Denise Howell Denise Howell
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Dennis M. Kennedy Dennis M. Kennedy
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Tom Mighell Tom Mighell
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Marty Schwimmer Marty Schwimmer
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Ernest Svenson Ernest Svenson
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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

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

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

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
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.

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May 31, 2006

Work-hoarding Partners and their Consequences

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Posted by Dennis M. Kennedy

Tom Collins, in his excellent More Partner Income blog, describes a phenomenon that I've seen for a long time, yet have found difficult to explain to people. In fact, I often feel that people do not believe me when I talk about this. It is somewhat counter-intuitive.

As Tom explains, lawyers in mid-sized firms (and also in more larger firms than people might expect) are consistently working annd billing more hours than associates. There is no "leverage" and in many mid-sized firms the partner/associate ratio is 1:1 (or less).

What has happened, especially since the notion of minimum billable hours got applied to partners, is that partners hoard work and do not delegate it to associates. The reasons are pretty clear - if your compensation and review is based on making your own quota of billable hours as a partner, then, even though you are defeating the basic economic purpose of having a firm and using leverage with associates, you will make sure that you have sufficient work to make your own billables quota first. In firms that use "billed" or "collected" hours as a measure, the tendency to hoard is even greater.

Tom's post does an excellent job of describing the phenomenon and explaining the many negative consequences that flow from it. Tom's suggestion of a more rational compensation scheme for mid-sized firms is mandatory reading, especially if you are a parther (or a partner-to-be) in a mid-sized firm.

My own take on this is that the work-hoarding partner phenomenon is one of the most insidiously destructive forces at work in law firms today. If you ask senior associates and young partners why they have left firms, it is rare not to hear some variation on this theme.

I applaud Tom for asking the questions and proposing a starting point for finding a solution.

The money quote:

The firm gets a bonus out of the new approach. The firm gains a farm team out of which the future partners and leaders of the firm will come.

It should concern us that Tom has to remind us of the basic truths he notes in his post. More firms, however, should be concerned that the farm team has already left the ranch.

Comments (5) + TrackBacks (0) | Category: Law Is A Business | Law Practice Management | Practice of Law

May 29, 2006

Technosexuality Calling

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Posted by Denise Howell

I've finally been getting around to reading some back issues of Wired Magazine this weekend, which is always a worthwhile thing to do. (My regular magazine reading consists of: Wired, Technology Review, Popular Science, Fast Company, MacAddict — Dennis, you should subscribe to this, it will take your MacBook usage and enjoyment to new heights — and any of the free, locally ad-supported, parent-focused pubs available at the grocery store and My Gym. Put that in your demographic pipe and smoke it.) There, I may have found an answer to Dennis' recent lament, "I doubt that anyone has more trouble with or dislikes cell phone service more than I do." It's the MVNO, "mobile virtual network operator." What I do know thanks to Wired — Sky Dayton Gets Mobile — is that MVNOs, which piggy back on the carriers' spectrum and resell wireless services under their own name, will be a breath of fresh air to those frustrated by the products, features, and plans available from the big boys in the world of cellular services. What I don't know (and I'd love it if someone could enlighten me) is whether MVNOs, in addition to satisfying our longing for variety and flexibility, can do anything to offer improved reliability and/or speed; since their service backbone is the infrastructure of the existing cellular networks, they may just be putting lipstick on a pig.

The Wired article is several months old now (January oops, March; reading January now), and though it got me thorougly jazzed to own a Helio phone named after Y.T. from Snow Crash, it looks like only Hiro ultimately got the nod, and then with a spelling change (*sigh*). Ah well, it still is a terribly attractive notion to hitch one's cellular service wagon to a company that thinks of itself as "a gang of miltant consumers who barricade themselves inside a carrier's headquarters and refuse to leave until they get what they want." Though Helio is clearly targeting someone younger than me with more free time (or maybe a different way of looking at it is they're going after those inclined to post to Slashdot and Digg rather than just follow along), I find the whole notion refreshing, and look forward to more — whether from Helio or another MVNO.

Great marketing partnership for MySpace by the way. Though I'd probably never create a MySpace page on my own, if my phone were well integrated with it I just might. Also: when was the last time you encountered a cellular service provider with a blog?


Comments (2) + TrackBacks (0) | Category: Technology | Web 2.0 | Wireless Communication

May 27, 2006

May 25, 2006

Generations, Culture, And Corporate Communications

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Posted by Denise Howell

Our co-blogger Dennis Kennedy is quoted today in the New York Times: Interns? No Bloggers Need Apply. Dennis' interesting, and I'm sure far more nuanced, discussion with reporter Anna Bahney was distilled down to a truth about modern attitudes toward personal values and employment — "It's like, 'This is who I am. Consequences are what they are. I'll go work for someone who doesn't have a problem with it.'" Just as she missed the chance to round out her piece with more of Dennis' well-considered insights on this topic, the reporter missed the opportunity to tell the more accurate, important, and complicated story. Specifically, Ms. Bahney took the approach that the issue of individuals, their blogs, and their employers, is one of youth culture vs. Killjoy Lawyer III and co. E.g.:

[T]he line between what is public and what is private is increasingly fuzzy for young people comfortable with broadcasting nearly every aspect of their lives on the Web, posting pictures of their grandmother at graduation next to one of them eating whipped cream off a woman's belly. For them, shifting from a like-minded audience of peers to an intergenerational, hierarchical workplace can be jarring.

(Emphasis added.) While I appreciate the clever juxtaposition, and the point that there undeniably is a generation gap between the online mores of under-thirty-somethings and their elders, to suggest that boundary blurring of this sort is an issue unique to the young is to ignore at least the last six years of Web-enabled communications. And to note almost in passing that "some bloggers" say "[a] blog and a job don't necessarily have to clash," is to ignore at least three years worth (and counting) of seismic shift in corporate attitudes toward communications with the outside world. Yes, it's a slow change. But to suggest the change isn't happening — "No Bloggers Need Apply" — misses the boat, and here, I fear, resulted in an alarmist headline and a story that attempted to paint the varied picture of today's business attitudes and relationships with a two-color palette.

[Update:] Slashdotters weigh in.

Comments (4) + TrackBacks (0) | Category: BL News | Blawgs | Blogging Policies | Copyright | Ethics and Technology | Intellectual Property and Technology Law | Open Source Lawyering | Practice of Law | Privacy | Technology

May 22, 2006

May 21, 2006

May 19, 2006

May 18, 2006

May 17, 2006

Cell Phones and the Emperor's New Clothes

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Posted by Dennis M. Kennedy

I doubt that anyone has more trouble with or dislikes cell phone service more than I do. Today was another adventure in tin-can-and-string sound quality and dropped calls - and I was the one on the land line today.

I don't know anyone who does not admit to having similar problems when I press them, even though they seem to love their actual cell phones - the hardware, that is. What the heck are we all paying for?

Tonight, I found a podcast of a a presentation from Ed Zander of Motorola and here's the description:

Motorola Chairman and CEO Ed Zander says the ultimate cell phone would come back into the home–that is, it would be the only phone one would need. But that development seems far away for users in North America. “People always say to me, ‘I can go to China, and go to the Great Wall of China and make a better phone call than here in the United States,” Zander offered during his keynote interview with Gartner analysts Nick Jones and Ken Dulaney. “And it’s probably true,” Zander noted.

Zander is more polite than most people I know when they get started on this topic - here's a link to the podcast - Check out his point of view.

What do the rest of you think of cell phone service in the U.S.? What are we getting for what we are paying? Is it reasonable to expect more? Or am I the only one this really bothers?

Comments (1) + TrackBacks (0) | Category: Podcasting | Provocations | Torture

May 15, 2006

(Cue Tattoo:) Defame! Defame!

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Posted by Denise Howell

Paul McNamara at Network World thinks this post by Marquette law professor Eric Goldman, critiquing recent lawsuits against Yahoo!, may be defamatory, because the post says Professor Goldman "think[s] these lawsuits are nothing more than a shakedown for cash," and calls the plaintiffs "extortionists." According to Mr. McNamara, "[Professor Goldman's] words practically scream libel." But, as Mr. McNamara clarifies, a lawyer for the Media Law Resource Center assessed things as follows:

In doing a quick search, I found court decisions holding both ways when dealing with similar accusations of 'extortion,' ... The legal issue would likely be whether the statements were actual imputations of a crime, or were 'rhetorical hyperbole,' essentially a statement of opinion, not of fact. The former could be considered libelous, while the latter could not.

Also notable is an observation from one of the plaintiffs' lawyers, Thomas More Marrone, about the amplification role the Web adds to the mix: "It's like a guy standing on a street corner talking to his friends except he's writing it down and disseminating it to hundreds, thousands, millions of people."

The moral, I suppose, is that if you're going to use an online medium to discuss others' potentially wrongful acts (and there's no getting around that a blog or podcast is an attractive place for commenting on disturbing conduct), a little attention to phrasing and characterization can wind up going a long way. (See also these discussions of the limited nature of the fair reporting privilege.)

Comments (0) + TrackBacks (1) | Category: Blawgs | Blogging Legal Developments | Blogging Policies | Participatory Law | Podcasting

May 13, 2006

May 12, 2006

May 10, 2006

Six Tips

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Posted by Denise Howell

Employment lawyer James Erwin offers Six Steps Help Ensure At-Work Blogs Are An Asset:

  1. Expressly include blogging within the same rules that govern acceptable use of email and Internet;
  2. Prohibit employees from disclosing or discussing any confidential or proprietary information;
  3. Remind employees that they are expected to be respectful of the company, its employees, its customers and its competitors; and are not to post material that contains harassing, discriminatory or threatening content, no matter when or where the blogging is conducted:
  4. Require employees to use their real name, not an alias, and; employees must make it clear that the views they express online are their own and not those of the employer. This policy adds credibility to the blog, as it will be viewed by readers as an independent source of information;
  5. Require that any reader responses to a blog be edited for profanity, harassing, discriminatory or threatening content directed toward the company, its employees, its customers, and its competitors; and
  6. Create an agreement with each blogger as to the purpose of the blog, the amount of company time you will allow the blogger to devote to the practice, and any necessary restrictions regarding overtime compensation for off-site blogging.

Interesting. As far as I know the overtime issue has not really surfaced yet, but I would think it's bound to play an evidentiary role in cases where classification of employees as exempt or nonexempt is an issue.

Comments (0) + TrackBacks (0) | Category: Blogging Policies

New Episode of The Kennedy-Mighell Report

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Posted by Dennis M. Kennedy

Tom and Dennis have posted Episode 3 of The Kennedy-Mighell Report podcast, in which they talk about their recent trip to the ABA TECHSHOW and developments in legal technoloogy and the implications for lawyers, law firms and clients of lawyers.

Comments (0) + TrackBacks (0) | Category: BL on Tour | Legal Technology | Podcasting

May 9, 2006

State Bar Regulators Continue to Struggle with Metadata Issues

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Posted by Dennis M. Kennedy

Evan Schaeffer offers a thoughtful and thorough critique of an effort by the Florida Bar to legislate how lawyers can and cannot use metadata. As Evan points out, the rationales for and provisions of the proposed rule are confusing and contradictory (or even miss the point completely) to lawyers who are familiar with and comfortable with the underlying technology issues.

I don't have much to add to Evan's analysis other than to wonder why a rule directed at requirements for a lawyer protecting the confidentiality of his or her client is being used as the basis to create a prohibition on opposing counsel who do not represent that client from looking at metadata in documents? That seems like a long stretch in logicto me.

Evan points to several good resources on metadata issues, including an article Evan, Tom Mighell and I wrote called "Mining the Value from Metadata."

The money quote from Evan's post:

Given a choice between hiring a lawyer in Florida, where lawyers may not be allowed to use technology as it was intended, and hiring a lawyer somewhere else, why would anyone choose the lawyer from Florida?

From my point of view, this proposed rule once again raises the question of the proper place for state-by-state regulation of lawyers in an Internet era.

Your thoughts are welcomed in the comments to this post.

Comments (0) + TrackBacks (0) | Category: eDiscovery

May 1, 2006