Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at email@example.com.
Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.
Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at firstname.lastname@example.org.
Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at email@example.com.
Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally,
to seek enlightenment. Email Ernest at firstname.lastname@example.org.
About this blog
Between Lawyers provides just-in-time group commentary on the issues
raised when technology, culture and the law intersect. We take you
behind the firewalls and conference room doors to show you how
experienced lawyers deal with these issues and help you prepare for
the new challenges we all face. For more, see our introductory post.
After CNN reported today that helicopters were diverted from plugging the levee breach on Tuesday, in order to rescue individuals on rooftops, I wondered what is involved in securing sufficient helicopters in a national emergency. It took me two minutes of Googling to identify the Erickson Air Crane Company and obtain their email address and phone number. The Air Crane is one of the most powerful helicopters in the world (used for lifting trucks and putting out fires, for example). I emailed them today asking if anyone had contacted them about the levee. They replied immediately that while they had put out the word to government entities, and while they are a DOD-listed contractor, they had not been contacted by any Government entity as of Wednesday evening.
The levee broke on Monday night. I assume that a governor, or a general, or maybe a President would have gotten the CEO of this company (and other companies like them) on the phone and said "get over there ASAP."
Things were quite a bit more anxious behind the scenes at Between Lawyers than we let on while we were trying to learn what had happened to Ernie in New Orleans. We're very relieved that he has gotten out, but we're stunned by the impact of the disaster. We recommend that you visit Ernie's personal blog for his description of his experience and what promises to be touching and insightful coverage of the aftermath.
We'll be posting information and links about way to help out with this disaster on this blog and our personal blogs as well (example).
It's so good to see Ernie's ongoing posts and pictures from the New Orleans environs (true to form, Ernie doesn't let a little thing like a disaster of near Biblical proportions and attendant lack of electricity and regular 'Net access get in the way of his blogging). His reports — and those of people who are also getting the word out via Ernie's blog, like Dr. Gregory Henderson — are downright chilling, e.g.: "The looters had to be held back at gun point."
National Geographic's news service has put together this timely list of aid organizations that could use all of our help as Ernie, his neighbors, and the entire region begin to recover.
Here's FindLaw's lawyer marketing page, launched this week, including this article mentioning BL, quoting Tom, and weighing in on the "are blogs advertising" issue: "Do lawyers need to be concerned about the ethics rules on lawyer marketing when they blog? Well, yes. But no more so than in any other forum in which a lawyer writes or speaks."
You may have seen how CNN is encouraging regular folks to become "citizen journalists" and share their experiences of Hurricane Katrina. We here at Between Lawyers have our very own Citizen Journalist in Ernie Svenson, who is blogging (via a special SMS-to-blogging-friend connection) about how New Orleans is recovering from the hurricane. Check it out at Ernie the Attorney.
Ernie, take care, and contact us when you're able!
Gods of Commerce blog notes the recent VIOXX verdict and suggests that a juror that can devote the time necessary to be on a jury likely has 'no serious work responsibilities and is outside the commercial sector' and therefore may be biased against business. Therefore trials should run only four days a week, from 7 AM to 1 PM.
If you follow Jeff Jarvis' great Buzzmachine blog, you'll know that he has been on a tear this summer about some terrible customer service from Dell (his own "Dell Hell," as he terms it). You can read the whole saga here. As a result of his posts, Dell has now instituted new policies for dealing with the blogosphere. The company is going to monitor blog posts for customer dissatisfaction and then contact those who can be identified.
This is great news for Jarvis and for other Dell users with blogs, but what about the rest of the Dell users? Dell's response seems to be saying that the only customer complaints they care about are those that can easily be made public, via a blog. I'd love to see some details about how all Dell customers will see improved service. Until then, the moral of this story is: get your own blog.
Cory Doctorow read the PodShow license for use of commercial music in podcasts and recovered enough from the shock to post about it. He illustrates why it's important to read the fine print. After all, you might want to simply to use the music, not limit what you can and cannot talk about.
Windows SharePoint Services Applications Template: Legal Document Review: "This application for Windows SharePoint Services is for company legal departments to post legal documents and templates, communicate requirements and processes, and provide contact information. It also features a legal document review tool for managing, prioritizing, and tracking employee requests to review contracts and documents." (Thanks, Steve!)
The Inquirer reports that "According to an NOP World survey, 50% of law firms in the UK are missing basic security measures and just under half have no budget dedicated to digital security..." (Thanks, Steve!)
Tom Mighell and Dennis Kennedy of Between Lawyers recently presented a webcast with Raza Hasan of Thomson FindLaw called "Blogs for Lawyers: Building an Audience to Build Your Practice." A free replay of the webcast is available here.
Doug Soroccounpacks the Microsoft/Apple/iPod interface patent hype: "[F]olks need to do their research and understand the issues. If the claims don't cover it - it doesn't infringe." Ahh, that's better!
Littler Mendelson: DOOCES WILD: How Employers Can Survive the New Technological Poker Game of Employee Blogging. Poker game? Though I like the piece and think it takes a balanced and sensible approach to the issues it addresses, the title is yet another unfortunate example of the breathless, "omigod!" hype around businesses, employees, and the participatory Web. Employees with blogs or podcasts aren't playing poker any more or less than those with telephones, email, Skype, IM, or the myriad other means by which they might engage in conversation with those outside the workplace. I hate to metaphor-pick, but feel compelled to point out it's more apt to say that while blogging and podcasting might up the ante, the "game" has been around for centuries.
Boston University School of Law will hold a colloquium on February 11, 2006 "to consider the legal complexities facing the growing blogging community." More information is available from BU's Journal of Science and Technology Law, including a Call for Papers (PDF). Among the multifaceted issues on the table:
Are bloggers journalists? If so, what liabilities and privileges do
How do intellectual property laws affect what bloggers can or cannot post?
What are the ethical issues bloggers need to consider?
Can bloggers be fired for blogging?
How does the First Amendment apply to blogging?
How do jurisdictional boundaries, international and domestic, affect
the legal issues potentially raised by blogging?
How do any of these issues change with the introduction of
syndication, inline advertisements or tip jars, podcasting, or multiple
authors on a single blog?
The title of this post by Doc Searls says it all so succinctly and so clearly. the post comments (by not commenting) on tsome companies wanting to ban instant messaging because of Sarbanes Oxley concerns.
I'm constantly surprised at the ways some people / organizations forget basic notions of common sense when faced with a new technology. I'm now convinced that there is no way that the telephone would be approved for use in many companies if the issue was addressed in the same way companies look at new technologies. Put your focus on people and not technology and you should end up in the right place.
Search and analyze the published opinions of Supreme Court nominee, Judge John G Roberts. On July 19, 2005, Judge John G. Roberts was nominated by President George W. Bush to fill the vacancy on the U.S. Supreme Court left by the retirement of Associate Justice Sandra Day O'Connor. In two years on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Roberts has helped decide about 120 cases and written 49 published opinions.
I'm all a-tingle about this one because it's a brilliant marketing move if, like askSam, you offer information management tools, and because it fills a gap in access to and searchability of these opinions. To the extent judicial opinions are freely available online, they're generally PDFs or Word documents. As far as I know this is the first time someone has aggregated all the published Roberts opinions and made them freely and easily searchable.
One of the reasons we started Between Lawyers was to let folks see the backchannel discussions that occur between the five of us. We've never actually posted any of those discussions, not because they are 'privileged and confidential attorney-client work product' or anything stuffy like that. Basically, I think we've just dropped the ball.
So, here without any prior notice to my fellow cohorts is a snippet of one of the most recent conversation threads that occurred:
SearchCIO has a report on executive("C")-level bloggers and says they "Follow the Rules." That's one way of looking at it. Another is, they're changing them.
The article is worth reading for many reasons, chief (sorry) among them being this quote from one ofJonathan Schwartz's April 1 entries, which I'd missed until now: "The downside of being an officer of a public corporation is that it's very difficult to write a good April Fools blog without feeling the need for serious engagement from the corporate legal team."
Here's a survey worth spending a few minutes to take: Amy Gahran is conducting an online survey on the "Professional/Personal Overlap" on blogs. I'm in favor of most things that tend to make us more human, but I know that others like their blog reading without the injection of anything personal in nature. The final survey results should be quite interesting, but I suspect that the personal will ultimately push its way into even the most dedicatedly professional blogs over the long haul.
Dave Winer's post "NY Times and the Web" asks some important, tough questions about mainstream media and its attitude toward blogging in these blogging times.
The money quote, in a great example of Dave's signature style:
"You'll know they're really jumping in when they let a blogger onto the op-ed page. I don't mean when they give a blog to one of their op-ed columnists, rather when they put someone who is rooted in the blogosphere in a position of power and authority in their midst, someone who can call the Times on their bullshit, in the Times. Until that happens they'll be cloistered, insulated, immune, clueless. I loved the quote from Sulzberger, btw, but it was bullshit."
David Appell's post at TechnologyReview.com's blog called "Google Pettiness" raises the "what's good for the goose is good for the gander" question, among other questions about privacy, media relations and handling criticism. According to the post, it seems Google has ceased communications with CNET for a year because CNET published some information found via the Google search engine that Google apparently found a little embarrassing. Ironically, in so doing, Google has guaranteed that many stories will appear that repeat the information it found problematic.
Wonder where this story will rank on a Google search for "Oh yeah, then I'm not talking to you."
It all goes to show you that it's good to run a Google search on your own name from time to time to see what the Internet world sees when they are looking for you.
Google may suffer more potential harm for perceived high-handedness and vindictiveness than most other companies, so I'm surprised that they are not more careful about this type of things than they seem to be. Part of the aura of Google is that it is a search engine that simply indexes the Internet and helps us find whatever is out there, almost as if for the public good. The notion of the secret Google search algorithm promotes this notion. To the extent that the Google IPO resulted in certain Google people making tons of money, the sense of a "resource for the good of the public" is weakened. To the extent that Google manifests this type of pettiness directed at critics, it potentially damages the aura that the rankings are "objective" and derived from "algorithms. I can't even imagine why they'd take the risk at that kind of self-infllicted damage.
I suspect that we'll see that they soon back away from the "not talking to you" approach. At least Google didn't announce that it would hold its breath until it turned blue unless CNET did something about the story. The Internet audience can be a fickle one, and there has already been plenty of grumbling about Google for a variety of reasons this past year. Pettiness is not a good trait to be associated with a search engine.
All of this is food for thought for anyone who is trying to decide how to respond to what it perceives, rightly or wrongly, to be criticism in these blogging times.
I originally posted about this on the LexThink blog, but I can't get the "Not Insane To Do List" off my mind and wanted to share it with the Between Lawyers audience. It seems so, well, not insane. See what you think.
Like Evan, I lack the credentials to enter the kind of academic debates he references in his post. So, I thought it might be fun to launch a parallel discussion among the insufficiently-credentialed, non-academic "practicing lawyers and others" group.
Interestingly, I had a discussion with a non-lawyer the other day about the nature of legal education and found it difficult to explain the current state of legal education. Especially difficult to explain (probably because I don't understand it myself) is the accreditation process for new law schools, with its heavy emphasis on number of volumes in a school's law library. My friend kept shaking her head in disbelief.
One way to deal with Evan's question is to ponder whether law school has become impossibly over-academized and there is a need to go back to something that resembles a professional training school. For example, my friend and I were discussing what doctors would be like if medical school and residency focused only on academic theory and not practice, as legal education, some might argue, has seemed to have done.
Then there's always the interesting question: why do I even need to go to law school if I can pass the bar exam? And its corollary: why do I need to take the bar exam if I graduate from law school?
The interesting empirical study related to our initial question is: what is the attendance rate of third year law students in their classes? Some lawyers would be a little embarrassed by their own answer to that question. Not me or anyone I know, of course, but I have certainly heard some stories.
In addition to dealing with information overload, Prof. Tufte's book is essential for lawyers in learning how not to be deceived by graphs and statistics. An entire section is devoted to identifying deceptive methodology.
"A visual, often audible reaction upon first exposure to the presentation of a complex node-link map."
Presumably, the audible reaction begins with the letters "WTF."
The broader category of problem is called "visual shock," which refers to the same problem as brought on by graphs, charts, and diagrams.
While I sometimes kid around, I think that this interview touches on a very serious problem. From maps to instruction manuals to PowerPoint slides crafted by committees of lawyers, we too often see graphical information crammed into charts, maps and slides in a way that boggles the mind and, in truth, will produce an audible gasp. In some cases, they can even be more confusing than a lawyer's PowerPoint slide crammed with 300 words of ten-point Times New Roman type (and no graphics, of course).
I've long been intrigued by Edward Tufte and others who have addressed the issues of visual display of complex information. Some very interesting approaches to this issue have been made by the people at Xplane in St. Louis and you might enjoy taking a look around their website.
There are many ways to complicate our information overload problems, so it's always good to be on the lookout for ways to alleviate the issue.
The Electronic Filing and Service for Courts blog has a nice piece titled The Benefits of Mandatory E-Filing, with which I mostly agree; while there are clearly major benefits to e-filing, I'm just not sure making it mandatory (at this point, anyway) this soon is the right strategy. Yes, I know e-filing is mandatory in the bankruptcy courts, I just wish they had handled it a different way.
The reason why: like it or not, many attorneys are not equipped with sufficient technological skills to grasp the intricacies of e-filing. I write this with a trace of sarcasm; while the average reader of this blog would no doubt find e-filing a snap, many attorneys are still way behind the technology learning curve. I'm talking mostly about solo (and some small firm) attorneys here -- large firm attorneys may not have the skills, but they certainly have staff capable of processing an e-filing transaction.
A case in point. My firm subscribes to the Courthouse News, a great service that delivers an e-mail to us each day with descriptions of the latest court filings, both state and federal. A few months ago, the Courthouse News described a lawsuit filed in federal court by a lawyer here in Dallas, actually against the Northern District of Texas. The lawyer alleged that he lacked the computer skills necessary to e-file, and therefore the mandatory e-filing system here was discriminatory. We'll see how far this lawsuit goes, but the point is made: some lawyers are not equipped for this brave new world of e-filing.
A solution? Before a court system decides to go mandatory, they should offer e-filing as an option, with the notice that at some point in the future, e-filing will be the only option. At the same time, the court system should offer some sort of class to teach the basics of e-filing to lawyers and their staff. The classes can be online, at the courthouse, or in seminars through the bar association. I know some of the federal courts here in Texas require the attorney to take such a class before registering to e-file, but so far the state courts that have e-filing don't provide any obvious training -- at least in Texas, anyway.
Tom Mighell and Dennis Kennedy of Between Lawyers will be featured with Raza Hasan (FindLaw's Manager of Product Development) in a free one-hour webinar called "Blogs for Lawyers: Building an Audience to Build Your Practice," brought to you by the nice people at Thomson FindLaw.
We'll cover the world of lawyer blogs in general and talk about how lawyers are using blogs and where legal blogs are headed. Our focus will be on practical, useful information. The webinar is designed to be at the introductory level, but even long-time bloggers will benefit from the material covered in the webinar.
The webinar will be produced live twice on Tuesday, August 9 and here are the links:
Hope to see you there. Please pass the word along to anyone you think might be interested in this webinar. And keep your eyes and ears open for future appearances by members of the Between Lawyers group. Maybe we'll be coming to your town.
I wanted to see how the task force report Ernie referred to covered the topic of technology, so I did a search of the PDF file for the term "PowerPoint." There were zero occurrences.
For an interesting comparison on the subject of PowerPoint in trials, check out Cliff Atkinson's post called "Beyond Bullet Points on Trial" and Evan Schaeffer's comments about the article referred to in Atkinson's post. For my enthusiastic comments about Atkinson's book, see my comments here.
I may have some other comments on training trial lawyers later - the comments to Ernie's and Marty's posts are quite good, so I'm a little reluctant to introduce the level of irreverence I'm likely to have into the discussion.
However, I have made a few observations over the years that I might share. For example, I've always been intrigued by the breed of litigator who seems to spend so much time telling you how busy he is that you begin to wonder how he can get any work done and bill all those hours. I don't know how they could fit training into that schedule. Trial lawyers in general never seem shy about telling you how hard they work (and implying that you must be a slacker in comparison). Just an observation.
No time to add anything else - gotta get back to work.
'. . . I would willingly - in fact, gratefully - accept any 'dog' case they had, even the sure losers, if there was some chance of going to trial . . . for several years I tried cases regularly. I lost many of the sure losers . . . "
I understand what the author means and many of us use terms like 'sure loser,' but to take a faux-naive perspective:
Ignoring the author's remark that he wanted the experience, how would you explain to a Man from Mars (or economist, or management consultant or client or professional responsiblity organization) why a rational person brings a 'sure loser' to trial?
Great trial lawyers are made, not born. (Consider what the newborn would look like if that were the case). But with less cases going to trial, and given the expansion of complex litigation and complex discovery, the odds of young lawyers getting courtroom experience is moving toward a vanishing point.
The ABA created a task force to study this problem, and when I read about it the words 'task force' immediately induced this reaction: Zzzzzzzzzzzzzz.
But it turns out that the report (PDF file) is written in first-person informal narrative and has some interesting observations about how some law firms are training lawyers. For example, Jenkins & Gilchrist has actors come in and give young attorneys a one-day training session on how to apply acting techniques to courtroom presentations.
Sounds like some law firms are taking steps to address the problem. Hopefully, more will join in that effort.
Even though some might complain about the apparent incongruity of Google's aggressive use of intellectual property laws to protect its own intellectual property while developing a business with a market cap in the billions based at least in part on caching copies of other peoples' copyrighted materials on the basis of a "fair use" argument, I choose not to go that route. In fairness to Google, I will assume that the headlines I've seen do not do justice to the nuances in the Google patent application, which I invite you to read for yourself (in part to illustrate why I would not ever want to be a patent lawyer and read patents all day long).
On the other hand, I will also note that I've been talking on my blog and elsewhere about placing ads in RSS feeds for several years and never even once thought that the idea of trying to patent "ads in feeds" (even "automatically") was something I might try to patent. It seemed a little, well, obvious. Probably the hundreds of others discussing ads in feeds over the past few years have reached the same conclusion.
I now wonder if my cautious approach as compared to Google's very aggressive approach to this "invention" and the patent process explains why Google is worth billions of dollars and, sadly, my net worth is far less. The future, at least in the patent world, seems to belong to the filers and not the thinkers and talkers.
Maybe I still have time to try to get that patent for my idea of a combination computer mouse and electric razor to help you freshen up before late afternoon meetings or after-work events.
In fairness, however, let's read the actual text of the patent as well as the articles about it, and then make up our minds. It might be possible to interpret the following paragraph, for example, in many ways:
"47. A system for generating information including targeted ads, the method comprising: a syndicated information and ad mixer including: means for receiving information in a syndicated format; means for receiving a first targeted ad from an automated ad server system; and means for combining the first targeted ad with the received information to generate a set of response information which is also in a syndicated content format."
But, I'm no patent lawyer - just someone trying to make some sense out of all this stuff.