July 29, 2005
Shopping.com Stockholders Approve eBay Merger
The Law Firm TV Show--Some Observations From the First Show
I watched the new "reality" TV show from David E. Kelly last night, The "Law Firm." It was a mildly diverting hour but it lacked the drama and production values of a Burnett show. I'm still not sure if I'm investing in the show for the whole series.
Nevertheless, the show prompted a number of observations and questions:
* The show's name is absolutely horrible. "The Law Firm"? Nothing creative or distinctive about that name. Trying Googling to find more information on the show! (Not in the top 10 results for "law firm"...surprise!)
* The testosterone/alpha male attitude/ego trips of the contestants was difficult to watch. It's worse than the Apprentice, and I'm sure it will only get worse. I understand that a good trial lawyer needs self-confidence, but watching too much of that gets tedious.
* I'm still trying to get my head around the Rules of Professional Conduct implications of the show. I'm going to take the show at face value that the clients/disputes are real and the judgments are real. If so, then we have attorney/client relationships between the contestants and the disputants, and all of the applicable rules apply.
Most obviously, do the contestants need to be licensed in CA to represent clients in CA adjudications? A quick perusal of bios suggests that many of the contestants are probably not licensed in CA. Isn't this Birbrower redux? Following Birbrower, California adopted procedures to allow out-of-state lawyers to practice arbitration proceedings, but it's not clear to me if the show meets the applicable qualifications.
More generally, presumably the lawyers have to comply with rules like written consent to third party payment of fees, waivers of confidentiality, etc. There should be a blizzard of paperwork to set this up properly. Maybe the TV show would be more interesting if it depicted this! (Right...only to nerdy law professors...)
* There seemed to be two contestants who clearly struggled with their roles more than the others--Kelly (who was dismissed) and Regina (who couldn't control her witness and hurt her case accordingly, but she was not dismissed). I'm wondering if the producers decided that they just couldn't bring themselves to dismiss two women (both of color? I couldn't tell with Regina) on the first episode to avoid charges of discrimination.
* Roy Black is approaching the show as a plaintiff's lawyer (which is a little surprising given his background). He made that eminently clear in the debriefing when he lambasted a winning team for not seeking punitive damages. Note to contestants: to impress Roy, think like a plaintiff's lawyer!
* On that front, there was an interesting schism between a judge and Roy Black. The case involved a three-legged dog, and the plaintiff's team brought the dog into the courtroom unannounced. The judge criticized the team, saying that in a real trial he would have declared a mistrial and sanctioned the team for the stunt. Roy, on the other hand, tore into the defense team for not having anticipated that the dog would show up in the courtroom. Ethical qualm? Not in Roy Black's world! Like any good plaintiff's lawyer, he wants the team to push the ethical limits, and sympathy-inducing stunts appear to be both fair game and perhaps required.
So who's right? The judge who says the dog appearance is sanctionable, or Roy who treats it as de rigeur? I'm no evidence expert, so I can't speak about what the rules require here. However, it seems to me that the dog belonged on the exhibit list, and the plaintiff team's omission is at minimum ethically challenged if not an outright violation of the rules.
* The show appears to emphasize only courtroom skills. The show briefly showed some of the background preparations for the trial, but in a glossy, abstract way. Of course, courtroom time is a big part of the practice of comparatively few lawyers; and a much bigger emphasis on the preparation time would have been more reflective of real life (but, except for the catfights, about as exciting as watching paint dry).
The show does not seem to be emphasizing the other skills of a lawyer--researching, interviewing, counseling, negotiating. There won't be any settlement negotiations in the show because that would obviate the need for a courtroom showdown. Worse, Roy criticized Chris, who did a good cross-examination, for being too invested in researching his case--Roy says research is fine, but he's more excited about courtroom tricks and oral advocacy.
On this level, I think the show reinforces the standard media stereotypes about lawyers. It's all about the big show and the tricks you play as part of the show; everything else is not that important. Problem is, in real-life, for most lawyers, the everything else is all they do.
In any case, because Roy is going to emphasize courtroom showmanship, I predict that a criminal litigator (criminal defense or prosecutor--your pick) will win--they come to the show with vastly more courtroom experience than the civil litigators, and the civil litigators won't be able to learn fast enough to overcome their comparative lack of experience.
UPDATE: Tung Yin, the consummate law professor/reality TV fan, weighs in.
UPDATE 2: The Recorder (registration required) tells us that 8 of the 10 remaining lawyers are members of the California bar.
UPDATE 4: Like Scott Moss (see the comments), Evan at Legal Underground takes issue with my characterization of plaintiff's lawyer. I didn't mean to describe all plaintiff's lawyers in my remarks, and I apologize if I unintentionally overgeneralized my comments.
July 26, 2005
Law Firm Partner Compensation Spreads
NY Lawyer [free registration required] runs an interesting article about the spread between a law firm's highest paid and lowest paid partners. It shows that Baker & McKenzie has a spread of 35:1 (with some foreign partners at B&M earning around $100k/yr) while Cleary Gottlieb has a spread of 3:1 (partially attributable to its lockstep partner compensation). The article argues that these spreads can reveal some insights into a firm's culture, although it gives precious few examples of that. However, I teach my students that if you want to understand a firm's culture, start by understanding the firm's compensation procedures, and this article contributes some to that process.
At the same time, NY Lawyer runs another article dissecting the profits-per-partner metric and explaining why that number is manipulatable and hard to compare across firms.
July 23, 2005
New(ish) Vegetarian Restaurant in Milwaukee--Riverwest Co-Op Grocery and Cafe
In Fall 2004, the Riverwest Co-op Grocery & Café (733 E. Clarke St., Milwaukee, WI 53212, (414) 264-7933) quietly launched an all-vegetarian café next to its grocery store (which is located in the Riverwest district, an eclectic and somewhat dilapidated part of East Milwaukee). This is an exciting addition to the vegetarian community in town, and early reports suggest that the café is popular.
The menu isn’t huge and the hours are spotty (you should call ahead to check hours), but we enjoyed our meals on our first visit. Virtually every menu item can be made vegan, and prices are extremely reasonable (the most expensive item on the menu is $6.00). We especially liked the vegan pancakes—they were decently fluffy, and it was impossible to tell that they were vegan.
There are only 3 ramshackle tables at the restaurant, so you will probably want (need?) to take your meal to-go. While you’re waiting for your meal, you can check out the tiny selection of groceries at the co-op; you’ll have better selection at the Outpost or Beans & Barley, but the co-op’s offerings still are a welcome contribution to the community.
If you're interested in more about the Milwaukee vegetarian scene, I've completely updated my list of vegetarian/vegetarian-friendly restaurants in Milwaukee.
July 16, 2005
Moss on the Employment-at-Will Doctrine
My colleague Scott Moss (a frequent commenter on this blog) has posted his latest article to SSRN on the employment-at-will doctrine called "Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will." This article explains how state laws claim to be employment-at-will but then have a variety of exceptions that undercut this simple description. In particular, the article shows the variety and inconsistencies of these various exceptions.
"Employment at-will, the doctrine that employees have no legal remedy for unfair terminations because they hold their jobs at the will of the employer, has become mired in incoherence. State courts praise the common law rule as "essential to free enterprise" and "central to the free market," but in recent years they have riddled the rule with increasing exceptions, allowing employee claims for whistleblowing, fraud, etc. Yet states have neither rejected employment at-will nor shown any consistency in recognizing exceptions. Strikingly, states cite the same rationales to adopt and reject opposite exceptions, as a case study of two states illustrates: one state accepts exception X to protect employees while rejecting exception Y to maintain employment at-will; yet on the same rationales, the other accepts exception Y while rejecting X.
This dissonance, undiscussed among legal scholars, has broader implications as to legal doctrine evolution. Inconsistent reliance upon a doctrine betrays judicial ambivalence: discomfort adhering to the rigid rule; discomfort rejecting it; and inability to find an alternative. This is a recurring phenomenon in constitutional law as well, most notably in the Supreme Court's recent treatment of abortion rights and governmental involvement in religion; in both fields, the Court has professed adherence to strict precedents while simultaneously eviscerating them. These examples show that what is happening to employment at-will is not just quirky decision-making, but a common phenomenon in a doctrine's evolution: when courts apply an established rule inconsistently, that may herald a decline, but not necessarily an imminent rejection, of that doctrine; and if courts handle the decline badly, the outcome can be doctrinal chaos.
This Article suggests how courts can retain employment at-will while also lessening the doctrinal incoherence. Courts can recognize a range of employee claims based on a two-part theoretical structure: a broad economic conception of the "public interest," plus the limits of social norm theory. Recent scholarship argues that social norms are powerful protectors of fairness that make employment lawsuits unnecessary; but this Article's analysis of how social norms operate distinguishes settings, like employment, where norms are too weak to substitute for lawsuits, leaving a need for a range of enforceable rights."
July 15, 2005
Lander on Adjunct Law Teaching
Despite all of the hoopla about full-time law teaching positions, there is significantly less attention paid to the process of being an adjunct professor. Fortunately, the Business Law Today ran a good basic article on adjunct law teaching by David Lander. For lawyers interested in exploring adjunct teaching, this article is a fine place to start.
Let me add just a couple of comments borne from my 7 years of experiences as an adjunct professor at 3 different law schools:
* It will take more time than you think. I typically spent 200 hours a year on my 2 unit course. Further, this time comes on a fixed schedule; unlike some client deadlines, classtime really isn't negotiable. It usually meant a lot of weekends in the office during the semester prepping for class.
* Don't do it for the money. I got paid about $1,400-$1,500 per unit. For a 2 unit class, this meant about $3,000. Don't get me wrong, I'll take the money, but this isn't going to change my life. For many practicing lawyers, this money is just a rounding error compared to their salaries; and at some firms, the money just goes back to the law firm anyway.
* Don't do it because it will increase your professional stature. Being an adjunct probably will have that effect, but it's a time-consuming way to do so, and in the end your responsibilities to your students are a far more important consideration.
* Do it because you love to teach. There's something magical about guiding students to greater understanding; to capitalizing on your practical experience and helping students see the world through your unique view; to helping students accomplish their professional and personal objectives. Every year, my wife would beg me to drop being an adjunct because of the time commitment; every year, the lure of teaching won out (until I became a full-time professor and ended the competition for time!).
If you're considering becoming an adjunct, or you're already one, I encourage you to consider Madeleine Schachter, The Law Professor's Handbook: A Practical Guide to Teaching Law Students (Carolina Academic Press 2003), which does a very competent job demystifying the process. It will answer most of the questions you're bound to have. I also have put together a bibliography of articles to consider at the bottom of this page.
Being an adjunct was one of the most professionally-satisfying activities I ever did. It was also one of the hardest. I commend the experience to all of you who are interested.
Just One Little Change to the Contract...
Massachusetts Lawyers Weekly ran an interesting but cryptic story--unfortunately I couldn't find any more info online, so I'm working from my hard copy writeup.
Joseph Cloonan was in-house counsel. He was leaving the company's employ for unclear reasons. The HR department drafts a severance agreement that promised to pay him $21,200. He then modifies the agreement (unclear if this was done by handwriting or if he modified an electronic copy) to include the following language:
"You will be paid eight hundred and fifty thousand for wages earned, if not paid in full within seven days you will be paid three times this amount along with all of your expenses and legal fees, all the officers and directors will be personally liable as well."
This was done in a manner that made it hard to identify that the contract had been changed. The HR director signs this amended contract without reviewing it. The company pays the $21,200, then Cloonan demands the $850,000 (surprisingly, he doesn't seem to demand the $2.5M that the contract language contemplates for late payments).
On the surface, based on the news report, there are so many things wrong with this scenario:
* an attorney trying to "slip" language into the contract. This doesn't really work as a legal proposition; courts can and will simply reform the contract to reflect the parties' true intent. It just gives lawyers a bad name.
* an attorney trying to claim that damages for late payment of seven days equal $1.7M. C'mon, this doesn't pass any reasonableness test.
* an in-house counsel negotiating an increase of severance pay from $21K to $850K with a non-lawyer (the HR director). This type of negotiation, if legitimate at all, needs to be handled with extreme procedural care for precisely the reasons illustrated in this case. I won't tick off all of the potentially applicable model rules that would govern such interactions, but Rules 1.7(b) and 1.8 spring immediately to mind.
Practice pointer to in-house counsel: if you're going to try to pull an extra $850,000 out of your employer as you walk out the door, have someone else draft the documents.
Finally, if all of the facts are true here, we had a number of violations of the Model Rules, and I would think that discipline by the State Bar would be warranted.
July 14, 2005
eBay/Shopping.com Merger Clears FTC
The eBay acquisition of Shopping.com cleared the Federal Trade Commission's Hart-Scott-Rodino review. This probably isn't all that surprising, but still it removes one potential snag.
July 13, 2005
Will Poodle Burgers Be Next?
A New Zealand restaurant offers "Mr. Ed is Dead," a meal made from char-grilled horse steaks. The restaurant received a number of complaining calls that were "pretty lively and disgusting and not comforting for the staff." Nevertheless, the restaurant sold 10 horse-steak dinners in one evening, going to show that people will eat just about anything.
UPDATE: Ever the curious researcher, I learned a new word today: "hippophagy," or the practice of eating horse. This article does a pretty good job talking through the pros and cons of hippophagy. As the article says, "So we’ll eat Bambi, but we won’t eat Trigger?"
July 12, 2005
Resources for New Law Students
It's the season where bloggers gtve advice to new law students about how to prepare for the Big Event. I'm going to join this discussion but only for a limited purpose: to call attention to two wonderful resources put together by Larry Krieger at FSU.
These booklets discuss some of the very tough issues that are well-known to law students and lawyers yet often left unaddressed. I've recommended them to our orientation director and commend them to all incoming first year students. Many thanks to Larry for his hard work in preparing them.
Bonus article to read: Dahlia Lithwick's Letter to a Young Law Student.
July 08, 2005
Kerr and Madison on Law Faculty Appointments
Orin Kerr is guest-blogging at Prawfsblawg and has promised to blog on the law faculty appointments process. This is a perennial favorite topic, and when I did a nine-part series on this topic in February and March (scroll down to Feb. 28 and read up), my blog traffic reached a peak that I wouldn't see again until Grokster.
I can't put my finger on exactly why this topic generates so much interest. I know the most obvious answer: many people are interested in a law teaching career--and for good reason.
However, I think there's a second-order explanation for the interest: there remains a mystique about the process. I certainly felt that I was staring into a black box before I initiated my search. I think the mystique is partially due to the lack of a single "silver bullet" that allows candidates to ensure a successful search, so candidates are left reading ambiguous tea leaves.
The mystique might also be due in part to an information gap about exactly what happens and what matters. Fortunately, I think the information gap is being filled. Between articles/stories on the web and one-every-six-month blogofest in the blogosphere, there's so much more publicly available information on the topic than when I trolled the web in 2001.
In any case, Orin has an innate gift for elegant and insightful blog posts, and his first post on the topic is no exception. However, make sure also to check out Michael Madison's most recent posting on the topic.
Mike is one of the few professors to openly discuss that some/many/most? candidates need to go through the hiring process more than once. This is surely a tough message for a law faculty candidate to hear, but it is helpful to understand in advance to calibrate expectations. If you think you're going to hit a home run first time at the bat and you strike out, you'll feel like a failure. But if you think you'll need a few times at bat before you get a hit, your first strikeout will be properly contextualized. And as Orin's post clearly explains, the market is susceptible to random volatility that can leave a worthy candidate out of luck. I think Mike does all candidates a huge favor by putting this issue on the table front-and-center.
July 05, 2005
What Happened to Toby the Rabbit?
You may remember the silly story of Toby, a cute bunny featured on the website SaveToby.com. The owners threatened to kill and eat Toby if they did not get $50,000 in donations by June 30. I'm sure you're as shocked as I am that (a) the extortionists didn't get their $50,000, yet (b) Toby is safe, at least for now. The charlatans blame their shortfall on PayPal for blackballing them, but they decided not to devour Toby yet despite the shortfall.
Meanwhile, showing their typical enterprising spirit, they have found a new extortion scheme. They promise to release a funny book and will spare Toby's life if you buy their book. (So far, no specifics on how many copies need to be sold (and by when) to save Toby). They promise the book by September, but their (minimal) credibility is already spent.
Here's my counterproposal to them: eat the damn rabbit already, and spare all of us from having to see your book. I think that would be a better outcome for all of us (except Toby).
July 04, 2005
Optimal Organization of Blogs
Brian Leiter’s Leiter Reports is one of the most popular law professor blogs around. I’ve been a reader/subscriber for some time but always with mixed emotions. His blog contains the best gossip about the legal education community, but it is also heavily populated with lots of other topics that I have zero interest in. For a long time, I simply didn’t read his blog (too much noise to signal); later, I simply bookmarked his page on law school updates and checked that regularly; more recently, I added his entire blog to my RSS reader, but I quickly deleted any posts that didn’t relate to law school news.
Brian announced last week that he will be dividing his blog into two, moving the law school news into a separate blog. For me, this finally solves my problem—I can keep up with the gossip in my RSS reader but I don’t have to spend time sorting through the other posts.
If anything, I could have seen him go one step further and divide his blog into three. Brian straddles two academic disciplines (philosophy and law) and provides interesting gossip on each; in addition, he frequently posts commentary on news and politics of the day. Thus, I could have seen him divide his blog into three: a law school gossip blog, a philosophy gossip blog, and a commentary blog. There may be distinct audiences for each of those three topics.
Brian’s decision raises a difficult question: what is the best way for a blogger with diverse interests to organize a blog? There is no single right answer to this question. Each approach has its pros:
Pros of a single topically-diverse blog
· ease of administration and marketing (only one blog to maintain and promote)
· many diverse topics end up bleeding into each other
· readers like discovering new topics that they might not otherwise encounter
· readers can keep up with only so many blogs, so it’s tough to get them to follow multiple blogs (meaning that some readers who would be interested in a second blog just won’t try)
Pros of dividing blogs topically
· Audience segmentation. Each blog can optimize for the interests of its audience. Readers won’t be bombarded with repeated topics that they consider off-topic
· Perceived domain expertise. A narrowly-focused blog can be perceived as a leading blog on the topic. Off-topic postings in single blogs can dilute the strength of an otherwise-strong blog
· Easier to get guest-bloggers with topical expertise
When I decided to enter the blogosphere, I weighed my options. I knew that I was going to regularly post on my core substantive areas of interest (Cyberlaw, IP and marketing). However, I also knew I was going to post on the business of law, including legal ethics, the legal industry and the legal education industry. Plus, I had hoped to provide a forum for some of my personal interests, including in particular my interests in vegetarianism.
In the end, I decided to launch two blogs—the Technology and Marketing Law Blog and Goldman’s Observations. I think this decision has worked out OK so far, but it’s definitely not perfect. Traffic is significantly higher at the Technology and Marketing Law Blog than this blog, although this blog has had several of my all-time most popular posts.
I also occasionally wrestle with topic bleed. The most obvious example is my series of posts on the regulation of Internet hunting, which implicate both my interests in vegetarianism and Internet regulation. I’ve chosen to blog on the issue here, although I’m sure that many readers of my other blog would have been interested in the topic as well.
Nevertheless, I think the audience segmentation has worked pretty well. I think I’ve been able to get a good group of non-lawyer techies to read my other blog. I’m not sure that I could keep that audience happy if I kept pelting them with posts on legal ethics or vegetarianism. On this topic, I agree with Michael Madison.
Ironically, the solution to this organizational dilemma is technological: category-level RSS feeds. For example, if Brian had offered an RSS feed for just his law school news category from his existing blog, I would have happily subscribed to that rather than having to move with him to a new blog. In my case, I could have combined my blogs but offered category-level RSS feeds that would have been a good choice for readers whose interests overlap only a portion of mine. I don’t think that RSS is ubiquitous enough yet to make this technological solution a good substitute, but it seems like only a matter of time before we can offer single multi-topic blogs and still keep diverse audiences happy.
In this post, my colleague Christine Hurt explains her choice to run a single multi-topic blog called the Conglomerate. I like the Conglomerate a lot, but I’ve also hassled her (and Gordon) frequently when the signal-to-noise ratio gets out of whack (i.e., too many posts on cheese and movies to the exclusion of posts on substantive corporate law). Then again, I may not be in the sweet spot of their audience. I do disagree with her on one point though. She writes:
“Some bloggers have explained to me that folding in the other light-hearted stuff may get you more readers, but maybe not the serious readers you want. I'm not sure there's any kind of reader I don't want.”
I think this misses the point. A little levity/personal touch is always welcome. Too much levity/personal touch/off-topic postings becomes spam. When the balance gets out of whack, I drop a blog. When I visit a blog for the first time, and I can’t sense its topical focus or see that focus overly diluted, it has almost zero chance of getting into my RSS reader (that’s just me—I know other people feel differently). So the risk of off-topic postings (light and personal or otherwise) isn’t that you’ll get readers you don’t want—it’s that you’ll not get the readers you do want.
UPDATE: Victor Fleischer has some interesting thoughts about RSS and blog mergers.
July 02, 2005
Like Serving Poodle Burgers at a Dog Show...
Karin Robertson, manager of PETA's "Fish Empathy Project," has asked the Aquarium of the Pacific in Long Beach, CA to stop serving fish in its cafeteria.. She claims "serving fish at an aquarium is like serving poodle burgers at a dog show" and notes that "they don't sell elephant burgers at the zoo, and they shouldn't be selling fish at aquariums."
For me, this raises several questions:
* I wonder how many people would eagerly try a poodle burger or an elephant burger, whether served at a dog show, a zoo or somewhere else? I've given up underestimating Americans' appetite for burgers.
* What professional development steps must a person take to get a job working at the Fish Empathy Project? I assume that most people are unaware of this as a career option.
* If the Aquarium does not have a whales exhibit, would PETA be OK if they served whale burgers?
Unfortunately, the Aquarium of the Pacific has declined PETA's request, continuing to offer clam chowder, rainbow trout, catfish, tilapia and salmon.
Life as a University In-House Counsel
Fascinating article in the Chronicle of Higher Education about life as an in-house university counsel. Among the legal issues that an in-house counsel encountered:
· What should I do if an alligator hiding in an on-campus lake devours a poodle?
· Advising researchers whose project breeding and releasing endangered butterflies was blocked by an injunction
· A campus building on fire. What should I do? [My advice: get out of the building!]
It’s not all sexy work—as the article says, much time is devoted to employment matters. But I think the article captures some of the fun and allure of being an in-house counsel—especially in an university environment.