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 firstname.lastname@example.org.
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 email@example.com.
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 firstname.lastname@example.org.
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 email@example.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.
In one of our occasional posts on what goes on behind the scenes at Between Lawyers in which we open the door on how lawyers really discuss legal issues of the day, here's the very learned discussion that ensued:
Dennis (note that Dennis did not realize that Denise had already posted on this topic):"Here's an interesting list on IP extremes [from Mother Jones mag], but when you read the blurb about John Cage below, it makes you wonder whether Marty might have been the lawyer in the case."
The blurb: "FOR INCLUDING a 60-second piece of silence on their album, the Planets were threatened with a lawsuit by the estate of composer John Cage, which said they’d ripped off his silent work 4’33”. The Planets countered that the estate failed to specify which 60 of the 273 seconds in Cage’s piece had been pilfered."
Marty: "I've never heard one of Cage's actual pieces. Are they 'dead air' or is the point that you hear the ambient noises (musicians sitting quietly)?"
Dennis: "Well, 4'33" is an anomalous work in Cage's canon - an intellectual witticism and a response of sorts to critics who thought his music was so darn weird. The answer to your question on the piece is, therefore, "yes." The intention of the silence would be to force you to reconsider what music, sound, silence and performance really are - a riff on Magritte's "Ceci n'est pas une Pipe" painting. It's kind of one trick pony, though, because you can only do something like that once. In its context, then, the lawyer's response to the lawsuit is the perfect artistic response and, in my mind, perhaps the artistic zenith of the legal profession in the last however many hundreds of years. Another contemporary analogy, of course, would be Lou Reed's Metal Machine Music. Excuse me, while I go crank that up and meditate on these artistic thoughts. Just my two cents."
Marty: "I guess my question really was, how did Cage's lawyers know that it was Cage's silence at all? Agreed that it is a truly great response."
Denise: (who noticed that neither Dennis nor Marty had been aware of her post on the topic) "Given that I blogged the Mother Jones List on BL, PLEASE blog at least some of the delightful context set forth in these emails there as well. (And don't be callin' ME no one trick pony, because there obviously are no limits to how many times I can persuasively urge you/all to "blog it.")"
Brad's idea was to add a Flare that would 'add a disclaimer' on each post that would be a small 'bio' link that would list the firm where the blawger is an attorney. That's a great start, but I'm sure there's bound to be more ideas. What about adding a Flare that would link back to the lawyer's latest publication?
Take a look and give it some thought. Let's collect and share ideas in the comments section for this post and we can get back to Jake with some good ideas. I agree with him that this idea has a lot of potential, especially if Rick Klau is involved.
One goal of legal education is to teach future lawyers that professionals need to be responsible. Teaching law students to be responsible requires more than denying them the opportunity to be irresponsible. It requires guiding them around the tempting distractions. If law faculty become too controlling, how are the students going to fend for themselves after graduation when the faculty isn’t there to control things for them?
The snarky ones out there might say, "Taking away laptops in law school will prepare students to work in those law firms that are busily trying to take laptops away from lawyers and have them only work on desktop computers." Some might think that I would be one of the snarky ones, but that's probably not the case.
Professor Maule, however, is a welcome voice of reason in this discussion. Highly recommended.
Evan Schaeffer on the Internet Making the World Smaller
I love Internet stories like the one Evan Schaeffer tells about finding, losing and finding in a different way a grade school penpal from New Zealand. I think you'll like it too. And you'll see why Evan is one of my favorite writers among the law-related bloggers.
But whose? "YouTube co-founder Chad Hurley says in some cases, the same company is both uploading video and ordering YouTube to take it down. 'There's been a few examples of marketing departments uploading content directly to the site, while on the other side of the company their attorney is demanding we remove this content.'" From Cory Bergman, via Boing Boing.
Kevin O'Keefe considers the growing volume of content on law-related blogs and says:
It's very possible, if not probable, that the depth of law content being published on law blogs is greater than that being published by the largest legal media company, American Lawyer Media (ALM). Sure, ALM publishes The National Law Journal, numerous state law journals, and newsletters, but for law from practicing lawyers, law blogs have it all over ALM's content.
Kevin goes on to reflect on this:
This is not to slight the value of ALM. But it's amazing to think that the aggregate power of personal publishing platforms run by lawyers has in only a couple years equaled a major publisher that's been around for decades.
The key point here is not whether,empirically, when can determine whether blawgs or ALM have more content, but instead to marvel at what a huge information resource blawgs have become in such a short time.
For now, it is likely that the traditional defamation standards, including the private/public figure distinction, will continue to apply to defamation cases involving blogs. The very accessibility of blogs, however, may lead courts to reevaluate defamation law standards.
[Via Ian Best] She also looks at the protections afforded by Section 230 of the Communications Decency Act, and I agree with her that "the policies underlying Congress's enactment of the law may encourage courts to extend the provisions immunity to bloggers." (Context; more context.) Also by Jennifer, a more condensed piece on the same themes: Blogs Raise Thorny Legal Issues.
[Update]: This musty Bag and Baggage post is also on point, Are You A "Public Figure?" "Can the day be far off when a blogger will attempt to answer libel allegations . . . by pointing to the subject's Daypop and Blogdex numbers?" (Or the like; Technorati's just a baby you know, albeit a mighty precocious one.)
Consider this use of technology in the practice of law:
Imagine that you can have an Internet communications feed between a lawyer in a courtroom, arbitration hearing or deposition and other lawyers, outside experts and/or client representatives who receive a live feed from the proceedings. Those outside the proceedings can use instant messaging or other techniques to assist the lawyer at the proceedings in much the same way they might if they were physically present.
I saw this kind of technology demoed live at the ABA TECHSHOW in 1998. I thought that it was a great way to improve the representation of your client and offered some significant benefits for training and supervising lawyers, savings on travel costs, and the like.
As I understand the story, there does not seem to be a question about whether the outside consultant could not be in the arbitration hearing, although there is a lot of discussion about whether this use of technology should be disclosed to the other side. There is not a lot of discussion about whether this approach afford a client better representation.
Here's my question: Am I missing something here if I am thinking that this is an innovative use of technology (even though the tech has been around for awhile) rather than a "corruption of the legal system"? I'm willing to learn where I'm wrong, but I like this use of technology.
Dennis has also written a new article on his top ten tips for law firm technology committees that will only be available to attendees of the video webinar. This seminar is geared toward members of a law firm technology committees, managing partners and IT directors. Register here.
Many, maybe most, weblogs involve some combination of personal and professional material. In recognition of this fact, and in an effort to understand how people are striking this balance in the real world, BlogHer recently conducted a survey and gave a presentation at SXSW, entitled "We Got Naked, Now What? Blogging Naked at Work." From the panel description: "Can you open your kimono in one blog post, and wear a button-down shirt in another?"
Lisa Stonelive-blogged the panel, moderator Elisa Camahort gives this rundown of the survey results, and The Washington Post has this postscript. Among other things, the survey found the majority of the respondents "draw distinct boundaries between public and private information," and (perhaps accordingly?) "83 percent of professional bloggers who responded to BlogHer’s survey indicated that they had never received negative feedback to the personal opinions, feelings and experiences included on their business blogs." The survey also showed the respondents, whether they self-identified as more "personal" or "professional" bloggers, shared a tendency to exercise judgment and discretion as to subject matter:
The top subjects that were considered not suitable for business blogging include romantic/sexual feelings (84 percent), salary/income (77 percent), religious/spiritual beliefs (63 percent), and sexual orientation (57 percent). Surprisingly, the personal bloggers were also likely to consider salary/income (68 percent) and romantic/sexual feelings (50 percent) off-limits. In addition, personal bloggers showed reluctance to discuss feelings about events at work (54 percent).
We at Between Lawyers are fans of Sabrina Pacifici (BeSpacific.com; LLRX.com) and we are not the only ones. The new article on Sabrina in the Library Journal shows why she is one the most-respected of all law-related bloggers and one of the most-repected law librarians in the world. Congratulations to Sabrina on the well-deserved recognition.
Sabrina will be speaking with Tom Mighell of Betwen Lawyers in a session called "Advanced Searching: Beyond Google and Yahoo!" at the ABA TECHSHOW on April 21.
The post may be a little bit of hard sledding for those not familiar with John Boyd's notion of the OODA Loop, but the patient reader will be well rewarded.
The money quote:
Internal blogging combined with external blogging, rss aggregators and social tagging are all important tools which enable the team to organize information efficiently to insure that the data is activated and distributed to the right people at the right time. From this angle blogging helps companies cope with challenges like complex environments, gathering and activation of information and efficient, up-to-date decision-making for various team efforts. As such blogging can efficiently help organization on one of the contemporary top-priori[ty] business imperatives: corporate agility.
Something to think about for companies thinking about slapping on draconian employee blogging policies.
Danny Sullivan has this thorough and link rich post describing Google's new program that enables its Book Search partners to sell works online. (Note the messages in BOLD CAPS, and read all the links.)
From SmartPros.com: A recent study indicates that accountants rank significantly higher than lawyers in the important category of "germiness." Teachers rank highest, but that's understandable given the rate of illness among school children. The study suggests teating lunch at their desks is a contributing factor. Like many lawyers, we at Between Lawyers like to go out for lunch, surely part of the reason that lawyers ranked 9th in germiness, soundly defeating the accountants in the this phase of the ongoing rivalry between the two professions.
Lately, I've seen inconclusive results on whether lawyers or accountants are later adopters when it comes to technology, with the general feeling that lawyers are generally later adopters. So, the win by lawyers in the germiness category is an important one in the rivalry.
However, we will not start celebrating until the results are in on the studies of "who would you least like to meet at a party?" and "who is most likely to interrupt you and proceed to dominate a conversation?"
We at Between Lawyers have long been fans of our fellow group bloggers at RethinkIP. They're great guys and they're always trying new things and re-energizing old ways of doing things. And they're not like all the other lawyers you know.
Today, they took an expansive interpretation of the rules for the carnival of legal blogs called Blawg Review and completely reinvented the standard approach to "carnival blogs."
Once you read the following quote from early in Blawg Review #48, you know that you are in for something a little different (watch out for some potentially non-workplace-safe language):
"We think that several popular carnivals, including Blawg Review, have become bloated, link-whore-optimized versions of the original vision for what a carnival should be - an edited review of relevant blog posts presented in a manner that contributes to thought-provoking conversation."
Something tells me that things won't quite be the same again at Blawg Review - in a good way. It's good to shake things up and try new stuff every now and then.
They got our attention and we definitely read this issue of Blawg Review from beginning to end, which, among other things, was probably what the RethinkIP guys had in mind.
We'll have to see whether they are interested in a "swap day" for our blogs in which we could turn over the keys to our blogs for a day and then write parodies of the posts on each of our blogs. Now that would be something that hasn't been done in the world of law-related blogs.
Here's a provocative topic for a Friday afternoon from a fascinating article in today's ABA Journal eReport. Terry Carter's "No Time for a Round-up" covers a recent Kansas case where a court censured a lawyer for, among other things, rounding 45 minute blocks of time to one hour.
The article then goes into detail about what might and might not be permitted in the rounding of time to the nearest billing increment. Read it yourself. I'll simply note that some of the examples referred to specific questionable practices that looked suspicious on their faces.
The most interesting comments are from a law professor who suggests than ANY rounding should be prohibited. In other words, time entries would become 5 minutes, 24 seconds, rather than .1 hour. The technology, she suggests, is available to do this. This might give new meaning to "being on the clock." Before long, embedding chips directly into lawyers' brains might make timekeeping even more accurate.
I think it was in the March 3 edition of The Gillmor Gang that Steve Gillmor had some characteristically blunt and insightful commentary about the reluctance of corporate IT departments to embrace new technologies that are compelling but disruptive of the existing infrastructure. This can be both frustrating for users and counterproductive from a business standpoint. Against this backdrop I was interested to read Paul Chin's article in Intranet Journal,The Value of User Generated Content, Part 1. [Via Genie Tyburski] Part 1 puts the issue of things like blogs, wikis, and discussion groups (discussion groups? less relevant at the moment than podcasts, I would think) in a corporate IT person's context, comparing these media forms to the "engineered content" (apt phrase) that heretofore has populated intranets. Part 2 (still to come) will examine how "[i]n order to find a happy middle ground when using UGC, and not to appear overly controlling, a formal set of content posting guidelines should be agreed upon by both the intranet owners and users." (Emphasis mine.)
So, it seems that IT departments may be beginning to come to terms with "UGC" and its inevitability as part of the corporate environment. As to the important related policy decisions, though, I certainly hope the norm will be for these to be the ultimate province of other parts of the organization.
Alan Weinkrantz will be giving a corporate blogging strategies seminar in Tel Aviv, Israel on April 4. On the agenda, per the press release: "How to start a blogging initiative. What are the elements of a successful blog? What types of blogs should companies consider creating? What steps should companies take to set up a blog? What guidelines should companies have for bloggers? Establishing corporate blogging policies...," and generally how businesses can best use blogs "as a way to develop closer ties to all of their publics."
'A comprehensive blog communications strategy includes targeting specific blogs with relevant information and keeping a close eye on what influential bloggers are saying about one's business, brand, products, competitors or industry issues,' added Rakefet Sudri, sales and marketing manager of PR Newswire Israel. 'PR Newswire has been assisting our customers in targeting and monitoring blogs for some time now. ...'
Has this whole metadata thing got you down? Does the recent Florida opinion have you wondering which way to turn when it comes to the data that's hidden in your documents? Well, it has Ben Cowgill thinking, too, and he has assembled a fantastic collection of resources to help you Make Sense of Metadata -- the links include introductory material, ethical considerations (including links to relevant state opinions), metadata in litigation, and practical advice. Great set of links there.
If you've been following our posts concerning business blogging issues and blogging policies, or if you've just been paying attention to mainstream reporting over the last year or so, you know there has been a good deal of handwringing (some media prompted, some lawyer prompted, some both) about the unique or remarkable legal perils that weblogs and other Web-oriented communication tools supposedly pose for businesses. It was clear to me at last week's New Communications Forum that this meme has had an impact. Even in that very blog-friendly environment, concerns and uncertainties about the legal risks of wholly or partly unfiltered employee communications with the outside world were much in evidence.
Something interesting occurred to me along these lines in the course of being interviewed by Debbie Weil for her podcast. Specifically, of all the various communication tools available to employees, whether while on the job or off the job or both, blogging may actually be the least risky and most innocuous from a corporate risk management standpoint. Consider first that people commonly assume phone, email, cocktail party, and/or hallway discussions are invisible, transitory, and/or confidential. Any one of those situations is thus fairly likely to involve remarks that the speaker, rightly or wrongly, does not expect to come back to haunt them in a public way. Then consider the extent to which public blogs, podcasts, and similar tools are conceptually different from the get-go. The accessible nature of the information put out by these means is part of of the compact. Except in the limited case of behind-the-firewall blogging or podcasting, people using these tools are much more likely to comprehend that a broad audience is possible (usually, desired), and to tailor their communications accordingly.
Unlike a great deal of the reporting I read about the dangers and pitfalls of blogging, I have a hard time isolating any primary legal problems that inevitably go along with employees using communication tools of any sort. Instead, the potential problems are a direct product of the extent to which clear expectations have been set, and the extent to which a particular employee is oblivious or doesn't care. Though there are a host of situations whereby an employee's blog, podcast, photo, or video clip could conceivably subject an employer to third party liability — inadvertent disclosure of confidential or regulated information; harassment, discrimination, or other civil rights violations; false advertising or other unfair competition concerns; and much more — not only are none of them unique to online communications, but it seems to me those using such methods would be almost certain to appreciate that what they're doing is not "private."
Picture a world in which it was a newsworthy event every time someone was fired due to something said in an email or a hallway. Or every time company secrets were clandestinely or inadvertently shared over the phone or over drinks. You'd never hear about the dangers and pitfalls of blogging, because it would constitute such a small part of the overall "problem." (And we could all get back to concentrating on what's reallyimportant.)
The first subject is an 'inter-disciplinary' analysis of the protection of design and three-dimensional objects. Practitioners experienced in trademark, trade dress, copyright and patent law will provide news and commentary on the legal treatment of design and any object that incorporates design.
The second subject will be 'personal fabrication.' The creation of Shape Blog was inspired by the book 'Fab' by Professor Neal Gershenfeld To over-simplify:-just as the dropping prices and widespread dissemination of computing power led to the personal computing revolution, dropping prices and dissemination of CAD/CAM techniques will lead to a personal fabrication revolution, where the average home will have the ability to 'fabricate' exact replicas of three-dimensional objects (replacement parts, artworks, furniture) according to software instructions, perhaps downloaded from the Internet.
We will therefore be tracking not only advances in IP protection but advances in the technologies that may lead to a personal fabrication industry (such as desktop prototyping).
In short, we will be discussing the opportunities and dangers that arise for design when you can email an Eames Chair.
The March issue of Law Practice Today is out, and it's devoted to one of my favorite events, ABA TECHSHOW (and no, it's not just because I'm on the planning board). For those of you who aren't familiar with TECHSHOW, it's a 2-1/2 day technology conference for legal professionals -- it features over 50 educational sessions on technology issues ranging from electronic discovery to disaster recovery, Internet research to advanced IT. In this month's issue of Law Practice Today there are some TECHSHOW-specific articles as well as articles with the type of high-level content that you'll find at TECHSHOW. Of the articles featured this month, I'll highlight a few:
Something else you can mention to your boss is that if you register for ABA TECHSHOW by March 10, you'll save $200 off the regular registration ($300 if you're a Law Practice Management Section member).
Okay, enough of the sales pitch. Check out Law Practice Today and see what all the fuss is about.
Interestingly, it must not have been written by a lawyer caught up in the latest blog policy marketing fad - not one of the ten tips talks about implementing a draconian "standard" blogging policy. Food for thought.
I know that I'm only an honorary member of the Between Lawyers group, but I can no longer sit idly by waiting until the rest of them, including Ernie, get around to posting about Ernie's big announcement.
As the proverbial ""fly on the wall" to the Between Lawyers conversations, I can tell you that these bloggers definitely leave their best material on their back-channel email discussion list and this topic is no exception. On the other hand, they could be secret agents the way they kept Ernie's announcement secret from the public over the last few weeks.
Once again, I see them having a lot of conversations that just do not make it to the blog, but by the time they decide who is going to announce Ernie's move to solo practice and what that post should say, it will be 2007. Since I'm more the impatient and impulsive type, I finally decided that I had to jump in and make a post. Ernie's so darn modest that he'll never get around to posting this news.
Now that I have the podium again, though, I'll make a few remarks based on my observations as a mostly-slient member of the back-channel email list. It's fascinating what I see.
On the Between Lawyers back-channel list, someone will raise a topic in an email and ask whether it's something they "might" blog about. Then the following happens:
Denise seems to always reply: "Blog it!" Five minutes later, she'll send another email saying that she's already blogged about it, giving it some context, some appropriate links and one of her clever titles. It seems like she's saying "blog it!" as an assignment to herself.
Dennis seems to always say that he had already been thinking about blogging about the topic and expects to post something about it "soon." Then, any time between later that day and two weeks later, the topic will surface in paragraph twelve of a post that initially seems to be on a completely different topic, but you gradually realize puts the topic in a larger context and draws some practical lessons.
Ernie seems to always want to "mull over" what he might say about the topic. Like Dennis, he might or might not write about the topic, but, if he does, he ends up treating the topic in a thoughtful, philosophical way, making a larger point about the topic and its larger implications.
Marty seems to always fire back two or three responses that are either hilarious or perfect for posting to the blog. He also often seem to mention that there are already decided cases on the topic. He insists that he needs to polish his responses and find a suitable picture before he can turn his remarks into a blog post. He then finds something that the Bush administration has done that day that incenses him and he forgets to make the post.
Tom seems to always give the caveat that "he's just a litigator who is not as familiar with the topic as the rest of you." He then offers a concise, spot-on summary of the issue and may post about it and add several perfectly-chosen links to resources that will help people learn more about it.
It's a fascinating interplay to watch. I've often felt that a law school that cared about its students would be smart to swoop in and hire all five of these people, give them tenure and turn them loose to teach students. That's probably why I'm not in charge of hiring professors at a law school.
It's a pleasure to get to look in on what they do, but I do wish that they wouldn't leave so much good material on the cutting room floor.
On behalf of the whole group at Between Lawyers, including Lawyer X, congratulations and bon voyage to Ernie on his new adventure. And, you might want to update that bio in the left-hand column over there, Ernie.
Congratulations to one of our favorite blogger pals, Doug Sorocco, on the birth of his son, Karl. Karl's got himself a heckuva a good dad. We're pleased to hear that Mom, baby and Dad are all doing well.