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.
Illustrating the approaches toward blogging policies should be context-specific and not cookie cutter:
Sun Microsystems CEO Jonathan Schwartz: "Our blogging policy is 'Be authentic. Period.'" (It's been awhile since I was showing up bright eyed and bushy tailed for Larry Sonsini's Securities Regs class in law school, but I'd be willing to bet Sun's securities lawyers might want a qualifier or two.)
Summer camps, with camper identities to protect and other considerations, might understandably go a different route. That article also highlights, and Dennis pointed out (by pointing here) on our mailing list, the camps' attempts to police bloggy uses of their trademarks. I'll have to defer to Marty on this but what they're concerned about sounds like nominative fair use.
Bruce Marcus offers a wise and thoughtful perspective on the recent efforts of bar associations in New York and elsewhere to impose elaborate regulations on advertising and other public and private communication by lawyers in his post "BACK TO 1950 – THE NEW ADVERTISING CODE OF ETHICS."
Rob Robinson takes us on a nice pictorial, perhaps even pastoral, tour of the blawgosphere. It's interesting to see the geographical component of blawgging. Nicely done and a pleasant diversion form the work of the day.
"Say what you will about the Ten Commandments, you must always come back to the pleasant fact that there are only ten of them," H.L. Mencken said derisively. What kind of scorn would he heap upon the legal system if he were around today?
Average citizens are presumed to know the law, which makes it easier for us to punish or fine them. Obviously, we all know that no one could possibly know even a tenth of the law. Meanwhile Congress and various state legislatures spew out new laws the way an out-of-control popcorn machine spits out fluffy white kernels. And when these laws are drafted (in labored verbiage that only a prim bespeckled encyclopedia editor would enjoy dissecting) are they grouped together in coherent categories? No, for the sake of politcial expediency (read: "you scratch my constituents' backs and I'll scratch yours") these laws are mushed together. Yes, let's put that new missle defense treaty in with the funding package for education. That makes perfect sense to me, how about you Bob?
So what can we do about this situation? Sadly, not very much. Let's use a drug analogy just to grab for something far-fetched. When you have a guy who's hooked on heroin there are clear steps you can take: you schedule an intervention and then put him in rehab. Sometimes it works, and sometimes it doesn't but at least it's feasible. Our legal system went off the rails at least twenty or thirty years ago, maybe more. But a lot of people (many of them in Washington D.C.) are perfectly comfortable with our legal system. Sure we have problems, but we know exactly what to do when we discover one. Just pass that one more law and glom it together with that other law that Bob just pulled out of the oven. And soon it will all be okay.
The dog days of summer have already hit St. Louis. You begin to look for any way to get a break from the heat. And those high-heat notebook computers are no picnic.
In potenitlally good news, scientists from IBM and the Georgia Institute of Technology have created a semiconductor approximately 100 times faster than chips commonly used today by freezing ithe chips at 451 degrees below zero Fahrenheit (close to absolute zero).
A friend of mine once joked that he made Jiffy Pop popcorn on his notebook computer because it got so hot. At least I think he was joking. With these new chips perhaps we'll be able to keep drinks chilled or even make a little home-made ice cream while typing away.
Alas, no prospects of the chips coming into production in the near future.
The real news in this story, of course, is what it may mean for Moore's Law and the idea of the Singularity.
Corporate blogging aficionista Debbie Weil is poised to unleash her Corporate Blogging Book on August 3. In the meantime she's offering freebies to tease and entice &mdash the complete first chapter, called "Top 20 Questions About Corporate Blogging," and, if you preorder at Amazon, the book's chart highlights — which you can check out at the book's site.
As I read the rules, EVERY public communication is an advertisement and any communication that isn't an advertisement is probably a solicitation. That should cover almost every communication between lawyers and the public.
In either case, a shocking number of draconian and micro-managing rules will apply.
I'll let others consider the free speech and other aspects of these rules, but I'd love to see some marketing experts analyze what the actual marketing effectiveness of any communication that satisifes these rules will have. My tentative conclusion is that if an "advertisement" or "solicitation" might in even a limited way be effective, it will violate the rules. If it has even been recommended as an effective form of marketing, it will probably cause you trouble.
This seems to be another in a series of recent regulatory efforts by state bar regulators that seem woefully out of touch with the Internet era.
Should you care? Well, consider this quote from the rules: "A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this state if the lawyer provides or solicits any legal services in this state." Take a quick look at the definition of "computer-accessed communication" in the amended rules and consider how a website or blog located anywhere is likely to be treated by the plain language of these proposed rules.
Once again, we see a concern about a limited problem being turned into wide-ranging regulations that will have enormous unintended consequences and seem designed primarily to protect established, successful practices from new competition.
Are we seeing the last gasp of an attempt to apply 19th century concepts to a 21st century world, or will lawyers be the only group able to roll back the changes the Internet has brought to the rest of the world? I'm betting on the Internet, but I'm quite curious about what others think about these proposed rules and others like them. It might be a good discussion topic for a summer Friday.
In an interesting bit of irony, PodTech.Net takes the occasion of the move of leading corporate blogger Robert Scoble to its ranks to unleash a breathless story (and accompanying podcast) about the dangers of corporate blogging. In the article and podcast, Allen Weiner, a media analyst and Research Vice President with Gartner, Inc. says he thinks companies need policies that govern in-house blogging, or, "all hell breaks loose." Yikes!
Weiner adds that “Unsanctioned corporate blogging is absolutely a tough call. And it happens in just about every organization.” Hmmm . . . "just about every organization," he says. I'd love to see the stats backing that assertion. In fairness, I'll note that I pulled the quotes from the overview article and suggest that people listen to the podcast of the interview of Weiner to get a fuller picture of his views.
Let me simply say that in "almost every organization" there probably is a corporate communication policy or Internet use policy already in place that comfortably covers blogging and bloggers. As we've mentioned many times on this blog, considering policies in a vacuum, or rushing in with standardized and ill-conceived "blogging policies" will be the recipe for making all hell break loose. Any reasonable approach to these issues involves a three-sided approach, reasonable policy, consistent enforcement and excellent training. Skimp on any of the three and you will have problems. Focus only on the "blogging policy" issue (especially without integrating the other aspects of corporate communications) and all hell may break loose.
We've covered the issue of "blogging policies" repeatedly and, we believe, reasonably on the Between Lawyers blog. It's sad to see that the hype and selling of corporate blogging policies continues unabated. For a very reasonable approach to this issue, see Denise's recent post "Blog in Peace." She doesn't talk about hell breaking loose even once in the post.
It'll be interested in seeing see if and how PodTech.Net implements Weiner's approach with Scoble, won't it? We'd certainly hate to see all hell break loose at PodTech.Net because of Scoble's blogging. I'm just noting the irony of the timing of this article and Scoble's move.
What might be quite useful to the blogging community at large would be for PodTech.Net and Scoble to share the "blogging policy" that will apply to Scoble so it might be analyzed and critiqued and possibly used as a model for companies taking progressive approaches to employee bloggers. Just a thought and an example of what we call open source lawyering might look like.
There is a growing discussion of the relevance of our current court system and the ways lawyers want to use it in the Internet era. More accurately, there is a concern about whether the system continues to be workable.
Ernie points to a recent (and some might call mind-boggling) ruling of a federal judge that requires the opposing attorneys in a case to settle their latest dispute with a game of "rock, paper, scissors."
Ernie does a nice job of explaining the basis point of our court system and concludes, succinctly, that:
Hell, when a federal judge has to tell the attorneys to use a child's game to resolve their disputes then you know the system is completely broken.
I'm willing to be persuaded otherwise, but I completely agree with Ernie. This isn't Law 2.0.
Where do we go from here? What client is going to be happy with this kind of ruling and the behavior that leads to it? Will lawyers chuckle at this and similar stories as they reap the unintended consequences of breaking the court system? If lawyers make a joke of these matters, why should we expect others to take us or the court system seriously? Consider Ernie's comments carefully.
More great insights and ideas from value billing guru Ron Baker will help you in your next discussion about billable hours and may help you make your clients happier. Very interesting comments on the future of pricing approaches for professional services.
The money quote:
He also mentioned the war for talent, and warned that firms that stick to the timesheet method will have a difficult time recruiting young talent. "The young kids should be given the chance to shake things up and ask 'why are we doing this?'" he said. "These kids are knowledge workers and understand the value that they bring. Yet we're treating them like union employees, making them worry about being paid by the hour."
There's a slew of law related RSS feeds — for press releases and news articles related to "Deals," "People," "Prosecutions," "Lawsuits," "Awards/Rankings," and "Announcements" — at LawFuel.com.
A colleague recently asked me what concrete steps I thought an organization could take to help ensure the concepts underlying a blogging policy are actually understood and implemented. Bearing in mind I am so not an employment lawyer, I did have a few thoughts.
Blog. I suspect that companies pursuing their own blogging initiatives in addition to implementing policies intended to cover unsanctioned employee blogs will run into fewer problems with employee mistakes or misunderstandings. This is because the management and culture throughout the organization is bound to better grasp the process and related security and compliance issues. IMO, the best "training" occurs by example and widespread use.
Breathe. As I've pontificated here before, there's a pretty good case to be made that blogs and their ilk are
actually the least risky form of corporate communication. If a company adequately gets across the reasons it expects certain employee conduct with regard to external communications, confidential
information, and technology use, blogs, etc. are at least as "safe" as email and the phone; in fact, because people are more likely to understand up front these technologies are designed to accomplish wide and persistent information distribution, people are more likely to approach their use with caution and respect.
Mix. Organizations need to make sure their P.R./marketing and legal arms are communicating about how employees should be relaying work related information to third parties or the world at large, and they need to have an open-eyed appreciation of all the ways people might be or are using technology to do so. Brace yourself: P.R. and legal goals just might compete. Management needs to understand those conflicts and decide what resolution best fits what they're trying to accomplish (and what the law insists they accomplish).
Gawker, re posting (and substituting) thumbnails of Shiloh Nouvel Jolie-Pitt to illustrate coverage of how "exclusive" magazine photos had leaked to the Web: "[W]e can’t even keep track of what we are and aren’t allowed to do anymore." (The Gawker "Legal" tag is worth following.)
The phrase "the interstices of ivory tower and pop culture" that Denise quoted in the previous post reminded me of the core concept and mission of "Between Lawyers" (see "About this Blog") at bottom of left column of our blog. "Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect."
"From the fistful of judges (including Richard Posner) who maintain regular blogs, to the vast and growing number of law professors and law students who find the time to post daily, it's clear that the real bones and guts and sinew of the national conversation is happening online, and not in print."
What, what, what? What about the practicing lawyers with blogs who try on a daily basis to translate legal issues and legal developments into practical explanations and a conversation that we can all understand.
Looks like we have more work to do at the Between Lawyers blog, RethinkIP, Evan Schaeffer's Legal Underground and the many other lawyer and law librarian blogs that are changing the dynamic and the way that the law is discussed today before we get our message out there.
Look, I like the law professor blogs and law student blogs, but ultimately what we all really want to find are practical answers to real-word legal questions, issues and problems that face us.
Check out Denise's recent post "Apple v. Does Decision Issued" if you want to see where I think blogging is leading us in the ways we discuss breaking legal developments.
I enjoyed Lithwick's article and agree with her main premise about the value of law-related blogs and what they add to the discussion of legal issues, but I'm surprised by the over-focus on law professor blogs and the invisibilty in the articles of the categories where most of the law-related blogs live.
Interstices are OK for some things, but there are good reasons we called this blog "Between Lawyers" rather than "Jurisprudential Interstices."
Dahlia Lithwick, Blawgs on a Roll: "The blogosphere thrives precisely because it exists at the interstices of the ivory tower and pop culture. As a result, it's the most fertile ground for cutting-edge law talk. " [via Bob Ambrogi]
Be sure not to miss the Memorial Day edition of Blawg Review this week, and get ready for next week's #60, to be hosted by our own Marty Schwimmer. (I picked a fine week to slack off on my blogging activity.* And WTF am I doing driving more traffic to Marty? Ah well.)
Denise Howell
Dennis M. Kennedy
Tom Mighell
Marty Schwimmer
Ernest Svenson
