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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 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.
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So let's say that I wanted the best of both worlds - all the advantages of a micro-firm (autonomy, low overhead, flexibility), and all the advantages of a large firm (collegiality, cost-sharing, marketing heft).
And let's assume that there are people I want to practice with, however they don't live within commuting distance of me.
So how would a virtual law firm be organized?
How would the conflict issues be handled?
How would the professional liability issues be handled?
How would such an entity hold itself out to the public?
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.
". . . intervention in a partisan conflict in the Texas House of Representatives using the resources of a Federal agency, the Federal Aviation Administration. This action raises serious concerns under House standards of conduct that preclude use of governmental resources for a political undertaking."
How did President Bush and other high-ranking officials respond to this mis-use of governmental resources?
Did they say something along the lines of: "This is wartime - the government is asking for unprecedented powers over the citizenry, therefore those in government must do their utmost to uphold trust that it will yield power responsibly. Congressman Delay's actions erode that trust"
MONITOR THE BLOGOSPHERE. Put your own people on this or hire a watchdog (Cymfony, Intelliseek or Biz360, among others). Spot blog smears early, before they can spread, and stamp them out by publishing the truth.
START YOUR OWN BLOG. Hire a blogger to do a company blog or encourage your employees to write their own, adding your voice to the mix.
BUILD A BLOG SWARM. Reach out to key bloggers and get them on your side. Lavish them with attention. Or cash.Earlier this year Marqui, a tiny Portland, Ore. software shop, began paying 21 bloggers $800 per month to post items about Marqui, while requiring them to disclose the payments. Marqui's listings soared on Google from 2,000 to 250,000 results. Never mind that one blogger took the money and bashed a Marqui marketing strategy anyway.
BASH BACK. If you get attacked, dig up dirt on your assailant and feed it to sympathetic bloggers. Discredit him.
ATTACK THE HOST. Find some copyrighted text that a blogger has lifted from your Web site and threaten to sue his Internet service provider under the Digital Millennium Copyright Act. That may prompt the ISP to shut him down. Or threaten to drag the host into a defamation suit against the blogger. The host isn't liable but may skip the hassle and cut off the blogger's access anyway. Also:Subpoena the host company, demanding the blogger's name or Internet address.
SUE THE BLOGGER. If all else fails, you can sue your attacker for defamation, at the risk of getting mocked. You will have to chase him for years to collect damages. Settle for a court order forcing him to take down his material.
My role concerns another instance of false statement.
On multiple occasions during the 80's, 90's and early 00's, I had cause to drive past Gabreski Air Force Base in Suffolk County, New York. On those times I witnessed a jet fighter on permanent display, that bore the indicia NEW YORK AIR GUARD.
I understood this to be a communication from the government that it was fulfilling its mandate to protect us.
In September 2001 my city was attacked by aircraft. I lost several professional colleagues. Our unborn child was exposed to toxic materials in the air.
Neither the New York Air Guard nor the national Air Force had an effective system in place to protect my city from air attack.
The leaders of the organization that launched this attack have not been apprehended. Four years after the attack, their whereabouts are unknown.
My role in the Plame Affair is that of a U.S. citizen that was lied to that my government was protecting my family.
My continuing role is that of a citizen who does not have full confidence that my government can protect my family.
Now that we are not talking about any one in particular: What experience/qualities would you like to see in a Supreme Court justice? Rank in order of importance. What would you add?
Judicial experience at the appellate level.
Provided legal services to underserved populations.
Bar Association experience.
Law review authorship.
Judicial experience at the trial level.
Fitness (recall Bush's first remark to Roberts).
Membership in an evangelical church.
Private lawyering experience as a litigator.
Ownership of dogs.
Private lawyering experience as an appellate advocate.
Good with numbers.
High number of CLE credits.
Good Martindale Hubbell AV rating.
Owns spiffy 'litigation briefcase'
Will vote the way you want.
The popular blog Little Green Footballs linked to the page under the title "Ghouls Plan 2000 Death Parties.' Comments in the thread echoed the thought that such parties were depraved.
Michell Malkin, popular blogger and Fox News commentator, linked to the LGF item (but not the AFSC post) under the heading 'Ghouls of the Left' and said that an unidentified 'they' were 'partying over the deaths.' Several readers posted comments uncritically accepting the notion that these were 'parties.'
In my experience, if there is one U.S. case that non-U.S. lawyers are aware of (and want to ask you about in incredulous tones at cocktail parties), it is the McDonald's Hot Cup of Coffee case. OverLawyered discusses.
Via Volokh: Supposedly Senator Leahy asked Harriet Miers who her favorite Supreme Court Justice was and she says 'Warren' and he raises his eyebrows or something and she adds '. . .Burger.' That may not be what actually happened but this version sounds like the Ignatz Ratzkywatzky exchange from The Miracle of Morgan Creek.
It strikes me that ads that solely announce that the advertiser is suing someone, are unusual. The Word Network is running blogads that are titled 'See Why We Are Suing Sirius' with no text, and a graphic that reproduces part of the caption of the complaint. That's the whole ad.
A theme that comes up from time to time here on the Between Lawyers backchannel is: what will the future look like if everyone subscribes to the "Daily Me"? Will people forsake national news sources (denoted in the blogosphere with the usually pejorative term MSM), or will they seek a balance?
There is an on-going attack against MSM that it is biased. Conservatives attack liberal bias in MSM reporters, liberals attack conservative bias in MSM ownership.
One form of criticism is bias by omission or emphasis - the charge that a media source doesn't report or downplays certain stories. For example, Michelle Malkin criticizes MSM for not emphasizing a financial scandal at Air America. Instapundit and Powerline regularly argue that MSM does report enough positive news from Iraq.
On the one hand, the blogosphere has a democratizing affect on fact-checking - Rathergate being held up as the textbook example. Very often bias motivates digging (I suspect that a Democrat didn't drag up the kerning analysis) but the more correct information out there, the better for everyone.
On the other hand, the blogosphere can un-do that good work with partisanship. An unrelenting attack of bias against MSM may not have a completely salutory affect if all it does is to encourage people to indulge more in confirmatory bias - where people feel that they don't need to accept as true any fact that challenges their belief system, if the source of the information is allegedly biased.
However, who are the sources of these charges of bias?
Instapundit, Michelle Malkin, Powerline and Hugh Hewitt are vocal critics of bias in MSM, and all have accused MSM of bias by omission.
All of these bloggers regularly discuss national politics and the Bush Administration. However, to the best of my knowledge, none of them have mentioned this week that a high ranking Bush administration official named Safavian, was arrested. At the time of this writing, if you put 'Safavian' in as a search term in their website searches and you'll get no hits.
Safavian was arrested for allegedly obstructing the investigation of someone named Abramoff. Of these four bloggers, to the best of my knowledge, only Malkin has reported that Abramoff was indicted.
Is this a case of pot, kettle, black?
Well, it seems that a taxonomy of blogging would be useful in order to articulate some kind of standard. The New York Times holds itself out as publishing 'all the news that's fit to print.' It may have editorial guidelines as to the ripeness and importance of a story - but if it completely ignored a news story reported by similar national papers, then it would raise eyebrows.
These bloggers aren't newspapers and don't have a similar obligation to be comprehensive - but they do cover the national beat and I'm interested in why they didn't report this story.
What are bloggers, then? Are they reporters, analysts, columnists or advocates? Or do they change from post to post?
Does the blogger identifying themselves as liberal or conservative solve everything?
Would a code of ethics help?
Maybe the 'Daily Me' of the future would be a good thing - but it concerns me that people may forsake certain forms of media because of charges of bias, and instead subscribe to sources that tell them only what they want to hear - accurate or not.
"THE PRESS WANTS TO SHOW BODIES from Katrina. It didn't want to show bodies, or jumpers, on 9/11, for fear that doing so would inflame the public.
I can only conclude that this time around, the press thinks it's a good thing to inflame the public. What could the difference be?"
Powerline adds the point that 'the press' was similarly inconsistent in its desire to publish photos of soldiers' caskets from the Iraq war.
Instapundit does not provide support for the assertion that there are members of the press who had access to photos of bodies or jumpers on 9/11, that they refused to publish such photos, and that they did so so as to not inflame the public, and that these same members of the press desire to publish photos of Katrina victims (or soldiers' caskets).
It is my understanding that there were two groups of victims at the WTC. Those who were inside the building, and those who died on the plaza, as they were either jumpers or were struck by debris or jumpers.
Obviously no photos exist of the bodies of those who were inside the building.
As to jumpers, Instapundit is aware that a photo of a jumper was widely published. On September 11, 2003 Instapundit posted the most widely disseminated photo of a jumper (he took it down because of protests). He linked to a comment which itself linked to an article in Esquire about the photo. The Esquire article reported that the jumper photo was published in the New York Times and 100's of papers.
(As an aside, I agree with the sentiment expressed by a writer to Instapundit on September 12, 2003, that photos of workers trapped in the building are more inflammatory than a picture of a body).
As to the bodies on the plaza, I am not personally aware of photos existing, even on the rotten.com's of the world, but even if they did exist, it does not take much of a visual imagination as to why virtually no legitimate media outlet in the world could publish a photo of a body that fell almost 1000 feet, to the extent that it could even be called a body.
Interestingly, western media has been accused of a different bias. After CNN International showed tsunami victims, it was accused of displaying greater sensitivity to 9/11 victims because they were American, to which a CNN representative replied:
Even if Instapundit's factual premise was correct, that members of the press had pictures of 9/11 victins that refused to publish, and these same members of the press wish to publish Katrina victims photos, and even if Instapundit's inference is correct (that this is evidence of bias), then, to answer Instapundit's rhetorical question: there is a difference.
There is a public policy argument for allowing the press unfettered access to Katrina victims that doesn't pertain to 9/11 photos (that in my view are superfluous to the most-reported event in history).
Unlike photos of bodies of people who jumped from the Twin Towers, photos of bodies of people who died in nursing homes, died of dehydration, died of violence, died at Chalmette Slip after being rescued, died at the Convention Center - are evidence of what might be crimes perpetrated by people not hiding in caves.
As to the charge of ghoulishness, to the extent that such photos can potentially lead to justice, fighting for the right to take them shows respect for the victims.
"No, George Tenet did not sit there for five days with me, misleading me," he said, referring to the week he spent at the Central Intelligence Agency reviewing the evidence on Iraq before making his presentation to the United Nations. "There were some people in the intelligence community who knew at that time that some of these sources were not good, and shouldn't be relied upon, and they didn't speak up. That devastated me."
And then they were arrested for treason, right? I look forward to seeing the interview.
In this Weekly Standard column on the Roberts Hamdan recusal issue, mention is made of a 15 page opinion letter by Prof. Rotunda drafted at the request of Sen. Spector. If you're aware of an online version of this, please provide the link.
David Teten and Scott Allen have written "The Virtual Handshake" a discussion of building relationships online by focusing on'social software' such as blogs, email, Ryze, LinkedIn and some obscure sources such as Biography Analysis Software.
Shameless self-promotion: The Trademark Blog is featured in the discussion of blogs.
NY Times article on intra-governmental squabbling last week. Important paragraph:
"The debate began after officials realized that Hurricane Katrina had exposed a critical flaw in the national disaster response plans created after the Sept. 11 attacks. According to the administration's senior domestic security officials, the plan failed to recognize that local police, fire and medical personnel might be incapacitated."
I'm puzzled by this sentence, as incapacitation of local personnel seems foreseeable in such events.
Slate.com article and WSJ Online article on whether Judge Roberts should have participated in the Hamdan appeal while he was being actively interviewed for the Supreme Court position. Judge Roberts was 1 of a unanimous 3 judge panel ruling in favor of the Government several days after he was interviewed by several senior Administration officials).
The Slate article, authored by Professors Gellers, Luban and Lubet, contains an extensive discussion of the caselaw of the 'appearance of impartiality' standard.
Adam Smith. Esq. has a commentary, noting that Boies' high-profile in corporate governance matters makes this matter particularly embarrassing.
An interesting point to consider is proper procedure for 'selling' ancillary services (note: even the act of recommending another lawyer within your firm to a client is conceivably 'conflicted' advice).
Question for discussion: The law places a lot of stock in disclosure. Is disclosure sufficient protection when a lawyer gives advice where his or her interests or not necessarily aligned with those of the client?
Volokh Conspiracy raises the interesting point that Justice O'Connor's resignation is effective pending confirmation of her successor. As Judge Roberts has now been 're-nominated' to succeed Justice Rehnquist, not Justice O'Connor, she may need to go back to work for a while.
President Bush's selection of Judge Roberts for Chief Justice removed a potential scheduling problem for Congress. Had the president nominated a sitting Associate Justice for the position of Chief, that Justice would have had to have hearings, and the nominee for that vacant seat would have had hearings, so there was the potential for three confirmation hearings at once.
"'The good news is - and it's hard for some to see it now - that out of this chaos is going to come a fantastic Gulf Coast, like it was before. Out of the rubbles of Trent Lott's house -- he's lost his entire house - there's going to be a fantastic house. And I'm looking forward to sitting on the porch.' (Laughter)."
"Just think of that quote for a minute; and the laughter that followed. The poor and the black are dying, dead, drowned and desperate in New Orleans and elsewhere. But the president manages to talk about the future "fantastic" porch of a rich, powerful white man who only recently resigned his position because he regretted the failure of Strom Thurmond to hold back the tide of racial desegregation."
. . . the head of the Agency, Mr. Mike Brown, practiced law in Colorado and Oklahoma, where he served as a bar examiner on ethics and professional responsibility for the Oklahoma Supreme Court and as a hearing examiner for the Colorado Supreme Court. His bio here.
After CNN reported today that helicopters were diverted from plugging the levee breach on Tuesday, in order to rescue individuals on rooftops, I wondered what is involved in securing sufficient helicopters in a national emergency. It took me two minutes of Googling to identify the Erickson Air Crane Company and obtain their email address and phone number. The Air Crane is one of the most powerful helicopters in the world (used for lifting trucks and putting out fires, for example). I emailed them today asking if anyone had contacted them about the levee. They replied immediately that while they had put out the word to government entities, and while they are a DOD-listed contractor, they had not been contacted by any Government entity as of Wednesday evening.
The levee broke on Monday night. I assume that a governor, or a general, or maybe a President would have gotten the CEO of this company (and other companies like them) on the phone and said "get over there ASAP."
Gods of Commerce blog notes the recent VIOXX verdict and suggests that a juror that can devote the time necessary to be on a jury likely has 'no serious work responsibilities and is outside the commercial sector' and therefore may be biased against business. Therefore trials should run only four days a week, from 7 AM to 1 PM.
In addition to dealing with information overload, Prof. Tufte's book is essential for lawyers in learning how not to be deceived by graphs and statistics. An entire section is devoted to identifying deceptive methodology.
'. . . I would willingly - in fact, gratefully - accept any 'dog' case they had, even the sure losers, if there was some chance of going to trial . . . for several years I tried cases regularly. I lost many of the sure losers . . . "
I understand what the author means and many of us use terms like 'sure loser,' but to take a faux-naive perspective:
Ignoring the author's remark that he wanted the experience, how would you explain to a Man from Mars (or economist, or management consultant or client or professional responsiblity organization) why a rational person brings a 'sure loser' to trial?
A woman was near death from a special kind of cancer. There was one drug that the doctors thought might save her. It was a form of radium that a druggist in the same town had recently discovered. The drug was expensive to make, but the druggist was charging ten times what the drug cost him to make. He paid $2000 for the raw material for the drug and charged $20,000 for a small dose of the drug. The sick woman's husband went to everyone he knew to borrow the money, but he could only get together about $10,000 which is half of what it cost. He told the druggist that his wife was dying and asked him to sell it cheaper or let him pay later. But the druggist said: "No, I discovered the drug and I'm going to make money from it." So the husband got desperate and broke into the man's store to steal the drug for his wife. Should the husband have done that?
Today we see that 'plaidgate' has been linked to by Instapundit and by the Washington Post's media critic who characterizes the transformation as 'an overheated interpretation of some mostly tongue-in-cheek posts' but nevertheless quotes the Charmaine Yost piece verbatim (keeping links intact).
Wonkette cites the Manhattan Offender joke and adds that Roberts must be a flame-thrower because he edited the school paper, The Torch. To add to the joke, she cited a NY Times piece entitled 'Court Nominee's Life Is Rooted in Faith and Respect for Law' for the bit that Roberts had played 'Peppermint Patty' in a high school play.
Ann Althouse a law professor, reads Wonkette's piece, notes that she had come to the same 'conclusion' that Wonkette did, and therefore she concludes that the NY Times had intentionally placed the bits about Peppermint Patty (and a photo of Roberts in a 'all-male wedding photograph' (as in photo of the groomsmen)) to plant the notion that Roberts was closeted.
Charmaine Yoest, an author and policy consultant, cites Manhattan Offender, Wonkette and Althouse's posts for the proposition that the 'left' has begun a whisper campaign against Roberts. She suggests that the left are homophobic.
Powerline , a high-profile conservative blog, in a piece entitled 'They Were Already Beneath Contempt,' cites Yost for the proposition that the 'Democrats' are hinting that Roberts is gay. He also adds that the Democrats were in favor of slavery.
Gordon Allport, in the 'The Psychology of Rumor' describes the manner in which rumors are transmitted (I'm using Malcolm Gladwell's summary of Allport from his book 'The Tipping Point'): The story is leveled - details essential for understanding (such as the fact that Wonkette is a humorist) are removed. The story is sharpened - the source of the 'facts' are no longer Wikipedia and the NY Times but 'the left' and 'Democrats.' The story is assimilated - the story is changed to make sense to those spreading the rumor.
The Democrats are spreading a scandalous rumor about the innocent nominee for their own purposes - that story will make more sense than the story that someone made a not particularly funny joke about Roberts being on the wrestling team. At least it will make more sense to those who will link to the Powerline without checking the links back to Manhattan Offender and Wonkette.
Like the Becker-Posner blog, it illustrates (to me) the point of blogs, in that it disintermediates the whole publishing industry thing, and makes it easier to hear from a brilliant person on a regular basis.
There is such a thing as the Uniform Code Council that governs the universal product code. If you want to print UPC bar codes, you have to join this organization. Membership doesn't seem inexpensive. The UCC (this UCC) was created in 1971 and has over a million members.
NY Lawyer: : Firm can sue former associate for allegedly jumping the gun as to soliciting clients for her new firm, however firm didn't plead defamation with particularity with regard to alleged comments by associate that her former boss was abusive, nasty and difficult.
Let's assume the CEO of your client came to you and said: "Loyalty has long been the most hallowed virtue in this company and I want you to draft a code of conduct for my officers, providing guidelines as to how an officer executes his or her duties so as to display loyalty to his or her superiors, peers and employees."
So if you were drafting a code of conduct, how would you define loyalty in the context of an organization?
Presumptions in favor of incumbents vis a vis outsiders?
Preferences in favor of incumbents?
Discrimination in favor of incumbents?
Is loyalty always a virtue?
Can loyalty be an over-riding managment principle?
How would you articulate proper limits to loyalty (if you would)?
Total volume of music I own: 500 albums, all formats?
Last CD purchased: actual CD? 'Here Come The ABCs' by They Might Be Giants. Downloaded CD is 'Guero' by Beck.
Song playing now: 'Dear Prudence' by Siouxsie and the Banshees.
5 special songs: Hmm, most played songs these days are 'Wonderwall' by Oasis, 'Hey Ya' by Outkast, 'Jane Says' by Jane's Addiction, 'Close to Me' by The Cure.
Over the years? 'Skin I'm In' by The Clash, 'Idiot Wind' by Dylan, 'I Don't Want To Go To Chelsea' by Elvis Costello, 'Hey Bulldog' by The Beatles, 'Happy Together' by The Turtles, 'Air That I Breathe' by The Mavericks, 'Personal Jesus' by Johnny Cash, and of course, 'Abaddon's Bolero' by ELP.
And let's not forget what Yes teaches us:
'Mountains come out of the sky and they stand there.'
Okay, I pass the baton to anyone who hasn't had the baton passed to them yet.
I'm looking for office space here. I'm interested in what rates for legal space are across the country (and world) for (1) class A downtown; (2) class C downtown; (3) Class A exurban (as in office park).
Around here (Westchester), Class A exurban seems to be about $29/sf, across the border in Fairfield County, about $31/sf.
I agree with Dennis that the fair use test is uncertain in its application. The lawyers for the Bill Graham Archives learned that recently in the Southern District of New York (subtle link to my post in the Trademark Blog here).
While I agree with Dennis that new technology can inject uncertainty, this most recent demonstration of someone betting wrong on a legal outcome arose in the old medium of books.
As for uncertainty, well, we make our living, in a sense, at being a decent guessers, and we call it legal risk management.
My real point to Dennis is - is that if he were leaning in the doorway of my office, worrying whether various personal activities were copyright infringements, I would say, yes, copyright law is uncertain, as is the tax code. However the copyright cases that are presented to us as being egregious (City of Heroes and the 'RIAA sues dead grandmother' cases leap to mind), are (in my anecdotal perception), those that involve people performing some public act with regard to the copyrighted work. In other words, if they were wronged by the copyright holder, it wasn't because of intrusion upon seclusion.
I acknowledge that the Internet may be blurring the distinction between personal and public acts, but the copyright cases that are getting the headlines are, to my mind, not unclear on this point. This isn't private (using private to mean solitary) behavior.
So I would say to Dennis, why do you worry about this stuff? and then either tell him to go back to his office, or I would change the topic to the new season of "Six Feet Under."
With due respect to Dave Winer's and Adam Curry's extensive accomplishments with regard to RSS and Podcasting, their public spat over who did what (links deliberately omitted) is not particularly enobling of anyone.
However, there are some lessons for people involved in joint creative ventures.
Relying on the kindness of strangers to give you proper credit for your
creations is naïve. The intellectual property system provides a framework
for allocating 'credit.' Use it.
Relying on the kindness of strangers to conduct business is naïve. The
contract system provides a framework for conducting business. Use it.
Relying on the blogosphere to resolve your private disputes suggests that a person has boundary issues.
DuPont is demanding not so much truth but more detail - it wants to know whether partners working on its matters are equity partners or non-equity partners. The attorney explains:
"If the requested rate for an equity partner is $400 and the rate for a nonequity partner is also $400, I can ask whether it should be the same, given that one shares in the profits of the firm and the other is salaried."
I'm prepared to entertain the notion that a client has a right to know who is equity and who is not, if I heard a valid argument why but I don't think this is (if I'm missing something, we have comments enabled below).
The client clearly can question the hourly rate but imho it should be tied to the value of the lawyer, not to the cost of goods sold.
Is DuPont suggesting that it should know because non-equity status is an implicit indicator of quality? Sometimes it is, but I think that it is more often an indicator of economic power within a firm and less directly of legal ability.
Would DuPont argue that it is entitled to know the differing take-home profit points between the equity partners? The salary levels of the of-counsels and the associates?
I'm reminded of the episode in The Mary Tyler Moore show where Mary confronts Mr. Grant for paying men more. Mr. Grant replies that he pays men more because they have families to support. She replies that if he rigorously applied that rule, he would pay men with three children more than men with no children.
It ought to be the level of service offered, not the provider's cost structure that should dictate.
And let's refer to the elephant in the room. A client can hire away a non-equity partner more easily.
When you see the word 'blog' in a sentence, substitute the word 'brochure' to see if the sentence still makes sense (or is interesting):
Here are some starter sentences:
1. Every law firm should have a blog.
2. There should be blog risk assessment teams.
3. The consultant charges $500 a month to write the firm's blog.
4. What will blogs be like in 5 years?
5. Every lawyer has a moral obligation to blog.
6. How will blogs affect the practice of law?
The Landrush where someone could claim a whole sector of the law as their subject is almost over but not quite. Oddly, we saw the first practitioner-authored blog in Copyright Law only this week. On the most part however, we will see differentiation from here on in - by speciality, location and other forms of differentiation that will mirror the way lawyers brand themselves.
We are also seeing aggregation, Between Lawyers and ReThink IP being two early examples.
And we are seeing corporatization - the Law.com network being an early example.
Law Tech Guru post on Attention Deficit Trait (as opposed to Attention Deficit Disorder), where is the window with the url? why are there so many windows open on my desktop, oh great, another email from them, hey, CNN Breaking News, oh, big deal, he pled guily, who cares, there's the phone, I have to get a new phone, I'll let that go to voice mail, I didn't return Dennis' call, now he's going to think I'm angry at him, more email, I should turn off that feature, I wonder how to turn it off, spam seems to be creeping back up, oh, another email from her, clients, can't live with them . . ., what's up with the news reader, what was I doing? Oh, there's a Law Tech Guru post on attention deficit trait.
I received a notice today from a foreign law firm (that has many U.S. clients)that while it has been able to hold its fees down over the years due to its efficient use of technology, it had no choice but to raise its rates 5%, due to the weak U.S. dollar.
I'm thinking of sending my Congressman an open letter (to be posted here) suggesting that they engage in a dialog with legal blogs about pending legislation in general and the 'Simon Barsinister' weather bill in particular. Maybe you would consider sending a similar letter to your representatives (and posting the letter on your blog).
Dear Congressman ____:
I am a registered voter. My home and business (a law firm) are located in your District. I also write for two blogs, The Trademark Blog and Between Lawyers.
You may be prepared to agree that the US Congress sometimes passes bad laws. There are of course many explanations, but one is the role of special interests, who are able to both hide in smoke-filled rooms and hide in plain sight. They count on the fact that opponents will not be able to mobilize against them, in time or perhaps ever, simply because information about the pending legislation was not disseminated effectively to the right group (I think, for better or worse, the recent Bankruptcy Bill may possibly be an example of legislation that snuck through in broad daylight).
A problem is that only groups that seem to be motivated to effectively track pending legislation are the special interest groups themselves.
However besides the special interests and the uninterested is a 'general interest' group of unknown size and influence. They would understand nuances and implications and would be prepared to communicate their views to their elected representatives. For want of a better term, they are 'concerned citizens.'
I think that this is a group that mainstream media has failed.
I encourage you, in your special role as 'expert federal legislator,' to consider participating in a somewhat novel communications network for creating a conversation about legislation with concerned citizens: legal blogs.
While you cannot avoid stories about the 'blogosphere' these days, there is less general coverage of blogs written by legal professionals (practitioners, academics, students, paralegals) (I learned what little detail I could about the bankruptcy bill not from the Wall Street Journal or the NY Times, but from lawyer-bloggers).
Legal blogs represent a new type of forum for discussing proposed legislation. It is not a gathering of extremist constituencies, nor is it a 'town hall' meeting of the uninformed. It is a good place to get good feedback from an articulate, broad spectrum of voters.
There is now an opportunity for you as an elected representative to reach out and participate in a conversation about a new odd piece of proposed legislation.
I refer to Senate Bill 786 titled A bill to clarify the duties and responsibilities of the National Oceanic and Atmospheric Administration and the National Weather Service, and for other purposes. In short, it prohibits the National Weather Service from disseminating weather information.
A collection of introductory links about the bill can be found here.
It is easy to come to the conclusion that this is a destructive bill intended solely to benefit a for-profit weather information provider that has contributed money to its sponsor. In other words, Washington at its worst.
If the bill is as bad as it seems, and it passes, then that represents one more bit of proof that 'the game is rigged.'
If the bill is not as bad as it seems, then we're interested in learning why it isn't.
But we and our readership can't make an informed opinion yet. May we look to you to 'set us straight'? May we look to your office for commentary, advice and analysis (for the purposes of posting on our website)?
We would also happily advise on setting up your office's RSS feed for legislative information ;-)
In San Francsico, Alameda and Santa Clara counties in California, plaintiffs in civil jury trials prevail 60% of the time. In Solano county, plaintiffs prevail only 33% of the time. Via DailyRepublic.com.
The Senator indicates that clarification was needed because NWS has backed away from a 'pledge' not to provide services that could have been provided by the commercial weather industry (but NWS will instead merely give such a policy due consdieration).
The bill has an exemption for the NWS warning the public of hazardous weather. A senator from the hazardous weather state, Florida, has come out against the bill, indicating that while the wind howls, the NWS would be busy consulting lawyers whether some condition is hazardous or not.
Well, this explains a lot. A UK researcher found that the IQ of those who tried to juggle messages and work fell by 10 points -- the equivalent to missing a whole night's sleep and more than double the 4-point fall seen after smoking marijuana." More on the bad effects of email here.
Now, you can do a lot of these bad things in other forms of communication. It's just that there's more haste in blawging than in preparing, for example, a CLE paper, and therefore more opportunity to do dumb things.
So a blogging policy for law firms would address these issues (although does the discussion need to go beyond a blanket prohibition of dumb thnigs?)
The New York Law Journal on Friday quoted Denise and me in an article on blogging. Denise was referred to as an Internet Pioneer. I was referred to as "an old-timer in the expanding world of blawging." Some big firms may start blogging. Some may not. Everybody should. Your blawgage may vary. Sub. req.
Guest post regarding our Group Annotation thread. Kevin Heller of TechLawAdvisor responds:
You asked whether group annotation of legal cases would be useful. I say let's find out. I've created a wiki at legal.jot.com . where blawgers and others can help annotate legal decisions. I think this would be much more useful than linking to a pdf file of the decision.
It's also pretty easy to do. First, go to any case page and click the drop down menu title "more actions..." and select Edit Page in WYSIWYG (I assume most everyone is familiar with this). From there you will have access to the text to edit and annotate using the MS word like toolbar.
An argument for the Creative Common license is that many disputes over utilization of intellectual property can be alleviated through the use of tagging content with code such as the CC license. If AFP could use code to prevent Google from scraping its headlines, then no lawsuit.
How are the CC license and other coding solutions doing in developing their potential? If bad guys aren't going to program their software to recognize such tags, then is there a point to it?
A crazy person gave me a pamphlet one day (aside: I think Hoefler Frere-Jones should design a font called 'crazy person pamphlet' to capture the effect of manual typewritten words with no margins, repeated photo-copying and bad paper).
Most of the pamphlet's advice has been mooted by the fall of the Soviet Union but there was one thing worth remembering:
"It's the absence of small courtesies in everyday life that creates an atmosphere where evil can thrive. Say thank you to your bus driver and cashier."
As Instapundit would say, Indeed.
A colleague maintains a blog. Two months ago a law firm copied one of his case summaries word for word. He contacted them and they apologized and retracted.
Today he emails me again. Another blog has copied a different case summary of his, word for word.
Case summaries have a lot of short declarative unprotectable sentences, "the plaintiff say 'moo', the defendant said 'baaa,' the Court then issued findings of fact."
However they sometimes also (as in the case here), contain enough idiosyncratic phrases that the author can say "A poor thing but mine own."
Forget about copyright. Think of it in terms of manners. Do not copy word for word without credit. Show respect for the small things of others.
It is the absence of small courtesies in everyday life that creates an environment where evil can thrive.
The first email I received today was a trackback to our intro post from 'Cynical Joe' who challenged us to stop navel-gazing about blogging and instead write about how 'insurance lawyers' 'compound the problem' and big firms do other bad things, etc.
Well, we had our reasons for choosing those topics first, but Joe has a point. Let's talk about something real.
His post reminded me of something.
Two years ago four of us bloggers (including Denise) were profiled in the ABA. Three of us (not including Denise) had Jewish surnames.
A white supremacist linked to the article on his website and discussed each of us in turn as further proof of What's Wrong With This Country (he had trouble proving that point with me because trademark law isn't one of the real seats of power). If you read between the lines, it seems that he had had some unpleasant run-in with lawyers in his life.
Last year I wrote a piece on the Trademark Blog. The nominal subject was Michael Moore but I was making an arcane point about trademark law.
Although the post didn't express a view on Moore himself, this prompted an email from someone calling me a greedy Jewish lawyer (my guess is that he assumed that I was pro-Moore, which I'm not).
I wrote back, not contesting the Jewish and Lawyer bit but asking him what I had done to make him think I was greedy.
He wrote back and indicated that I was from New York. Touche.
He further argued that (1) Jews should show more gratitude to the U.S. for protecting Israel; (2) the rising price of oil at the time proved that the Bush family did not control the price of oil; and, (3) in his past, he had also had a bad run-in with a lawyer. I dimly recall that in his view, a lawyer had cheated him out of an inheritance.
This from his work email at a large telecommunications company, where he appeared to have a middle-management position.
But, I don't want to talk about the Jewish thing, I want to talk about the lawyer thing.
A couple of years ago a beer company had a commercial that featured 'fantasy' TV shows. One was about lawyer rodeo, where a cowboy roped a lawyer.
Imagine that commercial where instead of a lawyer, any other identifiable member of society, perhaps a minority or a woman, was roped like an animal, and then the implicit hatred behind that commercial becomes apparent.
Is hatred of lawyers socially acceptable because of a belief that they have all the power?
Is hatred of lawyers prevalent because many encounters with the legal system are involuntary, and we resent people benefitting from our misfortune?
Does the hatred 'come with the territory' and we should just suck it up?
Well, to a certain extent, probably.
But socially acceptable hatred of a class isn't good for the hated or the haters.
For example, when proponents of 'tort reform' ram through what they characterize as 'anti-frivolous lawsuit' legislation, they are counting in part that voters will not view the proposals on the merits, but will instead support it because they hate 'the trial lawyers.'
And how many people have used the expression "let's not get the lawyers involved" not because they desired expediency but because, well, because they wanted to screw you.
OK, this blogosphere is inter-active. Let's talk about how and why lawyers are hated.
And let's talk about whether lawyers can, through their blogs, practice and promote judicious thought.
What's your view on ghost-written blogs? I'm not personally aware of any (;-])but I have seen solicitations for such services. Seems, at a minimum, to defeat one of the points of blogging, and if the blog is identified as the work of a specific lawyer then more troubling issues are raised.
Boing Boing posted about the TAUBMANSUCKS case, which led massive traffic to defendant's site, which has comprehensively indexed the registrant's (ultimately successful) litigation with plaintiff (and defendant's grievances with plaintiff's lawyer).
I've begun listening to podcasts and even participated in one.
The good news is that there's a technology that will automatically filter out all the umms and uhhs and coughing and sniffing and slurping noises from your podcast. It's called writing. [rimshot]
But seriously, what makes for a good podcast for lawyers? My initial personal reaction:
Two things to avoid are:
(1) horrible production values. As the CEO of ODEO pointed out, we're trained to write, not to record audio. Amateur production values can have home-made charm, but thoroughly unprofessional production values are unlistenable.
(2) inappropriate content, by which I do not mean some of Ernie's jokes, but information that is not readily comprehensible in the spoken format. A law review article that's hard to assimilate as it is, is not made easier to understand by being read aloud to you by a lawyer.
Things seem to work so far include: the give and take of interviews and panel discussions (as long as they don't devolve into Crossfire-like shouting matches).
I'm not sure that blogging policy falls squarely under technology use policy, it seems more a species of communications and firm image policy.
I agree that with your main point: there's no good reason why the over-riding content principle of a firm's communications policy that applies to attorneys' other forms of communication would or should apply differently to a blog. Often that policy is going to be: submit to prior review or make sure our name doesn't appear on it (point to discuss later - can a firm effectively disassociate itself from an employee's blog - for example, do people (correctly) perceive that Scobelizer is not a Microsoft blog?).
Assuming a firm is going to allow blogging, it wouldn't hurt if the firm gave pointers, Blogging is different from, for example, a prepared article or speech. For one thing, similar to press interviews, the reduced proofing time creates a greater likelihood of mis-statement and error.
It wouldn't be so horrible if there were guidelines to minimize disasters between firm and blogger, and between blogger and the world. Got any?