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September 30, 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: Hey LBW, I need a quick answer as I am a prosecutor in the middle of a trial. We need to show that that the defendant's home was closer to one cell tower than to another cell tower. Can we use Google Earth for this?

Answer: No problem! (New Jersey Law Journal, Google Earth Photos Help Show Proximity to Crime Scene in Burglary Case)

2) Question: I'm a cop. We just caught this guy trying to take pictures up women's skirts at the Wal-Mart! Is there some law that covers this?

Answer: Are you in Idaho? If so, consider arresting him under the new "video voyeurism" felony that was "created to meet the needs of an ever-changing technology in society." (KTVB, Man arrested, accused of taking pictures under women's skirts)

Moldbag 3) Question: I hate to waste your time but I can't take it anymore. Somebody at work steals my sandwich everyday! Is there a "petty theft" complaint I can bring or something?

Answer: No need for that. Just use this new "anti-theft lunch bag" with fake mold on it and nobody will ever steal your food again. (Consumerist, Anti-Theft Lunch Bags Make Thieves Think Your Sandwich Is Moldy)

September 30, 2010 | Permalink | Comments (2)

Who Needs a Vice Squad? Now Prostitution Becomes Legal in Canada

Crazy times in the vice world, huh?

Fatty-34398 To sum up recent events, you may soon be able to light up a fatty in California, as the state appears poised to legalize marijuana in a vote scheduled for November. In addition, reports coming out of Canada indicate that yesterday, a Toronto judge struck down the country's prostitution laws altogether, finding that the laws were actually endangering sex workers’ lives.

According to the Toronto Star, "if Justice Susan Himel’s decision stands, prostitutes will be able to communicate freely with customers on the street, conduct business in their homes or brothels and hire bodyguards and accountants without exposing them to the risk of criminal sanctions." The ruling has been suspended for 30 days to give the government time to deal with consequences such as unlicensed brothels.

Bedford Terri-Jean Bedford, the woman who challenged the prostitution law, is a "dominatrix who was convicted in 1998 of keeping a common bawdy house." She described the ruling as “emancipation day.”

Asked how she was going to celebrate, Bedford most definitely did not respond that she was "going to Disney World!" Rather, she said while cracking a riding whip, "I’m going to spank some ass.”

Having already invoked Night Shift's Billy Blaze once this month, I think it is appropriate for him to have the last word on the prostitution issue:

September 30, 2010 | Permalink | Comments (4)

SoloCorps Website Shares Solo Practitioner's Stories on Video

SoloCorps You probably assume that after retiring as one of the lead authors of Legal Blog Watch, Carolyn Elefant is now relaxing on a beach in the Mediterranean, lighting cigars with $100 bills and otherwise living the dream life that rightfully belongs to all former LBW writers. And while that may well be the case, it turns out that, in addition, Carolyn has recently launched a very interesting project called SoloCorps.

As discussed here by The Common Scold, Carolyn has collaborated with Lisa Solomon to create the SoloCorps website, which already has 50 videos that chronicle "the stories, experiences, and wisdom of solo and small firm lawyers." More videos are on the way, and the site hopes attorneys will submit their own videos as well.

On her MyShingle blog, Carolyn wrote that while

the legal profession is in a state of upheaval ... the solo experience endures and inspires. We want to capture the rich range of experiences of solos and small firm lawyers across the country. By telling your stories, you’ll be sharing your wisdom with today’s lawyers, as well as with the next generation.

The site has videos on many different topics, such as "From Law Enforcement to Lawyer." The video below is taken from the site's section on "Going Solo After BigLaw" and features solo attorney Phil Belin of Omaha, Neb.

September 30, 2010 | Permalink | Comments (2)

Federal Court Brief Cites to 'Tweet' From a Professor

Tweet Via the Legal Writing Prof Blog I learned that in a brief filed earlier this week in federal court in Illinois, plaintiffs cited a "tweet" by Professor Adam Winkler (@adamwinkler). As discussed by Josh Blackman's Blog, in a case involving a ban of guns within city limits, the defendants referred the court to the work of noted UCLA Law Professor Adam Winkler relating to standards of review. Plaintiffs responded that defendants'

reliance is badly misplaced. Regardless of whether the cited article truly reflects the City’s position, it predates Heller’s rejection of rational basis, and McDonald’s finding that the Second Amendment secures a fundamental right, as well as the Seventh Circuit’s opinions applying intermediate review.1 But notably, Prof. Winkler agrees that Chicago’s range ban is unconstitutional: “Reasonable gun control is one thing, this another. Chicago requires 1 hour on range for handgun permit but bars ranges.”, Aug. 16, 2010, 3:18 p.m. (citation omitted) (last visited Sept. 26, 2010).

Take that defendants! You have been rebuked by a tweet!

Does anyone know if the current Bluebook establishes the proper format for citing to a tweet?

September 30, 2010 | Permalink | Comments (2)

September 29, 2010

'Death Ray' Threat No Longer Limited to Fans of Sci Fi

Speaking of Vegas hotel pools that are too hot for some tastes, it appears as though one of Sin City's newest properties may be burning some of its guests worse than that dealer who always manages to pull a six-card 21.

Gawker has a post on the new Vdara hotel, one of few properties on the strip that does not house a casino. What it does have are architectural features and building materials that project on poolside loungers a swath of concentrated sunlight strong enough to singe hair and melt plastic bags. So says Chicago personal injury lawyer Bill Pintas, who was unfortunate enough to be struck by the "death ray" while chilling by the Vdara pool recently.

While Pintas himself has disclaimed any intention to sue, he was quick to opine that the owners of Vdara would most certainly be liable if anyone is injured by the searing rays, based on evidence that the potential for the "solar convergence" was identified during construction. The hotel's owners have vowed to find a solution for the problem right quick, but in the meantime, a spokesman for Vdara owner MGM Resorts is happy to call the potential for serious bodily harm "an interesting story."

September 29, 2010 | Permalink | Comments (3)

Lawsuit of the Day: Hard Rock Cafe Upset by Hard Rock Hotel's Image

Just the other week, we brought you news that IHOP was suing IHOP. Today, via the Wild Wild Law blog, we present Hard Rock vs. Hard Rock.

Last week, reports the Las Vegas Sun, Hard Rock Cafe International brought suit in federal court in New York seeking to cancel its licensing agreement with the Hard Rock Hotel and Casino in Las Vegas.

Rehab Why do the owners of the Hard Rock trademarks have their panties in a bunch? Essentially, because of a bunch of girls in panties. Ever watched the tv show "Rehab: Party at the Hard Rock Hotel"? No? Well click on that link and watch some clips. Go ahead. I'll wait.

HRCI, pioneers of the theme restaurant (and, thus, the $15 hamburger), believe that the show implies that the hotel is a haven for

drunken debauchery, acts of vandalism, sexual harassment, violence, criminality and a host of other behavior that most members of the general consuming public of the United States who regularly frequent or are potential patrons of HRCI’s Hard Rock Cafe restaurants and other properties operated under the Hard Rock marks would find unseemly and objectionable.

Unseemly and objectionable? I hate to bring up the $15 burger again, but ...

Morgans Hotel Group, owners of the Las Vegas property, have called the suit meritless

If HRCI is successful, and the hotel has to change its name/theme, I am gonna be all over eBay looking for a deal on these KISS outfits.

September 29, 2010 | Permalink | Comments (0)

Iranian 'Blogfather' Sentenced to 19 1/2 Years in Prison

Another day to be happy you live here in the U.S.

According to a report on the Jurist Paper Chase blog, Hossein Derakhshan, the man credited with popularizing blogging in Iran, was sentenced yesterday to a prison term of 19 1/2 years for his blogging and activism. Officially, he was convicted of "cooperating with hostile countries, spreading propaganda against the ruling establishment, promoting counterrevolutionary groups and maintaining obscene websites."

While there were earlier reports that Derakhshan had been facing the death penalty, Western reaction to his sentencing has been predictable in its outrage. Brian Whitaker in the Guardian observes that Derakhshan's sentence for "activities that would not be a crime at all in many countries" is harsher than many sentences for murder. Reporters Sans Frontieres notes that it is the longest sentence ever imposed on an individual for blogging activities in Iran, and urges Iranian president Mahmoud Ahmadinejad to intervene and arrange Derakhshan's release. 

If you'd like to sign a petition supporting Derakhshan's release, go to

September 29, 2010 | Permalink | Comments (1)

Florida Lawyer Wants to Teach You How to Benefit From Bank Fraud

Opp Recent admissions by big-time mortgage lender GMAC that its personnel had filed false affidavits in foreclosure cases have been much in the news lately, and have spurred investigations by the attorneys general of several states.

The admissions have also resulted in some opportunity for increased business for attorneys like Roy Oppenheim, who runs what he calls one of the leading Florida foreclosure defense firms. (The firm does have 468 friends on Facebook, so that's something.)

Oppenheim, overseer of the South Florida Law Blog, put out a press release yesterday, advertising a webcast seminar next week on "How Underwater Homeowners Can Use Bank Fraud Crisis to Their Advantage." Now, to be fair, as shady as that sounds, some of the topics Oppenheim claims will be covered seem to be legit. For example, the presentation will address the rights of those homeowners who were foreclosed on based upon forged or otherwise improper documents, and how to structure and propose a bailout.

But soliciting clients by inviting them to take advantage of bank fraud? There had to be a better way to phrase that.


September 29, 2010 | Permalink | Comments (1)

September 28, 2010

Lawsuit of the Day: Man With Throat Cancer Tackled as Suspected Bank Robber

William Brown, of Jefferson County, Ky., might want to stick to paying his taxes by mail from now on. Brown, according to Courthouse News Service, filed suit on Friday against Fifth Third Bank after an incident occurring last year.

Brown's complaint recites that he went to a Louisville branch of the bank on Nov. 11, 2009, to pay his property taxes, after seeing ads indicating such payments would be accepted there. Nov. 11 is Veterans Day, and the bank was closed. Well, sort of closed. The doors were unlocked, and Brown walked in, which apparently triggered a silent alarm.

Brown has no larynx, it having been removed as treatment for cancer. And, according to the suit, responding police believed the mechanical larynx that Brown uses to speak was a weapon. So, naturally, as he was walking around trying to figure out where everybody was, cops tackled him.

Brown's suit seeks damages for mental anguish, and also seeks to compel the bank to turn over the surveillance video of the event, and to name the employees who goofed and left the door unlocked on a bank holiday.

September 28, 2010 | Permalink | Comments (1)

Elmo Attacker Detained for Mental Health Evaluation

Don't mess with Elmo. He's all furry and red and cute, but if provoked he will throw down and beat your a$$. That's exactly what happened over the weekend in Winter Park, Fla., according to a report by CNN.

Elmo or, more precisely, Jeremy Trespalacios, the guy dressed up like him, was working an event at a toy store, and decided to take a walk to a nearby guitar store. Another guitar store customer -- perhaps because he prefers Grover -- started throwing punches. 

Elmo emerged victorious when, now sans head and gloves, he shoved the attacker head first into a glass display case. No worries though, all agree Elmo was simply defending himself, and no charges will be brought against him.

Big week for Elmo after his involvement in boobgate.

September 28, 2010 | Permalink | Comments (3)

Duke Law Happiness Expert Targeted by 'Stranded in Foreign Country' Scam

As lawyers, we are, for better or worse, presumed to be fairly intelligent. That's why we're surprised when our own fall for scams like the "company from another country needs help with collections" racket or the "hey I found an envelope with some important-looking documents and I'll bring it to you if you pay for my cab" deal.

But, obviously, it happens. As reported in the ABA Journal this morning, a law professor has been dealing with another common scam. Senior Lecturing Fellow Dan Bowling of Duke Law -- who conducts research in "positive psychology" -- got his e-mail hacked, and the hackers sent out messages to Bowling's contacts claiming that Bowling had misplaced his wallet and all his credit cards while traveling in Scotland for a seminar, and needed a loan of $3,300 to pay his hotel bills etc.

This scam is fairly prevalent, and is accomplished via e-mail, social networking sites and text messages. The FBI has warned against it and the Manhattan DA has been cracking down on the hackers in recent months. 

As for Bowling, he went on the offensive to combat the hackers, changing his outgoing voicemail message to indicate that "the e-mail isn’t legit, although those who are so inclined are always welcome to send money." Maybe he can turn the incident into some kind of lesson for his class on "Well-Being and the Practice of Law."

September 28, 2010 | Permalink | Comments (1)

September 27, 2010

From the Bad Ideas File: Lying About Having Cancer

Liar For so many reasons, it is a terrible idea to falsely claim that you have cancer in an effort to gain a benefit or avoid trouble. I first saw this a few years ago when Howard P. Richman, a biotech executive, told a federal judge that he could not defend the case filed against him by the SEC because he was gravely ill from colon cancer. In support of this story, Richman:

  • submitted a letter to the court from a [phony] doctor stating his treatment included surgery and chemotherapy;
  • told the court later through his attorneys that the cancer had spread; and
  • finally told the court in July 2007 that the cancer had worsened and that he now had an 8 percent to 15 percent chance of survival. His Stage III colon-rectal cancer, he said, had “spread to his stomach and invaded his abdominal cavity.”

Well, it turned out that Richman never had cancer, and the whole story was a sham. Last year, Richman admitted he had lied about the cancer and pleaded guilty to a count of obstruction of justice. In October 2009, Richman was sentenced to 3 years in prison. (On the bright side, I guess, he is cancer-free).

To my knowledge, Richman had been alone in the "People Pretending to Have Cancer" category, but he may now have company.  The Legal Profession Blog notes that last month, the Illinois Bar charged attorney Ellen Lang with "falsely claim[ing] to be suffering from cancer in order to induce a client to purchase a residence for her benefit":

In or prior to 2006, L...allowed Respondent to reside in a home [she] owned, at 1530 Tower Road in Winnetka (the "Winnetka house") under the terms that Respondent would pay rent and other expenses normally paid by tenants and L. would pay the expenses normally paid by landlords. At the time Respondent resided at the Winnetka house, L. had moved out of state and was residing in La Jolla, California.

In or about 2006, Respondent told L. that she was suffering from cancer and needed a place to live near her cancer treatment center in Evanston.

Respondent's statements to L. that she was suffering from cancer were false, and Respondent knew they were false because she never had cancer. Respondent's statements to L. that she was suffering from cancer were made for the purpose of inducing L. to purchase a house in Evanston to be used for Respondent's benefit.

Beyond the legal issues involved in lying about having cancer, I have to think that there may be some even more serious karmic ramifications.

September 27, 2010 | Permalink | Comments (2)

Tips for Motorists on How to Get a Warning, Not a Ticket

Policeofficer Via Consumerist I found this article from MarketWatch on what motorists should say (and not say) to police officers when they are pulled over.

The article offers a reminder that with very few exceptions, police are not mandated to write you a ticket after pulling you over. In fact, the article states, most officers would actually prefer to "send you on your way with a friendly warning." Thus, what you say and do in your brief interaction with the officer during the stop can be critical to the ultimate outcome, i.e., a ticket or no ticket.

Some tips from the article:

1. "Play nice"

In other words, accept that the police have caught you doing something that's against the law. Do not argue and demand information, or imply the officer pulled you over for no reason. As one Chicago officer put it, "if they try to take charge of the traffic stop, they're not going to get out of it without a ticket. We ask the questions, not them."

2. "Keep it honest"

Don't lie. An officer from the LAPD estimates that nine out of 10 people lie to him, which he views as "an attack on our intelligence." On the flip side, sometimes the truth is all the officer needs to hear to send you on your way with just a warning, such as the young man pulled over for speeding who confessed he wasn't paying attention because he was on Cloud 9 after "the best date of my life. I just met my future bride." "How are you going to write that guy up after that?" a New Jersey officer wondered. (As I noted here, other truthful statements such as "I was speeding because my colonoscopy bag is leaking” can also be effective).

Some other tips from police:

  • don't use pejoratives;
  • don't call female officers "baby" or "sweetheart;"
  • don't interrupt the officer; 
  • stay calm; and
  • avoid quick movements, as police must assume, for their own safety, that everyone is carrying a gun.

Read all of the tips in the full article here.

September 27, 2010 | Permalink | Comments (5)

Lindsay Lohan's Mug Shots Through the Years -- an (Ongoing) Retrospective

For reasons that are not now clear to me I assumed back in July that we were all finished with Lindsay Lohan mug shots. As you may recall, in this post I offered up the three then-existing LiLo mug shots for your review.

On Friday of last week, however, Lindsay generously posed for the LAPD once again (#4 below), bringing the Lohan mug shot portfolio up to four.


To recap and build upon my take on these four glamor shots (via TMZ), here is what each says to me:

1. July '07: "OMG -- I can't believe this! My life is over. Mommy!!!"

2. November '07: "Where am I? Is this photographer a paparazzi? Screw you!!"

3. July '10: "Hey Doris. Good to see you again. I know -- it's been a while! Can you get my good side? Catch you later."

4. September '10: "I hate my first three mug shots! Amateurs! For once can we please go with a 'closed mouth smile,' part my hair on the left, and Photoshop out all of my freckles?

September 27, 2010 | Permalink | Comments (1)

September 24, 2010

A Look at the Underground World of Credit Card Information Sales

At Krebs on Security, Brian Krebs reveals a credit card scam world I never knew existed. It turns out that there are a multitude of websites where fraudsters can go to purchase stolen credit and debit card information online. Krebs says the glut of competitors in this industry helps keep prices for stolen account numbers exceptionally low. Stop reading for a second and take a guess how much your credit card information sells for on the black market.....

Finished pondering this? Did you guess $1.50, because that is the answer (unless you are a U.K. resident, in which case it is a whopping $4.00).

Krebs opened an account at one such site called "" and observed how the site tried to upsell fraudsters for services such as specific searches for card information from people living in a particularly affluent area of town. It costs an extra $.60 to isolate your search by city and state, raising the cost in Kreb's shopping cart from $1.50 to $2.10. See a screenshot of the site below:


Krebs adds in a comment to the post, "For all those who are asking, payment is made via LibertyReserve and/or Webmoney, virtual currencies that are popular in the underground. You guys didn’t really think the proprietors of this shop would accept credit cards, did you? :)"

As the Boing Boing blog describes it, the site is "structured like a bizarro-world PayPal, with soft come ons, hidden fees, and lots of upsell pressure." There were also some interesting comments on the Boing Boing post about this subject, including:

  • "Scammers scamming scammers? Is there no honor among lowlife scum anymore?"
  • "I love how they have a Terms & Conditions page, as though they were a legitimate business who could actually hold you to those terms. It's like Ted Bundy trying to get his victims to sign a disclaimer to absolve him of responsibility for death or serious injury." 

September 24, 2010 | Permalink | Comments (2)

'Unsubscribe' Service Helps Remove You From Unwanted E-Mail Lists

Unsubscribe logo Lawyerist had a helpful post earlier this week discussing a new way to get "unsubscribed" from e-mail lists that you are not interested in being on. Many e-mails have an unsubscribe button, of course, and some of those buttons seem to be legit and actually work. Other times, however, clicking the "unsubscribe" button seems to have no effect. On top of all of this is the worry that many people have that by clicking on an "unsubscribe" button, you are merely confirming to the bad guy spammers that your e-mail address is active, possibly leading to more and more spam.

Lawyerist says that a new service called "Unsubscribe" has been launched to take the unsubscribing function off of your plate. Users must sign up for an account on Unsubscribe. "Once you have created an account," Lawyerist writes, "you simply forward an unwanted mass mailing e-mail to an e-mail address at unsubscribe and they will take care of it for you. They also have plug-ins that allow it to work within Gmail or Outlook."

A free membership (which limits you to 5 unsubscribes per month) is available, or you can pay $19/year for unlimited mail help. I'm going to try out the free membership this month and see how it works.

September 24, 2010 | Permalink | Comments (1)

Rodney King Now Engaged to Marry 'Juror No. 5' From His Civil Trial

RodneyKing I can't imagine how I missed this one (for the record, I'm blaming my kids' "Back-to-School" day, which coincided with the day the news broke) but did you see that Rodney King recently became engaged to marry juror no. 5 from his civil trial?? Via Susan Kuo of the PrawfsBlawg (who says she learned about it on Google's "riot news ticker"), I discovered that King is now engaged to Cynthia Kelley, who sat on King's jury in 1994 when he was awarded $3.8 million as compensation for the beating administered by the LAPD.

Radar Online reports that when they "met" during King's case, both Kelley and King were married. Kelley says their first date was the day after the trial when King and his lawyer met her at a local pizzeria in Newport Beach, Calif. But the pair later "separated during King's stay on VH1's Celebrity Rehab With Dr. Drew and didn't reunite until four months ago, when he telephoned to ask if his former flame was still single."

Kelley told Radar Online that she was the only juror who really pushed for King in the trial. "During deliberations, the other jurors said, 'Let's just award him $100,000, you know he's just gonna blow it anyway'." But Kelley, the only black member of the jury, stood firm, leading to the much greater award.

September 24, 2010 | Permalink | Comments (2)

September 23, 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: Uh oh. Our restaurant just received a "B" on the city's sanitary inspection grade system. We're required to post this on the wall. Now what!!??

Answer: Make the best of it, sir. Like these guys! (WSJ's Metropolis, Restaurant Makes Best Out of ‘B’ Grade)

B score

2) Question: We're just hanging out at the beach making sand castles. Why are the cops coming over? 

Answer: Are you in Florida? If so, you're going to need a permit for that castle making.  (Raw Story, Building sand castles on Florida’s beaches is illegal, feds tell oil-hunting reporter)

3) Question: I keep getting called by a company that says if I will just give them the CCV code on the back of my credit card, they can lower my credit card interest rate. Should the fact that the calls show up on my Caller ID as "PHONE SCAM" be a red flag?

Answer: Bright red! (Consumerist, Caller ID Says "Phone Scam")


September 23, 2010 | Permalink | Comments (0)

Unfollowed: Twitter Ideas That Never Quite Caught On

Twitter I like Twitter. I use it personally (@brucecarton), and also as a news feed of sorts for my publication about SEC enforcement and securities litigation issues (@SecuritiesD). But like Bill Blazejowski in Night Shift, "I'm an idea man, I get ideas, sometimes I get so many ideas that I can't even fight them off" [Note to Grasshopper Lipman: Night Shift is an old, very funny movie--you should go rent it asap].

Anyway, I've had plenty of great ideas about Twitter, some of them mischievous, some not. Unfortunately, none have caught on. My ideas to date:

1. The "Auto-Unfollow" feature:  Know this -- I do not want to spend even 2 seconds reading about what you ate today. If you wouldn't come up and tell me about it if you saw me in the street, don't tell me on Twitter. The Auto-Unfollow button would let me program in all of the categories that are dealbreakers for me, and automatically unfollow any violators. Upon a violation, my Twitter feed would auto-tweet something like the following: "AUTO-UNFOLLOW. Violation Category: Food. RT @joeblow 'Just had an awesome piece of pizza at Ronnie Pizzeria. Loved it!'"

2. The Temp-Unfollow feature: Sometimes people who I like to follow will get into an argument or vigorous debate that I am not interested in and which goes on forever. The Temp-Unfollow feature would allow me to temporarily unfollow people for a set amount of time (say, 45 minutes), keeping the unwanted dialogue off of my Twitter feed for that time period.

3. Twitter-spoofing: This underused bit of mischief works like this: Come up with some fictional statement that you can falsely attribute to a friend, enemy or whomever, and then serve up a phony re-tweet as follows: RT@ScottGreenfield Just got out of Social Media Ninja training, ready to take on the world!

4. The Re-Direct Message (RDM): Tweets are for public consumption but "DMs" are supposed to be sacred and private. Still, what Twitter police force is stopping you from throwing out a few RDMs when people you don't give a hoot about and almost certainly don't know over-share? "RDM @etradetraitor Hey, Carton, keep it on the down-low but Lohan really was the milk-a-holic in the commercial! Shhhh!"

Like Billy Blaze waiting for his idea of feeding the mayonnaise to the tuna fish to catch on, I will keep an eye out to see if any of my ideas ever take off in the Twittersphere.

September 23, 2010 | Permalink | Comments (0)

Good Stuff From the ABA's New 'Media Alerts on Federal Courts of Appeals' Website

Abalogo Via the PrawfsBlawg I learned of a useful new website from the ABA called "Media Alerts on Federal Courts of Appeals: Expert Analysis of Noteworthy Cases." An initiative of the ABA's Standing Committee on Federal Judicial Improvements, the new Media Alerts page 

is designed to provide reporters, lawyers, educators, and the public with prompt, accurate, unbiased information about newsworthy and legally significant cases pending in and decided by the Federal Courts of Appeals ... Use this Web site to find short summaries of recent opinions of public interest and noteworthy cases pending oral argument.  

The Media Alerts site currently covers the 2nd, 3rd, 5th, 9th and Federal Circuits and plans to expand its coverage over time. The cases highlighted are selected and summarized by law professors. For example, Emily Gold Waldman, author of the PrawfsBlawg post above, is responsible for summarizing noteworthy 2nd Circuit decisions.

Looking at the list of all summaries, it looks to me like the law professors involved are diligently and promptly summarizing cases throughout the week. I noticed that the high-profile opinion of the 5th Circuit in the case involving the SEC and Mark Cuban from Tuesday of this week is already up and summarized, with links to the original decision and much more.

September 23, 2010 | Permalink | Comments (3)

'Milk-a-Holics' Rejoice! Lindsay Lohan Gets Some Cash Out of Absurd E-Trade Lawsuit

Despite the fact that Judge Carton already threw out the Lindsay Lohan "Milk-a-holic" lawsuit, TMZ reports that the case actually settled last week and, most shockingly, that Lohan received at least some cash.

As you may recall, in the awesome commercial below, the toddler girlfriend of the E-Trade baby demands to know if "that milk-o-holic Lindsay was over" at her boyfriend's house. Lindsay "You're So Vain, You Probably Think This Commercial Is About You" Lohan argued in a lawsuit that she “has the same single-name recognition as Oprah or Madonna,” and as such, the ad has misappropriated her "name and characterization.” Lohan also argued that although there are 250,000 "Lindsays" in America, "only a few are celebrities, and hardly anybody could have any doubt that the ad was referencing Lohan." She asked for $100 million in damages.

Judge Carton did not hesitate to laugh hysterically at the claim and grant E-Trade's future Motion to Dismiss when the case crossed his desk, but as you know, my rulings are not technically binding on the parties. This minor technicality arguably cleared the way for last week's settlement.

THR, Esq. notes in this post that the settlement sadly eliminates the opportunity for a (real) judge to rule on the merits of the claim:

The first test would have been whether Lohan was indeed recognizable as a subject in the ad, but the case would likely have explored other issues, including whether the actress was really "damaged," considering the low value of her name these days.

I join THR, Esq. in concluding that it would be very surprising if E-Trade paid anything significant here, but I'm surprised it settled at all so who knows?

September 23, 2010 | Permalink | Comments (5)

September 22, 2010

'I'm Here to File a Report. Just Let Me Zip Up First.'

Pee Earlier today we advised readers not to stop at church and confess to having been involved in a homicide while on the way to the police station to turn themselves in.

And, courtesy of Legal Juice, we'd like to offer another tip. If you're on your way to the station -- not to turn yourself in but to file a report of some sort -- you probably shouldn't stop to relieve yourself on the exterior of the building before entering. Especially not in broad daylight on a weekday afternoon.

But some guy in Royal Oak, Mich., did just that last week, according to Juice and the Detroit Free Press. The genius, as yet unnamed, was rewarded with a public urination citation. There's a joke here about the Royal Oak "Pee D," but I don't have my best stuff today.  Feel free to chime in in the comments.

September 22, 2010 | Permalink | Comments (0)

Going Bankrupt? No Worries, You Can Keep Your Trolls

Recent blawgosperic goings on have demonstrated that people have strong opinions about how much you need to be pulling in per annum to be considered "rich."

But bankrupt is bankrupt. And declaring bankruptcy is a trigger that many individuals are likely hesitant to pull for many reasons, including the effect on one's credit and good old American pride.

Some people, though, may be buried in debt, hanging on by a thread, etc. with the only thing preventing them from calling it a day and seeking a fresh start being ... the unspeakable fear that they will have to turn over their cache of ceramic turtles or other tchotchkes.

Fear not, collectors of useless junk. The Bankruptcy Law Network blog assures you that the Chapter 7 trustee probably doesn't want to seize and sell your crap.

Phew. I'll see you later; I need to go dig up the box of salt and pepper shakers I had buried out in the Hill Country just in case this whole blogging thing doesn't work out for me.

September 22, 2010 | Permalink | Comments (2)

Donate -- to Reduce Junk Mail*

We've written recently about the "Do Not Call" list, and the less-well-known-but-still-awesome concept of the "Do Not Knock" list.

But what about junk mail? We all still get it. In a world where many of us pay our bills "paperless"ly and your grandma can just PayPal you $5 for your birthday, junk mail is the only mail some people get. There are the innumerable "pre-approved" credit card offers, coupons for pool cleaning services (45 seconds on Google Earth would let you know I don't have a pool), and my personal favorite, the weekly letters -- from my current insurer -- telling me how much money I can save by switching car insurance providers. 

This post, though, was inspired by a piece of mail I received yesterday from a charity. You know, the kind you feel guilty calling "junk mail." Especially when you open the letters up just to remove the free return address labels without making a donation. I received an envelope from SmileTrain, a charity dedicated to correcting cleft palates on children. It looked like this one:

Wait. You want me to give you money so you'll stop asking me for money? Could that work?

Kris from the Dummocrats blog sees this as a threat. And it appears that SmileTrain doesn't live up to its promises in any event, according to the American Institute of Philanthropy. To think I was seriously considering making a donation in return for a promise to stay out of my mailbox. What a sucker.

If you are interested in reducing junk mail legitimately, check out this page from the Privacy Rights Clearinghouse.

* Headline should be read with the inflection/tone demonstrated by Jerry Seinfeld at the end of this clip.

September 22, 2010 | Permalink | Comments (1)

Don't Stop at Church on the Way to Turn Yourself In

While confession may be good for the soul, it won't do much for your criminal record, at least not in Montana. The Religion Clause blog has a blurb about a case decided by a Montana trial court back in May where the court refused to suppress testimony about the defendant's confession to a pastor of his involvement in a homicide.

I'm going on the blurb alone (those of you with access to Lexis can find the case, State v. Hardman, at 2010 Mont. Dist. Lexis 209), but the court seems to have premised its decision on two main factors.

First, the pastor told the defendant that if he confessed to anything criminal, the pastor would notify the authorities. Seems like that would have been a good time to say, "Oh, criminal, me? No no no, just swung by to drop some ammo money in the collection plate. Bless you too." and hightail it out of there. But instead, said the court, the defendant waived any confidentiality by going on and spilling his guts.

The court also cited the Montana statute covering confessions made to clergy:

A clergyman or priest cannot, without the consent of the person making the confession, be examined as to any confession made to him in his professional character in the course of discipline enjoined by the church to which he belongs.

This confession was apparently not made to the pastor "in his professional character in the course of discipline" of the church. I don't know if that's a commentary on the church itself (the Faith Chapel), or the pastor's duties, or just belt and suspenders for the waiver argument.

But I'd sure be more careful about what I tell my priest/rabbi/Imam/operating thetan if I lived in Montana.

September 22, 2010 | Permalink | Comments (0)

September 21, 2010

Lawyer YouTube Video of the Day: Why Lawyer Ads Are Meaningless

There are lots of great lawyer videos on YouTube. (And apparently on some other sites as well.)

Here's one I came across this morning. (I tried to embed the video in this post, but our software is being Epstein difficult. It's worth the click over though, promise.) It's a lawyer -- Jason Epstein (pictured) of the Premier Law Group in Seattle -- purporting to break down the "lingo" used in many attorney advertisements.

And it's awesome. From the background music, to the pitch for Epstein's book, to the air quotes when Epstein says "the best."

I've wondered before about the point of these hybrid infomercial lawyer videos. But I think I've decided that, from now on, I'm just gonna sit back and enjoy the spectacle. In this case, that of a dude who looks like almost everyone I went to high school with stumbling over words and making awkward hand gestures.

September 21, 2010 | Permalink | Comments (5)

Why Are We Talking About Copyright for Football Plays?

Well, we, as in Legal Blog Watch, are talking about it because other legal bloggers talked about it first. But why we, as in mankind, are talking about it, is beyond me.

Martin Schwimmer's Trademark Blog yesterday linked out to a lengthy post on the New York Times' Freakonomics blog exploring the notion of copyright in football. Yup, a purportedly serious treatment of why football coaches have historically created new formations and plays despite the knowledge that, if successful, other teams would certainly imitate them. Innovation without intellectual property protection? The horror!

I read the Freakonomics piece, and feel dumber for having done so. I have to agree with Schwimmer that the article is, at best, "superficial." The authors take way too long to get to the point that should be obvious:

Second, football coaches are incredibly short-term thinkers.  The rewards of winning are immense -- one Super Bowl victory makes a career -- and this means that they are focused on winning now, and less deterred by the prospect of losing their edge over the long term.  An innovation that gives any advantage -- even a temporary one -- is worth exploring.


First the notion of copyright protection for alcoholic beverages and now football? Lawyers and economists are ruining my weekends.

September 21, 2010 | Permalink | Comments (1)

Law Students Can't Read Cases Either

Case Sigh.

On Friday, we talked about the perception, revealed at a roundtable discussion among law school deans, that law students were not learning/not being properly taught effective legal writing

Yesterday, on the Law School Academic Support Blog, Amy Jarmon, Assistant Dean for Academic Success Programs at Texas Tech Law School (sorry about the game Saturday, Dean Jarmon; Hook 'Em!), threw up a blurb about the influx of panicked 1Ls freaking out about how long they're spending reading and briefing cases for class.

I think it's perfectly legit for 1Ls, a month into their law school experience, to be a little thrown by the whole "casebook method" of teaching. Many of their concerns, Jarmon says, "are linked to not understanding why we read cases and how they fit into overall learning and skills development." Again, makes sense.

Jarmon reproduces four tidbits of advice that she gives to these students (below, verbatim):

  • All cases are not equal in importance.  Some cases are read for historical background only - the law will change by the last case on a subtopic.  Some cases are packed full of important essentials such as rules, policies, jurisdictional differences, important points of reasoning.  Some cases are included for just one smaller essential: a definition or an exception.
  • Cases need to be read at two levels. What are the important aspects to understand about the individual case itself? This level of reading focuses on the parts within a case and the specifics one needs to understand the case.  How does the case fit into a series of cases, into the subtopic, and into the topic?  This level of reading focuses on the synthesis of the case into the larger body of law that one is learning. 
  • Cases are a starting point in the study of law rather than an ending point. Cases show us how judges think about the law.  Cases teach us how to extrapolate the most important aspects from the full opinion.  Cases provide us with "tools" for our toolkit so we can solve new legal problems.  Cases become illustrations in outlines rather than the basis of outlines.  Professors will not ask one to "recite everything you know about Case X" on their exams.
  • Cases are essential to the practice of law.  Lawyers read and analyze cases every day.  They are constantly searching for precedents that relate to their clients' cases.  Thus, the time spent in law school on reading and briefing is not merely an "ivory tower" exercise.  Students who become skilled at these tasks are making an investment in their future expertise.  Students who use canned briefs or headnotes as substitutes for these tasks ultimately shortchange their professional growth.

I worry a bit about the last two pieces of advice. Indulge my stream of consciousness here. Is it true that, for purposes of law school, as opposed to the practice of law, cases are only a starting point? If it is true, is there a disconnect between the last two points? How does all of this play if you're not going to be a litigator?

I don't have answers to these questions, but welcome your thoughts in the comments. I look forward to finding a post somewhere in the blogosphere criticizing the ability of law students or recent graduates to do simple math, and then the trifecta will be complete.

September 21, 2010 | Permalink | Comments (2)

Cadwalader Launches International Law Page

CWT Ah, the press release letting you know about a law firm's latest attempt to distinguish itself and avoid a reputation as TTT.

Yesterday, Cadwalader, deeming itself "one of the world's most prominent law firms" (with bedbugs), announced the launch of its "on-line International Law and Litigation Center." According to the press release, the site "offers a variety of in-depth information through a regularly updated eBook, a practitioner's Blog, current news in law and practice and unique insight from the vantage of highly accomplished specialists actively participating in the development of law and policy in the field."

Sweet. Let's go check it out.

The "eBook" reads more like a law school outline. Which is not to say that there's not valuable information in it. Just to say my initial suspicion that Cadwalader probably got most of the product out of its summer associates was confirmed.

The "OneWorld" blog (no relation to the international airline alliance of the same name) appears to have been up and running since July, and includes posts about recent cases and other developments with international flavor. Pretty well-written posts that seem to succinctly capture the salient points and include links to the underlying materials.

And that will do it for the content of the site on its second day in existence. A little early to judge this latest gambit, but at least the firm succeeded in getting me to write about it.

September 21, 2010 | Permalink | Comments (0)

September 20, 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 was approached by a woman claiming to be a doctor in a parking lot. She offered to perform surgery to make my butt look better, and of course I said yes. Problem is, it doesn't look quite right now and it hurts a lot. Any thoughts? 

Fixaflat Answer: Sometimes fake doctors will prowl parking lots for butt-repair clients, and then use a can of "Fix-a-Flat" (intended to patch flat tires) on their "patients" instead of Botox. Watch out for this. (Turley, Fake Florida Doctor Arrested After Using “Fix-a-Flat” to Augment Woman’s Buttock)

2) Question: I'm on jury duty now and I must say this is nothing like "Law & Order." I’m confused by the presentation of the state’s case and bewildered by what seems to be a lack of preparation on their part. The order of it seems arbitrary. What’s worse, the evidence has no explanation with it and no context. And all of this fumbling around with the evidence! Frankly, all of these things are keeping me from being fully able to evaluate authoritatively the evidence and make a reliable determination of the testimony.  Should I send a letter to the judge?

Answer: Go ahead, but you'll probably be dismissed from the jury due to your “state of agitation.” (New Haven Register, TROUBLE IN THE JURY BOX: Jurors quitting may put Hayes case at risk)

3) Question: I just learned I have heart disease. Ugh. Who can I blame?

Answer: McDonald's? (Consumerist, New Ad Blames McDonald's For Heart Disease)

September 20, 2010 | Permalink | Comments (3)

Should Mobile Phone Carriers Dictate What Type of 'Speech' is Acceptable in Text Messages?

Freespeech2 Under federal law, telecommunications companies cannot engage in "any unjust or unreasonable discrimination" related to charges, services and other practices related to voice communications. Consumer groups have been arguing for several years that text messages should also be covered by this federal communications law, but with no success.

The issue is front and center again this week, CNET reports, as T-Mobile has been sued by a text message marketing company called Ez Texting "for allegedly blocking access to the T-Mobile network because of an Ez Texting client that provided information on medical marijuana." As CNET explains, Ez Texting provides the infrastructure for the type of promotions where consumers are asked to text a word to a specific number to get more information on a product (i.e., "Text 'jeans' to 313131").

One of Ez Texting's clients, (aka "WeedMaps") helps legal medical marijuana patients connect with other patients in their geographic region.  Legal or not, however, Ez Texting alleges in its lawsuit that T-Mobile disapproves and has now blocked its access to the T-Mobile network altogether -- an action that will allegedly put Ez Texting out of business if not reversed.

In a similar case in 2007 where Verizon allegedly refused to allow a reproductive rights organization to send text messages over Verizon's network, public interest group Public Knowledge argued to the FCC that

Mobile carriers currently can and do arbitrarily decide what customers to serve and which speech to allow on text messages, refusing to serve those that they find controversial or that compete with the mobile carriers' services. This type of discrimination would be unthinkable and illegal in the world of voice communications, and it should be so in the world of text messaging as well.

In that case, Verizon quickly backed down, stating that “the decision to not allow text messaging on an important, though sensitive, public policy issue was incorrect."

September 20, 2010 | Permalink | Comments (3)

The Global Happiness Summit Challenge

Let me preface this by establishing LBW's jurisdiction here: I hereby assert jurisdiction over the "Global Happiness Summit" due to the fact that (a) I saw it on the idealawg blog, and (b) it may be of interest to members of the Happysphere. In the alternative, I assert special jurisdiction under the "pick of the litter" doctrine.

Now then, disgruntled lawyers, I ask you:

Did you know that in less than three weeks, the First Annual Global Happiness Summit will take place? The FAGHS promises to be the "most important and dynamic summit in the history of the happiness movement, bringing together hundreds of industry, government and visionary leaders, research scientists and accomplished students from all over the world." The summit's theme? "Raising the Level of Happiness in the World".

Coget Not sold yet? Check out the the summit's list of speakers, which include Rober Biswas-Diener, who is widely known as the "Indiana Jones of Positive Psychology"; Dr. Aymee Coget (left, with balloons), a founder of the American Happiness Association; and so many more.

Admission is cheap: just $199 for both days. In fact, VIP admission is just $299 for both days, which entitles you to breakfasts and to hang out with some of the speakers -- more happiness for you!

Here is my offer: I am willing to personally pay the entire $299 VIP admission if any of the "Three Angry Lawyers" will go to Alameda, Calif. for the conference and live-blog it. Greenfield, Bennett and Tannebaum -- any takers?

September 20, 2010 | Permalink | Comments (2)

September 17, 2010

Deans Roundtable: Law Schools Still Don't Teach Writing

If only every law student could simply read "Making Your Case," by Justice Scalia and legal writing guru Bryan Garner, and magically be imbued with the ability to write concise, persuasive briefs that don't drive judges and their clerks to drink.

Alas, it doesn't seem to be. As the Legal Writing Prof Blog reported yesterday, Chicago Lawyer magazine's recent Deans' Roundtable discussion revealed that some of the participants -- the current deans of the law schools at John Marshall, Chicago-Kent, the University of Chicago, DePaul, and Loyola -- still believe, based on feedback from practicing lawyers and their own personal experience, that students are graduating without having acquired the writing skills they'll need.

From Legal Prof:

Dean John Corkery of The John Marshall Law School in Chicago said that law firms would like to see more (rather than less) emphasis on legal writing, training to improve analytical skills, and training that would require lawyers to work together well.  That kind of an answer, I believe, shows a good sense of what law firms want law schools to do and the important role that a good legal writing program can play in a law school.

Dean Howard Krent of Chicago-Kent College of Law said that law firms were putting more of a premium on having new hires "get it quickly."  Whereas firms in the past might give associates three years or so before deciding how they were doing in the law firm, now that period may be as short as six months.

And the money quote from Judge Warren Wolfson, late of the Illinois Court of Appeals, who is currently interim dean at DePaul:

I'd like to figure out some way to teach students how to write.  I was on the appellate court for 15 years, and the state of writing among new lawyers and young lawyers is deplorable.  It just seems that legal writing, every time I've run across it in law school, is the crazy uncle in the closet.  No one wants to get in there.  The students hate it.  They don't come out learning how to write.  I would like to see that somehow change.

Mark Wojcik, writing at Legal Prof, is puzzled by the "crazy uncle" reference. And though he's put out a call for thoughts on its meaning, it has so far gone unheeded. Maybe he needs to talk to this guy.

September 17, 2010 | Permalink | Comments (2)

Attorneys' Fees Awarded, Spent on Pack of Gum

If you successfully represent a female prison inmate who was forced to give birth while shackled, in her civil rights claim against the state, you might expect to have your fees awarded as part of the judgment.

Apparently, you'd be disappointed. Shawanna Nelson Lumsey won her lawsuit against the Arkansas Department of Corrections (see this New York Times story for background), but was awarded only nominal damages of $1. And because the Prison Litigation Reform Act caps fee awards at 150 percent of damages, her attorneys were entitled to only $1.50, rather than the $140,000 they had requested. Sucktown.

If you can't muster any sympathy for Lumsey's attorneys, consider the fact that Lumsey herself was recently fired from her job based on publicity regarding her lawsuit.

Happy Constitution Day.

September 17, 2010 | Permalink | Comments (2)

A Bomb, You Say? Well Can We Interest You in a Toaster?

Nothing pleases me more on a Friday morning than being able to add to the official Legal Blog Watch Checklist for Bank Robbers.

Today's addition is inspired by the story of Mark Smith, a 59-year-old would-be bank robber from Watsonville, Cal., a super-cute little town that I know I've been to at some point in my life, but can't remember why. As reported by Gawker and the Santa Cruz Sentinel, Smith strolled into a bank last week, claiming to have a bomb in his backpack and demanded $2,000 to "pay his friend's rent." 

Somehow, the bank manager convinced Smith that, rather than rob the bank, he should simply apply for a loan. So, she went to "get the papers" for him to fill out, and had him sit down and make himself comfortable. Little did Smith know that, as he was dotting his "i"s, the cops were on the way.

From this vignette, I'd say there are two checklist-worthy takeaways:

  1. Loftier Goals -- If you're gonna go through the trouble of robbing a bank and expose yourself to federal charges, my God man, ask for more than $2,000.

  1. Don't Get Upsold -- Stick to your guns (pun intended). You went in there expecting to walk out with cash and not be burdened by the constant pressure of personal debt that so many Americans are suffering in these tough economic times. Instead, you were persuaded by some slick-talking banker to sign right there on the dotted line, likely without even understanding the terms of the deal. Elizabeth Warren would be mortified.

While we at LBW may believe that Smith could use a little help in developing his robbery techniques, he was judged even more harshly by Keith Olbermann, who gave Smith third place in his "World's Worst" segment the other night.

September 17, 2010 | Permalink | Comments (2)

September 16, 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: I saw yesterday on LBW that California may soon legalize the possession and use of small amounts of marijuana. What are the chances of this happening? Will there be an age requirement? I am only 2 years old.

Answer: I can't handicap the odds of Proposition 19 passing, but I'm 100 percent certain it will not legalize marijuana use by 2-year-olds. Sorry, Junior. (AP, Two Year Old Smokes Pot, on Tape)

Niceday 2) Question: All I said to the person suing my client as we walked out of court was, "have a nice day." Actually, no, wait, I said "have a nice day, you piece of sh*t." Is that going to be a problem?

Answer: In Illinois, at least, that greeting is enough to get you charged with ethical violations by the Bar. (Legal Profession Blog, Have A Nice Day)

3) Question: Why do you keep putting asterisks in your posts, like in Question 2 above and here? Do you think that this allows you to use curse words or something? Because it doesn't, mate!!

Answer: Sorry U.K. Advertising Standards Authority! I thought I was in the clear by using those asterisks. (Lowering the Bar, Asterisks Don't Make Expletives Okay, According to F**king Bureaucrats)

September 16, 2010 | Permalink | Comments (0)

Individual Supreme Court Justice Blogs: More Nonexistent Blogs That Need Authors

As you know, I'm a giving person. Remember, for example, when I offered up to all wannabe law bloggers the brilliant idea that someone out there needed to start the "Sex Tape Law Blog?" This led my main man Randy O'Neal, Esq.  (actually I don't know Randy at all but I do like people who follow my suggestions) to go out and purchase as his possible entree into entertainment law.

Here's my next gift to you all, which is geared toward wannabe appellate law bloggers and inspired by Bob Ambrogi's report this week that there is now a blog dedicated to the late Justice William J. Brennan Jr.  The Justice Brennan Blog is a tie-in to a new book about Brennan written by Seth Stern and Stephen Wermiel.

Ginsburg It strikes me that in a world where we already have multiple blogs writing about the legal aspects of Mixed Martial Arts, we should have blogs dedicated to each Supreme Court Justice. The Clarence Thomas blog, the Ruth Bader Ginsburg blog -- and so on. Each blog could become the premier expert on its Justice, tracking the justice's votes, predilections, clerks, speeches, gossip -- whatever. In a short time, I bet, the phone for each blog's author would be ringing regularly with calls from the media seeking analysis of cases and key appellate issues.

Any questions? No? Then get on out there and create some Supreme Court Justice blogs for LBW to watch!

September 16, 2010 | Permalink | Comments (0)

Thoughts on 'Rita’s Golden Rules for E-Mail'

Emaillogo Via a post yesterday on the Texas Lawyer's Work Matters blog I found an interesting list of “Golden Rules for E-Mail." The 10-point list, created by Rita Gunther McGrath, offers several helpful suggestions about e-mail, some of which are highlighted below. My comments are in italics:

2.  No e-mail should ever be longer than one screen of information.  If it means scrolling down, you’re not being concise. [Agree. The size of a "screen" varies these days, of course, since some people use iPhones and BlackBerrys almost exclusively, but if your e-mail is busting out of an entire computer screen then you need to trim it down immediately].

3.  One subject per e-mail.  When I’ve dealt with it, I want to delete it or file it and I can’t do that if your e-mail contains 10 action items, one of which is going to hang out there for six months. [Agree. In general, I find that people will respond and take the action you are seeking if you keep it simple. If it is a multi-part, complicated request, it often gets pushed to the "get around to it when I have more time to deal with this" pile.]

4.  E-mail is the wrong place for emotional outbursts. [For sure, because although you will soon be calm about whatever the subject was, your e-mail outburst will live forever].

8.  Because you sent it doesn’t mean I got it.  Because I got it doesn’t mean I read it.  Because I read it doesn’t mean I understood it.  Because I understood it doesn’t mean that I agree with you.  Check for closure on your communications. [Well said.]

10. Don’t send e-mail when a short phone call would do the job better. [Disagree. Just send me a short e-mail that I can deal with when I'm ready!]

September 16, 2010 | Permalink | Comments (1)

The Legal Upside of Memorializing Countless Details of Your Life Online

Last week I wrote here about "The Legal Perils of Memorializing Countless Details of Your Life." These perils were demonstrated when Paris Hilton tweeted and uploading a photo to Twitter in July 2010 about how much she loved her new purse, then claimed in August 2010 that drugs found in an apparently identical purse she was carrying were not hers because the purse belonged not to her but to to a friend. As discussed in this post on Bow Tie Law's Blog (via FutureLawyer), however, tracks left on the information superhighway can go both ways.

Myspace In an unpublished opinion by the California Court of Appeals last week, the court held that the alibi offered by a criminal defendant -- that he was playing poker on MySpace at the time of the crime -- was neither "implausible or bizarre," as argued by prosecutors. BTLB reports that "the MySpace records showed that someone was logged into the Appellant-Defendant’s account at the time of the crime.  The Appellant-Defendant claimed he did not share his account information with anyone."

The MySpace alibi did not end up saving the defendant in this case as the court went on to rule that (a) the specific jury instruction given and at issue was harmless, and (b) anyone could have logged into MySpace for the defendant or he could have logged in from another location.  However, the case does seem to show that in the right circumstances, and with strong enough evidence that one was, in fact, online at the time of the crime (e.g., Chat Roulette, BTLB jokes), the "online alibi" could work for defendants in the future.

As BTLB observes, 

There is a courtroom drama waiting to erupt in a brutal cross-examination over whether someone was on Facebook on their iPhone or at home when the “Social Media” alibi is next offered.  There likely would need to be forensic analysis on both the personal computer and SmartPhone in determining the truth. IP and ISP evidence would likely be used for impeachment or rehabilitation of a witness.  

FutureLawyer adds that "maybe I shouldn't be deleting my search history after all? Perhaps the embarrassment of the sites I visit will be easier to take than a conviction? Decisions, decisions."

September 16, 2010 | Permalink | Comments (0)

September 15, 2010

Lawsuit of the Day: Holy Pancakes! IHOP Sues Church for Trademark Infringement

Hungry for a little entertaining litigation? Well grab your container of artificially flavored boysenberry syrup and head for federal court in Los Angeles.

That's where IHOP -- the International House of Pancakes -- is suing IHOP -- the International House of Prayer -- for trademark infringement and dilution. According to this article in the Kansas City Star, the pancake chain decided to sue the church only after repeated requests that the church cease using the well-known four-letter acronym went unheeded.

The church, based in Kansas City has been around for over ten years, and "operates 24/7/365, sending a never-ending digital signal of prayers to Jerusalem, where it streams live on God TV for broadcast all over the world." Its ultimate mission: "drawing thousands from around the world to south Kansas City to prepare for 'end times."

Sounds like you'd have to be pretty confused to accidentally walk into that place expecting a cup of coffee and a funny face chocolate chip pancake. But IHOP's IP police are taking no chances. Why the urgency all of a sudden?

“They’ve expanded -- and now some of the branches are serving food,” [pancake house spokesman Patrick] Lenow said. 

The guy at the RDM Random Remarks blog said it best: only in America.

(Thanks to for the photo.)

September 15, 2010 | Permalink | Comments (10)

Reaction to New U.S. News Law Firm Rankings

US News Today is the day. The long-awaited-first-ever-omigodomigodomigod U.S. News rankings of the "Best Law Firms" in the country are out.

And people don't seem to know what to think. The rankings are not structured the same way as the publication's ever-popular law school rankings. There's no sequential numerical ranking of firms; even today, no first-year document monkey can claim to work at a U.S. News T14 firm. 

Rather, firms are broken up into tiers, and rankings are done by practice area, with no "overall" category. For those of you who want to explore the survey's methodology in detail, have at it.

What's the verdict on the rankings? Well, Above the Law didn't even wait until the morning to react. That's right -- Elie Mystal posted a link to the rankings at 12:01 am. In the initial post, presumably drafted before Elie had actually gotten an in-depth look at the goods, he speculated that the rankings might be "a total game changer." As the post was updated in the wee hours, his enthusiasm seems to have waned a bit.

Ashby Jones at the WSJ Law Blog was roundly unimpressed, even at 12:05 am:

What good is a ranking like this? To be honest, we’re not entirely sure. Generally speaking, the users of the types of services these firms offer are sophisticated. They’re general counsel and chief litigation officers, many of whom started their careers at names like the ones listed above. They know that lawyers at Kirkland, Paul Weiss and Gibson Dunn know their way around a lawsuit.

Daniel Sokol at the Antitrust & Competition Policy blog was also less than wowed. His advice: "[W]hen in doubt, stick with the far superior Chambers rankings."

This is, obviously, not a comprehensive catalog of blogospheric assessment of the rankings. But it is a nice segue to opening up the comments to readers. So what are your thoughts?

September 15, 2010 | Permalink | Comments (2)

Meet the Popcorn Lung Lawyer

Last month, we brought you the story about the expert witness who "appealed" a federal district court decision in which the judge found that his opinion on the plaintiff's "popcorn lung" medical condition was, essentially, hogwash.

This was, I must admit, the first I had heard of "popcorn lung." And I'm sure that many of you readers, like me, read that post and thought,"Who are the attorneys bringing these cases, and how did they find this fascinating niche?"

Wonder no more. The Lawyers and Settlements blog yesterday profiled "Popcorn Lung Lawyer" Ken McClain. Yes, his firm's website lives at The post is brief, but manages to do an excellent job painting McClain as a crusading hero.

It reveals that McClain's firm, which he estimates represents 99 percent of popcorn lung plaintiffs nationwide, recently got a $30 million jury verdict on behalf of one such unfortunate soul. Granted, this plaintiff was no mere home movie buff, but a worker in a popcorn factory.

Your average poppers, though, are increasingly developing the disease (technically known as bronchiolitis obliterans), McClain warns:

“Consumers are getting sick too,” says McClain. “We have five consumer cases currently—generally popping more microwave popcorn than a person might want to.

“People should not breathe fumes from the bag, but that's exactly what the buttery flavor and smell is designed to make you do. In fact, the Orville Redenbacher advertisements show kids doing exactly that!”

Dragging Redenbacher's good name through the mud -- that's low, Ken.

If you want to learn more about popcorn lung, play around on the firm's website. And if you're gonna settle back on the couch to watch some of McClain's videos, I'd suggest maybe a box of Goobers, or some Sour Patch Kids.

September 15, 2010 | Permalink | Comments (2)

'Whoops We Sold Your House' -- Wells Fargo Owns Mistake, Investment Firm Owns Home

On the California Bankruptcy Attorney Blog yesterday, the lawyers at Howard Nassiri summarized and linked out to a column in the Los Angeles Times about an unfortunate couple who had their Long Beach, Cal. house sold out from under them by their mortgage lender.

Mike and Ellen Kahara arguably bought too much house back in 2004, financing it with an interest-only loan. When the economy hit the fan, they were unable to make some of their mortgage payments. This was no case of strategic default; the Kaharas were struggling (and presumably don't have several other homes and "all the cars" to move into).

Enter Wells Fargo. The bank declared the Kaharas in default in August 2009, and advised them to apply for relief under the Making Home Affordable program. In December, WF notified the Kaharas that they were eligible for a trial modification program that would reduce their monthly payments to $1,400. They made those payments, in full, as the bank continued to assess their eligibility for permanent modification. At least one blogger suspects foul play in the indefinite extension of the trial program.

On August 11, the Kaharas received a letter informing them that their application for a permanent modification had been rejected. Bad news, no doubt. But the letter also noted that the couple would have 30 days to explore other options with the lender, and included the following line: "No foreclosure sale will be conducted and you will not lose your home during this 30-day period."

Seems pretty clear. Except it didn't work out that way:

But on Aug. 18 there was a knock at the door around 8 in the morning. Mike Kahara said a young man wearing a white polo shirt and dark slacks introduced himself as Sebastian Cruz of the investment firm Pacifica Cos.

Cruz said his firm had purchased the house and that he would offer the Kaharas $1,500 if they'd agree to vacate the property within two weeks.

He produced a document with Pacifica letterhead informing the Kaharas that their home "has changed ownership through the foreclosure process." It threatened legal action if the couple didn't move out.

Oops. Wells Fargo has admitted it goofed. Not by selling the Kaharas' home, mind you, but, rather, by promising that it wouldn't. 

Jennifer Langan, a Wells Fargo spokeswoman, confirmed that the Kaharas' house was sold Aug. 16, just five days after the bank decided not to modify the couple's loan.

She said the bank shouldn't have told the Kaharas that their home wouldn't be sold within 30 days. "It was clearly a mistake that we put that in the letter," Langan said.

While the bank has committed to "review the family's complex situation," these people are being threatened with legal action if they don't vacate their home. They're considering declaring bankruptcy in hopes of staving off eviction (quite possibly a better strategy than this guy's). And they've hired a lawyer to sue Wells Fargo. (The Times' Comments Blog -- which is a great concept -- has opened up a forum for the public to suggest further strategy for the Kaharas.)

I'm all about paying your debts, and not buying things you can't afford. But I also hope Wells Fargo finds some meaningful way to make up for their admitted mistake.

September 15, 2010 | Permalink | Comments (3)

September 14, 2010

Tuesday's Three Burning Legal Questions

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

1) Question: I charged up my electric scooter at work. Now my boss wants to fire me for "stealing" 2 cents worth of electricity. Can he do that?

Answer: In Germany, at least, the theft of 2 cents worth of electricity is not grounds for firing someone. (Reuters, Firm can't fire man for 1.8 cent theft) (via Consumerist)

2) Question: We're having a meeting with an important client tomorrow. Should I dress "business sexual?"

Answer: This is a new one on me but as I understand it, business sexual is "clothing that infuses some extra sexuality -- often in an attempt to yield a business advantage -- that is not normal in business clothing but that would not normally be seen as unduly immodest or forward in social clothing." As to the proper times to wear business sexual, I refer you to Fashion Blog Watch. (The Volokh Conspiracy, "Business Sexual")


3) Question: I can never locate a lesbian, gay, bisexual or transgender attorney when I need one. Any advice?


Answer: Pick yourself up a copy of the new directory of LGBT partners and LGBT-owned firms. That should help. (Am Law Daily, Foley Sponsors New U.S. Legal Directory for LGBT Lawyers)

September 14, 2010 | Permalink | Comments (3)

'Law Enforcement Against Prohibition' Says California Should Legalize It

Prop19flag Some police departments in California are now stretched so thin that they're already telling citizens straight up, "If you come home to find your house burglarized and you call, we're not coming." So you can imagine how they might feel about the possession and use of small amounts of marijuana: Legalize it.

The Los Angeles Times reports (via Consumerist) that this is the view, at least, of a group called Law Enforcement Against Prohibition, which supports Proposition 19 that will be voted upon by Californians in November. Proposition 19 would make it legal to grow, possess and use up to an ounce of marijuana for personal use.

LEAP says that legalizing marijuana under Proposition 19 will free up the police to focus its efforts on more serious crimes. LEAP members include former Orange County Judge James Gray and former San Jose Police Chief Joseph McNamara. Gray says that only retired law enforcement people like himself are free to speak out honestly on the subject, and that the opposition to Proposition 19 from other law enforcement groups is just a good show: "They have a political job, so they can't tell the truth," he said.

LEAP members say that, among other things, passing Proposition 19 would:

  • cut down the number of drug arrests made in California by around 60,000 each year;
  • free up time for police to investigate things like murders and burglaries;
  • strike a blow against the drug cartels, which are are estimated to get around 60% of their money from illegal pot sales; and
  • bring in over $1 billion/year in tax revenue.

September 14, 2010 | Permalink | Comments (3)

The Right Not to Answer Passport Control's Questions Upon Re-Entering the U.S.

In July 2010, I wrote here about the rights of customers at stores like Best Buy or IKEA to give the Heisman to the Exit Door Receipt Guy and refuse to produce a receipt for the items with which you are leaving the store. The bottom line according to Consumerist and other sources is that "bag searches and receipt checks are voluntary. As in, you can refuse."

Passportcontrol A similar dynamic is apparently at work at passport control checkpoints at international airports. In this post on his Knife Tricks blog (via The Faculty Lounge), Paul Karl Lukacs writes about his decision not to answer a passport control officer's questions about why he had traveled outside the United States.

U.S. citizens who have produced proof of citizenship and a written customs declaration, Lukacs writes, are not obligated to answer questions. Nonetheless, the officer asked him gruffly, “Why were you in China?” 

“None of your business,” I said.

Her eyes widened in disbelief.

“Excuse me?” she asked.

“I’m not going to be interrogated as a pre-condition of re-entering my own country,” I said.

This "did not go over well," Lukacs says, and prompted another series of questions about his visit to China that he similarly refused to answer. He was then led to a “Secondary” questioning area and, because he continued to refuse to provide answers, was detained for a brief period until a "superior" officer instructed the others to “just inspect his bags. He has a right to remain silent.” With that, a half an hour and five federal officers after he arrived at passport control, Lukacs was told he could leave.

Here is a summary of Lukacs' "Principal Take-Aways" from his encounter:

1. Cops Really Don’t Like It When You Refuse to Answer Their Questions.

2. They’re Keeping Records. A federal, computer-searchable file exists on his refusal to answer questions, Lukacs asserts.

3. This Is About Power, Not Security.

4. U.S. Citizens Have No Obligation to Answer Questions. 

September 14, 2010 | Permalink | Comments (2)

'Sh*t Law Jobs:' Your Portal to Finding All the Jobs You Do Not Want

Shtlawjobsbanner Are you a lawyer looking for a job? Not a good job, mind you -- can't help you with that. We're talking here about that subset of law jobs that "most lawyers likely wouldn't want," but which "beat being unemployed." We're talking about "lawyer jobs that are low-paying with long hours." We're talking, of course, about "Sh*t Law Jobs."

As far as I can tell, Sh*t Law Jobs is a job board for the sorriest lawyer jobs SLJ can find by scouring Craigslist. Since May 2010, SLJ has reproduced Craiglist listings for 64 such jobs, including a "Consumer law attorney job in Ohio" that pays $15/hour (but free parking!) and a "Newly admitted attorney job in New York" that pays the minuscule (but refreshingly simple) amount of $100/day.

Want to follow Sh*t Law Jobs on Twitter or be their friend on Facebook? No problem, they've got that covered for you, as well. And they even have their own snazzy logo depicting a gavel slamming down on a steaming pile of, well, you know.

September 14, 2010 | Permalink | Comments (7)

September 13, 2010

Trial Begins in Husband vs. Bear Mistaken Identity Case

You can't make this stuff up. Well, maybe you can, but I'm too tired.

Trial began today for a Pennsylvania woman who shot and killed her husband while on a hunting trip in Canada in 2006. Her defense: "I thought he was a bear."

The woman, Mary Beth Harshbarger, is charged with "criminal negligence causing death," on the theory that, at the time she fired the fatal shot, it was too dark to shoot safely. Perhaps a difficult theory to defend against, since Harshbarger will have to admit that it was at least dark enough for her to mistake the father of her two children for something that looked like this:

The first witness, the hunting guide who was with the Harshbarger family on the trip, testified that Harshbarger, after realizing she had killed her husband, "danced around the road" hysterically, saying "'
I shot my husband. I shot my love.'"

Looking forward to the testimony of the other 15 witnesses the prosecution reportedly intends to call.

Call me insensitive, but I can't help but think of this as the reverse of the scene in "Vacation" where Ellen knows there's a "wild animal" outside the tent, but Clark thinks she's just referring to him, and insists on "going for it."

September 13, 2010 | Permalink | Comments (4)

Baseball Player You've Never Heard of Sues After Swindle

Ah, the life of a mediocre major leaguer still hanging on to his not-so-glory days. Courthouse News reports this morning that Mike Lamb, journeyman infielder, is suing a "friend" for swindling him out of $253,000. According to the report, Lamb (pictured in the sad uniform of the Mets' AAA affiliate Buffalo Bisons) has filed suit in California state court against Louis Simon, for "breach of contract, conversion, conspiracy, fraud, aiding and abetting, defamation, and unjust enrichment."

What happened? Well, Lamb says Simon, a friend since 2001, borrowed $253K from him in the fall of 2008, purportedly as "a short-term bridge loan" to move along the production of a film based on Simon's own recovery from a gambling addiction.

Guess who failed to pay back the loan by September 2009 as promised. Not just Simon, but the alleged "guarantors" of the loan. To be fair, they had a good excuse:

Lamb claims that Darling has refused to pony up the money he allegedly guaranteed, in one instance, with the "ludicrous assertion that his gold, held in a foreign territory, could not be flown out of the country because it made the plane too heavy to take off and they needed additional jets."

Lamb is a career .276 hitter, who had a good run as an every day player for the Rangers and Astros between 2000 and 2007, which likely led to his December 2007 signing as a free agent by the Twins for a cool $3.5 mil. Alas, he has fallen on hard times -- out of the league entirely last year and having appeared in just 34 games for the Marlins this year.

So what better way to keep himself busy than the other American pastime, litigation. If this thing ever sees the inside of a courtroom, Mike, just remember it's a bit of a faux pas to spit tobacco at the jury and grab your crotch on the way up to the witness stand.

September 13, 2010 | Permalink | Comments (1)

'Sex Offender Gazette' Coming to a Newsstand Near You?

I'll never poke fun at the New York Post again.

Taking the concept of "newspaper" to impressive depths, the Richland County, S.C. Sheriff's Department recently published the Lexington/Richland County Sexual Predator Offender's [sic] Listing. It's pretty much what it sounds like -- a listing of more than 850 local registered sex offenders. With pictures. Not just "made available" as required by law, but printed up on broadsheet and distributed around town.

Blawgospheric reaction was swift. Doug Berman at the Sentencing Law and Policy Blog saw a great opportunity for advertising revenue, on which Dan Filler expanded at the Faculty Lounge ("ADT: We Keep Offenders At Bay" or "Kelly's Day Care: Where Background Checks Are A Way of Life").

Scott Greenfield at Simple Justice (for whom I am leaving little notes all over my new house) is not such a fan of the concept:

While availability of the information on registered sex offenders is sufficient to make life untenable, and essentially preclude the return to a law-abiding life if that's what you thought a well-conceived sentence might accomplish, pushing this information into the hands of Tiffanys is outrageous.  Obviously, one sheriff thinks this is a brilliant idea, or that its at least sufficient to win him a few friends, but if this becomes a trend, and it certainly has the potential, it's brings a bad idea to a level of insanity.

The comment thread on Greenfield's post is, as usual, good reading, with commenters coming down pretty uniformly on the side of Scott's outrage.

What do you think, readers? Is there any reason to produce such a paper beyond fearmongering and "because we can?"


September 13, 2010 | Permalink | Comments (6)

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