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 dhowell@gmail.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 tmighell@swbell.net.
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 marty@schwimmerlegal.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 esvenson@gmail.com.
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.
Be sure to check out the new Corante hubs and networks. My experience with Corante goes back to the early days of the Corante email newsletters. I see the hubs as a return to those roots, in the best sense, and welcome all the new members to the Corante family of blogs.
The Budget Rent-a-Car opinion by Judge Posner, reversing the decision to award attorneys' fees to a defendant who had to deal with a frivolous appeal, is getting a lot of discussion over at PointofLaw.com, and deservedly so. Posner apparently thought that the defense attorneys $4,000 fee for a 4 page brief was excessive. Gail Heriot's point is that "that's what litigation costs," suggesting that Judge Posner was wrong. I'm not sure if he's wrong, but I agree with Gail that litigation is 'frighteningly expensive' and many judges aren't willing to do what is necessary to address the problem.
Litigation is expensive because the legal system, pretty much at all levels, is inefficient. Judges are in a unique position to streamline the process and force efficiency into the system, but, as a whole, the judiciary has not really done that. Denying excessive attorney fee requests is not going to do much to create the necessary momentum.
I like Judge Posner. I think he is efficient and his decisions are sensible. But he's an appellate judge, and they don't really have much influence over the inefficiencies in our legal system (remember not many cases go to trial, and of that number only a percentage get appealed). We need to re-examine the kind of people we appoint/elect to our trial courts. Trial judges control cases from the moment they get filed until the moment they settle (which 90% of them do) or get resolved by trial or summary judgment. What kind of trial judges should we be looking for? I favor fidgety, impatient people who don't like to waste time. Like Judge Judy, for example.
You think I'm kidding about the Judge Judy thing, don't you?
The Online Guide to Mediation blog has a post with a great collection of resources about the future of the practice of law, with an emphasis on alernative dispute resolution.
I also keep a small collection of links to resource on the future of the practice of law here.
Doug Sorocco talked yesterday about his creative difficulties and search for inspiration as he prepared Blawg Review # 34.
Well, all of us benefit from his getting the Blawg Review #34 out of his system, because he truly found some inspiration for his great post on big firm rainmakers called "What's Your Definition of Rainmaker? Bullshitter?"
It'll make your day. Great graphic, too, Doug. Combining humor, graphics, a sound file, a great title and barnyard language into a single post about the practice of law, Doug has established himself as the frontrunner for the blawg post of the year award. Well done!
As many of my friends know, I've been bitten by the Web 2.0 bug lately and done a lot of thinking (but not very much public writing yet) about how Web 2.0 might be applied in and to the delivery of legal services and practice of law. Steve Nipper has also recently raised the question about how to bring Web 2.0 into what is fundamentally a Web 1.0 world.
I think that this is a very important, yet quite esoteric, topic. However, The Wired GC has made an enormous contribution to the discussion with his post called "Web 2.0, Law Style," which definitely makes my "must read" category. It's both a good introduction and a map of the territory and its implications.
I expect to see not only more discussion of the topic (and I invite you to use the comments to this post as one method to do that), but some actual announcements of things that fall into the Web 2.0 category, including at least one of the ideas mentioned in the Wired GC's post in the very near future. In fact, I'm quite sure of it.
In the article, I take a very practical approach to dealing with the legal risk management issues that arise when a business uses or wants to use Open Source software. I take the somewhat unusual point of view for lawyers that people might actually want to use Open Source software in many situations and that the standard lawyer approach of saying "no" to everything really is not useful. Check it out if Open Source software or that approach to it interests you.
I'll also note that the article grew out of a presentation of mine that helped me put together some of my initial ideas about "open source law." If you read the article, you may see some of the basis for some of my thinking about what we talk about on this blog from time to time under the topic of "open source lawyering."
If my writing on the Open Source licenses piques your interest to delve deeper into the topic, I recommend my article called "A Primer on Open Source Licensing Legal Issues: Copyright, Copyleft and Copyfuture" (PDF), which was one of the earlier law review articles on the Open Source licenses. It's much more academic, but I still think it's very accessible - it still gets downloaded a lot.
The answer, not contained in the article except if you read between the lines, is: only if clients want them to be numbered.
The article does a good job of sketching the history and background of hourly billing for legal services and gives an update on efforts by the ABA and others to explore and support alternative billing methods.
The money quote:
But if the billable hour is such an inefficient system, then how did it come about in the first place? The blame can be traced, as you might suspect, to Harvard University.
IBM now has both a blogging policy and a podcasting policy. PC Advisor, IBM employees play with podcasting: "Then it sat back to see what IBM staffers would create."
If you're planning on committing murder, make sure you research your crime anonymously. In a murder trial going on in Raleigh-Durham, an inspection of the defendant's computer revealed that he had searched the words "neck," "snap," "break," and "hold" on a search engine before his wife died. The computer evidence also apparently indicates that the defendant allegedly researched lake levels, water currents, boat ramps, and access to the lake where his wife's body was later discovered.
When we talk about e-discovery, we're not just talking about e-mail and Word documents with embedded metadata -- we're also talking about your browser's search history. Properly harvested, it can definitely yield some interesting evidence.
A most interesting development that bears watching and thinking about:
For many, many years,Cornell's Legal Information Institute has been one of the best legal resouces on the Internet. They've now moved into the new era of wikis and other collaborative tools by announcing their WEX project - an online collaborative legal encyclopedia. It's like the Wikipedia concept, but with some constraints on who may contribute to WEX.
There's no doubt that this will become a premier legal resource.
However, I mention it also because it touches on a topic that has interested us at Between Lawyers for a long time - can something like an "open source" law be created and, if so, what will it look like? WEX strikes me as one model that fits into the concept of open source law. I invite you to discuss this topic.
The UK Department for Constitutiional Affairs recently published a white paper ‘The Future of Legal Services: Putting the Consumer First’, setting out proposals for the regulatory reform of legal services in England and Wales. Download it here.
The recommendations date back to Sir David Clementi's efforts to:
* consider what regulatory framework would best promote competition, innovation and the public and consumer interest in an efficient, effective and independent legal sector.
* recommend a framework which will be independent in representing the public and consumer interest, comprehensive, accountable, consistent, flexible, transparent, and no more restrictive or burdensome than is clearly justified.
Your assignment: Compare and contrast these efforts in the UK to recent efforts in the US to implement increasingly onerous, state-based regulation.
Will this be a sign of things to come in the legal blogging world? The RethinkIP guys have announced here and here that Matt Buchanan (of RethinkIP and the Promote the Progress blog) has joined the Oklahoma City law firm of Dunlap, Codding & Rodgers, the firm of Doug Sorocco (RethinkIP and PHOSITA).
Informal and incomplete research suggests that this is the first move of one legal blogger to the law firm of another legal blogger. However, as some have pointed out, the blogosphere is a self-correcting medium, so we may find out otherwise.
Whether or not this is the first such move, it's a sign of the growing signs of collaboration among legal bloggers (and bloggers of all kinds).
I wanted to pass along my congratulations to Matt and Doug. I've learned a lot from these two and Steve Nipper, the third member of RethinkIP, over the course of this year. I think the world of all of them and their abilities and look forward to seeing what Matt and Doug accomplish together at Dunlap, Codding & Rodgers and what the three of them continue to do and have planned at RethinkIP - definitely a place to watch.
Where have you gone, Joe Dimaggio...? Wait — wrong generation. Where have you gone, Article III Groupie? (A.k.a. Asst. U.S. Attorney David Lat.) We hardly knew ye. This article from Amy Klein at a New Jersey newspaper suggests that Underneath Their Robes has vanished from view due to discomfort or discomfiture on the part of the Groupie, the Groupie's employer, or both. Whatever the cause, the New Yorker article linked above ran yesterday, and apparently by 5:00 p.m. over a year's worth irascible irony was no more. The *still* anonymous editor of Blawg Review offers this tribute. (He or she emailed that he or she thought I might have been A3G, which I took as a big compliment; would that I had A3G's unflagging wit and fervor for the federal bench.) And the rest of the blog- and blawgospheres are rending their hearts and garments as well. Howard Bashman, who has been followingthestoryclosely (provinghimselfaGroupiegroupietothecoreofhisbeing), had this headline this evening while pointing to a story about a cross-dressing policeman: At least he wasn't blogging like a woman.
We've returned from the largest gathering of the Between Lawyers group to date, topping the previous record of three in one place. At the recent BlawgThink conference, Tom, Marty, Ernie and I got together as speakers, attendees and friends. Denise had another commitment. We sure missed her and the rest of us vowed to find a way to get the five of us together. We're thinking that any number of conferences might benefit from getting the five of us to speak at a panel session. Conference planners take note.
Here's another important article on law practice and law practice management trends - Well-known law practice management expert Ward Bower, of Altman Weil, has written an article called "The Business of Law in 2005 (PDF)."
The titles a bit of a misnomer because the article analyzes trends that will extend long past 2005, but should definitely be on the radar.
The money quote:
Emergence of the Buyers’ Market
Foremost among all the trends is the shift of the legal services marketplace from the sellers’marketplace of 15 or more years ago to an increasingly buyers’market today.In a sellers’ market the supplier (i.e.,law firm) determines price, staffing and strategy.In a buyers’market these roles are reversed and it is the buyer (i.e., client) who determines price, staffing and even service strategy. Increasingly today, clients determine what they are willing to pay for legal services, how many lawyers and at what levels are needed to serve them, and even how case management, strategy and communications are to occur. (emphasis added)
I've begun calling this trend "client-driven technology." I could not agree more with Ward about its importance. Will we talk about it at BlawgThink? You betcha.
PRESIDENT BUSH: Our country is at war, and our government has the obligation to protect the American people. The executive branch has the obligation to protect the American people; the legislative branch has the obligation to protect the American people. And we are aggressively doing that. We are finding terrorists and bringing them to justice. We are gathering information about where the terrorists may be hiding. We are trying to disrupt their plots and plans. Anything we do to that effort, to that end, in this effort, any activity we conduct, is within the law. We do not torture.
"And, therefore, we're working with Congress to make sure that as we go forward, we make it possible -- more possible to do our job. There's an enemy that lurks and plots and plans, and wants to hurt America again. And so, you bet, we'll aggressively pursue them. But we will do so under the law. And that's why you're seeing members of my administration go and brief the Congress. We want to work together in this matter. We -- all of us have an obligation, and it's a solemn obligation and a solemn responsibility. And I'm confident that when people see the facts, that they'll recognize that we've -- they've got more work to do, and that we must protect ourselves in a way that is lawful."
Dennis Kennedy in the New York Times today on metadata, Beware Your Trail of Digital Fingerprints: "If you take the time to educate yourself a little and know the issues, you can avoid problems pretty easily." (I'm less sanguine about that for the nonbusiness or small business user, whose document distribution habits aren't being scrutinized by a department of minions dedicated to avoiding these sorts of snafus. How many users do you know, for example, who have the time or inclination to make heads or tails of these search results?)
Which causes the mind to be more distracted -- marijuana, or e-mail? If you picked e-mail, you'd be right. A recent study found that people who had to check e-mail and instant messages while taking an IQ test scored lower than those who took the test while they were stoned.
It definitely raises an important question: are we doing our best thinking while we are in front of the computer?
It was only a matter of time before universities jumped on the podcasting bandwagon. Stanford recently released its Stanford on iTunes project, which provides faculty lectures, interviews, music and sports for Stanford alumni and students. And now it's coming to law schools. The terrific Center for Computer-Assisted Legal Education has been featuring lectures and other educational materials at CALI Radio, otherwise known as the ClassCaster, for several months now. And the brand-new University of Chicago Law School Faculty Blog, which has only been posting since late September, is already featuring talks and events via a podcast feed.
How long before our law school classrooms are empty, with everyone attending via podcast? It would sure deal a blow to the Socratic method, eh?
Tom Collins has a post on the business of the practice of law that discusses the viewpoint of corporate clients of the "practice of law as usual." It strikes me as one of the more important posts lawyers should read this year.
The money quote:
"Michael at GM explains, 'We know far more about a law firm’s performance and inefficiency than the law firm knows and that is sad.' GM knows the ratio of partner to associate use. They know when partners are doing work that an associate should be doing. They know when the firm doubles up on work that should be done by a single fee earner. When the customer knows more about the vendor’s product and cost structure than the vendor, that vendor is at a material disadvantage."
Evan Schaeffer and Between Lawyers' own Tom Mighell and Dennis Kennedy have written a new column where we take on one of the most interesting questions in the practice of law in 2005: if everyone thinks that electronic discovery is the next big thing in the practice of law and is so important, why are lawyers staying away from electronic discovery in droves?
I was thinking after we had our discussion of metadata in Word documents the other day on Between Lawyers that electronic discovery could actually be fun - checking for metadata and using all the new electronic discovery tools. Most lawyers, it seems, prefer to stay squarely in the world of paper. I've even heard that some judges make it all but impossible for lawyers who want to get electronic files to obtain them.
Is your lawyer asking you to print out documents for a hoard of high-paid associates to review or more comfortable pawing through a banker's box of papers than mousing through computer files? Maybe it's time for clients to become a lot more concerned about what their legal fees buy them in the world of practice-as-usual. In any event, you'll want to read the column to see how Evan, Tom and I grapple with the question. It's a thorough, well-rounded conversation that will make you think.
The three of us write a regular, more or less monthly column called Thinking E-Discovery on the DiscoveryResources.org site.
Great article on Judge Richard Posner in the Columbia Journalism Review. Apparently, Judge Posner has some unflattering things to say about the mainstream media. Who'd have guessed?
MONITOR THE BLOGOSPHERE. Put your own people on this or hire a watchdog (Cymfony, Intelliseek or Biz360, among others). Spot blog smears early, before they can spread, and stamp them out by publishing the truth.
START YOUR OWN BLOG. Hire a blogger to do a company blog or encourage your employees to write their own, adding your voice to the mix.
BUILD A BLOG SWARM. Reach out to key bloggers and get them on your side. Lavish them with attention. Or cash.Earlier this year Marqui, a tiny Portland, Ore. software shop, began paying 21 bloggers $800 per month to post items about Marqui, while requiring them to disclose the payments. Marqui's listings soared on Google from 2,000 to 250,000 results. Never mind that one blogger took the money and bashed a Marqui marketing strategy anyway.
BASH BACK. If you get attacked, dig up dirt on your assailant and feed it to sympathetic bloggers. Discredit him.
ATTACK THE HOST. Find some copyrighted text that a blogger has lifted from your Web site and threaten to sue his Internet service provider under the Digital Millennium Copyright Act. That may prompt the ISP to shut him down. Or threaten to drag the host into a defamation suit against the blogger. The host isn't liable but may skip the hassle and cut off the blogger's access anyway. Also:Subpoena the host company, demanding the blogger's name or Internet address.
SUE THE BLOGGER. If all else fails, you can sue your attacker for defamation, at the risk of getting mocked. You will have to chase him for years to collect damages. Settle for a court order forcing him to take down his material.
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
