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CONTRIBUTORS

Denise Howell Denise Howell
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Dennis M. Kennedy Dennis M. Kennedy
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Tom Mighell Tom Mighell
( Profile | Archive )

Marty Schwimmer Marty Schwimmer
( Profile | Archive )

Ernest Svenson Ernest Svenson
( Profile | Archive )

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.

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Between Lawyers

Entries by Ernest Svenson

August 28, 2006

Rate a Federal JudgeEmail This EntryPrint This Article

Posted by Ernest Svenson

A new website called The Robing Room allows attorneys (and litigants) to make assessments about federal judges. There is no secure verification process, and the assessments are anonymous. So there is definitely some opportunity for mischief that would undermine the credibility of this rating service. Still, it will be interesting to see if the site catches on with lawyers and what effect it will have if it does.

Comments (4) + TrackBacks (0) | Category: Practice of Law

July 18, 2006

Cameras in the courtroom?Email This EntryPrint This Article

Posted by Ernest Svenson

Chief Justice John Roberts recently told a group of people in Huntington Beach, California that he was not in favor of cameras being allowed in the U.S. Supreme Court. "We don't have oral arguments to show people, the public, how we function," he told the audience. Well, let's stop here and talk about the audience for a second. In case you couldn't guess, the audience was not a bunch of high school students or some civic group. The audience was composed of federal judges and their spouses.

Obviously, the Supreme Court doesn't have oral arguments to show people how the court functions. Even a guided tour through the various chambers wouldn't exactly show the public, or lawyers, how the court functions. So, that statement is basically a rah-rah red herring.

Judges, when they talk amongst themselves (and they do this a lot), strongly oppose cameras in the courtroom. But that doesn't mean it's not a good idea. What's going on is judges are doing the cost-benefit analysis in a way that reflects their sensibilities. They realize that a lot of attorneys play to the cameras and to popular sentiment, and they rightly fear that this will diminish the sanctimony of court proceedings.

But, it's not the cameras that cause the problem (i.e. guns don't kill people etc). It's something else: namely our innate desire for attention, which many of us express in really goofball ways. So, yes, having cameras in the courtroom will exacerbate this problem. First question: is there anything that could minimize the problem of attention-hounding lawyers, if and when cameras are allowed in the courtroom? Second, and more important question: what might be the short-term, and long-term benefits of having cameras in the courtroom? I agree it won't exactly show us how the court functions, but it may show us a lot of other useful things. Maybe it will show us how some things don't function as well as they should. Maybe it will allow us to see for ourselves (not filtered through a reporter's descripition) that certain attorneys are ill-prepared or brazen or stellar or [fill-in adjective].

But, regardless of whether we can reach a consensus on whether cameras in the courtroom might be useful, there is something else to consider.

Cameras in the courtroom are inevitable. Why? Because each succeeding generation expects more transparency and openess, especially from government institutions. This has been a long-running and powerful trend. Nationally, and internationally. So when Justice Roberts says that he and his fellow justices see themselves as "trustees of an extremely valuable institution," he is trying to preserve a tradition that over time will lack the resonance that it now has. If you want to receive applause for saying that cameras will never be allowed in the courtroom then make sure you are speaking to other judges. If you say that to other groups of people you'll find the applause is less enthusiastic. Eventually, there will be no applause outside of the judicial sect for this sort of statement.

In 1996, Justice David Souter told a congressional panel, "The day you see a camera come into our courtroom it's going to roll over my dead body." I don't think that will happen in a literal sense, but it actually could if Justice Souter chose to be buried on the steps leading up to the Supreme Court.

Eventually Justice Souter will pass away. This is an inevitability. And it's virtually inevitable that somewhere in the future there will be a generation of people who will expect to be able to see images of what happens in our public courtrooms, especially the United States Supreme Court. Yes, free speech and transparency are messy things that cause all kinds of problems, but they also have tremendous social force. I completely understand Justice Roberts' viewpoint, and to some extent I agree with it. But, regardless of who among us now agrees with it, the truth is that viewpoint has a limited life-span.

I'm not big on fighting things that are inevitable. I'm more inclined to say: so if it's coming, then how can we create a better transition? But then I'm also not someone who gets invited to talk to judicial groups a lot either.

Comments (1) + TrackBacks (0) | Category: Law 2.0

June 21, 2006

One more law...Email This EntryPrint This Article

Posted by Ernest Svenson

"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.

Ain't delusion grand?

Comments (1) + TrackBacks (0) | Category: Law 2.0

December 21, 2005

Self-Help information gathering in a flat worldEmail This EntryPrint This Article

Posted by Ernest Svenson

These days there is a lot of hand-wringing about Wikipedia, the online encyclopedia that --at least up til recently-- was editable by absolutely anyone. Predictably, this open-source information approach had some weak points. Some people trashed entries which then had to be restored from historical archives, and some people apparently edited entries about themselves to boost their reputation in ways that others regarded as unfair, improper, or misleading. Even the founder of Wikipedia is reported to have engaged in this sort of nefarious ego-editing.

Whether it has problems or not, a lot of intelligent people have started using Wikipedia. Even judges have cited to it in certain cases. Should we be concerned about this?

...continue reading.

Comments (1) + TrackBacks (0) | Category: Participatory Law

December 20, 2005

Martindale Hubbell's Lawyer RankingsEmail This EntryPrint This Article

Posted by Ernest Svenson

The other day I got a 'personal and confidential' letter from Martindale Hubbell.  My name and address appeared at the top, but the letter was addressed "Dear Legal Professional."  It asked me to anonymously assign rankings to 55 attorneys who practice law in New Orleans. I've filled out many of these surveys in the past fifteen years, carefully pondering what rank to assign to each attorney.  This time I quickly scanned over the 3 pages of names, concluded I didn't know enough to make judgments about most of them, then tossed the survey into the garbage.

...continue reading.

Comments (3) + TrackBacks (0) | Category: Law Practice Management

November 30, 2005

Litigation is frighteningly expensiveEmail This EntryPrint This Article

Posted by Ernest Svenson

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?

Comments (4) + TrackBacks (0) | Category: Practice of Law

November 1, 2005

August 11, 2005

Backstage pass at Between LawyersEmail This EntryPrint This Article

Posted by Ernest Svenson

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:

...continue reading.

Comments (3) + TrackBacks (0) | Category: BL News

August 4, 2005

Training trial lawyersEmail This EntryPrint This Article

Posted by Ernest Svenson

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.

Comments (1) + TrackBacks (0) | Category: Practice of Law

July 28, 2005

Boilerplate language - why is it necessary?Email This EntryPrint This Article

Posted by Ernest Svenson

Over at my blog I've been on rant about boilerplate language, specifically the verbose stuff that many lawyers (particularly those who work in large firms) are adding to their emails.  Whenever I bring this up I always get emails from lawyers who point out why the addition of this linguistic linguini is beneficial.  I understand what they are saying (I am an attorney after all and have trained my mind to send and receive 'lawyer speak'), but I have serious concerns about having an email program automatically add verbiage to all outbound emails. 

In fact, I have a lot of questions about this method of attaching qualifiers to our emails:

  • Aren't lawyers supposed to be versed in the art of critical, focused thinking?
  • Is there no way to be more selective about the boilerplate that we add to emails? 
  • The automatic inclusion of dense language will (over time) actually diminish the likelihood that people will read this stuff. Should that fact play a role in deciding if we should indiscriminately add boilerplate?
  • And if no one is reading or understanding the boilerplate then why are we being required to add it?

It all seems like a very complex version of 'Mother may I'.  If we indiscriminately add the dense language then we are automatically immune from any possible liability.  We are immune because we will have discharged our lawyerly obligation to notify our client of something that is supposedly quite important, and which requires special attention.  Yet, we discharge this obligation in a way that is guaranteed to make people's eyes glaze over and has almost no chance of providing people with meaningful information.

Does this really make sense? Maybe it does to some people.

I guess it does if you believe that maybe our evolutionary break from the primates isn't all that large. Then it makes a lot of sense.

Comments (1) + TrackBacks (0) | Category: Practice of Law

June 28, 2005

June 27, 2005

Grokster - some thoughts from the back rowEmail This EntryPrint This Article

Posted by Ernest Svenson

So here is this important opinion, freshly squeezed from the High Court this morning. And already we've got, not one, but two or more discussion threads going between some major legal/tech eagles. I realize these discussions do not conform to the Bluebook Uniform System of Citation and haven't been sub-and-cited (see duty #3) by bookish law students, but this is some pretty amazing stuff. And five years ago the possibilities of this sort of technology wasn't more than a gleam in some techie's eyes.

I wonder what the future holds for P2P file sharing? I don't know, but I doubt anyone else does either. The Supreme Court opinion will have a strong short-term influence. But the fact is that information is hard to contain, and I think that routing around obstacles is now built into our information-matrix. I hate to say that the Supreme Court opinion is a mere obstacle, but somewhere out there is a techie or two that will see it that way. That much, I do know.

Comments (1) + TrackBacks (0) | Category: Copyright

June 15, 2005

Real Estate for LawyersEmail This EntryPrint This Article

Posted by Ernest Svenson

Marty asks about real estate prices for lawyers. He categorizes this post in the virtual lawyers group. That prompted me to think about 'virtual lawyering,' which I do fairly often because I think that it's an inevitable trend for many lawyers. And I think it will be a client-driven phenomenon.

Here's my take on the overall trend in what clients want (or will increasingly will want):

1) a really good attorney

2) who is responsive and able to do what's got to be done and does it efficiently and cost-effectively

3) which in litigation means (a) knowing the tendencies and preferences of the judge, along with the 'unwritten rules of the road' applicable to the court where the case is pending; (b) being able to easily file things in that court and serve counsel, and; (c) being able to manage the documents and logistics of litigation.

4) Only sub-part a of #3 above requires local presence, and you can get that by hiring a local attorney to help out. Sub-part b is going to be increasingly irrelevant as more courts move to e-filling, which they inevitably will. Sub-part c is already something that does not depend on physical location.

5) Since the savvy client will recognize that 'presence' is a small (but nevertheless important) part of the equation (one that can be achieved by the aforementioned local-counsel-hiring trick) they will not care so much where their lead litigation attorney is EXCEPT that

6) they will (if they are savvy) recognize that paying for an attorney to operate from Class A office space is a cost-burden that often runs counter to their economic interest (kind of like an attorney paying for a full-time secretary to be available in case he/she needs stuff typed. Hey, why not hire Cybersecretaries, who are available basically 24/7 and you only have to pay for that service when you use it?)

In short, office space is going to always matter and be used by many attorneys, but attorneys who do need office space are going to likely need less of it. And they are less likely to need it in the prime locations. And some attorneys will figure out how to make get by quite nicely without much space at all.

[Music starts and childish Disney-like singing begins: 'It's a Cyberworld after all...']

Comments (2) + TrackBacks (0) | Category: Virtual Lawyers

May 4, 2005

The Value of Firm-Sponsored Law BlogsEmail This EntryPrint This Article

Posted by Ernest Svenson

I agree with everything my cohorts have said about the value of blogs in general, and of law blogs in particular. Obviously blogs are, at their core, nothing more than an easy-to-use communications tool. But the successful ones require a certain kind of committment, which is why the blog craze was incubated by passionate individuals rather than corporations or partnerships. Corporations and other legal entities don't possess passion, although they may employ people who do. The best corporations harness that passion.

The corporate-type blogs have been growing in number and they'll keep growing. And just like the individual blogs some of them will be well-done and interesting while some will fall flat on their faceless faces. But even the corporations that like to operate behind a committee-created mask will learn that when the clock strikes twelve, and the costume party ends, the masks have to come off.

My law firm has experimented with blogging, and at some point we'll develop a full-fledged blog strategy. When we do, we'll probably do it very well. After all, we have the desirable (and accurate) reputation as a place where good lawyers do serious work without taking themselves too seriously. For now, the fact that I blog is good enough for our firm. But eventually we'll feel more pressure to have a firm-sponsored blog. The pressure will come when other Louisiana firms start blogs. Just like this firm in Baton Rouge, which has just recently started a weblog called Louisiana Law Blog.

How quickly will law firms move to develop weblogs? It depends on a lot of internal and external factors. But the clock is ticking. And for some firms that sound is loud and annoying; for others it is stirring and prompting them to act. When will your firm create a blog?

Tick, Tick, Tick, Tick, Tick, Tick, Tick, Tick.......

Comments (1) + TrackBacks (0) | Category: Blawgs | Future of Legal Blogging Article

April 27, 2005

New Exercise Program Just for LawyersEmail This EntryPrint This Article

Posted by Ernest Svenson

We all know how much money Jane Fonda made with her special exercise videos back in the 80's. Since then there have been a host of other exercise programs that have successfully emerged. Most of these programs have lost luster, leading many to conclude that the fitness market is saturated and no longer worth examining.

I think, however, we are overlooking a lucrative niche market: lawyers. In particular, litigators. These are people who lead highly stressful lives where being combative and ill-tempered is pretty much the norm. So what kind of exercise regimen could be devised to help these tense souls dissipate all that internalized aggression?

I'm thinking 'some form of stretching, coupled with the indiscriminate use of automatic weapons.'

Comments (3) + TrackBacks (0) | Category: Humor

April 7, 2005

Re: AV Squad/CC LicenseEmail This EntryPrint This Article

Posted by Ernest Svenson

I'll bet I win the award for the most simplistic analysis of the CC issue. My only defense is that I'm not as versed in copyright law as either Dennis or Marty, and I'm not as smart or industrious as any of my fellow BL contributors.

I share the concerns of Dennis and Marty, which I interpret as sensible concerns about how the CC license will be interpreted. But, after reading Denise and Tom's take, I realize that my concerns about the uncertainties of future interpretation are outweighed by my desire to promote the 'CC brand.'

I like Larry Lessig and I think what he has done in creating the CC license is bold and visionary. Of course, it makes tradionalists nervous, and that's completely understandable. We lawyers like to know exactly what rights we are giving up; experimenting with the law is not something we understand. The CC license is too new and too radical to accomplish the laudable task of making good lawyers feel sanguine. Perhaps I'm not a good enough lawyer, or maybe it's just my marginally substantiated belief that adopting a CC license 'is the right thing to do.'

What's the risk? I'm sure there is some risk, and if I let myself get embroiled in calculating the risk of adopting a CC license I could become nervous. But sometimes, as Robert Frost reminded us, you have to take the road less travelled. I say we go with the CC license and work from within that system to make it better, more understandable and more predictable.

If lawyers aren't willing to give it a shot, then why would ordinary artists and creators? Copyright laws are out of synch with reality. We need a new approach, and the best proposal so far is the CC license. It's not perfect; but it can be improved, and we should improve it. First, though, we should adopt it. That's my take.

Comments (1) + TrackBacks (0) | Category: Creative Commons

April 4, 2005

April 1, 2005

March 28, 2005

Re: Podcasting - My Two CentsEmail This EntryPrint This Article

Posted by Ernest Svenson

I'm definitely getting older, and I'm clearly losing my edge. That's the best explanation I can offer for my inability to achieve 'tech-epiphany' over the whole podcast revolution.

I like the idea of RSS as a way of scooping up information on websites quickly. My newsreader is filled with thousands of posts from about 203 different sites. I'm not going to pretend for even one second that I read all of these posts everyday. But I do scan the headlines. If I see something interesting I can zero in on it quickly, which is nice. I only subscribe to sites that have 'full feeds' because I don't want to have to wait for web pages to load. That's the point of RSS right?

Well, not completely. Now, a new feature of RSS is the ability to download audio files (a/k/a 'podcasts'). These files are generally not small (average is a couple of MBs). Can I quickly scan these files to see if they contain information I want to assimilate? Sort of, but not anywhere near like what happens with RSS feeds of HTML content.

So are podcasts useless? No, not at all. Audio files are great if you are driving in your car. By contrast, trying to read a news reader while driving is sub-optimal at best. Podcast afficianados seem to like the fact that they can listen and learn at certain moments (i.e. driving, jogging, sky-diving) that would otherwise be wasted by only paying attention to one thing at a time.

I agree this sort of multi-tasking is a wonderful. I just don't happen to be one of those people who gravitates towards listening to audio files, unless it's music. But, for those that like on-demand learning, podcasting is a great thing. Maybe one day bar associations will figure out that podcasts are a good way to provide CLE content in a form that might actually make it easy and convenient to learn. Then, I'll really be excited. Of course, I'll probably be in a nursing home too.

Hopefully, Amanda Congdon's vlog/podcast will still be available then.E:

Comments (2) + TrackBacks (0) | Category: Podcasting