excuse to break his word."--Ron Burns Const. Co. v. Moore (Cal. Ct. App. - May 11, 2010)

The great quote above from yesterday's decision in Ron Burns Const. Co. v. Moore (via the California Appellate Report) was directed squarely at defense counsel in the case. As laid out in the appellate opinion, plaintiff‟s counsel and defendants‟ counsel agreed to multiple extensions of plaintiff‟s time to file a motion for attorney fees on appeal, while they were trying to settle the amount owed. Under California Rules of Court, however, any stipulation to extend the time for filing a motion for attorney fees on appeal must be filed with the court before the original time has expired. Plaintiff‟s counsel did not file a written stipulation within this time, however.

The appellate court summarized that:

When negotiations broke down, plaintiff‟s counsel finally filed a motion for attorney fees on appeal. Defendants‟ counsel did not deny granting several extensions of time; nevertheless, he argued that the motion was time-barred. The trial court agreed, and it therefore denied the motion for attorney fees. Plaintiff‟s counsel then filed a motion for relief from default.

The trial court denied plaintiff's motion, finding among other things that the failure to file a written stipulation in a timely manner was"inexcusable neglect."

The appellate court, however, held that the failure to file a timely written stipulation was not inexcusable neglect as a matter of law, concluding its analysis by stating that:

[Defense] counsel has never denied granting at least two extensions of time....He granted these extensions even though the first one had not been timely filed with the court. His client benefited from the extensions, because it gained the opportunity to try to settle [plaintiff's] claim for attorney fees. Under these circumstances, he is taking advantage of [plaintiff's] counsel's mistake in precisely the manner that is disfavored by law, to say nothing of common decency.

May 13, 2010 | Permalink | Comments (1)

Goddesses Gone Wild? Va. AG Puts Some Clothes on State Seal

As a (Northern) Virginian, I'm particularly interested in the nonsense now coming out of the Virginia Attorney General's office. It seems our attorney general, Ken Cuccinelli, has turned his attention to the Great Seal of the Commonwealth -- an image on the state flag that dates back to 1776.

According to the Virginia-Pilot (via The Legal Satyricon), and as shown below, "the seal depicts the Roman goddess Virtus, or virtue, wearing a blue tunic draped over one shoulder, her left breast exposed." Gasp!

This sort of "Goddess Gone Wild" action is unacceptable to the AG, who ordered new lapel pins created for his staff that essentially photoshop the centuries-old image so that Virtus’ bosom is covered by an armored breastplate. "Cuccinelli joked that it converts a risqué image into a PG one," the Virginia-Pilot notes. Check out our AG's handiwork:

University of Virginia political scientist Larry Sabato said that “When you ask to be ridiculed, it usually happens. And it will happen here, nationally. This is classical art, for goodness’ sake.” Sabato added that Cuccinelli apparently did not learn anything from the onslaught of criticism U.S. Attorney General John Ashcroft received when he ordered drapes installed to cover partially nude statues at the Justice Department.

May 13, 2010 | Permalink | Comments (2)

May 12, 2010

Avvo Marketing Guy Compiles List of Most Popular Lawyer First Names

For those parents-to-be who want to ensure that their children's lives are saddled with crushing debt and filled with 90-hour work weeks reviewing irrelevant emails in a windowless room on the 22nd floor of a New York office building, Conrad Saam, head of marketing for the controversial "lawyer rating" site Avvo, has done a "groundbreaking new study on lawyer's [sic] names over the past 200 years."

There are eight names that Saam says appear in the top 20 list for every time period he studied: each decade since the 1950s, 1901-1950, and the Olde Tyme list of attorney names from the 19th century:

1. JOHN
2. ROBERT
3. JAMES
4. DAVID
5. WILLIAM
6. RICHARD
7. THOMAS
8. JOSEPH

Color me unsurprised; I imagine several of these old standards likely also appear on the top 20 lists of plumber names, airline pilot names and carnival barker names. Just to be safe, though, I'm taking them all off the list of potential monikers for my offspring.

None of the names on any of the lists that Saam lays out are particularly novel or edgy. So, in an abundance of caution, if you want to be sure your daughter doesn't end up a lawyer, you might want to consider something from the "Bad Girls" list, like Cayenne or Tempest. And if, despite Willie Nelson's suggestion, you'd rather your babies grow up to be cowboys than "doctors and lawyers and such," perhaps you should choose something from the "Relaxed Names for Boys" list, such as Boone or Rooney.

May 12, 2010 | Permalink | Comments (4)

Selecting the Lesser of Two Evils: Saving Money by Choosing One Legal Research Provider

Last year's Law Librarian Survey from The American Lawyer revealed that 31 percent of law firm librarians were moving in the direction of choosing a single electronic legal research vendor, up from 18 percent the year before. 

Today, via Joe Hodnicki of the Law Librarian Blog (who also summarized the survey in September), I learned that Toby Brown at 3 Geeks and a Law Blog pulled out his adding machine and did some calculations, concluding that making such a move, at least for "primary law" materials, would save a firm roughly $1500 per year, per attorney (assuming the reduction is from two -- Westlaw and Lexis -- to one).

Brown calls this a conservative estimate, as the math is based on the notion that only 25 percent of the legal research costs are attributable to primary law, whereas he believes the actual proportion to be much greater. Assuming primary law to include cases and statutes, I'd tend to agree that the proportion is greater.

It's unclear to me whether Brown is advocating keeping some access to multiple services for "secondary law," which I'm assuming would include law reviews, treatises, etc., where the content certainly differs more between vendors. If that's what he's advocating, how would keeping access to multiple vendors (but still saving money) work in practice?

Associates (and other firm lawyers): Have you already been limited to one vendor? How was the restriction implemented? What happens if you really, really need something that you can't get on the preferred system?

May 12, 2010 | Permalink | Comments (2)

Eyebrow-Raising Verdict of the Day: $15 Million to Doctor Poisoned by Botox

It has the word "toxin" in its official scientific name. The phrase "deadly toxic effect" appears in the first paragraph of its Wikipedia entry. Nevertheless, Dr. Sharla Helton of Oklahoma City decided to inject herself with Botox to get rid of some unsightly wrinkles.

And instead of beautiful younger looking skin (or perhaps in addition to; this article from The Oklahoman doesn't make it clear), Dr. Helton apparently got botulism. Oh, right, a slight variation of that word appears in its name as well. What an unforeseen turn of events.

Yesterday, an Oklahoma City jury awarded Helton $15 million in damages on her claim that the 2006 warning label for Botox didn't adequately disclose the risks of using the drug. The maker of the drug, Allergan, has, of course, deemed the verdict absolute bunk, and pledged to appeal.

Whatever happens on appeal, I suggest playing it safe, ladies. Allow me to share my favorite "ancient Oriental beauty secret":

May 12, 2010 | Permalink | Comments (11)

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